Exhibit 10.50


 


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”), Alec Taylor, a resident of the State of Rhode
Island (the “Executive”) and FGX International Holdings, Limited, a British
Virgin Islands corporation (“FGX Holdings”).


 


WHEREAS,
the Company, the Executive and FGX Holdings are parties to a certain amended
and restated Employment Agreement dated as of December 19, 2006, 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 Holdings, dated as of December 15, 2009 (the “Merger Agreement”), the Company, the
Executive and FHX Holdings 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 20 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.             The following is added at the end
of clause (b) of Section 2 of the Agreement, immediately prior to the
period at the end of such clause (b):


 


; 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


 


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2.             Section 7(b)(iii) of
the Agreement is amended in its entirety to read as follows:


 


                (iii)  the
Company shall provide the Executive with a severance package for twenty-four
(24) months (the “Severance Period”),
commencing on the first business day of the third month following the effective
date of such termination, which shall consist of:  (i) payment during the Severance Period
on the first business day of each month of an amount equal to one-twelfth of
Executive’s then current Base Salary under Section 4(a) hereof; (ii) payment
during the Severance Period on the first business day of each month of an
amount equal to one-twelfth of the amount of the Base Bonus (as defined in Section 4(b) above)
for the year in which the Executive’s employment is terminated (determined
without regard to whether any performance metric established by the Board
pursuant to Section 4(b) above is satisfied), provided, however, that
the first payment to be made under clauses (i) and (ii) of this Section 7(b)(iii) shall
be an amount equal to three-twelfths of such Base Salary and Base Bonus amounts;
and (iii) continuation of all benefits under Section 5(a) hereof
at the same cost to the 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 5(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 payment made
during the Severance Period shall be deemed to be a separate payment within the
meaning of Section 409A of the Code and the regulations thereunder.


 


3.             Section 7(b)(v) of the
Agreement is restated in its entirety to read as follows:


 


Notwithstanding any other provision of this Agreement to the contrary, as
a condition precedent to receiving any severance payment the 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 reasonably
satisfactory to the Company 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.


 


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4.             The
first sentence of Section 7(c)(i) 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 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 the 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) the
amount of the Base Bonus (as defined in Section 4(b) above) for the
year in which the Executive’s employment is terminated (determined without
regard to whether any performance metric established by the Board pursuant to Section 4(b) above
is satisfied).  The Change in Control
Payment shall be paid to the Executive within fifteen (15) days after: (i) the
Change in Control if the Executive’s employment was terminated within six (6) months
before the Change in Control; or (ii) the termination of the Executive’s
employment by the Company if the Executive’s employment terminates within
twenty-four (24) months after the Change in Control.


 


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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 (i) and (ii) of
Section 7(b)(iii) hereof if such termination had occurred absent a
Change in Control, shall be paid to the Executive as provided in the second
sentence of this Section 8(a); and (2) the remaining amount of the Change
in Control Payment shall be paid, commencing on the date of termination, over
the Severance Period, in accordance with Section 7(b)(iii).


 


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 be 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/
  ANTHONY DI PAOLA

  
	
   

  	
  By:
  Anthony Di Paola

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FGX
  INTERNATIONAL HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  ANTHONY DI PAOLA

  
	
   

  	
  By:
  Anthony Di Paola

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  ALEC TAYLOR

  
	
   

  	
  Alec Taylor

  



 


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