Exhibit 10.22
RESTATED TO JUNE 11, 2003
CONCORD CAMERA CORP.
AMENDED AND RESTATED
2002 LONG TERM CASH INCENTIVE PLAN
ARTICLE I. Purpose
The purpose of the Amended and Restated 2002 Long Term Cash Incentive Plan, as
amended through June 11, 2003 (the "Plan"), of Concord Camera Corp. (the
"Corporation") is to provide incentives and reward selected key executives and
consultants of the Corporation for long-term performance that meets or exceeds
predetermined performance criteria based on a two-year fiscal cycle.
ARTICLE II. Definitions
The following terms used in the Plan shall have the meanings set forth below:
"Board" means the Board of Directors of the Corporation.
"CEO" means the Chief Executive Officer of the Corporation.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated thereunder.
"Committee" means the Compensation and Stock Option Committee of the Board.
"Common Stock" shall mean the Corporation's common stock, no par value.
"Corporate Officer" shall mean an officer who has been designated by the Board
as an "executive officer" of the Corporation and as an "officer" for purposes of
Section 16 of the Securities Exchange Act of 1934, as amended.
"Deferred Account" or "Accounts" shall mean the account established on the books
of the Corporation for a Grantee, and which is composed of Elective Deferred
Accounts (for Performance Awards, or portions of such awards, that Corporate
Officer Grantees have elected to defer pursuant to Section 7.1) and Non-Elective
Deferred Accounts (for the Performance Awards that have been deferred in whole
or in part by the Committee pursuant to Section 6.3).
"Disability" shall mean permanent and total disability as defined by the
Corporation's employee welfare benefit plan offering a long term disability
benefit, or, if no such benefit is offered, shall mean the absence of the
individual from his duties with the Corporation on a full-time basis for 180
consecutive business days as a result of incapacity due to mental or physical
illness which is determined to be total and permanent by a physician selected by
the Corporation or its insurers and reasonably acceptable to the individual or
the individual's legal guardian.
"Earnings Before Interest, Taxes, Depreciation and Amortization" or "EBITDA"
shall mean "Earnings" before "Interest", "Taxes", "Depreciation" and
"Amortization" as those amounts are reflected in the Corporation's financial
statements, and as adjusted by the Committee pursuant to Section 5.3 of the
Plan.
"Elective Deferred Account" means the account that is credited with any
Performance Award, or a portion thereof, which is electively deferred by a
Corporate Officer Grantee pursuant to Section 7.1 hereof.
"Eligible Executive" shall mean those persons described in Article IV hereof.
"Employee" shall mean a common law employee (as defined in accordance with the
regulations and Revenue Rulings then applicable under Section 3401(c) of the
Code) of the Corporation.
"Executive Session" shall mean a meeting at which only Independent Directors are
present.
"Grantee" shall mean a Participant to whom a Performance Award has been awarded
under the Plan.
"Independent Director" means a member of the Board who is an "independent
director" as defined in the applicable Nasdaq stock market rules, as such rules
may be amended from time to time.
"Non-Elective Deferred Account" means the account that is credited with any
Performance Award or a portion thereof, to a Grantee which is deferred by the
Committee pursuant to Section 6.3 hereof.
"Participant" shall mean the CEO and each other Eligible Executive
(collectively, the "Participants") determined to be key executives of the
Corporation and thus selected, pursuant to Article IV, to participate in the
Plan for the relevant Performance Period.
"Plan" shall mean this Plan, as amended from time to time.
"Performance Award" means a right granted to a Participant pursuant to the Plan
to receive a specified payment amount in cash or Common Stock, or a combination
thereof.
"Performance Period" means the period commencing on July 1, 2001 and ending on
June 28, 2003 (the "Initial Performance Period"), and, if determined by the
Committee, each subsequent annual two-year fiscal cycle beginning on June 30,
2002.
"Performance Pool" means the amount made available for Performance Awards with
respect to the Performance Period.
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"Retirement" shall mean any normal or early retirement pursuant to the terms of
any pension, profit sharing or 401(k) plan, or policy of the Corporation that is
applicable to such person at the time of the termination of his service as an
Employee of the Corporation.
