EXHIBIT 10.26
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AND AGREEMENT
FOR
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This Supplemental Executive Retirement Plan and Agreement for
_________________, made as of the 19th day of April, 2000 by and between
CONCORD CAMERA CORP., a New Jersey corporation (the "Employer") and
_____________ (the "Executive").
In consideration for the premises and the mutual covenants hereinafter
contained, the parties hereto hereby agree as follows:
Article I. Introduction
In consideration of the services performed by the Executive for the
Employer in the past and to be performed in the future, the Employer hereby
agrees to pay, in addition to other consideration to be provided by the
Employer, deferred compensation to him under the terms and conditions
hereinafter set forth. This Agreement creates an unfunded, nonqualified plan
maintained for the purposes of providing deferred compensation for the
Executive, a member of senior management and a highly compensated Executive, and
shall be construed and administered accordingly.
Article II. Definitions
When used herein with initial capital letters, the following words have
the following meanings:
Accounts - the three accounts established by the Employer for
the benefit of the Executive, each reflecting a $_________ initial credit and
adjustments for income, expenses, gains or losses and any payments from the
accounts.
Change in Control - the occurrence of any one of the following
events:
(i) any "person," as such term is used in Sections
3(a)(9) and 13(d) of the Securities Exchange Act of 1934 (other than Executive),
becomes a "beneficial owner," as such term is used in Rule 13d-3 promulgated
under that act, of 25% or more of the Voting Stock of the Employer, which term
means capital stock of any class or classes having general voting power under
ordinary circumstances, in the absence of contingencies, to elect the directors
of a corporation;
(ii) the majority of the Board of Directors of the
Employer consists of individuals other than Incumbent Directors, which term
means the members of such Board on the date of this Plan and Agreement; provided
that any person becoming a director subsequent to such date whose election or
nomination for election was supported by two-thirds of the directors who then
comprised the Incumbent Directors shall be considered to be an Incumbent
Director;
(iii) the Employer adopts any plan of liquidation
providing for the distribution of all or substantially all of its assets;
(iv) all or substantially all of the assets or
business of the Employer is disposed of pursuant to a merger, consolidation or
other transaction (unless the shareholders of the Employer immediately prior to
such merger, consolidation or other transaction beneficially own, directly or
indirectly, in substantially the same proportion as they owned the Voting Stock
of the Employer, the Voting Stock or other ownership interests of the entity or
entities, if any, that succeed to the business of the Employer); or
(v) the Employer combines with another company and is
the surviving corporation but, immediately after the combination, the
shareholders of the Employer immediately prior to the combination hold, directly
or indirectly, 50% or less of the Voting Stock of the combined company (there
being excluded from the number of shares held by such shareholders, but not from
the Voting Stock of the combined company, any shares received by affiliates of
such other company in exchange for stock of such other company).
Plan and Agreement - this Supplemental Executive Retirement
Plan and Agreement for ___________________________.
Article III. Deferred Compensation
1. The Employer agrees to credit on August 10, 2000,
$___________ to each of Account I, Account II and Account III, and such deferred
compensation shall be paid to the Executive as hereinafter provided.
2. The balance in each Account shall be deemed for purposes of
this Plan and Agreement to be invested and reinvested in such securities,
investments, instruments or insurance policies as the Executive, in his sole
discretion, shall direct from time to time, by one day advance written notice
given to the Employer or its designee. With the consent of the Employer, the
Executive may, by giving written notice to the Employer or its designee,
authorize an investment manager to make the directions specified in the
preceding sentence. Any investment direction or change of investment direction
shall be deemed made on the first business day following the Employer's or its
designee's, as the case may be, receipt of the Executive's or the investment
manager's, as the case may be, written notice of investment direction. Any such
investment direction shall remain in effect until affirmatively changed by a
subsequent investment direction given in the same manner, provided that the
proceeds of any investment which matures shall be deemed to be reinvested in
such money market account as the Employer may determine and thereafter until a
new investment direction is made with respect to such proceeds. Notwithstanding
the foregoing, no such deemed investment shall, in the Employer's reasonable
judgment, impose upon the Employer administrative burdens or financial costs
which are inappropriate in view of all of the circumstances. If no applicable
investment direction is given on or before the date on which an amount is
credited to an Account, such amount shall be initially invested in a such money
market account as the Employer may reasonably determine. The Employer, in its
discretion and on such terms as it decides, may waive, or reduce the period of,
any notice required under this paragraph.
3. Title to and beneficial ownership of any direct or indirect
investments the Employer may make in connection with the Plan and Agreement
(including the transfer of funds to a selected investment manager for
discretionary investment and reinvestment in such investments by such investment
manager or the transfer of funds to a so-called rabbi trust) shall at all times
remain with the Employer, and the Executive and his designated beneficiary or
beneficiaries shall not have any property interest whatsoever in such
investments.
