AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”) is entered into as of the
10th day of April, 2006, by and among FGX International Inc., a Delaware corporation
with a mailing address of 000 Xxxxxx Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the
“Company”), Xxxx X. Xxxxx, Xx., an individual with a residence address of 00 Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxx Xxxxxx 00000 (“Executive”), and, solely with respect to Section 13 of this
Agreement, AAi.FosterGrant, Inc., a Rhode Island corporation (“FosterGrant”).
INTRODUCTION
FosterGrant and Executive are parties to a certain Employment Agreement dated April 10, 2002,
as amended on October 1, 2003 and September 30, 2004 (the “Original Agreement”). The Company,
Executive and FosterGrant desire to amend and restate the Original Agreement to modify certain of
the terms and conditions set forth therein.
AGREEMENT
In consideration of the premises and mutual promises herein below set forth, the parties
hereby agree as follows:
1. Employment Period. The term of Executive’s Employment by the Company pursuant to
this Agreement (the “Employment Period”) shall commence on the date hereof (the “Effective Date”)
and shall continue until terminated as provided herein. For purposes of this Agreement,
“Termination Date” means the date on which the Employment Period ends.
2. Employment; Duties. Subject to the terms and conditions set forth herein,
Executive shall serve as President of FGX International Holdings Limited, a British Virgin Islands
corporation and the indirect parent of the Company (“FGX Holdings”), and each of its subsidiaries
(together with FGX Holdings, the “FGX Group”) during the Employment Period. The duties assigned
and authority granted to Executive shall be as set forth in the By-laws of the Company and as
determined by the Chief Executive Officer from time to time. Executive agrees to perform his
duties for the FGX Group diligently, competently, and in a good faith manner. Executive may also
engage in civic and charitable activities to the extent they are not inconsistent with Executive’s
duties hereunder.
3. Salary and Bonus.
(a) Base Salary. Executive shall be entitled to receive a base salary from the
Company during the Employment Period at the rate of no less than Three Hundred Seventy Thousand and
00/100 Dollars ($370,000) per annum (as from time to time, if at all increased, the “Salary”).
Executive’s Salary shall not be decreased, and after the first twelve (12) months shall be
increased on each anniversary date of this Agreement (the “Anniversary Date”), based upon the
increase in the Consumer Price Index for all Urban Consumers (CPI-U), Boston, Massachusetts,
published by the Bureau of Labor Statistics of the United States Department of Labor
(1982-1984=100) (the “Index”). If, on an Anniversary Date, the Index shows an increase from the
base date of January, 2005 (the “Base Date”), then Executive’s Salary for the ensuing 12 months
shall be the product of (a) Three Hundred Seventy Thousand Dollars ($370,000) and
(b) one plus a percentage equal to the percentage increase in the Index on each such Anniversary
date over the Index on the Base Date. In the event the Bureau of Labor Statistics no longer
publishes the Index the Company shall use that index then available which most closely replicates
the Index. In addition, the Board of Directors of the Company may further increase Executive’s
Salary from time to time in their discretion, based upon the Company’s performance and Executive’s
particular contributions.
(b) Bonus. Executive shall be eligible for an annual cash bonus of up to fifty
percent (50%) of his Salary under the Company’s Executive Incentive Compensation Plan (“Annual
Target Bonus Amount”) during the Employment Period, subject to the discretion of the Company’s
Board of Directors.
4. Other Benefits.
(a) Insurance and Other Benefits. During the Employment Period Executive shall be
entitled to participate in, and shall receive the maximum benefits available under, the Company’s
insurance programs (including health, supplemental health and life insurance) and any ERISA benefit
plans, as the same may be adopted and/or amended from time to time, and shall receive all other
benefits that are provided by the Company to other senior executives. The Company shall purchase a
disability insurance policy, in which the maximum monthly benefit payable pursuant to such policy,
based upon Executive’s monthly Salary, shall become payable after a six-month period of disability.
