AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this “Agreement”) is entered into and shall be
effective as of December 19, 2006 (the “Amended Agreement Effective Date”), by and among FGX
International Inc., a Delaware corporation (the “Company”), Xxxx Xxxxxx, a resident of the State of
Rhode Island (the “Executive”) and solely with respect to Sections 3, 4(c), 24 and 30 of this
Agreement, FGX International Holdings Limited, a British Virgin Islands Corporation (“FGX
Holdings”).
INTRODUCTION
The Company and the Executive are parties to a certain Employment Agreement dated
October 19, 2005 (the “Original Agreement”). The Company, the Executive and FGX Holdings desire to
amend and restate the Original Agreement to modify certain of the terms and conditions set forth
therein.
AGREEMENT
In consideration of the mutual covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Employment. The Company hereby agrees to continue to employ the Executive to serve
in the capacities described herein, and the Executive agrees to continue such employment and
continue performing such services, upon the terms and subject to the conditions set forth in this
Agreement.
2. Employment Period. The Executive’s employment by the Company under this Agreement
originally commenced on October 19, 2005 (the “Original Effective Date”) and shall expire on the
close of business on the three (3) year anniversary of such Original Effective Date unless
terminated prior thereto in accordance with the terms of this Agreement (such period being referred
to herein as the “Initial Employment Period”). At least ninety (90) days prior to the natural
expiration of the Initial Employment Period and ninety (90) days prior to each one year anniversary
thereof (each such period being referred to as a “Renewal Employment Period”), if applicable, the
Company shall give the Executive written notice of whether the Company will be seeking a one year
extension of the then applicable Initial Employment Period or Renewal Employment Period, as the
case may be. Unless such notice indicates that there will be no extension or in the event no
notice is given, the Initial Employment Period or the Renewal Employment Period, as the case may
be, shall be automatically extended for successive one year periods unless and until terminated by
Executive or the Company in accordance with the terms of this Agreement. For purposes of this
Agreement, (a) the “Expiration Date” shall mean the last day of the Initial Employment Period, or
if the term of this Agreement shall be extended by the Company in accordance herewith, the last day
of the final Renewal Employment Period, and (b) the “Employment Period” shall mean the period
beginning on the Original Effective Date and ending on the sooner of the Expiration Date or the
termination of the Executive’s employment hereunder for any reason.
3. Duties and Responsibilities. During the Employment Period, the Executive shall
serve as the Chief Executive Officer of FGX Holdings and each of its subsidiaries. The Executive
shall report to the Board of Directors of FGX Holdings (the “Board”) and shall perform such duties
and have such responsibilities and authority as are typically afforded a chief executive officer
and as may otherwise reasonably be assigned and delegated to him from time to time by the Board.
The Executive shall serve as a member of the Board during that portion of the Employment Period
during which FGX Holdings remains a privately held company. FGX Holdings shall use best efforts if
FGX Holdings shall become publicly held at any time during the Employment Period to maintain the
Executive on the Board at each stockholders meeting held during his period of service as the Chief
Executive Officer of FGX Holdings at which his election to the Board is submitted to a vote of
stockholders. The Executive shall at all times perform his duties and responsibilities honestly,
diligently, in good faith and to the best of his ability. The Executive shall observe and comply
with all of the rules, regulations, policies and procedures established by the Company from time to
time and all applicable laws, rules and regulations imposed by any governmental or regulatory
authorities from time to time. The Executive’s employment by the Company shall be full-time and
exclusive and the Executive agrees that he will devote his full business time, attention and
energies to the performance of his obligations hereunder. Notwithstanding anything to the contrary
set forth herein, the Executive shall be permitted during the Employment Period to (a) engage in
charitable and civic activities, (b) serve as a member of the board of directors of not more than
two additional for profit corporations and (c) manage his personal passive investments, provided
(i) such personal passive investments are not in a company or companies which engage in any
business which is similar to or competitive with the business which the Company or any of its
affiliates are engaged in or are then planning to engage in, (ii) such investments represent the
beneficial ownership of less than two percent (2%) of any class of equity securities of any
corporation having a class of equity securities registered pursuant to the Securities Exchange Act
of 1934, as amended, which are publicly owned and regularly traded on any national securities
exchange or over-the-counter market, and (iii) neither the Executive nor any group of persons
including the Executive in any way, either directly or indirectly, manages or exercises control of
any such corporation, guarantees any of its financial obligations or otherwise takes part in its
business other than exercising his right as a shareholder, and in the case of (a), (b) and (c),
such activities do not individually or in the aggregate interfere with the performance of the
Executive’s duties and responsibilities under this Agreement. The Executive shall be based at the
Company’s headquarters in Smithfield, Rhode Island, subject to such travel to other geographic
locations as may be necessary to fulfill his obligations under this Agreement.
4. Compensation. As compensation for his services hereunder and in consideration of
the covenants set forth in Sections 9 through and including 15 below, the Company shall pay to the
Executive the following compensation:
(a) Base Salary. The Company shall pay to the Executive an annual base salary (the
“Base Salary”) of Four Hundred Fifty Thousand Dollars ($450,000) per year during the Employment
Period. Notwithstanding the foregoing, effective as of the first anniversary of the Original
Effective Date, the annual Base Salary payable to the Executive shall be increased to Four Hundred
Seventy Five Thousand Dollars ($475,000). The Base Salary shall be subject to annual review by
the Board (or the Compensation Committee thereof) and may be increased from time to time during
the Employment Period in the sole discretion of the Board (or the
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Compensation Committee thereof). The Base Salary shall be payable in accordance with the
Company’s customary payroll practices and procedures and shall be prorated for any partial period
during the Employment Period.
