Exhibit 10.2


 


AMENDMENT
NO. 3


TO
THE


AMENDED
AND RESTATED


EMPLOYMENT
AGREEMENT


 


This Amendment No. 3
(this “Amendment”) 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 as of December 5,
2008 and November 6, 2009 (the “Agreement”);


 


WHEREAS, Essilor
International, a French Société anonyme (“Parent”),
1234 Acquisition Sub Inc., a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (“Merger Sub”),
and FGX International Holdings Limited, a British Virgin Islands corporation
(“FGX Holdings”) propose to enter into a merger agreement
(that certain Agreement and Plan of Merger among Parent, Merger Sub and FGX
Holdings, dated as of December 15, 2009, the “Merger Agreement”)
that will (subject to the satisfaction of the terms and conditions of the
Merger Agreement) result in FGX Holdings becoming wholly-owned by Parent upon
the Closing (as defined in the Merger Agreement, the “Closing”)
(the “Merger”);


 


WHEREAS, following the
Closing, the Company desires to continue the employment of the Executive on the
terms and conditions stated herein;


 


WHEREAS, pursuant to and
in accordance with Section 13 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.                                      This Amendment will become effective upon
its execution by each of the parties; provided, however, that this Amendment
will be null and void ab initio
and of no further force or effect if the Merger Agreement is terminated prior
to the Closing or if, for any reason, the Closing does not occur.  Capitalized terms not defined herein will
have the meanings ascribed to such terms in the Agreement.


 


2.                                      Section 2 of the Agreement is
amended in its entirety to read as follows:


 


“2.                                 Employment;
Duties.    Subject to the terms and
conditions set forth herein, from and after the Closing and during the
Employment Period, Executive shall serve as President of the Company and of FGX
Holdings (FGX Holdings, together with the direct and indirect subsidiaries of
FGX Holdings, the 


 

















 


“FGX Group”). 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 the FGX Group diligently,
competently, and in a good faith manner. Executive may also engage in civic and
charitable activities to the extent they are not inconsistent with Executive’s
duties hereunder.”


 


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


 


“(b)                           Bonus. In addition to the Salary, the Executive shall be
eligible to receive an annual cash bonus on account of services rendered by him
during each calendar year during the Employment Period.  In accordance with the Merger Agreement, the
Board of Directors of the Company (the “Board”),
in consultation with the Chief Executive Officer, shall establish performance
metrics (as such performance metrics may be amended or modified in the sole
discretion of the Board during any calendar year to take into account any
acquisitions, divestitures or non-recurring items or any other fundamental
corporate transactions or changes, the “Performance
Metrics”) to quantify the Company’s performance for any calendar
year during the Employment Period.  In the
event that the Company meets or exceeds the annual Performance Metrics
established by the Board, the Executive shall be entitled to receive, in
addition to the Salary, a bonus of up to fifty percent (50%) of the Salary paid
to the Executive on account of such calendar year (the “Bonus”). 
Subject to (i) the Executive remaining employed by the Company on
the date the Bonus is determined, or (ii) the Executive being employed by
the Company on the day immediately following the end of the applicable performance
period in the event that the Company terminates the Executive’s employment
without Cause, any Bonus payable to the Executive on account of any calendar
year shall be paid to the Executive on or before the later of (x) March 15
of the year following the year for which the Bonus was earned and (y) the
date on which the Board has been able to determine within a reasonable degree
of certainty that the Performance Metrics have been met or exceeded and the
amount of the Bonus due Executive.


 


In
addition to the Salary and Bonus, the Executive shall (i) participate in
the Company’s long-term incentive program on terms and conditions to be
established by the Board as soon as reasonably practicable following the
Closing, and (ii) be granted options, subject to approval by the board of
directors of Parent (the “Parent Board”),
to purchase shares of Parent on terms and conditions to be established by the
Parent Board as soon as reasonably practicable following the Closing.”


 


4.                                      Section 4(d) of the Agreement
is deleted in its entirety.


 


5.                                      Section 6.1(a) of the Agreement
is amended in its entirety to read as follows:


 


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“(a)                            Termination by
Executive.    Executive may terminate his employment with
the Company at any time without Good Reason by providing one hundred and eighty
(180) days’ written notice to the Company.”