The Company shall contribute the maximum amount permitted under current law and under the terms of
the applicable plan for Executive’s account under the Company’s qualified and non-qualified 401(k)
Plan, Supplemental 401(k) Plan, and any other Company pension or retirement plan as in effect from
time to time during the Employment Period. Notwithstanding the foregoing, Executive shall be
entitled to life insurance in the amount of, at a minimum, two times Salary, up to an aggregate
benefit of $400,000.
(b) Vacation. Executive shall be entitled to five (5) weeks paid vacation annually,
to be taken at such time(s) as shall not, in the reasonable judgment of the Company’s Board of
Directors, interfere with the Executive’s fulfillment of his duties hereunder and otherwise in
accordance with the Company’s policies and procedures in effect from time to time, including the
Company’s policies and procedures with respect to the payment for or carryover of accrued and
unused vacation time.
(c) Automobile Allowance. During the Employment Period the Company shall provide
Executive with a monthly automobile allowance consistent with the plan adopted or to be adopted by
the Company for other senior executives but in all events the monthly automobile allowance shall be
no less than that in existence as of the Effective Date.
(d) Stock Options. Executive acknowledges that he has been granted stock options to
purchase ordinary shares of FGX Holdings on the terms and subject to the conditions set forth in
that certain Time-Based Incentive Stock Option Agreement dated September 29, 2004, which agreement
shall remain in full force and effect and unchanged hereby.
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5. Termination by the Company With Cause. Upon prior written notice to Executive, the
Company may terminate Executive’s employment if any of the following events shall occur (any of the
following events shall constitute “Cause” for all purposes hereof):
(a) the conviction of Executive for a crime involving fraud or moral turpitude;
(b) deliberate dishonesty of Executive with respect to the Company or any of its subsidiaries;
or
(c) the refusal of Executive to follow the reasonable and lawful written instructions of the
Chief Executive Officer of the Company with respect to the services to be rendered and the manner
of rendering such services by Executive, provided such refusal is material and repetitive and is
not justified or excused either by the terms of this Agreement or by actions taken by the Company
in violation of thus Agreement.
6. Termination by Executive; Termination by the Company Without Cause.
6.1 Notice/Events.
(a) Termination by Executive. Executive may terminate his employment at any time by
providing written notice to the Company.
(b) Termination by the Company Without Cause. The Company may terminate Executive’s
employment at any time, without Cause by providing written notice to Executive. As used in this
Agreement, the term “without Cause” shall mean termination for any reason not specified in Section
5 or Section 7 hereof.
6.2 Executive’s Right-to-Terminate. Executive may terminate Executive’s employment
for Good Reason at any time during the term of this Agreement. For purposes of this Agreement,
“Good Reason” shall mean any of the following (without Executive’s express written consent):
(a) the assignment to Executive by the Company of any duties materially inconsistent with
Executive’s status with the Company or a material alteration in the nature or status of Executive’s
responsibilities from those in effect on the date hereof, or a material reduction in Executive’s
titles or offices as in effect on the date hereof, or any removal of Executive from, or any failure
to reelect Executive to, any of such positions, except in connection with the termination of his
employment for disability or for any reason specified in Section 5 hereof or as a result of
Executive’s death or by Executive other than for Good Reason;
(b) a reduction by the Company in Executive’s Salary as in effect on the date hereof or as the
same may be increased from time to time during the term of this Agreement;
(c) except if such action applies to all senior executive officers of the Company generally,
any failure by the Company to continue in effect its present Executive Incentive Compensation Plan,
any fringe benefits, the taking of any action by the Company which would, directly or indirectly,
materially reduce Executive’s benefits or deprive Executive
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of any fringe benefits enjoyed by Executive at the date hereof, or the failure by the Company
to provide Executive with the number of paid vacation days to which Executive is entitled at the
date hereof;
(d) a relocation of the Company’s principal executive offices to a location more than 50 miles
from their current location in, or the Company’s requiring Executive to be based anywhere other
than the Company’s principal executive offices; or
(e) any material breach, which remains uncured for twenty (20) days after reasonable notice,
by the Company of any provisions of this Agreement.
