Exhibit 10.51


 


AMENDMENT NO. 4


TO THE


AMENDED AND RESTATED


EMPLOYMENT AGREEMENT


 


This
Amendment No. 4 to the Amended and Restated Employment Agreement is made
as of December 15, 2009 by and among FGX International Inc., a Delaware
corporation (the “Company”) and John H. Flynn, Jr., 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 through November 6,
2009 (the “Agreement”);


 


WHEREAS,
in connection with the execution of that certain Agreement and Plan of Merger
among Essilor International (“Parent”),
1234 Acquisition Sub Inc., an indirect wholly-owned subsidiary of Parent, and FGX International Holdings, Limited, dated as of December 15, 2009
(the “Merger Agreement”),
the Company and the Executive have entered into Amendment No. 3 to the
Amended and Restated Employment, to be effective as of December 15, 2009 (“Amendment
No. 3”), which amendment provides that it shall be of no force and effect
if the Merger Agreement is terminated prior to consummation of the transactions
contemplated thereby;


 


WHEREAS,
pursuant to and in accordance with Section 13 of the Agreement, the
Company and the Executive desire to amend the Agreement in order to provide for
compliance with Section 409A of the Internal Revenue Code of 1986, as
amended; and


 


WHEREAS,
as more fully set forth in Item 7 of this Amendment No. 4, certain of the
amendments set forth in this Amendment No. 4 shall become effective only
if Amendment No. 3 is no longer of any force and effect due to termination
of the Merger 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 1 of the Agreement is
restated in its entirety to read as follows:


 


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; provided, however, that
if a Change in Control shall have occurred during the Employment Period, the Employment
Period shall expire no earlier than twenty-four (24) months beyond the month in
which such Change in Control occurred. 
For purposes of this Agreement, “Termination Date” means the date on
which the Employment Period ends.


 


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2.             Section 6.3(a) is
amended in its entirety to read as follows:


 


(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, the Company shall
provide Executive with a severance package for two years, commencing on the
first business day of the third month following the effective date of such termination,
which shall consist of the following:  (x) payment
on the first business day of the 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 (as defined in Section 3(b) above)
for the year of termination, provided, however, that the first payment to be
made under clauses (x) and (y) of this Section 6(c)(i) shall
be an amount equal to three-twelfths of such Salary and Annual Target Bonus
amounts; and (z) continuation of all benefits under Section 4(a) hereof
at the same cost to Executive as is applicable to active employees of the
Company (with the Executive being entitled to reimbursement by the Company of
any amounts paid by the Executive due to the delay in the commencement of such
benefit pursuant to this sentence); provided, however, that benefits under Section 4(a) shall
be discontinued as of the date on which Executive 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 6.3(b) of the
Agreement is amended in its entirety to read as follows:


 


                (b)   General Release.  Notwithstanding any other provision of this
Agreement to the contrary, as a condition precedent to receiving any severance
payment Executive shall execute, not later than forty-five (45) days following
(and not prior to) the effective date of such termination of employment, 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 executives, officers,
directors, agents and attorneys, except for claims arising under this agreement
or any benefit plan in which Executive is a participant (other than any such
plan providing a benefit in the nature of a severance benefit) or for any right
to indemnification to which Executive may be entitled as an officer and
director of the Company.


 


4.             The
first sentence of Section 6(d)(1) of the Agreement is restated in its
entirety to read as follows:


 


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 


 


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for the benefit of the Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this agreement or
otherwise (a “Payment”) would constitute an “excess
parachute payment” within the meaning of Section 280G(b) of the Code,
and thus would result in the Executive incurring an excise tax under Section 4999
of the code, then 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; provided,
that such reduction shall occur in the following order:  (1) cash payments subject to Section 409A
of the Code; (2) cash payments not subject to Section 409A of the
Code; and (3) non-cash forms of benefits; and provided, further,
that to the extent any payment to be reduced pursuant to this sentence is to be
made over time (e.g., in installments, etc.), then such payments shall be
reduced in reverse chronological order.


 


5.             The first two sentences of Section 8(a) of
the Agreement are restated in their entirety to read as follows:


 


If Executive’s employment is terminated by the Company without Cause or
by the Executive for Good Reason within six (6) months before and in
anticipation of, or twenty-four (24) 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 (x) the Executive’s then current Base Salary plus (y) Executive’s
Annual Target Bonus Amount (as defined in Section 3(b) above) for the
year in which Executive’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 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 twenty-four (24) months after the Change in Control.


 


6.             The following is added as a new
final sentence of Section 8(a) of the Agreement:


 


Notwithstanding any other provision of this Agreement, in the event
that the event constituting a Change in Control is not a “change in control
event” within the meaning of Section 409A of the Code:  (1) an amount equal to the excess, if
any, of (x) the Change in Control Payment over (y) the aggregate
amount that would have been paid to the Executive under clauses (x) and (y) of
Section 6.3(a) hereof if such termination had occurred absent a
Change in Control, shall be paid to the Executive as 


 


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provided in the second sentence of this Section 8(a); and (2) the
remaining amount of the Change in Control Payment shall be paid in accordance
with Section 6.3(a).


 


7.             Effective Dates of Amendment No. 4.  Items 4, 7 and 8 of this Amendment No. 4
shall be effective as of December 15, 2009.  Items 1, 2, 3, 5 and 6 of this Amendment No. 4
shall become effective, if at all, on the date that the
Merger Agreement is terminated prior to consummation of the transactions
contemplated thereby.


 


8.             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. 4 as of the date first written above.


 


 


	
   

  	
  FGX INTERNATIONAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ ALEC TAYLOR

  
	
   

  	
  By: Alec Taylor

  
	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ JOHN H. FLYNN, JR.

  
	
   

  	
  John H. Flynn, Jr.

  



 


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