4. At the end of every month, each Account shall be increased
or decreased by (a) in the case of each investment actually made directly or
indirectly by the Employer with respect to such Account, the net amount of all
income, gain or loss earned or sustained, whether realized or unrealized, with
respect to such investment, and (b) in the case of each deemed investment with
respect to such Account, the net amount of all income, gain or loss which would
have been earned or sustained, whether realized or unrealized, had the balance
in the Account in fact been invested and reinvested in such investment. Each
Account shall also be charged with all payments or other distributions with
respect to such Account and with all fees and expenses (including brokerage
fees) with respect to such Account, in the case of investments actually made, at
the rates actually paid and, in the case of investments deemed to have been
made, at the rates which would have been paid had the investments actually been
made.
Article IV. Vesting
1. The balances in the Accounts shall vest as follows:
Account Vesting Date
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Account I January 1, 2001
Account II January 1, 2002
Account III January 1, 2003
Upon the event of a Change in Control, the balances in the Accounts shall
immediately vest. In the event the Executive's employment with the Employer is
terminated prior to the vesting of the balance in an Account for any reason, the
balance in such Account shall be immediately forfeited and the Executive shall
have no further interests in such balance.
2. Notwithstanding anything herein to the contrary, in the
event of a forfeiture of a balance in an Account, Executive agrees to
immediately pay to the Employer the excess, if any, of $____________ over the
balance in the Account at the time of such forfeiture. The Employer, in its
discretion, may reduce the amounts otherwise payable under this Plan and
Agreement by the amount owed to the Employer pursuant to the immediately
preceding sentence.
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Article V. Benefit Distributions
1. Subject to the provisions of paragraph 2 of Article IV, the
vested balance in each Account shall be paid to the Executive in one of the two
following methods at the election of the Executive: (a) a lump-sum payment to be
paid at such time as is designated by the Executive or (b) annual installment
payments over such period of years as may be designated by the Executive;
provided, however, no payment shall be payable pursuant to this Article V prior
to the Executive's termination of employment with the Employer.
2. The Executive's election and designation referred to in
Paragraph 1 of this Article V with respect to an Account shall be made by a
written notice to the Employer prior to August 19, 2000. The Executive may
make different elections and designations with respect to each Account.
3. In the event that the Executive fails to make an election
pursuant to paragraph 1 of this Article V with respect to an Account, the vested
balance in such Account shall be paid in ten annual installments commencing on
the first day of the month following the termination of the Executive's
employment with the Employer.
4. All payments to be made pursuant to paragraph 1 of this
Article V with respect to each Account shall be made in cash, and in furtherance
thereof, all investments actually made with respect to such Account shall be
sold by the Employer at such time or times as the Employer may determine to
effect such payment; provided, that (a) in the case of an installment payment,
unless the Executive provides the Employer with written notice to the contrary
at least five days prior to the date any such payment is due, the Employer may
select the investments to be sold or deemed sold to provide the cash necessary
for such payment, and (b) to the extent investments have actually been made by
the Employer with respect to such Account, the Executive may elect, subject to
the Employer's approval, to receive payment in kind in lieu of cash by providing
written notice of such election to the Employer at least five days prior to the
date of such payment.
5. For purposes of determining the amount of a payment
referred to in paragraph 1 of this Article V with respect to an Account, (a) the
balance in such Account shall be adjusted by the Employer in the manner provided
in paragraph 6 of Article III not more than five trading days preceding such
payment, (b) the amount of such payment shall be reduced by the amount of any
expenses actually incurred or deemed to have been incurred in connection with
the sale or deemed sale of investments required to make such payment ("selling
expenses"), and (c) if the installment method is elected with respect to any
year, the amount of each installment shall be equal to the balance in the
appropriate Account as of the date of payment (as adjusted pursuant to clause
(a) of this sentence), divided by the number of annual installments remaining,
including the installment then being paid, and then reduced by the amount of any
applicable selling expenses.
6. Except as provided in this paragraph 6, the Executive shall
have no right to modify in any way his election and designation made pursuant to
paragraph 1 of this Article V with respect to an Account or, in the event of his
failure to make such an election or designation, the default provisions of
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paragraph 3. Provided that a modification election is made at least 12 months
prior to the commencement of the benefit distributions with respect to an
Account, the Executive, may:
(a) delay the date on which a lump-sum payment from
such Account shall be made;
(b) change the form of benefit payment from such
Account from a lump-sum payment to annual
installment payments over such period of years
as designated by the Executive;
(c) change the form of benefit payment from such
Account from annual installments to a lump-sum
payment which shall be paid at the time
designated by the Executive but no sooner than
the day on which the installment payments were
to commence;
(d) delay the commencement of annual installment
payments from such Account; or
(e) increase the period of years during which
annual installments shall be made out of such
Account.