6.3 Severance.
(a) Without Cause. If the Company terminates Executive’s employment without Cause, or
if Executive terminates his employment pursuant to Section 6.2 hereof, then, subject to Section 8,
commencing on the date of termination of employment, the Company shall provide Executive with a
severance package which shall consist of the following: (i) for a period equal to two (2) years
after the date of termination (i) payment on the first business day of each month of an amount
equal to one-twelfth of Executive’s then current Salary under Section 3(a) hereof; (ii) payment on
the first business day of each month of an amount equal to one-twelfth of Executive’s Annual Target
Bonus Amount under the Company’s Executive Incentive Compensation Plan for the year of termination;
and (iii) continuation of all benefits under Section 4 (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 two year period following termination and provided, further that
benefits under Section 4(a) shall be discontinued as of the date on which Executive is provided
comparable benefits from any other source.
(b) General Release. As a condition precedent to receiving any severance payment,
Executive shall execute a general release 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 employees, officers, directors, agents and
attorneys, except for claims arising under this Agreement or any employee benefit plan (other than
any employee 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.
(c) Withholding. All payments made by the Company under this Agreement shall be net
of any tax or other amounts required to be withheld by the Employer under applicable law.
(d) Certain Reductions of Payments by the Company.
(1) 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”
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within the meaning of Section 280G(b) of the U.S. Internal Revenue Code (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 6(c)(iv), 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 five (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 three (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 one (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 three
(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.
(2) All determinations required to be made under this Section 6(c)(iv) 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
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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 6(c)(iv),
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 6(c)(iv) 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 6(c)(iv) shall be borne by the Company.
(3) 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.
7. Death or Disability. In the event of Executive’s death or disability, the
Employment Period will automatically terminate effective as of the date of such death or
disability. As used in this Agreement, the term “disability” shall mean inability on the part of
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Executive for a period of more than six (6) months in the aggregate during any twelve (12)
consecutive month period to perform the services contemplated under this Agreement. A
determination of disability shall be made by a physician satisfactory to both Executive and the
Company, provided that if Executive and the Company do not agree on a physician, Executive and the
Company shall each select a physician and these two physicians together shall select a third
physician, whose determination as to disability shall be binding on all parties.
8. Change in Control.
(a) If Executive’s employment is terminated by the Company without Cause or by 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
two (2) times the sum of Executive’s then current Salary and Executive’s Annual Target Bonus Amount
under the Company’s Executive Incentive Compensation Plan for the year of termination. The Change
in Control Payment shall be paid to Executive within fifteen (15) days after: (i) the Change in
Control if Executive’s employment was terminated within six (6) months before the Change in
Control; or (ii) the termination of Executive’s employment by the Company if Executive’s employment
terminates within twelve (12) months after the Change in Control. Executive shall also be entitled
to continuation of all benefits under Section 4(a) hereof, ending on the earlier of (x) the two (2)
year anniversary of the termination date and (v) the date on which Executive is provided comparable
benefits from any other source. In addition, all stock options held by Executive shall vest and
become immediately exercisable. If Executive is entitled to a Change in Control Payment, Executive
shall not have any rights to receive any severance payments or benefits pursuant to Section 6(c)
hereof. If Executive’s employment by the Company terminates within six (6) months prior to the
Change in Control and Executive received severance payments pursuant to Section 6(c) hereof, any
amounts so paid by the Company to 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 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 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)
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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,
excluding (i) any person that is excluded from the definition of “beneficial owner” under Rule
16(a)-1(a)(l) 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 Effective Date or any Affiliate of such person.