"Terminate (Termination of) Service (or Termination)" shall mean the time at
which the person ceases to provide services to the Corporation as an Employee or
consultant for any reason or for no reason and regardless of the circumstances
surrounding the termination, but shall not include a lapse in providing services
which the Committee determines to be a temporary leave of absence.
ARTICLE III. Administration
The Plan shall be administered by the Committee, which shall be comprised solely
of Independent Directors who also qualify as "outside directors" within the
meaning of Section 162(m) of the Code. The Committee shall hold meetings at such
times as may be necessary for the proper administration of the Plan and shall
keep minutes of its meetings. A majority of the Committee shall constitute a
quorum and a majority of the quorum may authorize any action of the Committee.
No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan. All
members of the Committee shall be indemnified by the Corporation with respect to
any such action, determination or interpretation to the fullest extent permitted
by law.
Unless otherwise determined by the Board and subject to the provisions of the
Plan, the Committee shall have the authority, in its absolute discretion, to:
(i) establish the performance criteria which will determine the size of the
Performance Pool for each Performance Period, and make adjustments to such
criteria under certain circumstances; (ii) determine the size of the Performance
Pool for each Performance Period; (iii) determine the duration and purposes for
leaves of absence which may be granted to a Participant or Grantee without
constituting a Termination of Service for purposes of the Plan; (iv) adopt,
amend and rescind such rules and regulations as, in its opinion, may be
advisable in the administration of the Plan; and (v) construe and interpret the
Plan, the rules and regulations promulgated under the Plan, and make all other
determinations deemed necessary or advisable for the administration of the Plan;
provided, however, that with respect to those Participants other than the CEO of
the Corporation and any family members of the CEO, the Committee may delegate to
the CEO all or any part of its authority as set forth in (iii) through (v)
above. All references in the Plan to the power of the CEO to act for the
Committee shall be applicable only to the extent consistent with the forgoing
provision. All decisions, determinations and interpretations of the Committee,
or the CEO, shall be final and binding, subject only to approval by the Board.
The provisions of this Article III shall survive any termination of the Plan.
ARTICLE IV. Eligibility and Participation
"Eligible Executives" shall mean all Corporate Officers who are employed by the
Corporation or consultants retained on a regular basis to perform consulting
services to the Corporation; provided, however, that such persons must be
employed by the Corporation or providing services to the Corporation: (i)
throughout the entire last two fiscal quarters of the relevant Performance
Period, and (ii) on the date the Performance Awards for the relevant Performance
Period are determined. A person who is otherwise an Eligible Executive shall not
be disqualified from participation in the Plan by virtue of being a director of
the Corporation.
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Within 90 days after the commencement of the relevant Performance Period, or
before the end of the relevant Performance Period for any Eligible Executive
whose employment commenced after the first day of the relevant Performance
Period, the CEO, in his sole discretion, will determine which Eligible
Executives are key executives and thus will be Participants in the Plan for the
relevant Performance Period, provided each such individual remains an Eligible
Executive.
ARTICLE V. Performance Pool
5.1 Determination of Performance Criteria. Within the first 90 days of each
Performance Period (other than the Initial Performance Period), the performance
criteria upon which the size of the Performance Pool will be based shall be
determined and reduced to writing by the Committee and shall be subject to
approval by the Board at the first meeting of the Board to follow such
determination. Once the performance criteria have been established, the
Committee may not amend or alter such criteria during the Performance Period
absent a significant change to the structure of the Corporation, certain
extraordinary accounting changes or other extraordinary events.
5.2 Determination of Performance Pool. As soon as practicable following the
preparation by the Corporation of unaudited financial statements for the second
fiscal year of the Performance Period, the Committee shall evaluate and
ascertain in writing which, if any, of the performance criteria have been met
and/or exceeded for the Performance Period, and based on such evaluation, will
establish the value of the Performance Pool.
5.3 Adjustments. In the event of any cash infusion, capital raising transaction,
reorganization, recapitalization, merger, consolidation, split-up, spin-off or
any other similar change in the structure of the Corporation, extraordinary
accounting charges or other special circumstances, the Committee reserves the
right to make such equitable adjustment, if any, as it may deem appropriate in
its absolute discretion, in the determination of the value of the Performance
Pool.
