EMPLOYMENT AGREEMENT
EXHIBIT 10.28
This Employment Agreement (the “Agreement”) is entered into and shall be effective as of July
23, 2007, by and among FGX International Inc., a Delaware corporation with a mailing address of 000
Xxxxxx Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the “Company”), and Xxxxxxx Xx Xxxxx, an
individual with a residence in the State of Rhode Island (“Executive”).
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, the
Executive shall serve as the Executive Vice President, Chief Financial Officer and Treasurer of the
Company, of FGX International Holdings Limited, a British Virgin Islands corporation and the
indirect parent of the Company (“FGX Holdings”), and each of its subsidiaries 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 those that are typically assigned and/or afforded to a chief financial
officer and treasurer, and such other duties and responsibilities as may otherwise reasonably be
assigned to him by the Chief Executive Officer from time to time. Executive agrees to perform his
duties for the Company diligently, competently and in a good faith manner. Notwithstanding
anything to the contrary set forth herein, the Executive shall be permitted during the Employment
Period to (a) engage in civic and charitable activities to the extent they are not inconsistent
with Executive’s duties hereunder and (b) serve as a member of the board of directors of not more
than two additional for profit corporations.
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 Two Hundred Eighty-Five Thousand Dollars ($285,000) per
annum (as from time to time, if at all, increased, the “Base Salary”). The Base Salary may be
increased from time to time during the Employment Period, at the same time and under the same
circumstances as other Executive Vice Presidents of the Company. The initial review of the Base
Salary will occur in July, 2008. In addition, the Board of Directors, or Compensation Committee,
of the Company or its parent corporation (collectively, the “Board of Directors”), may further
increase Executive’s Base 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 and shall receive a cash bonus, prorated
from the Effective Date, for the plan year 2007, and thereafter during each year of Executive’s
employment, subject to the discretion of the Company’s Board of Director’s, of up to fifty percent
(50%) of his Base Salary under the Company’s Executive Incentive
Compensation Plan (“Annual Target Bonus Amount”) on account of the services rendered by him
during each calendar year during the Employment Period and the attainment of certain performance
goals and successful completion of certain initiatives established by the Company. The cash bonus
shall be paid on or before the later of (i) March 15 of the year following the calendar year for
which the bonus was earned and (ii) the date on which the Board of Directors has been able to
determine within a reasonable degree of certainty the amount of the bonus. The Board of Directors
may from time to time increase the Annual Target Bonus Amount.
c. Supplemental Bonus. Executive shall be paid a one-time cash bonus of One Hundred
Twenty Five Thousand Dollars ($125,000), which bonus shall be paid on the earlier of (i) the same
day that the bonus for the plan year 2007 described in Section 3(b) of this Agreement is paid to
Executive, (ii) the same day that Executive receives the first severance payment under Section
6(c)(i) of this Agreement, or (iii) the same day that Executive receives a Change in Control
Payment under Section 8 of this Agreement.
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.
b. Paid Time Off. Executive shall be entitled to twenty (20) days of paid time off
annually in accordance with the Company’s paid time off policies in effect from time to time, to be
taken at such time(s) as shall not, in the reasonable judgment of the Chief Executive Officer of
the Company, interfere with Executive’s fulfillment of his duties hereunder. Executive shall 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 consistent with the plan adopted or to be adopted by
the Company for other senior executives. As of the Effective Date, the monthly automobile
allowance provided to Executive shall be $950.00.
d. Stock Options. Executive will be included in the first granting of options
concurrent with the Company’s initial public offering. The number of options shall be equivalent
to 0.75% of the number of shares of FGX Holdings issued and outstanding on the date of the initial
public offering.
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;
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b. deliberate dishonesty of Executive with respect to the Company or any of its subsidiaries
or affiliates; 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 instructions are in accordance with the
duties of the Executive under this Agreement and provided further that 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 this Agreement.