(b) Bonus. In addition to the Base Salary, the Executive shall be eligible to
receive an annual cash bonus on account of services rendered by him during each calendar year
during the Employment Period. In the event that the Company meets or exceeds the annual budget
for EBITDA, net income or other metric established by the Board to quantify the Company’s
performance for any calendar year during the Employment Period (as such budget may be amended or
modified in the sole discretion of the Board during any calendar year to take into account any
acquisitions, divestitures or non-recurring items any other fundamental corporate transactions or
changes, the “Annual Budget”), the Executive shall be entitled to receive, in addition to the Base
Salary, a bonus equal to fifty percent (50%) of the Base Salary paid to the Executive on account
of such calendar year (the “Base Bonus”). In the event that the Company exceeds the Annual Budget
for any calendar year during the Employment Period, the Executive shall be entitled to receive, in
addition to the Base Salary and the Base Bonus, an additional bonus to be determined by the Board
(or the Compensation Committee thereof) in an amount of up to fifty percent (50%) of the Base
Salary paid to the Executive on account of such calendar year (the “Additional Bonus”, and
together with the Base Bonus, the “Bonus”). Any Bonus payable to the Executive on account of any
calendar year shall be paid to the Executive on or before the later of (i) March 15 of the year
following the year for which the Bonus was earned and (ii) the date on which the Board has been
able to determine within a reasonable degree of certainty that the Annual Budget has been met or
exceeded and the amount of the Bonus due Executive.
(c) Stock Options. As of December 15, 2005, the Executive was granted options (the
“Options”) to purchase 3.299985 Ordinary Shares (as defined below) of FGX Holdings at an exercise
price of $2,453,728 per share under FGX Holdings’ 2004 Stock Option Plan (the “Stock Option
Plan”), 1.979991 of which (the “Time-Based Options”) was granted pursuant to the Time-Based Option
Agreement attached hereto as Exhibit A and 1.319994 of which (the “Event-Based Options”)
was granted pursuant to the Event-Based Option Agreement attached hereto as Exhibit B
(such agreements being referred to herein as the “Stock Option Agreements”). Each ordinary share
of FGX Holdings, par value $1.00 per share, is herein referred to as an “Ordinary Share” and each
Ordinary Share acquired by the Executive upon exercise of the Options is herein referred to as an
“Option Share.” The Executive acknowledges and agrees that the Options were and shall continue to
be subject to the terms and conditions set forth in (and the number of shares and exercise price
shall be subject to adjustment as set forth in) the Stock Option Plan, the Stock Option Agreements
and the terms of this Agreement. One-third (1/3) of the Time-Based Options vested and became
exercisable on the first anniversary of the Original Effective Date, one-third (1/3) of the
Time-Based Options shall vest and become exercisable on the second anniversary of the Original
Effective Date and one-third (1/3) of the Time-Based Options shall vest and become exercisable on
the third anniversary of the Original Effective Date. The Event-Based Options shall vest and be
exercisable, one-half (1/2) following the IPO and upon FGX Holdings having a market capitalization
for thirty (30) consecutive trading days equal to or greater than nine hundred million dollars
($900,000,000) and one-half (1/2) following the IPO and upon FGX Holdings having a market
capitalization for thirty (30) consecutive trading days equal to or
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greater than one billion two hundred million dollars ($1,200,000,000). For purposes of this
Section, (i) “IPO” shall mean the completion of a bona fide underwritten sale to the public of
ordinary shares of FGX Holdings pursuant to a registration statement (other than on Form S-8 or
any other form relating to securities issuable under any benefit plan of FGX Holdings) that is
declared effective by the Securities and Exchange Commission and (ii) the “market capitalization”
of FGX Holdings as of any date shall equal the product of the total number of issued and
outstanding Ordinary Shares of FGX Holdings as of such date, times the closing price of such
Ordinary Shares on the principal exchange on which such Ordinary Shares are traded on such date.
(d) Withholding and Deductions. The Company shall deduct and withhold from any
compensation payable to the Executive under this Agreement any and all applicable Federal, state
and local income and employment taxes and any other amounts required to be deducted or withheld by
the Company under applicable statutes, regulations, ordinances or orders governing or requiring
the withholding or deduction of amounts otherwise payable as compensation or wages to employees.
5. Other Benefits.
(a) Insurance and Other Fringe Benefits. During the Employment Period, the Executive
shall be entitled to participate in all employee benefit plans and programs (including, without
limitation, medical (including individual and family coverage), disability and life insurance
plans and programs) that the Company establishes and makes generally available from time to time
to its other senior executives, subject, however to the applicable eligibility requirements and
other provisions of such plans and programs (including, without limitation, requirements as to
tenure, salary, age and health). The Executive shall also be entitled to receive such fringe
benefits and prerequisites as may be generally provided by the Company from time to time to its
senior executives, in accordance with the policies of the Company in effect from time to time, or
as may be granted by the Board.
(b) Paid Time Off. During the Employment Period, Executive shall be entitled to an
annual period of paid time off of such duration as may be determined by the Board (or the
Compensation Committee thereof), but not less than that generally established for other senior
executives of the Company and in no event less than four (4) weeks, to be taken at such times as
shall not interfere with the Executive’s fulfillment of his duties hereunder. During the
Employment Period, the Executive shall also be entitled to as many holidays, sick days and
personal days as are generally provided by the Company from time to time to its employees in
accordance with the Company’s policies as in effect from time to time.
(c) Automobile Allowance. During the Employment Period, the Company shall provide
Executive with a monthly automobile allowance in the amount of One Thousand Dollars ($1,000) per
month.
(d) Reimbursement of Other Expenses. The Company shall pay or reimburse the
Executive for all reasonable and necessary travel, entertainment and other expenses incurred by
him in connection with the performance of his duties hereunder in accordance with the policies and
procedures of the Company as in effect from time to time; provided, that (a)
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such expenditure is of a nature deductible under Section 162 of the U.S. Internal Revenue
Code (the “Code”) on the Federal income tax return of the Company as a business expense and not
deductible as compensation to the Executive, and (b) the Executive provides the Company with such
documentary evidence as shall be required by the Code or any regulation promulgated there under
for the substantiation of such expenditure as a deductible business expense of the Company and not
as deductible compensation to the Executive.