7. Notwithstanding anything in this Plan and Agreement to the
contrary, in the event of the termination of the Executive's employment with the
Employer for any reason prior to the Executive's attainment of age 65, the
vested balance in each Account shall be paid to the Executive in one lump-sum
payment within 30 days of such termination.
8. Employer is authorized to withhold from any payments made
hereunder such amounts for income tax, social security, unemployment
compensation and other taxes as shall be necessary or appropriate to comply with
applicable laws and regulations.
Article VI. Hardship
The Employer may, in its sole discretion, distribute all or a
portion of the vested balances in the Accounts to the Executive upon a
demonstration by the Executive of an immediate and heavy financial need. The
amount of any distribution made pursuant to this Article VI shall be limited to
the amount necessary to satisfy such financial need.
Article VII. Death
In the event of the Executive's death prior to the payment of
all of the vested balances in the Accounts, unless the Executive otherwise
elects with the consent of the Employer, the Employer shall pay all remaining
vested balances in the Accounts at such time, not later than 60 days following
the Executive's death, in one lump-sum to such beneficiary or beneficiaries
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designated by the Executive in a writing filed by the Executive with the
Employer, or in the absence of such a beneficiary designation, to the
Executive's estate.
Article VIII. Claims Procedures
1. At any time the Employer makes a determination adverse to
the Executive or his beneficiary with respect to a claim for payment, the
Employer shall notify the claimant in writing of such determination, setting
forth:
(a) the specific reason for such determination;
(b) a reference to the specific provision or
provisions of this Plan on which such
determination is based;
(c) a description of any additional material or
information necessary to perfect the claim, and
an explanation of the reason that such material
is required, and
(d) an explanation of the rights and procedures set
forth in this Article VIII.
2. A person who receives notice of an adverse determination by
the Employer with respect to a claim may request, within 60 days of receipt of
such notice, that the Employer review its determination. This request may be
made on behalf of a claimant by a duly authorized representative. The claimant
or representative may review pertinent documents and submit issues and comments
with respect to the controversy to the Employer. The Employer shall render a
decision within 60 days of a request for review (or within 120 days under
special circumstances), which decision shall be in writing and shall set forth
the specific reasons for the decision reached and the specific provisions of
this Plan and Agreement on which the decision is based. A copy of the ruling
shall be forwarded to the claimant.
Article IX. Miscellaneous
1. Benefits provided in this Plan and Agreement will not be
subject to garnishment, attachment, or assignment, or any other legal process by
creditors of the Executive or any person or persons designated as beneficiaries
of this Plan and Agreement or any other payee of the benefits provided herein,
except as specifically provided herein.
2. The Executive and his beneficiaries shall have the status
of unsecured creditors of the Employer and this Plan and Agreement constitutes a
mere promise by the Employer to make benefit payments as required by Articles V,
VI and VII.
3. This Plan and Agreement creates no rights in the Executive
to continue in the employment of the Employer for any length of time, nor does
it create any rights in the Executive or his beneficiaries nor any obligations
on the part of the Employer, other than those specifically provided herein.
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4. This Plan and Agreement shall be binding upon and inure to
the benefit of the Employer, its successors and assigns, and the Executive, his
heirs, executors, administrators and legal representatives.
5. The waiver by any party of any term of this Plan and
Agreement on any occasion shall not be deemed to be a further or continuing
waiver of any such term.
6. Written notices which the Executive must provide to the
Employer under this Plan and Agreement (including, but not limited to,
investment directions, benefit distribution elections and beneficiary
designations) shall be addressed to the Employer at: 0000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx Xxxxxx - Xxxxx 000X, Xxxxxxxxx, Xxxxxxx 00000.
7. This Plan and Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New Jersey without giving
effect to principles governing choice of law.
8. This Plan and Agreement may be terminated or amended only
by a writing signed by both of the parties hereto.
IN WITNESS WHEREOF, this Plan and Agreement has been duly
executed by the Employer and by the Executive as of the day and year first above
written.
Witness: CONCORD CAMERA CORP.
_______________________________ By:______________________________
Witness: EXECUTIVE
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Schedule 10.26
The Company has entered into Supplemental Executive Retirement Plan and
Agreements ("SERP"s), a form of which is attached as Exhibit 10.26, with the
following executive officers. The Agreements are identical with the exception of
the amounts listed below:
Deferred
Compensation
Initial Credit Account Credits
Executive Title (Article II) (Article III, ss.1)
--------- ----- ------------ -------------------
Xxxxx X. Xxxx Senior Vice President $ 750,000 $ 250,000
Xxxxx X. Xxxxxxx Vice President of the Company and 450,000 150,000
Managing Director of Concord HK
Xxxxxx X. Press Vice President and Treasurer 165,000 55,000
Xxx X. Xxxxxxxx Vice President and Director of 110,000 36,666.66
Global Sales and Marketing
