EXHIBIT 10.23
CONCORD CAMERA CORP.
AMENDED AND RESTATED
LONG TERM INCENTIVE PLAN COMMENCING FISCAL 2004
ARTICLE I. PURPOSE
The purpose of the Amended and Restated Long Term Incentive Plan Commencing
Fiscal 2004, as amended through June 30, 2004 (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 overlapping
three-year fiscal cycles.
ARTICLE II. DEFINITIONS
When used in the Plan with initial capital letters, the following terms 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.
"Change of Control" means the occurrence of any one of the following events:
(a) 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 CEO of the Corporation
and other members of management of the Corporation 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
Corporation;
(b) the majority of the Board consists of individuals who are not members
of the Board 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 CEO or two-thirds of the directors who then comprised the Incumbent
Directors shall be considered to be an Incumbent Director;
(c) the Corporation adopts any plan of liquidation providing for the
distribution of substantially all of its assets;
(d) all or substantially all of the assets or business of the Corporation
are disposed of pursuant to a merger, consolidation or other
transaction (unless the shareholders of the Corporation 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 Corporation, the Voting Stock or
other ownership interests of the entity or entities, if any, that
succeed to the business of the Corporation); or
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(e) the Corporation combines with another Corporation and is the surviving
corporation but, immediately after the combination, the shareholders of
the Corporation immediately prior to the combination hold, directly or
indirectly, 50% or less of the Voting Stock of the combined Corporation
(there being excluded from the number of shares held by such
shareholders, but not from the Voting Stock of the combined
Corporation, any shares received by affiliates of such other
Corporation in exchange for stock of such other 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.
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"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.
"Net Income" shall mean cumulative net income for the Performance Period (before
giving effect to accruals for: (i) Performance Awards to be made with respect to
the Performance Period under this Plan; and/or (ii) incentive awards to be made
under the Corporation's Annual Incentive Compensation Plan with respect to one
or more fiscal years included in the Performance Period), as reflected in the
Corporation's financial statements.
"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 of three fiscal years in duration
commencing on June 29, 2003(1) and ending on July 1, 2006(1), inclusive (the
"Initial Performance Period"), and, unless otherwise determined by the Board or
the Committee, each subsequent three-fiscal year period to begin annually on the
first day of each subsequent fiscal year beginning with Fiscal 2005.
"Performance Pool" means the amount made available for Performance Awards with
respect to the Performance Period.
"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.
"Return on Equity" or "ROE" shall mean the average net income for the three
fiscal years in the Performance Period divided by the average stockholders'
equity (stockholders' equity at the beginning of the Performance Period plus
stockholders' equity at the end of the Performance Period, divided by two), as
reflected in the Corporation's financial statements.
"Sales" shall mean cumulative net sales for the Performance Period, as reflected
in the Corporation's financial statements.
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(1) June 29, 2003 is the first day of Fiscal 2004 and July 1, 2006 is the last
day of Fiscal 2006.
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"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
determined to be a temporary leave of absence.
"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. 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 amount of the
Performance Pool for each Performance Period, and make adjustments to such
criteria under certain circumstances; (ii) determine the amount 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 hereby
delegates to the CEO all of its authority as set forth in (iii) through (v)
above, and such delegation of authority shall remain in effect unless and until
determined otherwise by the Committee or the Board. 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 pursuant to Section 6.1 below. 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 180 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, after taking into consideration the CEO's recommendation regarding who
should be entitled to participate in the Plan for the Performance Period, the
Committee, in its 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 180 days of each
Performance Period (other than the Initial Performance Period), the performance
criteria upon which the amount 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 or unusual accounting changes or other extraordinary
circumstances.
5.2 Determination of Performance Pool. As soon as practicable following the
preparation by the Corporation of unaudited financial statements for the third
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 amount 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 or
unusual accounting changes or other special or unusual circumstances, the
Committee reserves the right to make such equitable adjustments, if any, as it
may deem appropriate in its absolute discretion, in the determination of the
amount of the Performance Pool.
Without limiting the generality of Section 5.1 or the first paragraph of this
Section, in determining EBITDA, Net Income and/or ROE, 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) or unusual 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.
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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 Deferred 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 for inclusion in any Performance Pools created
subsequent to such forfeitures.
ARTICLE VI. PERFORMANCE AWARDS
6.1 Determination of Individual Performance Awards. After the Committee has
determined the amount of the Performance Pool pursuant to Article V, the
Committee or a majority of the Independent Directors on the Board 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 the CEO's recommendation, the Committee's evaluation of
such Participant's performance, contribution to the success of the Corporation,
industry, service and 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 shall determine the amount of any
Performance Award to be granted to a Participant who is a family member of the
CEO. The CEO may not be present during voting on, or deliberations regarding,
any Performance Award to be granted to the CEO or any 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. Except as otherwise provided in Section 7.4,
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 7.6.