6. Termination. Notwithstanding anything to the contrary contained in this Agreement,
the parties hereto shall have the right, in addition to any other rights and remedies which they
may have, to terminate this Agreement and the Executive’s employment hereunder as follows:
(a) For Cause. The Company shall have the right, in addition to any other rights and
remedies which it may have, to immediately terminate this Agreement and the Executive’s employment
with the Company hereunder by delivery of written notice to the Executive for “Cause”. For
purposes of this Agreement, “Cause” shall mean (i) the failure or refusal of the Executive to
perform any duties and responsibilities set forth in or delegated to him pursuant to this Agreement
and such failure or refusal is not cured to the reasonable satisfaction of the Board within thirty
(30) days after written notice thereof is delivered to the Executive by the Company; (ii) any act
by the Executive of fraud or dishonesty, misappropriation or embezzlement or gross negligence or
willful misconduct in connection with the performance of the Executive’s duties hereunder or which
otherwise materially adversely affects the Company; (iii) a breach by the Executive of any
provision hereof or of any material contractual or legal duty to the Company, and non-compliance
with the written policies, guidelines and procedures of the Company, and such breach or
non-compliance is not cured to the reasonable satisfaction of the Board within thirty (30) days
after written notice thereof is delivered to the Executive by the Company in the event that such
breach or non-compliance was not willful; (iv) the conviction of the Executive of the commission of
a felony or a crime involving moral turpitude or any other crime punishable by incarceration
(including pleading guilty or no contest to such crime or a lesser crime which results from plea
bargaining), whether or not such felony, crime or lesser offense was committed in connection with
the business of the Company; (v) habitual drunkenness or substance abuse by the Executive or (vi)
any act of the Executive which could be reasonably expected to injure materially the reputation,
business or business relationships of the Company and its affiliates.
(b) Death. This Agreement shall automatically terminate in the event of the Executive’s
death without notice by or to either party.
(c) Disability. The Company shall have the right to terminate this Agreement and the
Executive’s employment with the Company hereunder by written notice to the Executive in the event
that the Executive shall be unable to perform his duties hereunder by virtue of illness or physical
or mental disability (from any cause or causes whatsoever) in substantially the manner and to the
extent required of him hereunder prior to the commencement of such disability and the Executive
shall fail to perform such duties for periods aggregating ninety (90) days, whether or not
continuous, in any continuous three hundred sixty (360) day period (“Disability”).
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(d) Without Cause. The Company shall have the right to terminate this Agreement and the
Executive’s employment with the Company at any time without Cause on thirty (30) days prior written
notice to the Executive.
(e) Mutual Agreement. The parties may terminate the Executive’s employment with the
Company hereunder upon their mutual written consent.
(f) Good Reason. The Executive shall have the right to terminate this Agreement and
his employment with the Company hereunder by delivery of written notice to the Company upon Good
Reason. For purposes of this Agreement, “Good Reason” means: (i) a change in the Executive’s
principal office to a location outside a fifty (50) mile radius of the Executive’s principal
office referenced in paragraph 3 above without the prior written consent of the Executive; (ii) a
material breach of the Agreement by the Company and such breach is not cured to the reasonable
satisfaction of the Executive within thirty (30) days after written notice thereof is delivered to
the Board; (iii) a reduction in the Executive’s Base Salary during the Employment Period other
than in connection with an across-the board salary reduction for the Company’s senior management
team approved by the Board (or the Compensation Committee thereof), provided that the Executive
shall have received prior written notice of such reduction or (iv) any representation or warranty
of the Company or FGX Holdings contained in Section 30 below shall have been false in any material
respect when and as made.
7. Payments Upon Termination.
(a) Termination For Cause or Termination Without Good Reason. In the event that the
Company shall terminate this Agreement and the Executive’s employment with the Company under
Section 6 (a), (b), (c) or (e) of this Agreement or the Executive shall terminate this Agreement
and the Executive’s employment with the Company without Good Reason, then:
i) the Company shall pay to the Executive (or his heirs and/or personal representatives) his
then current Base Salary earned through the date of termination;
ii) the Company shall pay any accrued but unpaid automobile allowance to which the Executive
is entitled under Section 5(c) of this Agreement and reimburse the Executive for any other expenses
to which the Executive is entitled to reimbursement under Section 5(d) of this Agreement; and
iii) subject to the satisfaction of the obligations enumerated in the immediately preceding
paragraphs (i) and (ii), the Company shall have no further obligation to the Executive.
(b) Termination Without Cause and Termination With Good Reason. In the event that the
Company shall terminate this Agreement and the Executive’s employment with the Company without
Cause or the Executive shall terminate this Agreement and the Executive’s employment with the
Company for Good Reason, then:
i) the Company shall pay to the Executive his then current Base Salary earned through the date
of termination;
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ii) the Company shall pay any accrued but unpaid automobile allowance to which the Executive
is entitled under Section 5(c) of this Agreement and reimburse the Executive for any other expenses
to which the Executive is entitled to reimbursement under Section 5(d) of this Agreement;
iii) commencing on the date of termination of employment, the Company shall provide Executive
with a severance package for a period of eighteen (18) months (the “Severance Period”) which shall
consist of (i) payment during the Severance Period on the first business day of each month of an
amount equal to one-twelfth of Executive’s then current Base Salary under Section 4(a) hereof; (ii)
payment during the Severance Period on the first business day of each month of an amount equal to
one twelfth of the greater of (X) the Bonus received by Executive for the previous
calendar year and (Y) the Base Bonus to be received by Executive for the current calendar year,
assuming for purposes of this section that the Company has realized the Annual Budget for such
current calendar year or is on track to achieve the Annual Budget for such current calendar year
through seven months of such calendar year; and (iii) continuation of all benefits under Section
5(a) hereof; provided, however, that the amount of any severance payments hereunder shall be
reduced by the amount of income otherwise earned by Executive during the Severance Period following
termination (other than unearned income and income earned on account of service on the board of
directors of one or more companies), and provided, further that benefits under Section 5(a) shall
be discontinued as of the date on which Executive is provided comparable benefits from any other
source. If requested by the Company, Executive shall make available to the Company forms W-2, 1099
or other evidences of compensation or income received from other sources during the Severance
Period.