 


6.                                      Clause (i) of the second sentence of
Section 6.2 of the Agreement is amended in its entirety to read as
follows:


 


“(i) the
material reduction or material adverse change in Executive’s authority, duties,
job responsibilities or reporting structure from those in effect on the date
hereof; provided, however, that no Good Reason shall exist solely as a result
of the Company ceasing to be an independent publicly held company and as a
result of the change in the Executive’s reporting structure as a result of the
Merger;”


 


7.                                      Section 6.3 of the Agreement is
amended by deleting clauses (a) and (b) in their entirety and
redesignating clauses (c) and (d) as clauses (a) and (b),
respectively.


 


8.                                      Section 8(a) of the Agreement
is amended in its entirety to read as follows:


 


“(a)                            Subject to Section 8(d), if the
Executive’s employment is terminated either by the Company without Cause, by
the Executive for Good Reason or because of the Executive’s death or
Disability, in any case, within twenty-four (24) months after a Change in
Control (as defined in Section 8(c)), the 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 Salary plus (y) the
amount of the Bonus (as defined in Section 3(b) above) for the year
in which the Executive’s employment is terminated (determined without regard to
whether any Performance Metrics established by the Board pursuant to Section 3(b) above
are or were satisfied).  The Change in
Control Payment shall be paid to the Executive on the sixtieth (60th) day following the earlier of the Executive’s
separation from service (as defined in Section 409A) or the date of the
Executive’s death.  The Executive shall
also be entitled to continuation of medical, dental and vision benefits under Section 4(a) hereof
at the same cost to the Executive as is applicable to active employees of the
Company until the earlier of (x) the two-year anniversary of the
Termination Date and (y) the date on which the Executive is provided
comparable benefits from any other source (the “Continuation Coverage”); provided, however, that the Company
shall use commercially reasonable efforts to provide such health insurance
benefits through a third party insurer. 
For purposes of this Agreement, the amounts paid or contributed by the
Company for Continuation Coverage for the benefit of the Executive and, as
applicable, the Executive’s eligible dependents are referred to as the “Premium Payments”.  In the event that the Company’s group health
plan is or becomes subject to the nondiscrimination rules of Section 105(h) of
the Code, the Company’s obligation to pay the premiums for Continuation
Coverage will end, and the Executive will become responsible for the timely
payment of the full cost of maintaining his elected coverage and the coverage
for his eligible dependents 


 


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until the end of
the applicable Continuation Period.  In
such event, the Company will reimburse the Executive in an amount equal to the
Premium Payments that the Company would otherwise have paid in accordance with Section 4(a) (“Premium Reimbursements”).  The Executive acknowledges that any Premium
Reimbursements will be treated for reporting purposes as taxable income to the
Executive.  The Executive will provide
the Company substantiation in reasonable detail of the premiums the Executive
paid within two calendar months after the premiums are paid.  Premium Reimbursements under this Section 8(a) will
be paid to the Executive in the calendar month following the calendar month in
which substantiation determined by the Company to be adequate has been provided
to the Company.  In no event will
adequately substantiated reimbursements be paid to the Executive later than the
last day of the calendar year following the calendar year in which the premium
expense was incurred.  The Executive will
promptly notify the Company in writing if the Executive becomes eligible for
coverage under another group health plan prior to the two-year anniversary of
the Termination Date.”


 


9.                                      Section 8(b) of the Agreement
is amended in its entirety to read as follows:


 


“(b)                           (i)                                     Subject to Section 8(d) and
subject to the Executive remaining employed by the Company on the second year
anniversary of the Closing (the “Retention
Payment Date”), the Executive shall be entitled to receive, no later
than five (5) business days following the Retention Payment Date, an
amount in cash equal to the Change in Control Payment (calculated in accordance
with Section 8(a) above) (the “Retention
Payment”).


 


(ii)                                  Notwithstanding
anything to the contrary in this Agreement, this Agreement will terminate upon
payment of the Retention Payment; provided, however, that the provisions of Section 8(a) (but
only to the extent Section 8(a) relates to the Continuation
Coverage), Section 8(b)(iv), Sections 9 through and including 12, and
Sections 14, 18 and 20 shall survive the termination or expiration of this
Agreement.


