Exhibit 10.3
AMENDMENT NO. 7 TO TERMS OF EMPLOYMENT
Of
XXXXXX X. XXXXXX
With
CONCORD CAMERA CORP.
This AMENDMENT NO. 7 TO TERMS OF EMPLOYMENT is effective as of June 24,
2008 (this "Instrument") by and between CONCORD CAMERA CORP. (the "Company") and
Xxxxxx X. Xxxxxx ("Employee").
RECITALS
A. The Employee is currently employed by the Company pursuant to the
Terms of Employment, dated as of April 17, 2000, as thereafter amended (as
amended, the "Agreement"), between the Company and the Employee.
B. The parties desire to modify the Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Capitalized terms used but not defined herein have the meanings
assigned to them in the Agreement.
2. Section 15, Termination, of the Agreement is hereby deleted in its
entirety and replaced with the following:
"15) Termination
The Company may terminate the employee for cause at any time without
notice. "Cause shall mean: (i) continued failure to obey reasonable
instructions of the person(s) to whom the employee reports; (ii)
continued neglect of duties and responsibilities; (iii) willful
misconduct; (iv) fraud or dishonesty; (v) any action in bad faith
which is to the detriment of the Company and/or any of its
subsidiaries or affiliates; (vi) failure to comply with any of the
provisions set forth in Exhibit A; or (vii) failure to comply with
the Code of Conduct annexed as Exhibit B.
Either party may terminate at any time for any reason or for no
reason upon giving the other party three (3) months' written notice.
If the Company terminates the employee for any reason other than
cause, or for no reason and
(a) if such termination is made effective immediately or at any
other time before the expiration of the foregoing 3-month notice
period, then the Company shall pay the employee's base salary and
automobile allowance, in lieu of notice, for the remainder of such
notice period (the "Notice Payments").
If the Company terminates the employee for any reason other than
cause, or for no reason, as additional consideration of the
covenants of employee set forth in Section 16 and Exhibit A, then,
after the Company has made any Notice Payments the employee is
entitled to receive pursuant to subparagraph (a) of this section,
the employee shall receive a payment (the "Non-Compete Payment")
equal to up to twelve (12) months' of his base salary and automobile
allowance (net the required withholding). Notwithstanding any
provision of this Agreement to the contrary, in no event shall the
employee receive Notice Payments and/or a Non-Compete Payment which,
when aggregated, exceed twelve (12) months' of his base salary and
automobile allowance. By way of example, if pursuant to this
section: (i) the employee receive Notice Payments equal to one (1)
month's base salary and automobile allowance, then his Non-Compete
Payment will be for eleven (11) months' base salary and automobile
allowance; (ii) the employee instead receives three (3) months'
notice, such that there are no Notice Payments, then his Non-Compete
Payment will be for twelve (12) months' base salary and automobile
allowance; or (iii) the employee receives Notice Payments equal to
three (3) month's base salary and automobile allowance, then his
Non-Compete Payment will be for nine (9) months' base salary and
automobile allowance.
Additionally, if the Company terminates the employee for any reason
other than cause or for no reason and if the employee, by written
notice to the Company, (i) elects COBRA continuation coverage (for
the period after the termination effective date) under the Company's
insurance policies by which the employee is then covered or, if
COBRA continuation coverage under the Company's insurance policies
is not available for any portion of the one (1) year post-employment
period, (ii) obtains medical, dental and vision insurance coverages
substantially similar to the medical, dental and vision insurance
coverages under the Company's insurance policies in effect at the
time COBRA continuation coverage under the Company's insurance
policies is no longer available, then the Company shall reimburse
the employee for the premiums paid by the employee thereunder during
the one (1) year post-employment period which shall run from the
termination effective date. The Company shall make each such premium
reimbursement payment within seven (7) days after its receipt of
notice of payment thereof by the employee.
Any and all Notice Payments and the Non-Compete Payment shall be
payable in installments (net of required withholding) in accordance
with the Company's normal payroll schedule and shall not be payable
simultaneously. The Company's obligation to make any Notice Payments
and/or the Non-Compete Payment is conditioned upon the employee's
prior and continued compliance with all provisions of this Agreement
including, but not limited to, those set forth in Section 16 and
Exhibit A.
If the employee's employment is terminated by the Company for cause,
or by the employee, then the employee will not receive a Non-Compete
Payment, any Notice Payments or any payment for COBRA coverage, but
all of his obligations under the provisions of this Agreement,
including but not limited to those set forth in Section 16 and
Exhibit A, nevertheless remain in full force and effect.
In the event that the employee's employment terminates for any
reason at all, voluntarily or involuntary, benefits provided to the
employee will terminate as of the last day of employment unless
otherwise specified in any employee benefit plan or unless otherwise
specified as a matter of law."
3. The following new Section 23 is hereby added to the Agreement:
"23. Section 409A of the Code.
This Agreement is intended to comply with Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code") to the extent
applicable, and shall be so interpreted. Notwithstanding anything
herein to the contrary, (i) if at the time of a "separation from
service" from the Company, the employee is a "specified employee"
(as such terms are defined in Section 409A and any related
regulations or other pronouncements thereunder) and the deferral of
the commencement of any payments or benefits otherwise payable
hereunder as a result of such separation from service is necessary
in order to prevent any accelerated or additional tax under Section
409A, then the Company will defer the commencement of the payment of
any such payments or benefits hereunder (without any reduction in
such payments or benefits ultimately paid or provided to the
employee) until the date that is six months following the employee's
separation from service from the Company (or the earliest date as is
permitted under Section 409A). To the extent any reimbursements or
in-kind benefits due to the employee under this Agreement
constitutes "deferred compensation" under Section 409A, any such
reimbursements or in-kind benefits shall be paid to the employee in
a manner consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv).
Each payment made under this Agreement shall be designated as a
"separate payment" within the meaning of Section 409A. Neither the
Company nor any of its employees or representatives shall have any
liability to the employee with respect to Section 409A."
4. Except as hereby amended, all of the terms and conditions set forth
in the Agreement are and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties executed this Instrument as of the date
first set forth above.
EMPLOYEE: CONCORD CAMERA CORP.
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxx X. Xxxxxxx
-------------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxx X. Xxxxxxx
Title: Chief Executive Officer
Dated: June 24, 2008 Dated: June 24, 2008