iv) Notwithstanding anything to the contrary contained in the Stock Option Agreements or any
shareholders agreement contemplated thereby, (a) the Company shall have the right to purchase any
Option Shares owned by the Executive on the date of termination or any Option Shares thereafter
acquired by the Executive, and (b) the Executive shall have the right to cause the Company to
purchase any Option Shares owned by the Executive on the date of termination or any Option Shares
thereafter acquired by the Executive, in either case, (a) at a purchase price equal to the fair
market value of such Option Shares without giving effect to any discount attributable to such
shares being subject to a shareholders agreement, (b) payable at the option of the Company in cash
or delivery of a promissory note payable in equal monthly installments over the twenty-four months
following the date of termination and bearing interest at five percent (5%) per annum.
v) As a condition precedent to receiving any severance payment, Executive shall execute a
general release reasonably satisfactory to the Company of any and all claims which Executive or his
heirs, executors, agents or assigns might have against the Company, its subsidiaries, affiliates,
successors, assigns and its past, present and future Executives, officers, directors, agents and
attorneys, except for claims arising under this Agreement or any Executive benefit plan (other than
any Executive benefit plan providing a benefit in the nature of a severance benefit) in which
Executive participates or for any right to indemnification to which Executive may be entitled as an
officer and director of the Company.
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vi) All payments made by the Company under this Section shall be net of any tax or other
amounts required to be withheld by the Company under Section 4(d) of this Agreement.
(c) Certain Reduction of Payments by the Company.
i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company to or for the benefit of the Executive,
whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or
otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of
Section 280G(b) of the Code, and thus would result in the Executive incurring an excise tax under
Section 4999 of the Code, then the aggregate present value of amounts payable or distributable to
or for the benefit of the Executive pursuant to this Agreement (such payments or distributions
pursuant to this Agreement are hereinafter referred to as “Agreement Payments”) shall be reduced to
the Reduced Amount, but only if and to the extent that the after-tax value to the Executive of
reduced Agreement Payments would exceed the after-tax value to the Executive of the Agreement
Payments received by the Executive without application of such reduction. The “Reduced Amount”
shall be an amount expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be nondeductible by the Company because of
Section 280G of the Code. Anything to the contrary notwithstanding, if the Reduced Amount is zero
and it is determined further that any Payment which is not an Agreement Payment would nevertheless
be nondeductible by the Company for Federal income tax purposes because of Section 280G of the
Code, then the aggregate present value of Payments’ which are not Agreement Payments shall also be
reduced (but not below zero) to an amount expressed in present value which maximizes the aggregate
present value of Payments without causing any Payment to be nondeductible by the Company because of
Section 280G of the Code. For purposes of this Section 7(c), present value shall be determined in
accordance with Section 280G(d)(4) of the Code. Thus, for illustrative purposes only, if the
Executive’s average W-2 compensation for the 5 years prior to the year in which a change in control
occurs (the “Base Amount”) was $500,000, and the value of the payments and benefits that are
contingent upon the change in control (the “Parachute Payments”) was $1,510,000, the Executive
would have an excess parachute payment within the meaning of Section 280G(b) of the Code since the
value of the Parachute Payments ($1,510,000) would be greater than 3 times the Executive’s Base
Amount ($1,500,000). The amount of the excess parachute payment would be $1,010,000 (the amount by
which the value of the Parachute Payments exceeds 1 times the Base Amount), and if the aggregate
amount of the Parachute Payments was not reduced, the Executive would incur an excise tax under
Section 4999 of the Code equal to 20% of the excess parachute payment (or $202,000). This excess
parachute payment could be avoided if instead, the value of the Parachute Payments was reduced by
$10,001 to $1,499,999 (since the value of the Parachute Payments then would be less than 3 times
the Base Amount). Since the Executive would receive a greater after tax amount, under the
foregoing example, if his Parachute Payments were reduced by $10,001 (to $1,499,999) than he would
if his Parachute Payments were not reduced and the Executive incurred a $202,000 excise tax
(reducing his Parachute Payments to $1,308,000) on the excess parachute payment, the Executive’s
Parachute Payments would be reduced under this provision to $1,499,999 (by $10,001) to avoid any
excess parachute payments.
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ii) All determinations required to be made under this Section 7(c) shall be made by the
Company’s accountants for the Company’s last fiscal year or, at the mutual agreement of the
Executive and the Company, any other nationally or regionally recognized firm of independent public
accountants (the “Accounting Firm”), which shall provide detailed supporting calculations both to
the Company and the Executive within twenty (20) business days of the date of termination or such
earlier time as is requested by the Company and an opinion to the Executive that he has substantial
authority not to report any excise tax on his Federal income tax return with respect to any
Payments. Any such determination by the Accounting Firm shall be binding upon the Company and the
Executive. The Executive shall determine which and how much of the Payments shall be eliminated or
reduced consistent with the requirements of this Section 7(c), provided that, if the Executive does
not make such determination within ten business days of the receipt of the calculations made by the
Accounting Firm, the Company shall elect which and how much of the Payments shall be eliminated or
reduced consistent with the requirements of this Section 7(c) and shall notify the Executive
promptly of such election. Within five business days thereafter, the Company shall pay to or
distribute to or for the benefit of the Executive such amounts as are then due to the Executive
under this Agreement. All fees and expenses of the Accounting Firm incurred in connection with the
determinations contemplated by this Section 7(c) shall be borne by the Company.
iii) As a result of the uncertainty in the application of Section 280G of the Code at the time
of the initial determination by the Accounting Firm hereunder, it is possible that Payments will
have been made by the Company which should not have been made (“Overpayment”) or that additional
Payments which will not have been made by the Company could have been made (“Underpayment”), in
each case, consistent with the calculations required to be made hereunder. In the event that the
Accounting Firm, based upon the assertion of a deficiency by the Internal Revenue Service against
the Executive which the Accounting Firm believes has a high probability of success, determines that
an Overpayment has been made, any such Overpayment paid or distributed by the Company to or for the
benefit of the Executive shall be treated for all purposes as a loan ab initio to the Executive
which the Executive shall repay to the Company together with interest at the applicable federal
rate provided for in Section 7872(f)(2) of the Code; provided, however, that no such loan shall be
deemed to have been made and no amount shall be payable by the Executive to the Company if and to
the extent such deemed loan and payment would not either reduce the amount on which the Executive
is subject to tax under Section 1 and Section 4999 of the Code or generate a refund of such taxes.