As a condition to the grant of a Non-Elective Deferred Award, the supplemental
executive retirement plan and agreement ("SERP") of each such Grantee shall be
amended, on such terms as are acceptable to the Corporation, to include
appropriate terms to govern such award, or a new SERP governing the Non-Elective
Deferred Award shall be entered into between the Corporation and the Grantee, on
such terms as are acceptable to the Corporation. If the Grantee and the
Corporation are unable to agree on such terms within the timeframe established
by the Corporation, the Non-Elective Deferred Award will be forfeited.
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ARTICLE VII. DEFERRAL OF PERFORMANCE AWARDS
7.1 Elective Deferrals. 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 who must have entered into a SERP
with the Corporation which permits elective deferrals on such terms as are
acceptable to the Corporation, and who shall execute and deliver an election
made pursuant to his SERP with respect to the relevant Performance Period on or
before the deadline provided for in his SERP.
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.
7.2 Deferred Accounts. The Corporation shall establish a bookkeeping reserve
account, to be designated 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 Company may also enter into one or more trust agreements, pursuant to
Section 8.6 below, in connection with one or more of the Deferred Accounts.
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 relevant SERP 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.
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7.4 Change of Control. If there is a Change of Control (as defined in Article II
above) while the Plan remains in effect, then:
(a) any unpaid Performance Award granted but not otherwise deferred pursuant to
Section 6.3 or Section 7.1 shall be paid in a lump sum to such Grantee
immediately upon such Change of Control.
(b) notwithstanding the provisions of Section 7.3 above, the unpaid portion of
the balance of each Grantee's Non-Elective Deferred Account, whether or not
vested, shall be paid to the Grantee in a lump sum immediately upon such Change
of Control; provided, however that, as to any unvested portion of such balance,
the Grantee's rights thereto were not forfeited prior to the Change of Control
pursuant to conditions established by the Committee pursuant to Section 7.3.
(c) upon a Change of Control, the Committee may, in its sole discretion,
determine the projected amount of the Performance Pool, and determine the amount
of the Performance Awards to be granted out of such Performance Pool to
Participants, with such Performance Awards prorated through the end of the
calendar month immediately preceding the date of such Change of Control. For
this purpose, the amount of the Performance Pool shall be based on a formula
established by the Committee which computes the Performance Pool using: (1)
actual performance data for each full fiscal year in each Performance Period for
which such data is available; and (2) projected data for each other fiscal year
in the Performance Period, which projection will be based on a comparison (for
the fiscal year which includes the Change of Control) of the actual performance
versus budgeted performance for each of the performance criteria applicable to
the Performance Period for the full calendar months (in such fiscal year) which
immediately precede the Change of Control, multiplied by (3) a fraction, the
numerator of which will be the number of full calendar months in each such
Performance Period before the date of the Change of Control and the denominator
of which will be thirty-six (36). Such Performance Awards, if any, shall be paid
in a lump sum in cash immediately upon such Change of Control in lieu of any
other Performance Awards under the Plan for the related Performance Periods.
Participants shall not have the ability to electively defer payment of such
Performance Awards.
7.5 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.
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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.
7.6 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 General Counsel.
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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.
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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.
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.
11
As amended through 06/30/04
CONCORD CAMERA CORP.
AMENDED AND RESTATED LONG TERM INCENTIVE PLAN
COMMENCING FISCAL 2004
PERFORMANCE CRITERIA FOR THE
FISCAL 2004-2006 PERFORMANCE PERIOD
Pursuant to Article III of the Amended and Restated Long Term Incentive Plan
Commencing Fiscal 2004 (the "2004 LTIP" or the "Plan") of Concord Camera Corp.
(the "Corporation"), and subject to the terms and conditions of the Plan, the
Compensation and Stock Option Committee has determined that the performance
criteria for the Performance Period commencing June 29, 2003 and ending July 1,
2006 shall be as follows:
DEFINITIONS:
As used herein, the following items shall have the meanings set forth below:
"AICP" means the Corporation's Annual Incentive Compensation Plan.
"PERFORMANCE PERIOD" means the period from June 29, 2003 to July 1, 2006,
inclusive.
"SALES" shall mean cumulative net sales for the Performance Period, as reflected
in the Corporation's financial statements.
