Exhibit 10.30
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AND AGREEMENT
FOR
XXX X. XXXXXXX
This Amended and Restated Supplemental Executive Retirement
Plan and Agreement for Xxx X. Xxxxxxx, made as of the 19th day of April, 2000,
by and between CONCORD CAMERA CORP., a New Jersey corporation (the "Employer")
and XXX X. XXXXXXX (the "Executive").
The Executive and the Employer entered into the Supplemental
Executive Retirement Plan and Agreement for Xxx X. Xxxxxxx, dated as of the
first day of May, 1997, and as amended as of January 1, 1999 and as of January
1, 2000 (the "Prior Agreement").
In consideration for the premises and the mutual covenants
hereinafter contained, the Prior Agreement is hereby amended and restated to
read in its entirety 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 Special Accounts and the Yearly Accounts established under
this Plan and Agreement.
Employment Agreement - the Amended and Restated Employment Agreement,
dated as of May 1, 1997, by and between the Employer and the Executive, as such
agreement may be amended from time to time.
Special Accounts - the three accounts, Special Account I, Special Account
II and Special Account III, established by the Employer for the benefit of the
Executive, each account (so as not to include the Yearly Accounts) reflecting a
$516,666 initial credit (for a total of $1,549,998) and adjustments for income,
expenses, gains or losses and any payments from the accounts.
Yearly Accounts - the accounts established by the Employer for the
benefit of the Executive reflecting the Yearly Credits and adjustments for
income, expenses, gains or losses and any payments from the accounts.
Special Credit - the $516,666 to be credited on May 30, 2000 to each
Special Account (for a total of $1,549,998) pursuant to paragraph 3 of Article
III.
Yearly Credit - the $400,000 to be credited each year to a Yearly Account
pursuant to paragraph 1 of Article III.
Term of Employment - the period or periods of employment under the
Employment Agreement.
Plan and Agreement - this Amended and Restated Supplemental Executive
Retirement Plan and Agreement for Xxx X. Xxxxxxx.
Article III. Deferred Compensation
1. During the Term of Employment, the Employer agrees to credit $400,000
to a Yearly Account on the first working day of each calendar year (except that
for the calendar year 2000, Employer agrees to credit $220,000 on the first
working day and $180,000 on May 30, 2000), and such deferred compensation shall
be paid to the Executive as hereinafter provided.
2. The Employer shall keep a separate Yearly Account with respect to each
Yearly Credit to the extent necessary to account for differing elections and
designations hereunder regarding benefit distributions and beneficiaries.
3. The Employer agrees to credit on May 30, 2000 $516,666 to each of
Special Account I, Special Account II and Special Account III (for a total of
$1,549,998), and such deferred compensation shall be paid to the Executive as
hereinafter provided.
4. 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
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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 a Yearly Credit or a Special Credit is credited to an
Account, such amount shall be initially invested in 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.
5. 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.
6. 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 balance in each Yearly Account shall at all times be 100% vested
(i.e., nonforfeitable).
2. The balances in the Special Accounts shall vest as follows:
Account Vesting Date
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Special Account I January 1, 2001
Special Account II January 1, 2002
Special Account III January 1, 2003
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Upon the event of a Change in Control, as defined in the Employment Agreement,
the balances in the Special Accounts shall immediately vest. In addition, the
balances in the Special Accounts shall immediately vest upon a termination of
the Executive's employment with the Employer (a) by the Employer without Cause
(as defined in the Employment Agreement), (b) by the Executive as a result of a
Constructive Termination Without Cause (as defined in the Employment Agreement),
(c) upon the occurrence of a Non-Extension Event (as defined in the Employment
Agreement) or (d) as a result of the Executive's death or Disability (as defined
in the Employment Agreement). In the event the Executive's employment with the
Employer is terminated prior to the vesting of the balance in a Special Account
for any reason other than one described in the immediately preceding sentence,
the balance in such Special Account shall be immediately forfeited and the
Executive shall have no further interests in such balance.
3. Notwithstanding anything herein to the contrary, in the event of a
forfeiture of a balance in a Special Account, the Executive agrees that to the
extent that the balance in the Special Account at the time of forfeiture is less
than $516,666, he shall immediately pay to the Employer an amount equal to such
deficiency. The Employer, in its discretion, may reduce the amounts otherwise
payable to the Executive under this Plan and Agreement by any deficiency owed to
the Employer pursuant to the immediately preceding sentence.
Article V. Benefit Distributions
1. Except as otherwise provided in paragraph 3 of Article IV, in this
Article V or in Article VI or VII, the vested balance in each Yearly Account and
Special 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.
2. The Executive's election and designation referred to in paragraph 1 of
this Article V with respect to a Yearly Account shall be made by a written
notice to the Employer prior to the first day of the year to which the Yearly
Account relates. The Executive may make different elections and designations
with respect to each Yearly Credit, with any such different elections and
designations accounted for through the creation of separate Yearly Accounts as
contemplated by paragraph 2 of Article III.