In determining EBITDA, the Committee may make adjustments to "Income (Loss) from
Operations" to eliminate the effect of: (i) extraordinary (as such term is
defined by the Financial Accounting Standards Board) items of income and
expenses, (ii) any charges arising from the grant or modification of stock
options, (iii) major acquisitions/divestitures, and (iv) any other
circumstance(s) the Committee deems appropriate.
5.4 Unawarded and Forfeited Portion of Performance Pool. If all or any part of a
Performance Pool is not awarded to Participants, the unallocated portion shall
be carried forward and made available to be included in Performance Pools
created for subsequent Performance Periods. Further, any Performance Awards
which are forfeited pursuant to conditions established, pursuant to Section 7.3,
by the Committee with respect to Non-Elective Deferred Accounts shall likewise
be made available for inclusion in any Performance Pools created subsequent to
such forfeitures.
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ARTICLE VI. Performance Awards
6.1 Determination of Individual Performance Awards. After the Committee has
determined the value of the Performance Pool pursuant to Article V, the
Committee or a majority of the Independent Directors on the Board, in either
case meeting in Executive Session, shall determine in its/their sole discretion
the amount of the Performance Award to be granted to the CEO out of the
Performance Pool. Subsequent to such determination, the Committee shall
determine the amount of the Performance Award to be granted out of the remainder
of the Performance Pool to each other Participant, based on its evaluation of
such Participant's performance, contribution to the success of the Corporation,
industry, service, compensation, and such other criteria as it shall determine
to be relevant; provided, however, that the Committee or a majority of the
Independent Directors on the Board, in either case meeting in Executive Session,
shall determine the amount of any Performance Award to be granted to a
Participant who is a family member of the CEO. The Committee or a majority of
the Independent Directors on the Board, in their sole discretion, may determine
that certain Participants will not be granted a Performance Award. The aggregate
amount of all Performance Awards may not exceed 100% of the Performance Pool.
6.2 Payment of Performance Awards. Performance Awards shall be paid in a lump
sum in cash or Common Stock or a combination thereof, as soon as practicable
following the determination of the amount and the form of the Performance
Awards, but no later than 90 days following the end of the Performance Period
unless otherwise deferred pursuant to Section 6.3 or Section 7.1.
6.3 Non-Elective Deferred Awards. The Committee may, in its sole discretion,
choose to defer the payment of all or a portion of the Performance Awards to one
or more Grantees. The deferred amount (if any) shall be credited to a Deferred
Account established for the Grantee pursuant to Section 7.2, to be designated as
the Grantee's Non-Elective Deferred Account. Such Non-Elective Deferred Accounts
shall be subject to the provisions of Sections 7.2 through 7.5.
ARTICLE VII. Deferral of Performance Awards
7.1 Election to Defer. Each Grantee who is a Corporate Officer has the right to
elect to defer the receipt of all or a portion of his Performance Award that is
not otherwise deferred pursuant to Section 6.3. Any such election shall be made
in writing by the Corporate Officer Grantee through the execution and delivery
of a Deferral Agreement with the Corporation, on such terms as are acceptable to
the Corporation (the "Agreement"), and an election made pursuant to the
Agreement with respect to the relevant Performance Period on or before the
deadline provided for in the Agreement.
The amount of compensation to be deferred by the Corporate Officer Grantee may
be stated either as a dollar amount or in the form of a percentage of the
Performance Award not otherwise deferred pursuant to Section 6.3. The
Corporation will not, in any event, be required to defer an amount of less than
$10,000 (excluding amounts deferred pursuant to Section 6.3) with respect to a
Performance Award for any one Performance Period.
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7.2 Deferred Accounts. The Corporation shall establish a bookkeeping reserve
account, to be designed as the Grantee's Elective Deferred Account, for each
Corporate Officer Grantee who elects to defer all or part of a Performance Award
pursuant to Section 7.1. The Corporation shall establish a bookkeeping reserve
account, designated as the Grantee's Non-Elective Deferred Account, for amounts
deferred pursuant to Section 6.3 above. The Grantee's Deferred Accounts shall be
credited with the amount of the Performance Award deferred with respect to the
initial deferral and all subsequent deferrals. The Deferred Accounts shall also
be reduced to the extent of each payment made to the Grantee.
