EXHIBIT 10.1
AMENDMENT NO. 3 TO
AMENDED AND RESTATED SUPPLEMENTAL EXECUTIVE RETIRMENT PLAN AND AGREEMENT
FOR XXX X. XXXXXXX
Amendment No. 3, dated as of August 6, 2003, to the Amended and
Restated Supplemental Executive Retirement Plan and Agreement for XXX X. XXXXXXX
(the "Executive"), dated as of April 19, 2000, by and between Concord Camera
Corp. and Xxx X. Xxxxxxx, as heretofore amended (the "SERP Agreement").
The parties hereto agree as follows:
1. The following Appendix A is added to the end of the SERP Agreement:
"APPENDIX A
A.1. Background. Concord Camera Corp. (the "Employer") has adopted
the Amended and Restated 2002 Long Term Cash Incentive Plan ("LTCIP") for the
grant of long-term incentive awards (each, a "Performance Award") to its
executives. Under the LTCIP, the Employer (i) may, as a condition of a
Performance Award granted to the Executive, require that all or a portion of the
Performance Award be deferred (a "Non-Elective Deferred Award") subject to such
terms and conditions as are established by the Compensation and Stock Option
Committee of the Employer's Board of Directors (the "Committee") and (ii) the
Committee may prescribe vesting and investing provisions with respect to such
Non-Elective Deferred Award. Also under the LTCIP, a recipient of a Performance
Award has the right to elect to defer, subject to the provisions of a deferral
agreement between the Employer and the recipient, all or a portion of his
Performance Award that is not a Non-Elective Deferred Award. (The portion of
such Performance Award which the Executive elects to defer is referred to herein
as an "Elective Deferred Award".) Each Elective Deferred Award shall be subject
to the general terms of the deferral agreement between the Employer and the
recipient. This Appendix sets forth the provisions of the Amended and Restated
Supplemental Executive Retirement Plan and Agreement for Xxx X. Xxxxxxx, dated
as of April 19, 2000, by and between the Employer and the Executive, as
heretofore amended (the "SERP Agreement") established by the Committee as
applicable to Non-Elective Deferred Awards granted to the Executive.
A.2. Definitions, References. Unless otherwise specifically defined
herein, each term used herein that is defined in the SERP Agreement has the
meaning assigned to such term in the SERP Agreement. Each reference to "hereof,"
"hereinunder," "herein," and "hereby" and each similar reference and each
reference to this "SERP Agreement" and each similar reference contained in the
SERP Agreement shall from and after the date hereof refer to the SERP Agreement
as including this Appendix A.
A.3. Non-Elective Deferred Award Accounts. The Employer shall
establish and keep separate Accounts for each portion of a Non-Elective Deferred
Award (each, a "Non-Elective Deferred Award Account") granted to the Executive
to the extent necessary to account appropriately for such Non-Elective Deferred
Award, taking into account, among other differences, the deferral period or
periods of such Non-Elective Deferred Award, the vesting of such Non-Elective
Deferred Award, the prescribed investment provisions of such Non-Elective
Deferred Award and the Executive's differing elections and designations with
respect to the Non-Elective Deferred Award. A Non-Elective Deferred Award
Account shall be credited as of the date of the grant of the Non-Elective
Deferred Award (the "Grant Date") unless the Employer or the Committee
specifically provides otherwise under the terms of the Non-Elective Deferred
Award (the "Non-Elective Deferred Award Terms").
A.4. Deemed Investments. The balance of a Non-Elective Deferred
Award Account that is not subject to prescribed investment provisions under the
Non-Elective Deferred Award Terms shall be subject to the investment provisions
of paragraph 4 of Article III of this SERP Agreement. If any portion of a
Non-Elective Deferred Award is subject to prescribed investment provisions under
the Non-Elective Deferred Award Terms, the balance in the Non-Elective Deferred
Award Account reflecting such portion of the Non-Elective Deferred Award shall
be invested and reinvested as determined by such prescribed investment
provisions. As the prescribed investment provisions lapse, the investment of the
balance in the Non-Elective Deferred Award Account shall be subject to the
investment provisions of paragraph 4 of Article III of this SERP Agreement.
A.5. Vesting.
(a) General. The balance in a Non-Elective Deferred Award Account
shall vest in accordance with the following vesting schedule, unless otherwise
provided in the Non-Elective Deferred Award Terms:
% of Non-Elective Deferred Award Vesting Date
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A. 33 1/3% 1st Anniversary of the Grant Date
B. 33 1/3% 2nd Anniversary of the Grant Date
C. 33 1/3% 3rd Anniversary of the Grant Date
(b) Change in Control. Unless otherwise provided in the Non-Elective
Deferred Award Terms, in the event of a Change in Control of the Employer any
unvested balance in a Non-Elective Deferred Award Account will immediately vest
and the balances in all Non-Elective Deferred Award Accounts will be immediately
paid to the Executive. For purposes of this Appendix A, Change in Control means
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 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 ("Voting Stock");
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(ii) the majority of the Board of Directors of the Employer
("Board") consists of individuals other than Incumbent Directors, which
term means the members of the Board on the Grant Date; 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).
