AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”) is entered into and shall be
effective as of August 15, 2005, by and among FGX International Inc., a Delaware corporation with a
mailing address of 000 Xxxxxx Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the “Company”),
Xxxxx X. Xxxxxxx, an individual with a residence address of 00 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX
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 in September 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, the
Executive shall serve as the Chief Financial Officer 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 as determined by the Chief
Executive Officer from time to time. Executive agrees to perform his duties for FGX Holdings and
each of its subsidiaries 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 no less than Two Hundred Fifty Thousand Dollars
($250,000) per annum (as from time to time, if at all, increased, the “Salary”). The Salary may be
increased (but not decreased) from time to time during the Employment Period. The Salary shall, at
a minimum, be reviewed by the Board of Directors of the Company (the “Board”) on August
1st of each year during the Employment Period (the “Anniversary Date”), and shall be
increased by no less than six percent (6%) on August 1, 2006 and August 1, 2007, and on each August
1 occurring thereafter by no less than 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) Two Hundred
Fifty Thousand Dollars ($250,000) 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 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 no less than
thirty-five percent (35%) of his Salary and up to a maximum of fifty percent (50%) of his 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, and the amount of any such bonus shall be payable from time to time
during the Employment Period in the sole discretion of the Board.
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. 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 President 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 but in all events the monthly automobile allowance shall be
no less than that in existence as of the Effective Date.
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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 condition 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.
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 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;
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ii. 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;
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;
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); 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
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
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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.
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
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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 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
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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 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) 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 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).
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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 eighteen (18) 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 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
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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 twenty-four (24) months (the
“Non-compete Extension”) by delivering to Executive written notice of such decision prior to
termination of the original eighteen (18) 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.
a. Executive understands that FGX Holdings or any of its subsidiaries 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 Holdings’ 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
Executive to be under an obligation of confidentiality, Executive agrees as follows: (1) only to
use the Confidential Information to provide services to FGX Holdings or any of its subsidiaries;
(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.
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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 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 note) to: |
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| Xxxxxxxxx Xxxxxxx, 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 Xxxxxxxx Xxxx Xxxx Xxxxxxxxxx, XX 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 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 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.
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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 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.
[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 X. Xxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxx, Xx. | |||
| Title: | President | |||
| EXECUTIVE |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Address: 00 Xxxxxxxx Xxxx Xxxx Xxxxxxxxxx, XX 00000 |
||||
| AAI.FOSTERGRANT, INC. (solely with respect to Section 13 of this Agreement) |
||||
| By: | /s/ Xxxx X. Xxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxx, Xx. | |||
| Title: | President | |||
[Signature Page to Executive Employment Agreement]
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