In the event that the Accounting Firm, based upon controlling precedent or other substantial
authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly
paid by the Company to or for the benefit of the Executive together with interest at the applicable
federal rate provided for in Section 7872(f)(2) of the Code.
8. Change in Control.
(a) If the Executive’s employment is terminated by the Company without Cause or by the
Executive for Good Reason within six (6) months before and in anticipation of, or twelve (12)
months after, a Change in Control (as defined in Paragraph (b) of this Section 8), Executive shall
be entitled to receive a supplemental bonus payment (the “Change in Control Payment”) from the
Company equal to one (1) times the sum of the Executive’s then current Base Salary and Bonus
(assuming for purposes of calculating such amount that the percentage of
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Base Salary payable as a Bonus to Executive on account of the year of termination will be the
same percentage of Base Salary paid as a Bonus to the Executive on account of the immediately
preceding year) under the Company’s Executive Incentive Compensation Plan for the year of
termination. The Change in Control Payment shall be paid to the Executive within fifteen (15) days
after: (i) the Change in Control if the Executive’s employment was terminated within six (6) months
before the Change in Control; or (ii) the termination of the Executive’s employment by the Company
if the Executive’s employment terminates within twelve (12) months after the Change in Control.
The Executive shall also be entitled to continuation of all benefits under Section 5(a) hereof,
ending on the earlier of (x) the one year anniversary of the termination date and (y) the date on
which the Executive is provided comparable benefits from any other source. In addition, all stock
options, including the Options, held by the Executive shall vest and become immediately
exercisable. If the Executive is entitled to a Change in Control Payment, the Executive shall not
have any rights to receive any severance payments or benefits pursuant to Section 7(b) hereof. If
the Executive’s employment by the Company terminates within six (6) months prior to the Change in
Control and the Executive received severance payments pursuant to Section 7(b) hereof, any amounts
so paid by the Company to the Executive shall be deducted from any Change in Control Payment
otherwise payable to Executive pursuant to this Section 8(a).
(b) A “Change in Control” will be deemed to have occurred if (i) a Takeover Transaction
occurs, or (ii) any election of directors of FGX Holdings takes place (whether by the directors
then in office or by the stockholders at a meeting or by written consent) and a majority of the
directors in the office following such election are individuals who were not nominated by a vote of
two-thirds of the members of the Board of Directors immediately preceding such election, or (iii)
FGX Holdings effectuates a complete liquidation of FGX Holdings or a sale or disposition of all or
substantially all of its assets. A “Change in Control” shall not be deemed to include, the
recapitalization of FGX Holdings or any transactions related thereto, consummated on or prior to
the Amended Agreement Effective Date.
(c) A “Takeover Transaction” shall mean (i) a merger or consolidation of FGX Holdings with, or
an acquisition of FGX Holdings or all or substantially all of either of its assets by, any other
corporation, other than a merger, consolidation or acquisition in which the individuals who were
members of the Board of Directors of FGX Holdings immediately prior to such transaction continue to
constitute a majority of the Board of Directors of the surviving corporation (or, in the case of an
acquisition involving a holding company, constitute a majority of the Board of Directors of the
holding company) for a period of not less than twelve (12) months following the closing of such
transaction, or (ii) when any person, including any “group” as such term is defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), becomes after the date
hereof the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of securities of
FGX Holdings representing more than fifty percent (50%) of the total number of votes that may be
cast for the election of directors of FGX Holdings, as applicable, excluding (i) any person that is
excluded from the definition of “beneficial owner” under Rule 16(a)-1(a)(1) under the Exchange Act
and (ii) any person (including any such group) that consists of or is controlled by (within the
meaning of the definition of “affiliate” in Rule 144 under the Securities Act of 1933, as amended
(an “Affiliate”)) any person that is a shareholder of FGX Holdings on the Amended Agreement
Effective Date or any Affiliate of such person.
10
9. Confidential Information. The Executive recognizes and acknowledges that he will
have access to Confidential Information (as defined below) and that such Confidential Information
constitutes special, unique and valuable property of the Company. The Executive acknowledges that
the Confidential Information is and shall remain the exclusive property of the Company. The
Executive agrees that he will not at any time during the Employment Period or thereafter, without
the prior written consent of the Company, utilize such Confidential Information for his own
benefit, for the benefit of any third party or to the detriment of the Company, or disclose such
Confidential Information to anyone outside the Company other than as shall be necessary in
connection with the performance of his obligations hereunder. The Executive agrees that the
foregoing restrictions shall apply whether or not such information is marked “Confidential”. For
purposes of this Agreement, the term “Confidential Information” shall mean any confidential,
proprietary or non-public information, whether written or oral, tangible or intangible, of or
concerning the Company and its affiliates and parties with whom the Company and its affiliates do
business, and shall include, without limitation, scientific, trade and engineering secrets,
“know-how”, formulas, secret processes, drawings, specifications, engineering, hardware
configuration information, works of authorship, machines, inventions, concepts, computer programs
(including documentation of such programs), images, text, source code, object code, html code,
scripts, flow charts, routines, compilers, assemblers, designs and all modifications, enhancements
and options thereto, services, materials, patent applications, new product and other plans,
technical information, technical improvements, manufacturing techniques, specifications,
manufacturing and test data, progress reports and research projects, business plans, prospects,
financial information, information about costs, profits, markets, sales, customers and suppliers,
procurement and promotional information, credit and financial data concerning customers or
suppliers, information relating to the management, operation and planning of the Company and its
affiliates and plans for future development and other information of a similar nature to the extent
not available to the public. The Company acknowledges that for purposes of this Agreement, the term
“Confidential Information” shall not include information which (i) was demonstrably known to the
Executive prior to the earlier of the Original Effective Date or the date of the Executive’s first
day of employment with the Company, (ii) is learned by the Executive from a third party who is not
under an obligation of confidence to the Company, its affiliates or parties with whom the Company
does business or, (iii) becomes generally available to the public other than by breach of this
provision. In the event that the Executive becomes legally required (whether by deposition,
interrogatories, requests for information or documents, subpoenas, civil investigative demands and
similar processes) to disclose any Confidential Information, he will provide the Company with
prompt notice thereof so that the Company and its affiliates may seek a protective order or other
appropriate remedy and the Executive will cooperate with and assist the Company and its affiliates
in securing such protective order or other remedy. In the event that such protective order is not
obtained, or that the Company waives compliance with the provisions of this Section to permit a
particular disclosure, the Executive shall furnish only that portion of the Confidential
Information which he is advised by counsel in writing is legally required to be disclosed and shall
exercise his reasonable best efforts to obtain reliable assurances that confidential treatment will
be afforded the Confidential Information. The Executive further agrees that all memoranda, disks,
files, notes, records or other documents which contain Confidential Information, whether in
electronic form or hard copy, and whether created by the Executive or others, which come into his
possession, shall be and remain the exclusive property of the Company to be used by the
11
Executive only in the performance of his obligations hereunder. The Executive also agrees to
execute such confidentiality agreements that the Company may adopt from time to time as a standard
form to be executed by employees and/or executives of the Company. Nothing in this Agreement shall
limit the Company’s statutory or common law rights in the protection of the Company’s trade
secrets.