(c) Termination of Employment. Unless otherwise provided in the
Non-Elective Deferred Award Terms, the unvested balances in the Non-Elective
Deferred Accounts shall immediately vest if the Executive's employment with the
Employer is terminated under any of the following circumstances: (i) by the
Employer without Cause (as defined in the Amended and Restated Employment
Agreement, dated as of May 1, 1997, by and between the Executive and the
Employer, as such agreement may be amended from time to time (the "Employment
Agreement")), (ii) by the Executive as a result of a Constructive Termination
Without Cause (as defined in the Employment Agreement), (iii) upon the
occurrence of a Non-Extension Event (as defined in the Employment Agreement),
(iv) as a result of the Executive's death or Disability (as defined in the
Employment Agreement), or (v) for any other reason. Notwithstanding the
immediately preceding sentence, the unvested balances in the Non-Elective
Deferred Accounts will be immediately forfeited in the event the Executive's
employment with the Employer is terminated by the Employer for Cause or by the
Executive and such termination by the Executive is not a Constructive
Termination Without Cause or due to the Executive's death or Disability.
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A.6 Benefit Distributions. Except as may otherwise be provided in
the Non-Elective Deferred Award Terms, the vested balance in a Non-Elective
Deferred Award Account shall be subject to the benefit distribution provisions
of Article V of this SERP Agreement. The provisions of paragraphs 1, 4, 7(b), 8,
9 and 11 of Article V of this SERP Agreement shall only apply to the vested
balance in a Non-Elective Deferred Award Account.
The Executive's election and designations referred to in paragraph 1
of Article V of this SERP Agreement with respect to a Non-Elective Deferred
Award Account shall be made by written notice to the Employer within 30 days of
the date when the grant and the amount of the Performance Award are first made
known to the Executive (the "Notification Date"). Notwithstanding the foregoing,
if the Non-Elective Deferred Award Terms provide for the payment or vesting of
any portion of the Non-Elective Deferred Award Account within 13 months of the
Notification Date, the Executive may make any of the modification elections
described in paragraph 7 of Article V of this SERP Agreement with respect to
such portion of the Non-Elective Deferred Award Account if such election is made
both within 30 days the Notification Date and at least 90 days before such
vesting date or the date such payment becomes due.
A.7. Hardship. Only the vested balance in a Non-Elective Deferred
Award Account shall be subject to the hardship distribution rules of Article VI
of this SERP Agreement.
A.8. Death. In the event of the Executive's death any unvested
balances in the Non-Elective Deferred Award Accounts shall immediate vest. The
Employer shall pay all of the balances in the Non-Elective Deferred Accounts as
of the date of such death (as adjusted for subsequently deemed earnings and
losses) within 30 days following such death in one lump-sum to such beneficiary
or beneficiaries designated by the Executive in writing filed by the Executive
with the Employer, or in the absence of such beneficiary designation, to the
Executive's estate. The Executive may elect prior to his death to change the
distribution from a Non-Elective Deferred Award Account upon his death from a
lump-sum payment to installment payments.
A.9. Disability. In the event of the Executive's Disability any
unvested balance in a Non-Elective Deferred Award Account shall immediately
vest. The Employer shall pay all of the balances in the Non-Elective Deferred
Accounts as of the date of such Disability (as adjusted for subsequent deemed
earnings and losses) within 30 days following such Disability in one lump-sum to
the Executive. The Executive may elect prior to the Disability to change the
distribution from a Non-Elective Deferred Account upon his Disability from a
lump-sum payment to installment payments.
A.10. General. Except as otherwise provided in this Appendix A or
the Non-Elective Deferred Award Terms, the general provision of this SERP
Agreement shall apply to each Non-Elective Deferred Award. If there is a
conflict between the LTCIP and any provision of this SERP Agreement which is
applicable to one or more Non-Elective Deferred Awards, the provisions of the
LTCIP shall be controlling with respect to the same."
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2. The following new paragraph shall be substituted for paragraph 5 of
Article V of the SERP Agreement:
"5. 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, (b) except as provided in clause (c) below, to the extent
investments have actually been made directly or indirectly 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 and (c) to the extent the investments have actually been made directly
or indirectly by the Employer in common stock of the Employer, the Employer may
make the payment in kind in lieu of cash by delivery of fully registered stock
certificates representing such common stock."
3. The foregoing amendments to the SERP Agreement are effective as of
the date first above written.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the day and year first above written.
CONCORD CAMERA CORP.
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Senior Vice
President and General Counsel
/s/ Xxx X. Xxxxxxx
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XXX X. XXXXXXX
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