Exhibit 10.4
AMENDMENT
TO THE
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AND AGREEMENT
FOR
XXX X. XXXXXXXX
Amendment dated as of July 31, 2001 (this "Amendment") to the
Supplemental Executive Retirement Plan and Agreement for Xxx X. Xxxxxxxx, dated
as of April 19, 2000, by and between CONCORD CAMERA CORP., a New Jersey
corporation (the "Employer") and XXX X. XXXXXXXX (the "Executive").
Reference is made to the Supplemental Executive Retirement Plan and
Agreement for Xxx X. Xxxxxxxx (the "Plan"), dated as of April 19, 2000, by and
between the Employer and the Executive.
The Plan is hereby amended as follows:
1. Article IV (consisting of paragraphs 1 and 2) is hereby deleted and
the following is substituted therefor:
"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 addition, if the Executive's employment is terminated
by the Employer without Cause, 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
other reason, the balance in such Account shall be immediately forfeited
and the Executive shall have no further interests in such balance. For
purposes of this Agreement, "Cause" shall mean "cause" as defined in the
most recent employment agreement (the "Employment Agreement") between the
Executive and the Employer and, in the absence of an Employment Agreement
or in the absence of a definition of "Cause" in such Employment Agreement,
"Cause" shall mean: (i) any continued failure by the Executive to obey the
reasonable instructions of the Chairman and Chief Executive Officer of the
Employer; (ii) continued neglect by the Executive of his duties and
obligations as an employee of the Employer, or a failure to perform such
duties and obligations to the reasonable satisfaction of the Chairman and
Chief Executive Officer of the Employer; (iii) willful misconduct of the
Executive or other actions in bad faith by the Executive which are to the
detriment of the Employer or any of its subsidiaries or affiliates
including, without limitation, conviction of a felony, embezzlement or
misappropriation of funds or conviction of any act of fraud; or (iv) a
breach of any material provision of the Employment Agreement not cured
within 30 days after written notice thereof.
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2. Notwithstanding anything herein to the contrary, in the
event of a forfeiture of a balance in an Account, the Executive agrees that
to the extent that the balance in the Account at the time of forfeiture is
less than $36,666.66, 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."
2. Paragraph 1 of Article V is hereby deleted and the following is
substituted therefor:
"1. Except as otherwise provided in paragraph 2 of Article IV
or in this Article V or in Article VI or VII, 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."
3. Paragraph 6 of Article V is hereby deleted and the following is
substituted therefor:
"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 paragraph 3. 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;
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(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."
4. Paragraph 8 of Article V is hereby renumbered as Paragraph 9 and the
following is inserted as new Paragraph 8:
"8. 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 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."
5. The foregoing amendments to the Plan are effective as of the 31st
day of July, 2001.
In WITNESS WHEREOF, this Amendment has been duly executed by the
Employer and by the Executive as of the date indicated above.
Witness: CONCORD CAMERA CORP.
/s/ Xxxxxxxxx Xxxxxxxxx By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, Chairman,
Chief Executive Officer and
President
Witness:
/s/ Xxxx Xxxxxxx /s/ Xxx X. Xxxxxxxx
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XXX X. XXXXXXXX
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