10. Return of Documents and Property. Upon the termination of the Executive’s
employment with the Company or at any other time upon the request of the Company, the Executive (or
his heirs or personal representatives) (a) shall deliver to the Company all memoranda, disks,
files, notes, records or other documents which contain or are based upon Confidential Information
and shall not retain any copies thereof in any format or storage medium (including computer disk or
memory) and (b) purge from any computer system in his possession other than those owned by and
returned to the Company, all computer files which contain or are based upon any Confidential
Information and confirm such purging in writing to the Company.
11. Non-Competition. The Executive acknowledges that (a) the Company engages in a
competitive business, (b) the Executive’s services and responsibilities are unique in character and
are of particular significance to the Company, (c) the Executive’s position with the Company will
place him in a position of confidence and trust with the customers, suppliers and Executives of the
Company, and (d) the Executive’s position with the Company will provide him access to Confidential
Information which is valuable and material to the business and competitive position to the Company.
The Executive therefore agrees that during the Executive’s employment with the Company and for a
period of eighteen (18) months after the termination of Executive’s employment for any reason (the
“Non-Compete Period”), he will not (other than as a director, Executive, agent or consultant of the
Company), directly or indirectly, as an individual proprietor, partner, shareholder, member,
officer, director, Executive, consultant, independent contractor, joint venturer, investor or
lender, participate in any business or enterprise engaged anywhere in the United States or any
other country in which the Company’s products have during the Employment Period been marketed or
sold in the business of designing and marketing of sunglasses, reading glasses, optical frames or
fashion jewelry, or any business similar to or competitive with the business which the Company or
any of its subsidiaries engaged in the same trade or business were providing, in either case, at
any time while the Executive was employed by the Company, unless the Executive shall have obtained
the prior written consent of the Board, provided, that the foregoing restrictions shall not be
construed to prohibit the ownership by the Executive of not more than two percent (2%) of any class
of equity securities of any corporation having a class of equity securities registered pursuant to
the Securities Exchange Act of 1934, as amended, which are publicly owned and regularly traded on
any national securities exchange or over-the-counter market if such ownership represents a personal
investment and neither the Executive nor any group of persons including the Executive either
directly or indirectly in any way manages or exercises control of any such corporation, guarantees
any of its financial obligations or otherwise takes part in its business other than exercising his
right as a shareholder or seeks to do any of the foregoing. Executive agrees that because of the
nature of the Company’s business, the nature of the Executive’s job responsibilities, and the
nature of the Confidential Information and trade secrets of the Company which the Company will give
Executive access to, any breach of this paragraph by Executive would result in the inevitable
disclosure of the Company’s trade secrets and Confidential Information to its direct competitors.
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12. Non-Solicitation. During the Non-Compete Period, the Executive agrees not to,
directly or indirectly, whether for his own account or for the account of any other individual or
entity, (a) solicit, induce, enter into any agreement with, or attempt to influence any individual
who was an employee of or consultant to the Company or any of its affiliates at any time during the
preceding twelve (12) month period, to terminate his or her employment relationship with the
Company, or interfere in any other way with the employment or other relationship of any employee of
or consultant to the Company or any of its affiliates or (b) solicit any customer or vendor of the
Company, induce any of the Company’s customers or vendors to terminate its existing business
relationship with the Company or interfere in any other manner with any existing business
relationship between the Company and any customer, vendor or third party.
13. Non-Disparagement. The Executive agrees that at all times during and after the
Employment Period, the Executive will not engage in any conduct that is injurious to the reputation
or interests of the Company or its affiliates, including, but not limited to, making disparaging
comments (or inducing or encouraging others to make disparaging comments) about the Company or any
of its affiliates, or any of their respective directors, officers, employees or agents, or their
respective operations, financial condition, prospects, products or services.
14. Intellectual Property. The Executive agrees that he shall make full and prompt
disclosure to the Company of all inventions, improvements, discoveries, methods, developments,
software and works of authorship, whether or not patentable or copyrightable, which are created,
made, conceived or reduced to practice by the Executive or under his direction or jointly with
others during the Employment Period or within one (1) year thereafter (whether or not during
normal working hours, on the premises of the Company or using Company equipment or Confidential
Information), which relate to the present or planned business or research and development of the
Company (all of which are collectively referred to as “Developments”). All right, title and
interest in the Developments, whether or not used by the Company, shall, from the inception of
development, be exclusively and perpetually the property of the Company, free of any claim
whatsoever by the Executive or any third party deriving any rights from the Executive. All such
Developments shall be deemed “works made for hire” within the meaning of the U.S. Copyright Act and
any other applicable U.S. or foreign laws relating to intellectual property, and the Executive
understands and acknowledges that the Company shall own all right, title and interest in and to the
Developments, including without limitation, copyright, patent and trademark rights, throughout the
world. To the extent that any Developments shall not be deemed “works made for hire,” the
Executive hereby assigns to the Company any of his right, title and interest in and to all
worldwide intellectual property rights, including but without limitation, all worldwide copyrights,
trade secrets, patent rights and trademark rights, in and to all of the Developments, and agrees to
cooperate fully with the Company, both during and after the Employment Period, with respect to the
procurement, maintenance and enforcement of patents, copyrights and other intellectual property
rights, throughout the world, with respect to the Developments. The Executive shall sign all
papers, including, without limitation, patent applications, copyright applications, declarations,
oaths and formal assignment documents, which the Company may deem necessary or appropriate to
protect its rights and interests in any Development. The Executive hereby appoints any officer of
the Company as the Executive’s attorney-in-fact to execute any such documents in the name and on
behalf of the Executive in the event that the Executive fails to execute and deliver such documents
within thirty (30) days after the Company’s request therefore.