 


(iii)                               Notwithstanding
anything to the contrary in this Agreement, (x) in no event shall the
Executive be entitled to receive benefits under both Section 8(a) and
Section 8(b) above and (y) in no event shall the aggregate cash
payment(s) to the Executive under this Section 8 be less than
$1,248,600.


 


(iv)                              Executive
shall be provided the Continuation Coverage with respect to any termination of
his employment with the Company that is effective as of or following the second
year anniversary of a Change in Control.”


 


10.                                Section 8(c) of the Agreement
is amended in its entirety to read as follows:


 


“(c)                            The parties
hereby agree that the Closing will constitute a “Change in Control” for purposes of this Agreement.”


 


11.                                A new Section 8(d) is added to
the Agreement as follows:


 


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“(d)                           (i)                                     As a condition precedent to receiving the Retention
Payment or any payment pursuant to Section 8(a), Executive shall execute 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 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 as an officer and director of the Company (the “Release”).


 


(ii)                                  In the case of the Release in respect of
the Retention Payment, a valid Release shall be delivered to the Company prior
to the Retention Payment Date; provided that the Company has provided Executive
a form of Release at least forty-five (45) days prior to the Retention Payment
Date.  Subject to the Company’s
compliance with the previous sentence, the Company shall have no obligations
under Section 8(b) if Executive fails to deliver a valid Release to
the Company on or prior to the Retention Payment Date.


 


(iii)                               In the case of the Release in respect of
any payment under Section 8(a), a valid Release shall be delivered to the
Company within sixty (60) days following Executive’s termination of employment;
provided that the Company has provided Executive a form of Release within seven
(7) days following the Executive’s termination of employment.  Subject to the Company’s compliance with the
previous sentence, the Company shall have no obligations under Section 8(a) if
Executive fails to deliver a valid Release to the Company within sixty (60)
days following Executive’s termination of employment.”


 


12.                                Section 14 of the Agreement is
amended in its entirety to read as follows:


 


“14.  Notices.  Any notice, request or other document
required or permitted to be given under this Agreement shall be in writing and
shall be deemed given (a) upon delivery, if delivered by hand, (b) three
days after the date of deposit in the mail, postage prepaid, if mailed by U.S.
certified or registered, mail, or (c) on the next business day, if sent by
prepaid overnight courier service, in each case, addressed as follows:


 


	
  (a)

  	
   

  	
  If to Executive, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  John Flynn, Jr.

  
	
   

  	
   

  	
  [Redacted]

  
	
   

  	
   

  	
  [Redacted]

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to the Company, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FGX International Inc.

  



 


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  500 George Washington Highway

  
	
   

  	
   

  	
  Smithfield, Rhode Island 02917

  
	
   

  	
   

  	
  Attention: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  With copies (which shall not constitute notice) to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Skadden, Arps, Slate, Meagher & Flom LLP

  
	
   

  	
   

  	
  Four Times Square

  
	
   

  	
   

  	
  New York, New York 10036

  
	
   

  	
   

  	
  Attn: Neil M. Leff, Esq.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Essilor International

  
	
   

  	
   

  	
  147 rue de Paris

  
	
   

  	
   

  	
  94227 Charenton-le-Pont

  
	
   

  	
   

  	
  France

  
	
   

  	
   

  	
  Attn: Carol Xueref

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Jones Day

  
	
   

  	
   

  	
  222 East 41st Street

  
	
   

  	
   

  	
  New York, New York 10017

  
	
   

  	
   

  	
  Attn: Manan D.
  Shah, Esq.

  



 


Any
party may change the address to which notice shall be sent by giving notice of
such change of address to the other parties in the manner provided above.”


 


13.                                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.


 


[Signatures Appear on Next Page]


 


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IN WITNESS WHEREOF, the parties have executed this
Amendment as of the date first written above.


 


 


	
   

  	
  FGX INTERNATIONAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Anthony Di Paola

  
	
   

  	
  By: Anthony Di Paola

  
	
   

  	
  Title: EVP & CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ John H.
  Flynn, Jr.

  
	
   

  	
  John H. Flynn, Jr.