Exhibit 10.20
CONCORD CAMERA CORP.
DEFERRED DELIVERY PLAN
Article I. Introduction
This Concord Camera Corp. Deferred Delivery Plan (the "Plan")
provides Participants with the opportunity to defer the delivery of shares of
common stock of Concord Camera Corp. (the "Company") that would otherwise be
received by the Participants upon their exercise of stock options granted to
them under the Concord Camera Corp. 1993 Incentive Plan (the "Incentive Plan")
or any other stock option plan or arrangement of the Company. The Plan is
intended to provide Participants with added incentives and induce them to remain
employed with the Company. The Plan creates an unfunded, nonqualified plan
maintained for the purposes of providing deferred compensation for a select
group of management or highly compensated employees as described in Sections
201(2), 301(a)(3) and 401(a)(1) of the Employee Income Retirement Security Act
of 1974, and shall be construed and administered accordingly.
Article II. Definitions
When used herein with initial capital letters, the following
words have the following meanings:
(a) Change of 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 the Chief
Executive Officer of the Company and other
members of management of the Company
designated by him), 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 Company;
(ii) the majority of the Board of Directors of
the Company consists of individuals who are
not members of the Board of Directors on the
effective date of the Plan (the "Incumbent
Directors"); provided that any person
becoming a director subsequent to such date
whose election or nomination for election
was supported by the Chief Executive Officer
of the Company or two-thirds of the
directors who then comprised the Incumbent
Directors shall be considered to be an
Incumbent Director;
(iii) the Company adopts any plan of liquidation
providing for the distribution of
substantially all of its assets;
(iv) all or substantially all of the assets or
business of the Company are disposed of
pursuant to a merger, consolidation or other
transaction (unless the shareholders of the
Company 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 Company, the
Voting Stock or other ownership interests of
the entity or entities, if any, that succeed
to the business of the Company); or
(v) the Company combines with another company
and is the surviving corporation but,
immediately after the combination, the
shareholders of the Company 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).
(b) Code means the Internal Revenue Code of 1986, as amended.
(c) Committee means the Compensation and Stock Option
Committee of the Board of Directors of the Company.
(d) Corporate Officer means any officer who has been
designated by the Board of Directors of the Company as an "executive officer" of
the Company and as an "officer" for purposes of Section 16 of the Securities
Exchange Act of 1934.
(e) Deferred Election Form means the form pursuant to which a
Participant irrevocably elects to defer Deferred Shares upon the exercise of a
stock option and provides for such other elections and information as the
Committee may reasonably require.
(f) Deferral Period means the period between the date on which
a stock option is exercised and the date to which the Participant elected
pursuant to paragraph (b) of Article VI to defer the delivery of the Deferred
Shares attributable to such stock option exercise.
(g) Deferred Shares means, with respect to a deferral
election, the difference between the number of shares of Stock subject to the
stock option (or portion thereof) being exercised by a Participant and the
number of shares of Stock delivered to the Company by the Participant to satisfy
the stock option exercise price, less any shares of Stock used to satisfy
withholdings due upon such stock option exercise if such withholding is not
otherwise paid to the Company by the Participant in cash.
(h) Deferred Stock Unit Account means the notational account
maintained by the Company for a Participant to which shall be credited the
Deferred Shares deferred by the Participant and the dividend equivalents with
respect to such Deferred Shares.
(i) Disability means the Participant's inability, due to
physical or mental incapacity, to substantially perform his or her duties and
responsibilities for a period of 180 consecutive days or for 180 days in a
365-day period.
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(j) Fair Market Value means Fair Market Value for purposes of
the Incentive Plan.
(k) Mature Stock means shares of Stock (i) purchased by a
Participant on the open market, (ii) received by a Participant upon the exercise
of a stock option and held by the Participant for at least six months or (iii)
awarded to a Participant by the Company and held by the Participant for at least
six months (provided, however, in the event the Stock was subject to forfeiture
at the time of the award, the Participant held such Stock for at least six
months after the forfeiture provisions lapsed).
(l) Participant means a Corporate Officer who is eligible to
participate in the Plan pursuant to Article III and has made a deferral election
pursuant to Article IV.
(m) Plan Year means the period during which the Plan records
are kept. The Plan Year shall be the calendar year.
(n) Stock means the Company's common stock, no par value per
share.
(o) Stock Unit means a notational unit deemed to be equivalent
to one share of Stock.
(p) Trust means the trust or trusts, if any, created by the
Company to provide funding for distribution of benefits in accordance with the
provisions of the Plan. The assets of any such Trust shall remain subject to the
claims of the Company's general creditors.
(q) Trust Agreement means the written instrument pursuant to
which each Trust is created.
