Exhibit 10.3


 


AMENDMENT NO. 2


TO THE


EMPLOYMENT AGREEMENT


 


This
Amendment No. 2 to the Amended and Restated Employment Agreement is made
as of November 6, 2009 by and among FGX International Inc., a Delaware
corporation (the “Company”), and Steven Crellin, a resident of the State of
Rhode Island (the “Executive”).


 


WHEREAS,
the Company and the Executive are parties to a certain amended and restated
Employment Agreement dated as of February 18, 2008, as amended as of December 5,
2008 (the “Agreement”);


 


WHEREAS,
pursuant to and in accordance with Section 22 of the Agreement, the
Company and the Executive desire to amend the Agreement.


 


NOW,
THEREFORE, in consideration of the foregoing promises and agreements contained
herein, and for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Company and the Executive agree as follows:


 


1.             Section 4(b) of
the Agreement is amended in its entirety to read as follows:


 


(b)  Bonus.  In addition to the Base Salary, the Employee
shall be eligible for payment of a target bonus of 50% of the 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
established by the Board.  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 cash bonus paid under this Section 4(b) shall
be subject to increase or decrease in the discretion of the Board.


 


2.             That
portion of Section 9(g) of the Agreement that follows the first
sentence thereof is amended in its entirety to read as follows:


 


In the event that the Company shall terminate this
Agreement and the Employee’s employment with the Company under Section 9(d) above
(for a reason other than those covered by Section 9(a), (b) or (c) above),
then, subject to Section 9(h), commencing on the date of termination of
employment, the Company shall provide the Employee with a severance package
which shall consist of the following: 
for a period equal to eighteen (18) months after the date of termination
(x) payment on the first business day of each month of an amount equal to
one-twelfth of the Employee’s then current Base Salary under Section 4(a) hereof;
(y) payment on the first business day of each month of an amount equal to
one-twelfth of the Annual Target Bonus Amount for the year of termination; and (z) continuation
of all benefits under Section 6 hereof at the same cost to the


 


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Employee as is applicable to active employees of the Company; provided,
however, that benefits under Section 6 shall be discontinued as of the
date on which the Employee is provided comparable benefits from any other
source.  Notwithstanding anything herein
to the contrary, each severance payment shall be deemed to be a separate
payment within the meaning of Section 409A of the Code and the regulations
thereunder.


 


3.             Section 9(h) of
the Agreement is amended in its entirety to read as follows:


 


(h)        Notwithstanding anything in this
Agreement to the contrary (including but not limited to Section 9(e)), if
the Employee’s employment is terminated by the Company without Cause or by the
Employee 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 (j) of
this Section 9), the Employee shall be entitled to receive a supplemental
bonus payment (the “Change in Control Payment”)
from the Company equal to one and one-half (1.5) times the sum of (x) the
Employee’s then current Base Salary and (y) the Annual Target Bonus Amount
for the year in which the Employee’s employment is terminated or, if greater,
for the year in which the Change in Control occurs.  The Change in Control Payment shall be paid
to the Employee within fifteen (15) days after: (i) the Change in Control
if the Employee’s employment was terminated within six (6) months before
the Change in Control; or (ii) the termination of the Employee’s
employment by the Company if the Employee’s employment terminates within twelve
(12) months after the Change in Control. 
The Employee shall also be entitled to continuation of all benefits
under Section 6 hereof at the same cost to the Employee as is applicable
to active employees of the Company until the earlier of (x) the
eighteen-month anniversary of the termination date and (y) the date on
which the Employee 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 the
Employee shall vest and become immediately exercisable.  If the Employee is entitled to a Change in
Control Payment and benefits under this Section 9(h), the Employee shall
not have any rights to receive any severance payments or benefits pursuant to Section 9(g) hereof.  If the Employee’s employment by the Company
terminates within six (6) months prior to the Change in Control and the
Employee received severance payments pursuant to Section 9(g) hereof,
any amounts so paid by the Company to the Employee shall be deducted from any
Change in Control Payment otherwise payable to Executive pursuant to this Section 9(h).


 


4.             A new Section 9(j) is hereby added to the
Agreement as follows:


 


(j) 
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 office
following such election are individuals who were not nominated by a vote of
two-thirds of


 


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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 Commencement Date.


 


A
“Takeover Transaction” shall mean (i) a
merger or consolidation of FGX Holdings with any other Person, other than a
merger or consolidation 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
any parent thereof for a period of not less than twelve (12) months following
the closing of such transaction, or (ii) when any Person becomes after the
date hereof the beneficial owner 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 any Person that is
excluded from the definition of “beneficial owner” under Rule 16(a)-1(a)(1) under
the Exchange Act.


 


For
purpose of this Agreement:  (i) the
term “Affiliate” shall have the meaning set
forth in Rule 144 under the Securities Act of 1933, as amended; (ii) the
term “beneficial owner” shall have the
meaning set forth in Rule 13d-3 under the Exchange Act; (iii) the
term “Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended; and (iv) the term “Person”
shall have the meaning ascribed to such term under Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (1) FGX Holdings or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities under an
employee benefit plan of FGX Holdings or any of its Affiliates, (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (4) a corporation owned, directly or indirectly, by the
stockholders of FGX Holdings in substantially the same proportions as their
ownership of stock of FGX Holdings.


 


5.             A
new Section 9(k) is hereby added to the Agreement as follows:


 


(k) 
General Release.  As a condition
precedent to receiving any severance payment, the Employee shall execute a general
release of any and all claims which the Employee 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 the Employee
participates or for any right to indemnification to which the Employee may be
entitled under this Agreement or as an officer and director of the Company.


 


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6.            Except
as expressly provided herein, no other modifications or amendments to the
Agreement are being made and, with the exception of the amendment set forth
herein, the terms and conditions of the Agreement are hereby ratified and
confirmed.


 


IN WITNESS WHEREOF, the parties have executed this
Amendment No. 2 as of the date first written above.


 


	
   

  	
  FGX
  INTERNATIONAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Alec Taylor

  
	
   

  	
  By:
  Alec Taylor

  
	
   

  	
  Title:
  CEO

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Steven Crellin

  
	
   

  	
  Steven
  Crellin

  



 


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