The balance of a Deferred Account for a Grantee shall represent an obligation of
the Corporation to pay that amount to the extent vested (i.e., not forfeitable)
to that Grantee. Such payment shall be made from the general funds of the
Corporation in the manner specified in the Agreement and the elections made by
the Corporate Officer Grantee thereunder, in the case of elective deferrals, and
in the manner determined by the Committee, in the case of non-elective
deferrals. No obligations of the Corporation to any Grantee pursuant to the Plan
shall be deemed to be secured by any pledge or other encumbrance on any property
of the Corporation. No Participant, Grantee or Beneficiary shall have under any
circumstances any interest whatsoever, vested or contingent, in any particular
property or asset of the Corporation. The provisions of this Article VII shall
not be construed as giving the Grantee or his Beneficiary any greater rights
than those of any other unsecured creditor of the Corporation.
7.3 Rules Applicable to Non-Elective Deferred Accounts. The balance of a
Grantee's Non-Elective Deferred Account shall be paid to the Grantee in cash or,
if, pursuant to Section 8.6 hereof, the Corporation hedges its obligations with
regard to the balance in the Non-Elective Deferred Account through a rabbi trust
which invests in Common Stock, such balance may, at the option of the Committee,
be paid by delivery of certificates representing such Common Stock (valued at
its closing price on the trading day preceding the delivery date) in such
installments as the Committee shall choose or permit. In its sole discretion,
the Committee may require all or part of the unpaid portion of the Non-Elective
Deferred Accounts to be deemed invested in Common Stock. The Committee shall
also determine the conditions under which the Grantee shall forfeit his rights
to the unpaid portion of the Non-Elective Deferred Account including, but not
limited to, upon any Termination of Service other than by reason of the
Grantee's death, Disability, or Retirement.
7.4 Designation of Beneficiary. Each Participant shall designate one or more
persons as the beneficiaries who shall be entitled to receive the amount, if
any, payable under the Plan upon his death (the "Beneficiary"). A Participant
may, from time to time, revoke or change his Beneficiary designation without the
consent or notification of any prior Beneficiary by filing a new designation
with the Corporation. The last such designation received by the Corporation
shall be controlling, provided that no designation, change or revocation thereof
shall be effective unless received by the Corporation prior to the Participant's
death, and in no event shall it be effective as of any date prior to such
receipt.
If no such Beneficiary designation is in effect at the time of a Participant's
death, or if no designated Beneficiary survives the Participant, or if such
designation conflicts with law, the Participant's estate shall be deemed to have
been designated his Beneficiary and shall receive payment of the amount, if any,
payable under the Plan upon his death. If the Committee is in doubt as to the
right of any person to receive such amount, the Corporation may retain such
amount, without liability for any interest thereon, until the rights thereto are
determined, or the Corporation may pay such amount into any court of appropriate
jurisdiction and such payment shall be a complete discharge of the liability of
the Plan and the Corporation therefore.
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7.5 Incapacity of Beneficiary, Etc. If the Committee shall find that any
Beneficiary to whom any amount is or was payable hereunder is unable to care for
his affairs because of illness or accident, or has died, then the Committee, if
it so elects, may direct that unless a prior claim therefore has been made by a
duly appointed legal representative, any payment due him or his estate, or any
part thereof, be paid or applied for the benefit of such person or to or for the
benefit of his spouse, children or other dependents, an institution maintaining
or having custody of such person or persons, any other person deemed by the
Committee to be a proper recipient on behalf of such person otherwise entitled
to payment, or any of them, in such manner and proportion as the Committee may
deem proper. Any such payment shall be in complete discharge of the liability
therefore of the Corporation, the Plan and the Committee and any member, officer
or employee thereof.
ARTICLE VIII. General Limitations and Provisions
8.1 Choice of Law. The validity, construction and administration of the Plan,
and any rules, regulations, determinations or decisions made hereunder, and the
rights of any and all persons having or claiming to have any interest herein or
hereunder, shall be determined exclusively in accordance with the laws of the
State of Florida without regard to conflicts of law principles.