(r) Trustee means the person or persons designated by the
Company to hold the Trust fund and to pay benefits and expenses as authorized by
the terms and provisions of the Trust Agreement.
(s) Voting Stock 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.
Article III. Participation
Any Corporate Officer designated by the Committee is eligible
to participate in the Plan.
Article IV. Deferred Delivery Elections
(a) A Participant may elect to defer receipt of the Deferred
Shares resulting from a stock-for-stock exercise of an exercisable stock option
awarded to the Participant under the Incentive Plan or any other stock option
plan or arrangement of the Company by completing and submitting to the Company a
Deferral Election Form by a date which is at least six (6) months in advance of
the date of exercise of the stock option; provided, however, that in the case of
a stock option that will expire within six months of the effective date of this
Plan, the Participant may complete and submit a Deferral Election Form by a date
which is at least five (5) months in advance of the date of exercise of the
stock option. The stock option exercise must occur on or prior to the expiration
date of the stock option and must be accomplished by delivering (actual delivery
or by attestation), on or prior to the exercise date, shares of Mature Stock
having a Fair Market Value equal to the exercise price.
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(b) At the time of the deferral election, the Participant
shall be required to make appropriate arrangements with the Company to pay any
taxes required to be withheld upon exercise of the stock option. The Company, in
its discretion, may permit the Participant to use shares subject to the then
exercisable portion of the stock option as payment of any taxes required to be
withheld.
(c) A Participant's deferral election shall not be effective
if the stock option as to which the Participant has made the deferral election
terminates or expires prior to the exercise date selected by the Participant, or
if the Participant dies or fails to deliver on or before the date of exercise
shares of Mature Stock having a Fair Market Value equal to the exercise price.
Only whole Deferred Shares may be deferred pursuant to this Plan.
Article V. Accounting for Deferrals; Voting
(a) A Deferred Stock Unit Account will be established for each
Participant with respect to each deferral election made pursuant to Article IV.
For each Deferred Share deferred, a Stock Unit will be credited as of the date
of the stock option exercise to the Deferred Stock Unit Account so established.
The Committee shall adjust the Deferred Stock Unit Account of each Participant
to reflect dividends payable with respect to the Company's Stock from time to
time. The Committee shall determine the manner in which any such adjustment
shall be made. Each Participant will receive a periodic statement of the number
of whole and fractional units in his or her Deferred Stock Unit Account at least
monthly.
(b) In the event the Company shall at any time increase or
decrease the number of its outstanding shares of Stock by means of the payment
of a Stock dividend or any other distribution upon such shares payable in Stock,
or through a Stock split, subdivision, consolidation, combination,
reclassification or recapitalization involving the Stock, then the numbers of
Stock Units credited to the Deferred Stock Unit Accounts maintained under the
Plan shall be proportionately adjusted.
(c) In the event the Company shall at any time pay or make any
dividend or other distribution upon the Stock payable in securities or other
property (except cash or Stock), the Committee shall, in its discretion,
determine and make the appropriate and equitable adjustments to the number of
Stock Units credited to each Deferred Stock Unit Account. Such adjustments shall
be effective for all purposes of the Plan.
(d) In the event there shall be any change in the number or
kind of outstanding shares of Stock or of any stock or other securities into
which the Stock shall be changed or for which it shall have been exchanged
(other than as specified in paragraphs (b) and (c) of this Article), and if the
Committee shall in its discretion determine that such change equitably requires
an adjustment in the number or kind of shares represented by Stock Units
credited to the Deferred Stock Unit Accounts maintained under the Plan or
requires some other modification of the Plan, then such adjustment or
modification shall be made by the Committee and shall be effective for all
purposes of the Plan.
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(e) In the event the Company shall at any time grant to the
holders of its Stock rights to subscribe pro rata for additional shares thereof
or for any other securities of the Company or of any other corporation, and if
the Committee shall in its discretion determine that such change equitably
requires an adjustment in the number or kind of shares represented by Stock
Units credited to the Deferred Stock Unit Account maintained under the Plan or
requires some other modification of the Plan, then such adjustment or
modification shall be made by the Committee and shall be effective for all
purposes of the Plan.
(f) Nothing contained in this Article V shall be construed to
require the Company or the Committee to fund the Deferred Stock Unit Accounts.
(g) Participants shall have no right to vote any Stock Units
credited to Deferred Stock Unit Accounts prior to the date on which such Stock
Units are subject to distribution and shares of Stock are issued therefor.
Article VI. Distributions
(a) Except as provided in paragraph (e) of this Article VI, a
Participant's Deferred Stock Unit Account shall be fully vested and
nonforfeitable at all times.