3. The Executive's election and designation referred to in paragraph 1 of
this Article V with respect to a Special Account shall be made by a written
notice to the Employer prior to May 19, 2000. The Executive may make different
elections and designations with respect to each Special Account.
4. 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.
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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, 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.
6. 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.
7. Except as provided in this paragraph 7, the Executive shall have no
right to modify in any way his election and designation made pursuant to
paragraphs 2 and 3 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 paragraph 4. Provided that a modification election is made at least 12 months
prior to it becoming effective, the Executive may:
(a) delay the date on which a lump-sum payment from such
Account shall be made;
(b) accelerate the date on which benefit distributions from any
vested portion of an Account shall commence;
(c) 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;
(d) 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;
(e) delay the commencement of annual installment payments from
such Account; or
(f) increase the period of years during which annual
installments shall be made out of such Account.
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8. 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 (other than death and Disability) prior to the Executive's
attainment of age 65, the vested balance in each Account (including the balance
in an Account which vested as a result of such termination as provided in
paragraph 2 of Article IV) shall be paid to the Executive in one lump-sum
payment within 30 days of such termination.
9. Notwithstanding any other provision of this Plan and Agreement to the
contrary, in the event the Executive is determined to be subject to federal
income tax on any balance in an Account prior to the time of distribution
hereunder, an amount equal to the federal, state and local taxes (including any
interest and penalties) owed on such taxable amount, shall be distributed from
such Account and paid to the Executive. A balance in an Account shall be
determined to be subject to federal income tax upon the earliest of: (a) a final
determination by the Internal Revenue Service addressed to the Executive which
is not appealed to the courts; (b) a final determination by the United States
Tax Court or any other federal court affirming any such determination by the
Internal Revenue Service; or (c) a written opinion by the Employer's tax
counsel, addressed to the Employer, to the effect that balance in an Account are
subject to federal income tax prior to distribution.
10. Employer, subject to the written opinion of the Employer's tax
counsel which is not inconsistent with applicable case law and regulations, 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 and Disability
1. In the event of the Executive's death prior to the payment of all of
the balances in the Accounts, unless the Executive otherwise elected installment
payments with the consent of the Employer, the Employer shall:
(a) pay all remaining balances in the Yearly Accounts (which
balances were at all times 100% vested pursuant to paragraph 1 of Article
IV), not later than 30 days following the Executive's death, in one
lump-sum to such beneficiary or beneficiaries 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; and
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(b) to the extent that the remaining balances in the Special
Accounts were vested immediately prior to the Executive's death, pay all
such balances, not later than 30 days following the Executive's death, in
one lump-sum to such beneficiary or beneficiaries 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.
Any balance in a Special Account that vests as a result of the
Executive's death shall be paid to the Executive's beneficiary,
beneficiaries or estate (as the case maybe) not later than 30 days
following the scheduled vesting date for that Special Account as set
forth in the first sentence of paragraph 2 of Article IV.
2. In the event of the Executive's Disability prior to the payment of all
of the balances in the Accounts, unless the Executive otherwise elected
installment payments with the consent of the Employer and prior to such
Disability, the Employer shall:
(a) pay all remaining balances in the Yearly Accounts (which
balances were at all times 100% vested pursuant to paragraph 1 of Article
IV), not later than 30 days following the Executive's Disability, in one
lump-sum to the Executive; and
(b) to the extent that the remaining balances in the Special
Accounts were vested immediately prior to the Executive's Disability, pay
all such balances, not later than 30 days following the Executive's
Disability, in one lump-sum to the Executive. Any balance in a Special
Account that vests as a result of the Executive's Disability shall be
paid to the Executive not later than 30 days following the scheduled
vesting date for that Special Account as set forth in the first sentence
of paragraph 2 of Article IV.
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.
Except as to amounts provided for in paragraph 3 of Article IV and paragraph 10
of Article V, amounts due to the Executive hereunder may not be offset by the
Employer against amounts claimed to be due from the Executive to the Employer,
whether by withholding by the Employer of payment or by assertion by the
Employer of defenses, claims, counterclaims or setoffs in a
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litigation commenced by either party with respect to this Agreement or any other
matters; provided, however, that the Employer shall have the right to raise any
such defenses, claims, counterclaims or setoffs in a separate action.
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 of any person or persons designated as beneficiaries of this
Plan and Agreement or of any other payee of the benefits 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.
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: Attention: Chief Financial Officer, 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 Florida without giving effect to
principles governing choice of law.
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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.
/s/ Xxxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Press
--------------------------------- ----------------------------------
Xxxxxx X. Press,
Vice President and Treasurer
Witness:
/s/ Xxxxx Xxxxxxxx /s/ Xxx X. Xxxxxxx
--------------------------------- ----------------------------------
Xxx X. Xxxxxxx
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