8.2 No Transferability or Alienation. Except insofar as may otherwise be
required by law, no amount payable at any time under the Plan shall be subject
in any manner to alienation by anticipation, sale, transfer, assignment,
bankruptcy, pledge, attachment, charge, or encumbrance of any kind, nor in any
manner be subject to the debts or liabilities of any person, and any attempt to
so alienate or subject any such amount, whether presently or thereafter payable,
shall be void. If any person shall attempt to, or shall, alienate, sell,
transfer, assign, pledge, attach, charge, or otherwise encumber any amount
payable under the Plan, or any part thereof, or if by reason of his bankruptcy
or other event happening at any such time such amount would be made subject to
his debts or liabilities or would otherwise not be enjoyed by him, then the
Committee, if it so elects, may direct that such amount be withheld and that the
same or any part thereof be paid or applied to or for the benefit of such
person, his spouse, children or other dependents, or any of them, in such manner
and proportion as the Committee may deem proper.
8.3 Gender. As used herein, the masculine gender shall include the feminine
gender.
8.4 Headings. The headings in the Plan are for reference purposes only and shall
not affect the meaning or interpretation of the Plan.
8.5 Notices. All notices or other communications made or given pursuant to this
Plan shall be in writing and shall be sufficiently made or given if
hand-delivered or mailed by certified mail addressed to any Participant at the
address contained in the records of the Corporation or to the Corporation at its
principal office, marked for the attention of the CEO.
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8.6 Unfunded Plan; Trust Agreement. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
amount payable to a Grantee under the Plan, nothing contained in the Plan (or in
any other documents related hereto), nor the creation or adoption of the Plan,
the grant of any award, or the taking of any other action pursuant to the
provisions of the Plan shall give any such Grantee any rights that are greater
than those of an unsecured general creditor of the Corporation.
The Corporation may, but shall not be required to, adopt a trust agreement for
the holding and administration of any assets, including Common Stock, to be used
to meet the Corporation's obligations under the Plan. The assets of any such
trust shall remain subject to the claims of the Corporation's general creditors,
and the obligations of the Corporation under the Plan shall remain "unfunded"
for purposes of the Internal Revenue Code and Title I of the Employee Retirement
Income Security Act of 1974, as amended. It is expected that any trust created
pursuant to this Section 8.6 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 Corporation.
No Participant, Grantee, Eligible Executive or any other person shall have any
right, title, or interest whatsoever in or to any investments which the
Corporation may make to aid it in meeting its obligations hereunder. Nothing
contained in the Plan, and no action taken pursuant to its provisions, shall
create or be construed to create a trust of any kind, or a fiduciary
relationship between the Corporation and any Participant, Grantee, Eligible
Executive or any other person.
8.7 No Employment or Equityholder Rights. Neither the Plan nor any Performance
Awards granted under the Plan shall give any Participant, Grantee, Eligible
Executive or any person claiming to be one of the foregoing any right to
continue in the employ or service of the Corporation, or interfere in any way
with the right of the Corporation, subject to the terms of any separate
employment or consulting agreement to the contrary, to terminate their
employment or service at any time. No Grantee or Participant shall have any
rights of an equityholder of the Corporation as a result of the grant of a
Performance Award or otherwise under the Plan prior to or apart from those
rights derived from the possession of such shares as may be awarded in
settlement of a Performance Award.
8.8 Expenses. All expenses and costs incurred in connection with the operation
of the Plan shall be borne by the Corporation.
8.9 Other Plans. The adoption of this Plan shall not affect any other
compensation or incentive plans in effect for the Corporation. Nothing in this
Plan shall be construed to limit the right of the Corporation to establish,
alter or terminate any other forms of incentives, benefits or compensation for
employees including, without limitation, conditioning the right to receive other
incentives, benefits or compensation on an employee not participating in this
Plan.
8.10 Withholding. The Corporation shall withhold from the settlement of any
Performance Award under this Plan any amount of withholding taxes due in respect
of such Performance Award, its deferral or payment.