(b) At the time of a Participant's deferral election, the
Participant must also elect on the Deferral Election Form when distributions
with respect to the Deferred Stock Unit Account established pursuant to such
election will be made. No distributions pursuant to the terms of an applicable
Deferral Election Form may be made: (i) within six (6) months of the exercise
date of the applicable stock option; or (ii) unless the Committee approves a
longer deferral period, more than two years after such exercise date. Any
distribution under this Plan shall be paid in whole shares of Stock, delivered
in accordance with the provisions of this Article VI, and any fractional shares
of Stock shall be paid in cash.
(c) Except as otherwise provided in this Article VI, the Stock
Units in a Deferred Stock Unit Account shall be distributed to the Participant
in a lump-sum payment within 15 days of the expiration of the Deferral Period.
(d) Notwithstanding anything in the Plan to the contrary and
notwithstanding the distribution election of the Participant, in the event of
the termination of a Participant's employment with the Company for any reason
(other than death or Disability) prior to the Participant's attainment of age
65, the Stock Units in the Participant's Deferred Stock Unit Account shall be
paid to the Participant in one lump-sum payment within 30 days of such
termination.
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(e) Notwithstanding anything in the Plan to the contrary and
notwithstanding the distribution election of the Participant, the Participant
may require the immediate distribution to the Participant of all or a portion of
the Stock Units credited to his or her Deferred Stock Unit Account less (i) any
amount required to be withheld and (ii) a penalty equal to ten percent (10%) of
the Stock Units to be distributed pursuant to this paragraph (e) (prior to the
withholding required in clause (i) of this paragraph (e)). The Stock Units
representing the penalty provided in clause (ii) of this paragraph (e) shall be
deemed forfeited and no longer payable to the Participant.
(f) Notwithstanding anything in the Plan to the contrary and
notwithstanding the distribution election of the Participant, in the event of a
Change of Control, all Stock Units credited to his or her Deferred Stock Unit
Account shall, without further action by the Committee, become payable as of the
date of such Change of Control. All Stock Units credited to the Deferred Stock
Unit Accounts shall be distributed in one lump sum as soon as administratively
possible after the date of such Change of Control.
(g) Notwithstanding any other provision of the Plan to the
contrary and notwithstanding the distribution election of the Participant, in
the event a Participant is determined to be subject to federal income tax on the
Stock Units in any Deferred Stock Unit Account prior to the time of distribution
hereunder, such Stock Units shall be distributed from the Deferred Stock Unit
Account and paid to the Participant. Stock Units in the Deferred Stock Unit
Account shall be determined to be subject to federal income tax upon the
earliest of: (a) a written determination from the Internal Revenue Service
addressed to the Participant to the effect that the Stock Units are subject to
federal income tax prior to the distribution by the Plan and such determination
has not been appealed to the courts and the time for making such an appeal has
expired; and (b) a determination by the United States Tax Court or any other
federal court affirming any such determination by the Internal Revenue Service
and (x) such determination has not been appealed to a higher court and the time
for making such appeal has expired, (y) an appeal to a higher court has been
denied by such higher court or (z) there is no court available to appeal to.
Notwithstanding anything to the contrary, Stock Units in the Deferred Stock Unit
Account shall be determined to be subject to federal income tax upon receipt by
the Company of a written reasoned opinion by the Company tax's counsel to the
effect that the Stock Units are subject to federal income tax prior to
distribution by the Plan. The tax counsel selected by the Company to render such
opinion shall be subject to the Participant's approval which shall not be
unreasonably withheld.
(h) The Company 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 VII. Hardship
Notwithstanding the provisions of this Plan regarding
distributions and notwithstanding the distribution election of the Participant,
the Committee may, in its sole discretion, distribute all or a portion of the
Stock Units in a Deferred Stock Unit Account to a Participant upon a
demonstration by the Participant of an immediate and heavy financial need. The
amount of any distribution made pursuant to this Article VII shall be limited to
the amount necessary to satisfy such financial need.
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Article VIII. Death and Disability
Notwithstanding any other provisions of this Plan to the
contrary and notwithstanding the distribution election of the Participant, in
the event of a Participant's death prior to the payment of all of the Stock
Units in his or her Deferred Stock Unit Account, the Company shall pay all
remaining Stock Units in the Deferred Stock Unit Account, not later than 30 days
following the Participant's death, in one lump-sum to such beneficiary or
beneficiaries designated by the Participant in a writing filed by the
Participant with the Company, or in the absence of such a beneficiary
designation, to the Participant's estate. Notwithstanding any other provisions
of this Plan to the contrary and notwithstanding the distribution election of
the Participant, in the event of a Participant's Disability prior to the payment
of all of the Stock Units in his or her Deferred Stock Unit Account, the Company
shall pay all remaining Stock Units in the Deferred Stock Unit Account, not
later than 30 days following the Participant's Disability, in one lump-sum to
the Participant.