13
15. Enforceability of Restrictive Covenants. The Executive hereby acknowledges and
agrees that the restrictions on his activities contained in Sections 9 through and including 14 are
necessary for the reasonable protection of the Company and are a material inducement to the Company
entering into this Agreement. The Executive further acknowledges that a breach or threatened
breach of any such provisions would cause irreparable harm to the Company for which there is no
adequate remedy at law. The Executive agrees that in the event of any breach or threatened breach
of any provision contained in Sections 9 through and including 14 hereof, the Company shall have
the right, in addition to any other rights or remedies it may have, (a) to a temporary, preliminary
or permanent injunction or injunctions and temporary restraining order or orders to prevent
breaches of such provisions and to specifically enforce the terms and provisions thereof without
having to post bond or other security and without having to prove special damages or the inadequacy
of the available remedies at law, and (b) to require the Executive to account for and pay over to
the Company all compensation, profits, monies, accruals, increments or other benefits derived or
received by him as a result of any transaction constituting as breach of any of the provisions of
Sections 9 through and including 14 hereof (the “Benefits”) and the Executive agrees to account for
and pay over to the Company any such Benefits. The parties acknowledge that (a) the time, scope,
geographic area and other provisions contained in Sections 9 through and including 14 are
reasonable and necessary to protect the goodwill and business of the Company, (b) the customers of
the Company may be serviced from any location and accordingly it is reasonable that the covenants
set forth herein are not limited by narrow geographic area, and (c) the restrictions contained
herein will not prevent the Executive from being employed or earning a livelihood. If any covenant
contained in Sections 9 through and including 14 is held to be unenforceable by reason of the time,
scope or geographic area covered thereby, such covenant shall be interpreted to extend to the
maximum time, scope or geographic area for which it may be enforced as determined by a court making
such determination, and such covenant shall only apply in its reduced form to the operation of such
covenant in the particular jurisdiction in which such adjudication is made. In the event that the
Company shall successfully bring any action, suit or proceeding against the Executive for the
enforcement of Sections 11 or 12 of this Agreement, the calculation of the Non-Compete Period shall
not include the period of time commencing with the filing of the action, suit or proceeding to
enforce this Agreement through the date of the final judgment or final resolution (including all
appeals, if any) of such action, suit or proceeding. The existence of any claim or cause of action
by the Executive against the Company or any of its affiliates predicated on this Agreement or
otherwise shall not constitute a defense to the enforcement by the Company of any provision of
Sections 9 through and including 14.
16. Section 409A. To the extent that the Executive otherwise would be entitled to any
payment (whether pursuant to this Agreement or otherwise) during the six months beginning on the
Expiration Date that would be subject to the additional tax imposed under Section 409A of the Code
(“Section 409A”), (x) the payment shall not be made to the Executive during such six month period
and (y) the payment, together with interest at the applicable federal rate provided for in Section
7872(f)(2) of the Code shall be paid to the Executive on the earlier of the six-month anniversary
of the Expiration Date or the Executive’s death or Disability. Similarly, to the extent that the
Executive otherwise would be entitled to any benefit (other than a payment) during the six months
beginning on the Expiration Date that would be subject to the Section 409A additional tax, the
benefit shall be delayed and shall begin being provided (together, if
14
applicable, with an adjustment to compensate the Executive for the delay) on the earlier of
the six-month anniversary of the Expiration Date, or the Executive’s death or Disability.
17. Conflict. The Executive hereby represents and warrants to the Company that the
execution and delivery of this Agreement by him and the performance by him of his obligations
hereunder, shall not constitute (with or without notice or lapse of time or both) a default, breach
or violation of any understanding, contract or commitment, written or oral, express or implied, to
which the Executive is a party or to which the Executive is or may be bound, including, without
limitation, any understanding, contract or commitment with any present or former employer. The
Executive hereby agrees to indemnify and hold the Company harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses (including, without limitation, attorneys’
fees and expenses) incurred by the Company in connection with any default, breach or violation by
the Executive of any such understanding, contract or commitment.
18. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, successors and assigns, except that the Executive
may not assign any of his rights or delegate any of his duties hereunder without the prior written
consent of the Company (which may be granted or withheld in the Company’s sole and absolute
discretion).
19. Entire Agreement. This Agreement, the Stock Option Plan and the Stock Option
Agreements constitute the entire understanding of the parties and supersedes all prior agreements,
understandings, arrangements, promises and commitments, whether written or oral, express or
implied, relating to the subject matter hereof, and all such prior agreements, understandings,
arrangements, promises and commitments are hereby canceled and terminated.
20. Amendment. This Agreement may not be amended, supplemented or modified in whole
or in part except by an instrument in writing signed by the party against whom enforcement of any
such amendment, supplement or modification is sought.
21. Survival. The provisions of Sections 7 through and including 17, 22, 24, 28, 29
and 30 hereof shall survive the termination or expiration of this Agreement.
22. Notices. Any notice, request or other document required or permitted to be given
under this Agreement shall be in writing and shall be deemed given (a) upon delivery, if delivered
by hand, (b) three days after the date of deposit in the mail, postage prepaid, if mailed by U.S.
certified or registered mail, or (c) on the next business day, if sent by prepaid overnight courier
service, in each case, addressed as follows:
(a) | If to Executive, to: Xxxx Xxxxxx 0000 Xxxx Xxxx Xxxx Xxxxxxx Xxxxxxxx, Xxxxxxxxx 00000 |
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with a copy (which shall not constitute notice) to: Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP Nashville City Center 000 Xxxxx Xxxxxx, Xxxxx 0000 Xxxx Xxxxxx Xxx 000000 Xxxxxxxxx, Xxxxxxxxx 00000-0000 Attn: Xxxxxxxxx X. Xxxxxxxx, Esq. |
(b) | If to the Company, to: FGX International Inc. 000 Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000 Attention: Chief Financial Officer If to FGX Holdings, to: FGX International Holdings Limited 000 Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000 Attention: Chief Financial Officer in each case, with a copy (which shall not constitute notice) to: Xxxxxxxxx Xxxxxxx P.A. 000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000 Xxxx Xxxxxxxxxx, Xxxxxxx 00000 Attn: Xxxxx X. March, Esq. |
Any party may change the address to which notice shall be sent by giving notice of such change of
address to the other parties in the manner provided above.