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8.11 Incapacity of Grantee. If the Committee shall find that any Grantee to whom
any amount is payable under the Plan is unable to care for his affairs because
of illness or accident, then any payment due to such person (unless a prior
claim therefore has been made by a duly appointed legal representative), may, if
the Committee so directs the Corporation, be paid to his Beneficiary, or if no
Beneficiary has been designated, to his spouse, child, relative, an institution
maintaining or having custody of such person, or any other person deemed by the
Committee to be a proper recipient on behalf of such Grantee otherwise entitled
to payment. Any such payment shall be a complete discharge of the liability of
the Committee and the Corporation therefore.
8.12 Forfeiture of Performance Award. Upon a violation by a Grantee of any of
the restrictive covenants contained in any agreement between the Grantee and the
Corporation (a "Forfeiture Event"), except as otherwise provided in any
applicable written agreement between the Grantee and the Corporation, the
Grantee shall forfeit his or her entitlement to any Performance Award granted
pursuant to this Plan and shall be obligated to repay to the Corporation, in
cash, within five (5) business days after demand is made therefore by the
Corporation, all amounts paid to the Grantee by the Corporation pursuant to this
Plan within 12 months of the date of such Forfeiture Event and/or the date that
the Corporation became aware of the Forfeiture Event. The Committee may, in its
discretion, waive in whole or in part the Corporation's right to forfeiture
under this Section 8.12, but no such waiver shall be effective unless expressly
made in a writing that references this Section 8.12.
8.13 Setoff. Except as otherwise provided in any applicable written agreement
between the Grantee and the Corporation, the Corporation may, to the extent
permitted by law, deduct from and set off against its obligations hereunder to a
Grantee from time to time (including, without limitation, amounts payable in
connection with a Performance Award, as wages or benefits or other form of
compensation), any amounts that Grantee owes to the Corporation for any reason
whatsoever, whether or not due, and such Grantee shall remain liable for any
portion of Grantee's obligation not satisfied by such setoff. By accepting a
Performance Award under this Plan, each Grantee agrees to the deduction or
setoff provided for in this Section 8.13.
8.14 Severability. In case any provision of this Plan shall be held illegal or
invalid, such illegality or invalidity shall be construed and enforced as if
said illegal or invalid provision had never been inserted herein and shall not
affect the remaining provisions of this Plan, but shall be fully severable, and
the Plan shall be construed and enforced as if any such illegal or invalid
provision were not a part hereof.
ARTICLE IX. Amendment or Discontinuance of Plan
The Board may, without the consent of the Corporation's stockholders,
Participants or Grantees under the Plan, at any time terminate the Plan
entirely, and at any time or from time to time amend or modify the Plan,
provided that no such action shall adversely affect Performance Awards
previously granted hereunder without the Grantee's consent.
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AMENDMENT, dated July 31, 2003 to Concord Camera Corp. Amended
and Restated 2002 Long Term Cash Incentive Plan.
WHEREAS, Concord Camera Corp., a New Jersey corporation (the
"Corporation"), has adopted an Amended and Restated 2002 Long Term Cash
Incentive Plan (the "Plan");
WHEREAS, no awards have been made pursuant to the Plan and no
Participant (as defined in the Plan) has any entitlement to receive any award
under the Plan; and
WHEREAS, the Corporation desires to amend the Plan as it
relates to unawarded and forfeited portions of the performance pool provided for
in the Plan.
NOW, THEREFORE, the Plan is hereby amended to DELETE Section
5.4 thereof and to substitute in lieu thereof a new Section 5.4 reading as
follows:
5.4 Unawarded and Forfeited Portion of Performance Pool. If
all or any part of a Performance Pool is not awarded to Participants,
unless otherwise determined by the Committee, the unallocated portion
shall be restored to the general funds of the Corporation and shall not
be carried forward or made available to be included in Performance
Pools created for subsequent Performance Periods. Further, any
Performance Awards which are forfeited pursuant to conditions
established pursuant to Section 7.3 by the Committee with respect to
Non-Elective Deferral Accounts shall, unless otherwise determined by
the Committee, be restored to the general funds of the Corporation and
shall not be carried forward or made available to be included in
Performance Pools created subsequent to such forfeitures.
Except as amended hereby, the Plan shall continue in full
force and effect.
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