"NET INCOME" OR "NI" shall mean cumulative net income for the Performance Period
(before giving effect to accruals for: (i) Performance Awards to be made with
respect to the Performance Period under this Plan; and/or (ii) incentive awards
to be made under the AICP with respect to one or more fiscal years included in
the Performance Period), as reflected in the Corporation's financial statements.
Page 1 of 7
As amended through 06/30/04
"RETURN ON EQUITY" OR "ROE" shall mean the average net income for the three
fiscal years in the Performance Period divided by the average stockholders'
equity (beginning stockholders' equity of $156.8 million plus ending
stockholders' equity at July 1, 2006, divided by two), as reflected in the
Corporation's financial statements.
Capitalized items used but not defined herein shall have the meanings set forth
in the Plan.
DETERMINATION OF PERFORMANCE POOL
The amount of the Performance Pool will be based on (1) Sales, (2) Net Income
and (3) Return on Equity, as determined by the Committee in accordance with the
terms of the Plan. Twenty percent (20%) of the Performance Pool will be
determined based on Sales, forty percent (40%) will be determined based on Net
Income, and forty percent (40%) will be determined based on Return on Equity.
CONCORD CAMERA CORP.
2004 LTIP BENCHMARKS
------------------------------------------------------------------------------------------------------------------------
F2004 F2005 F2006 3 YEAR TOTAL
------------------------------------------------------------------------------------------------------------------------
SALES NI ROE(1) SALES NI ROE(1) SALES NI ROE(1) SALES NI AVG ROE(2)
($US M) ($US M) % ($US M) ($US M) % ($US M) ($US M) % ($US M) ($US M) %
------------------------------------------------------------------------------------------------------------------------
EXCELLENT 267.00 19.20 11.5 330.00 25.50 13.5 393.00 30.30 14.0 990.00 75.00 12.9
GOOD 230.00 13.35 8.2 280.00 19.50 10.8 325.00 23.65 11.7 835.00 56.50 10.2
THRESHOLD 195.00 7.50 4.7 230.00 13.50 7.9 260.00 17.00 9.1 685.00 38.00 7.2
------------------------------------------------------------------------------------------------------------------------
(1) ROE for each year is equal to net income divided by the average equity for
that fiscal year.
(2) Three-year average ROE is equal to the 3-year average net income divided by
the average equity for the three years.
Page 2 of 7
As amended through 06/30/04
Cap on Amount of the Performance Pool:
The combined total of the Performance Pool for the Performance Period and all
incentive awards made under the AICP with respect to one or more fiscal years in
the Performance Period shall not exceed: (i) 15% of Net Income at the
"Excellent" performance level; (ii) 12.5% of Net Income at the "Good"
performance level; and (iii) 10% of Net Income at or below the "Threshold"
performance level. For purposes of determining which of these caps to apply, the
relevant performance level shall be deemed to have been achieved if the stated
performance benchmark levels were achieved for two or more of the three
performance criteria for that performance level.
If the amount of the Performance Pool would have caused the forgoing cap to be
exceeded, then the Performance Pool shall be reduced by the lowest amount
possible so that the foregoing cap is not exceeded, and such reduced amount
shall constitute the Performance Pool for the Performance Period.
Calculating the Amount of the Performance Pool:
Calculation of Performance Pool percentages between stated performance benchmark
levels is based on a linear interpolation determined by the proportion that
actual performance exceeds the immediately lower level. If the minimum
"Threshold" performance level is not achieved with respect to one (or more) of
the three performance criteria (i.e., Sales, Net Income or ROE), the amount of
the Performance Pool for the Performance Period shall be reduced accordingly,
pursuant to the weighting described on page 2 above under "Determination of
Performance Pool". For example, since the Performance Pool will be based 20% on
Sales, 40% on Net Income, and 40% on ROE, if the Threshold Net Income and ROE
performance levels are achieved, but not the Sales Threshold, then no portion of
the Performance Pool will be attributable to Sales and the amount of the
Performance Pool will be based solely on Net Income and ROE. As a result, the
Performance Pool would be 80% of the amount it would have been if the Sales
Threshold had been met as well. Please refer to the "Alternate Assumption"
section of the Interpolation Example on page 7 below.
Page 3 of 7
As amended through 06/30/04
CONCORD CAMERA CORP.