23. Waivers. The failure or delay of any party to enforce any provision of this
Agreement shall in no way affect the right of such party to enforce the same or any other provision
of this Agreement. The waiver by any party of any breach of any provision of this Agreement shall
not be construed as a waiver by such party of any succeeding breach of such provision or a waiver
by such party of a breach of any other provision. The granting of any consent or approval by any
party in any one instance shall not be construed to waive or limit the need for such consent or
approval in any other or subsequent instance.
24. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of Rhode Island applicable to contracts executed and to be wholly performed within such
State. Each party hereby irrevocably and unconditionally consents and submits to the exclusive
jurisdiction of a competent court in the State of Rhode Island for any actions, suits or
proceedings arising out of or relating to this Agreement and the transactions contemplated hereby
and each party agrees not to commence any action, suit or proceeding relating thereto except in
such courts. Each party further agrees that any service of process, summons, notice or document by
U.S. registered mail to its address set forth herein shall be effective service of process for any
action, suit or proceeding brought against it in any such court. Each party
16
irrevocably and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions contemplated hereby in such
courts, and irrevocably and unconditionally waives and agrees not to plead or claim in any such
court that any action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
25. Severability. If any term or provision of this Agreement shall be determined by a
court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall remain enforceable and the invalid, illegal or
unenforceable provisions shall be modified so as to be valid and enforceable and shall be enforced.
26. Section Headings. Section headings are included in this Agreement for convenience
of reference only, and shall in no way affect the meaning or interpretation of this Agreement.
27. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall constitute one and the
same instrument.
28. Number of Days. In computing the number of days for purposes of this Agreement,
all days shall be counted, including Saturdays, Sundays and holidays; provided, however, if the
final day of any time period falls on a Saturday, Sunday or holiday on which federal banks in the
United States are or may elect to be closed, then the final day shall be deemed to be the next day
which is not Saturday, Sunday or such holiday.
29. Attorneys’ Fees. In any action or proceeding brought to enforce any provision of
this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and
costs from the other party to the action or proceeding. For purposes of this Agreement, the
“prevailing party” shall be deemed to be that party who obtains substantially the result sought,
whether by settlement, mediation, judgment or otherwise, and “attorneys’ fees” shall include,
without limitation, the actual attorneys’ fees incurred in retaining counsel for advice,
negotiations, suit, appeal or other legal proceeding, including mediation and arbitration.
30. Additional Representations, Warranties and Covenants. The Company and FGX
Holdings represent and warrant that (a) this Agreement has been duly authorized, executed and
delivered by the Company and FGX Holdings and constitutes a valid and binding obligation of the
Company and FGX Holdings, and (b) the Options have been lawfully granted and entitle the Executive
upon exercise thereof in accordance with their terms to purchase Ordinary Shares representing as of
the date hereof five percent (5%) of the issued and outstanding Ordinary Shares on a fully diluted
basis (which for purposes of this representation includes (i) all issued and outstanding Ordinary
Shares, (ii) all Ordinary Shares issuable upon exercise of all outstanding options to purchase
Ordinary Shares, and (iii) all options authorized for issuance under the Stock Option Plan which
have not yet been issued (which together with the outstanding options referenced in clause (ii) of
this sentence represent as of the date hereof ten percent (10%) of the issued and outstanding
Ordinary Shares on a fully diluted basis). In the event that at any time during the Employment
Period which precedes the consummation of an
17
IPO FGX Holdings shall propose to issue any Ordinary Shares to Berggruen Holdings and/or one
or more affiliates of Berggruen Holdings in return for an additional cash investment in FGX
Holdings, FGX Holdings shall provide Executive with ten days prior written notice of such proposed
issuance (which notice shall set forth the number of Ordinary Shares proposed to be issued and the
cash consideration proposed to be paid therefore) and the Executive shall have the right by
delivery of written notice to FGX Holdings and Berggruen Holdings during such ten day period to
purchase up to five percent (5%) of the number of Ordinary Shares proposed to be issued thereby at
the same purchase price as is proposed to be paid by Berggruen Holdings; provided, however, that
the Executive shall as a condition to the issuance of such Ordinary Shares enter into the
Shareholders Agreement required to be entered into by him as a condition to the exercise of any
Options under the terms of the Stock Option Plan and the Stock Option Agreements and all Ordinary
Shares shall be subject to all of the terms and conditions set forth in such Shareholders
Agreement. The parties agree that the Options granted to Executive and the anti-dilution provision
hereof are a material inducement to Executive’s acceptance of employment with the Company. Any
breach by the Company or FGX Holdings of any of its covenants with respect to the Options or with
respect to the anti-dilution provisions hereof shall be deemed a breach of the representation and
warranties of the Company hereunder entitling Executive to terminate this Agreement for Good Reason
and entitling Executive to the payments on termination as contemplated by Section 7 hereof.
[signatures appear on following page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
COMPANY: FGX International Inc. |
||||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Xxxxx Xxxxxxx, CFO | ||||
EXECUTIVE: |
||||
/s/ Xxxx Xxxxxx | ||||
Xxxx Xxxxxx | ||||
FGX HOLDINGS: FGX International Holdings Limited (solely with respect to Sections 3, 4(c), 24 and 30 of this Agreement) |
||||
By: | /s/ Xxxxx X. Xxxxxxx | |||
Xxxxx Xxxxxxx, CFO | ||||
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Exhibit A
Time-Based Option Agreement
Exhibit B
Event-Based Stock Option Agreement