9. Non-Competition. During the Employment Period and after termination of Executive’s
employment hereunder, whether or not such termination is without Cause or for Good Reason,
Executive shall not be involved in the Restricted Business Activities, as defined below, for the
period ending two (2) years after the date of termination of Executive’s employment (the
“Non-compete Period”) provided that the Company has not otherwise breached its obligations under
the Agreement. As used in this Agreement, the term “Restricted Business Activities” shall mean any
business which markets and sells to customers of a class or category to which the FGX Group markets
and sells at the time Executive’s employment terminated products or services marketed and sold by
the FGX Group at such time or products or services which at such time the FGX Group was actively
considering marketing and selling to such customers. During the Non-compete Period, Executive
shall not, without the written approval of the Company, directly or indirectly, either as an
individual, partner, joint venturer, employee or agent for any person, company, corporation or
association, or as an officer, director or stockholder of a corporation or otherwise, enter into or
engage in or have a proprietary interest in the Restricted Business Activities other than the
ownership of (a) the stock of the Company then held by Executive, and (b) no more than five percent
(5%) of the securities of any other publicly-held company.
Executive recognizes and agrees that because a violation by him of his obligations under this
Section 9 will cause irreparable harm to the FGX Group that would be difficult to quantify and for
which money damages would be inadequate, any party included in the definition of the FGX Group
shall have the right to injunctive relief to prevent or restrain any such violation, without the
necessity of posting a bond. The Non-compete Period will be extended by the duration of any
violation by Executive of any of his obligations under this Section 9.
Executive expressly agrees that the character, duration and scope of his obligations under
this Section 9 are reasonable in light of the circumstances as they exist at the date upon which
this Agreement has been executed. However, should a determination nonetheless be made by a court
of competent jurisdiction at a later date that the character, duration or geographical scope of
such obligations is unreasonable in light of the circumstances as they then exist, then it is the
intention of both Executive and the Company that Executive’s obligations under this Section 9 shall
be construed by the court in such a manner as to impose only those restrictions on the conduct of
Executive which are reasonable in light of the circumstances as they then exist and necessary to
assure the Company of the intended benefit of Executive’s obligations under this Section 9.
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10. Confidentiality Covenants.
(a) Executive understands that any party of the FGX Group may impart to him confidential
business information, including but not limited to designs, financial information, personnel
information, real estate information, and the like (collectively “Confidential Information”).
Executive hereby acknowledges FGX Group’s exclusive ownership of such Confidential Information. So
long as the Confidential Information is not in the public domain and except to the extent Executive
receives Confidential Information from a third party not known to the Executive to be under an
obligation of confidentiality, Executive agrees as follows: (1) only to use the Confidential
Information to provide services to the FGX Group; (2) only to communicate the Confidential
Information to fellow employees, agents and representatives on a need-to-know basis and (3) not to
otherwise disclose or use any Confidential Information. Upon demand by Company or upon termination
of Executive’s employment, Executive will deliver to Company all manuals, photographs, recordings,
and any other instrument or device by which, through which, or on which Confidential Information
has been recorded and/or preserved, which are in my Executive’s possession, custody or control.
(b) The Company will not disclose the terms and conditions of Executive’s employment, unless
it is required by law to do so.
11. 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 (6) months beginning on
the Termination 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 (6) 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 Termination 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 Termination Date that would be subject to the Section 409A
additional tax, the benefit shall be delayed and shall begin being provided (together, if
applicable, with an adjustment to compensate the Executive for the delay) on the earlier of the
six-month anniversary of the Termination Date, or the Executive’s death or disability.
12. Governing Law/Jurisdiction. This Agreement shall be governed by and interpreted
and governed in accordance with the laws of the State of Rhode Island. The parties agree that this
Agreement was made and entered into in Rhode Island and each party hereby consents to the
jurisdiction of a competent court in Rhode Island to hear any dispute arising out of this
Agreement.
13. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and thereof and supersedes and cancels any
and all previous agreements, written and oral, regarding the subject matter hereof between the
parties hereto, including but not limited to the Original Agreement. The Executive hereby
acknowledges that any compensation or benefits the Executive otherwise may have been entitled to
under the Original Agreement are hereby waived. FosterGrant hereby acknowledges that any rights of
FosterGrant or obligations of the Executive under the Original Agreement are hereby
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waived. This Agreement shall not be changed, altered, modified or amended, except by a
written agreement signed by both parties hereto.