Article IX. Claims Procedures
1. At any time the Committee makes a determination adverse to
a Participant or his or her beneficiary with respect to a claim for payment, the
Committee shall notify the claimant in writing of such determination, setting
forth:
(i) the specific reason for such determination;
(ii) a reference to the specific provision or
provisions of the Plan and on which such
determination is based;
(iii) 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
(iv) an explanation of the rights and procedures
set forth in this Article IX.
Except as to amounts provided for in paragraphs (e) and (h) of Article VI,
amounts due to a Participant hereunder may not be offset by the Company against
amounts claimed to be due from the Participant to the Company, whether by
withholding by the Company of payment or by assertion by the Company of
defenses, claims, counterclaims or setoffs in a litigation commenced by either
party with respect to the Plan or any other matters; provided, however, that the
Company 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 Committee with respect to a claim may request, within 60 days of receipt of
such notice, that the Committee 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 Committee. The Committee 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 the
Plan on which the decision is based. A copy of the ruling shall be forwarded to
the claimant.
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Article X. Administration
1. The Plan shall be administered by the Committee. The
Committee shall have all discretion and powers necessary for administering the
Plan including but not limited to, full discretion and power to interpret the
Plan, to determine the rights of Participants and the Company under the Plan
and, in general, to decide any dispute. The decisions made by the Committee in
good faith shall be final and conclusive on all persons, subject to a
Participant's legal right to challenge the Committee's decision on the basis of
an abuse of discretion and a lack of good faith. The Committee shall direct the
Company, the Trustee, or both, as the case may be, concerning distributions in
accordance with the provisions of the Plan. The Committee shall maintain all
Plan records except the records of any Trust.
2. The Committee shall adopt such rules as it deems desirable
for the conduct of its affairs and for the administration of the Plan. The
Committee may appoint a designee and/or agent (who need not be a member of the
Committee or an employee of the Company) to assist the Committee in
administration of the Plan and to whom it may delegate such powers as the
Committee deems appropriate, except that the Committee shall determine any
dispute. The Committee may make its determinations with or without meetings. The
Committee may authorize one or more of its members, designees or agents to sign
instructions, notices and determinations on its behalf. The action of a majority
of the Committee's members shall constitute the action of the Committee.
Article XI. Trust
1. The Company may, but shall not be required to, adopt a
Trust Agreement for the holding and administration of Stock representing the
Stock Units credited to the Deferred Stock Unit Accounts. The assets of any such
Trust shall remain subject to the claims of the Company's general creditors.
2. It is expected that any Trust created pursuant to this
Article XI will be treated as a "grantor" trust for federal and state income tax
purposes and that, as a consequence, such Trust will not be subject to income
tax with respect to its income. However, if the Trust should be taxable, the
Trustee shall pay all such taxes out of the Trust. All expenses of administering
any such Trust shall be a charge against and shall be paid from the assets of
the Company.
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Article XII. Termination, Modification and Amendments
The Board of Directors of the Company or the Committee may at
any time terminate the Plan or from time to time make such modifications or
amendments to the Plan as it may deem advisable. No termination, modification or
amendment shall adversely affect the then rights of Participants with respect to
the Stock Units in Deferred Stock Unit Accounts without their consent.
Article XIII. Miscellaneous
1. Benefits provided in the Plan will not be subject to
garnishment, attachment, or assignment or any other legal process by creditors
of Participants or of any person or persons designated as beneficiaries of the
Plan or of any other payee of the benefits provided herein.
2. Participants and their beneficiaries shall have the status
of unsecured creditors of the Company and the Plan constitutes a mere promise by
the Company to make benefit payments as required herein.
3. The Plan creates no rights in the Participants to continue
in the employment of the Company for any length of time, nor does it create any
rights in the Participants or their beneficiaries nor any obligations on the
part of the Company, other than those specifically provided herein.
4. The Plan shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Participants, their heirs,
executors, administrators and legal representatives. Participants shall not have
the right to pledge, assign, transfer, hypothecate, encumber or anticipate their
interest in the benefits under the Plan, nor shall the benefits under the Plan
be subject to any legal process to levy upon or attach the benefits for payment
of any claim against Participants or their spouses.
5. The waiver by any party of any term of the Plan on any
occasion shall not be deemed to be a further or continuing waiver of any such
term.
6. Written notices which a Participant must provide to the
Company under the Plan shall be addressed to the Company at: Attention: Chief
Financial Officer, 4000 Hollywood Boulevard, Presidential Circle - Suite 650N,
Hollywood, Florida 33021.
7. The Plan 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.
Article XIV. Effective Date
The effective date of the Plan is February 10, 2003.
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