6. Termination by Executive; Termination by the Company Without Cause.
a. Notice/Events:
i. Termination by Executive. Executive may terminate his employment at
any time by providing written notice to the Company.
ii. 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.
b. 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):
i. 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 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;
ii. a reduction by the Company in Executive’s Base 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;
iii. 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 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;
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iv. 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
v. any material breach, which remains uncured for twenty (20) days after
reasonable notice, by the Company of any provisions of this Agreement.
x. Xxxxxxxxx.
i. Without Cause. If the Company terminates Executive’s employment
without Cause, or if Executive terminates his employment pursuant to Section 6(b)
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 one (1) year after the date of
termination or, if the Company exercises its Non-compete Extension (as defined
below), eighteen (18) months (x) 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; (y) 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 (assuming for purposes of
calculating such amount that the percentage of Salary payable as a bonus to
Executive on account of the year of termination will be the same percentage of
Salary paid as a bonus to Executive on account of the immediately preceding year, or
the percentage of Salary paid as a bonus reasonably certain to be paid to Executive
for the recently concluded or substantially completed fiscal year if no bonus was
paid to Executive on account of the immediately preceding year); and (z)
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 from alternative employment during the one 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.
ii. 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 under this Agreement or as an officer and director of the Company.
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iii. 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.
iv. 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”
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
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(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 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
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paid or distributed by the Company to or for the benefit of the
Executive shall be repaid to the Company; provided, however, that no amount
shall be payable by the Executive to the Company if and to the extent such
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
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
one (1) times the sum of Executive’s then current Salary and Executive’s Annual Target Bonus Amount
(assuming for purposes of calculating such amount that the percentage of Salary payable as a bonus
to Executive on account of the year of termination will be the same percentage of Salary paid as a
bonus to Executive on account of the immediately preceding year, or the percentage of Salary paid
as a bonus reasonably certain to be paid to Executive for the recently concluded or substantially
completed fiscal year if no bonus was paid to 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 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 one 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, restricted stock,
restricted stock units and other equity-based interests held by Executive shall vest and become
immediately exercisable. If Executive is entitled to a Change in Control Payment and benefits
under this Section 8(a), 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).
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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 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 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 twelve (12) months 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 FGX Holdings or any
of its subsidiaries, markets and sells at the time Executive’s employment terminated products or
services marketed and sold by FGX Holdings or any of its subsidiaries at such time or products or
services which at such time FGX Holdings or any of its subsidiaries 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
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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.
Notwithstanding the foregoing, for so long as a majority of the issued and outstanding capital
stock of the Company is owned directly or indirectly by Berggruen Holdings, Limited or one or more
of its affiliates or a representative of Berggruen Holdings, Limited or one or more of its
affiliates is on the Board (or any entity owning a majority of the issued and outstanding shares of
the Company, whether directly or indirectly), the Company shall have the right to extend the
Non-compete Period for an additional six (6) months for a total of eighteen (18) months (the
“Non-compete Extension”) by delivering to Executive written notice of such decision prior to
termination of the original twelve (12) month Non-compete Period.
Executive recognizes and agrees that because a violation by him of his obligations under this
Section 9 will cause irreparable harm to FGX Holdings or any of its subsidiaries that would be
difficult to quantify and for which money damages would be inadequate, any party included in the
definition of FGX Holdings or any of its subsidiaries 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.
10. Confidentiality Covenants. 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. 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.
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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, with the exception of the Proprietary Rights Agreement signed by Executive on June
26, 2007, and which is attached hereto and incorporated by reference herein. 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)
|
to the Company at: | |
| 000 Xxxxxx Xxxxxxxxxx Xxxxxxx | ||
| Xxxxxxxxxx, Xxxxx Xxxxxx 00000 | ||
| Attn: Chief Executive Officer | ||
(b)
|
to Executive at: | |
| the last home address appearing on the Company’s records |
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 over-night 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.
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
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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 FGX Holdings or any of their direct or indirect subsidiaries or affiliates or
thereafter, by reason of his being or having been an officer or director of the Company or FGX
Holdings or any of the their direct or indirect subsidiaries or affiliates. 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 FGX Holdings and
each of its subsidiaries 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 hereto.
21. Attorney’s 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.
[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/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| EXECUTIVE |
||||
| By: | /s/ Xxxxxxx Xx Xxxxx | |||
| Name: | Xxxxxxx Xx Xxxxx | |||
[Signature Page to Executive Employment Agreement]
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