14. Notices. All notices, requests, demands and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall be deemed to have
been given if delivered by hand, sent by generally recognized overnight courier service, telex or
telecopy, or certified mail, return receipt requested.
(a)
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to the Company at: 000 Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000 Attn: President |
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(b)
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to FosterGrant at: 000 Xxxxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxxx 00000 Attn: President |
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| In each case, with a copy (which shall not constitute notice) to: |
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| Xxxxxxxxx Traurig, P.A. 000 Xxxx Xxx Xxxx Xxxx., Xxxxx 0000 Xxxx Xxxxxxxxxx, Xxxxxxx 00000 Attn: Xxxxx X. March, Esq. |
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(c)
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to Executive at: 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx Xxxxxx 00000 |
Any such notice or other communication will be considered to have been given (i) on the date
of delivery in person, (ii) on the third day after mailing by certified mail, provided that receipt
of delivery is confirmed in writing, (iii) on the first business day following delivery to a
commercial overnight courier or (iv) on the date of facsimile transmission (telecopy) provided that
the giver of the notice obtains telephone confirmation of receipt.
Either party may, by notice given to the other party in accordance with this Section,
designate another address or person for receipt of notices hereunder.
15. Severability. If any term or provision of this Agreement, or the application
thereof to any person or under any circumstance, shall to any extent be invalid or unenforceable,
the remainder of this Agreement, or the application of such terms to the persons or under
circumstances other than those as to which it is invalid or unenforceable, shall be considered
severable and shall not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law. The invalid or unenforceable provisions shall,
to the extent permitted by law, be deemed amended and given such interpretation as to achieve the
economic intent of this Agreement.
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16. Waiver. The failure of any party to insist in any one instance or more upon
strict performance of any of the terms and conditions hereof, or to exercise any right or privilege
herein conferred, shall not be construed as a waiver of such terms, conditions, rights or
privileges, but same shall continue to remain in full force and effect. Any waiver by any party of
any violation of, breach of or default under any provision of this Agreement by the other party
shall not be construed as, or constitute, a continuing waiver of such provision, or waiver of any
other violation of, breach of or default under any other provision of this Agreement.
17. Successors and Assigns. This Agreement shall be binding upon the Company and any
successors and assigns of the Company and shall inure to the benefit of Executive and his heirs,
personal representations and assigns.
18. Indemnification. The Company shall indemnify Executive to the maximum extent
permitted under applicable law against all liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise, or as fines and penalties, and counsel fees, reasonably
incurred by him in connection with the defense or disposition of any civil, criminal,
administrative, or investigative action, suit or other proceeding, whether civil or criminal, in
which he may be involved or with which he may be threatened, while an officer or director of the
Company or any of its subsidiaries or thereafter, by reason of his being or having been an officer
or director of the Company or any of the Company’s subsidiaries. Expenses (including attorneys’
fees) incurred by Executive in defending any such action, suit or other proceeding shall be paid by
the Company in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of Executive to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Company. The right of indemnification
provided herein shall not be exclusive of or affect any other rights to which Executive may be
entitled. The provisions hereof shall survive expiration or termination of this Agreement for any
reason whatsoever.
19. Counterparts. This Agreement may be executed in counterparts and by facsimile,
each of which shall be an original with the same effect as if the signatures thereto and hereto
were upon the same instrument.
20. Third Party Beneficiaries. Each of the parties hereto agree that each party of the
FGX Group is and shall be deemed an intended third party beneficiary of the Company’s rights under
Section 9 and 10 of this Agreement with full rights to enforce the provisions thereof as if a
signatory thereto.
[Signatures Appear on Next Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| FGX INTERNATIONAL INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| EXECUTIVE |
||||
| By: | /s/ Xxxx X. Xxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxx, Xx. | |||
| Address: 00 Xxxxxx Xxxxxx Xxxxxxx, XX 00000 |
||||
| AAI.FOSTERGRANT, INC. (solely with respect to Section 13 of this Agreement) |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
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