2004 LTIP ANALYSIS
SAMPLE CALCULATIONS BASED ON MEETING PLAN PERFORMANCE LEVELS
SCENARIO: EXCELLENT
-----------------------------------------------------------------------------
ASSUMPTIONS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES $ 267.00 $ 330.00 $ 393.00 $ 990.00
NET INCOME (PRE-AICP & LTIP ACCRUALS) 22.12 29.38 34.91 86.41
NET INCOME (INCLUDING AICP & LTIP ACCRUALS) 19.20 25.50 30.30 75.00
AVG ROE (%) 11.50 13.50 14.00 12.90
TOTAL SENIOR EXECUTIVE SALARIES 2.49 2.74 3.01 8.23
TAX 12.00% 12.00% 12.00% 12.00%
-----------------------------------------------------------------------------
TOTAL BONUS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES (20%) $ 0.66 $ 0.88 $ 1.05 $ 2.59
NET INCOME (40%) 1.33 1.76 2.09 5.18
AVG ROE (40%) 1.33 1.76 2.09 5.18
-----------------------------------------------------------------------------
AICP (60%, 40%, 20%) $ 1.49 $ 1.64 $ 1.81 $ 4.94
ANNUAL LTIP ACCRUAL 1.83 2.76 3.43 8.02
-----------------------------------------------------------------------------
TOTAL $ 3.32 $ 4.41 $ 5.24 $ 12.96
=============================================================================
STATISTICS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
ALLOCATION OF NET INCOME 15.00% 15.00% 15.00% 15.00%
-----------------------------------------------------------------------------
SCENARIO: GOOD
-----------------------------------------------------------------------------
ASSUMPTIONS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES $ 230.00 $ 280.00 $ 325.00 $ 835.00
NET INCOME (PRE-AICP & LTIP ACCRUALS) 15.00 21.91 26.57 63.48
NET INCOME (INCLUDING AICP & LTIP ACCRUALS) 13.35 19.50 23.65 56.50
AVG ROE (%) 8.20 10.80 11.70 10.20
TOTAL SENIOR EXECUTIVE SALARIES 2.49 2.74 3.01 8.23
TAX 12.00% 12.00% 12.00% 12.00%
-----------------------------------------------------------------------------
TOTAL BONUS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES (20%) $ 0.38 $ 0.55 $ 0.66 $ 1.59
NET INCOME (40%) 0.75 1.10 1.33 3.17
AVG ROE (40%) 0.75 1.10 1.33 3.17
-----------------------------------------------------------------------------
AICP (60%, 40%, 20%) $ 1.00 $ 1.09 $ 1.20 $ 3.29
ANNUAL LTIP ACCRUAL 0.88 1.64 2.12 4.64
-----------------------------------------------------------------------------
TOTAL $ 1.88 $ 2.74 $ 3.32 $ 7.94
=============================================================================
STATISTICS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
ALLOCATION OF NET INCOME 12.50% 12.50% 12.50% 12.50%
-----------------------------------------------------------------------------
SCENARIO: THRESHOLD
-----------------------------------------------------------------------------
ASSUMPTIONS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES $ 195.00 $ 230.00 $ 260.00 $ 685.00
NET INCOME (PRE-AICP & LTIP ACCRUALS) 8.22 14.80 18.64 41.67
NET INCOME (INCLUDING AICP & LTIP ACCRUALS) 7.50 13.50 17.00 38.00
AVG ROE (%) 4.70 7.90 9.10 7.20
TOTAL SENIOR EXECUTIVE SALARIES 2.49 2.74 3.01 8.23
TAX 12.00% 12.00% 12.00% 12.00%
-----------------------------------------------------------------------------
TOTAL BONUS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
SALES (20%) $ 0.16 $ 0.30 $ 0.37 $ 0.83
NET INCOME (40%) 0.33 0.59 0.75 1.67
AVG ROE (40%) 0.33 0.59 0.75 1.67
-----------------------------------------------------------------------------
AICP (60%, 40%, 20%) $ 0.50 $ 0.55 $ 0.60 $ 1.65
ANNUAL LTIP ACCRUAL 0.32 0.93 1.26 2.52
-----------------------------------------------------------------------------
TOTAL $ 0.82 $ 1.48 $ 1.86 $ 4.17
=============================================================================
STATISTICS
-----------------------------------------------------------------------------
FY 2004 FY 2005 FY 2006 TOTAL
-----------------------------------------------------------------------------
ALLOCATION OF NET INCOME 10.00% 10.00% 10.00% 10.00%
-----------------------------------------------------------------------------
- ---------------
Note: The AICP Incentive Fund is based on a percentage of the aggregate of
the annual base salaries of all the selected participants for the fiscal
year, provided certain ROE benchmarks are achieved, or waived by the Board.
INTERPOLATION EXAMPLE
ASSUMPTIONS:
For the Fiscal 2004-2006 Performance Period, Sales = $900M; Net Income = $60M;
and ROE = 12.0%
SALES INTERPOLATION:
(1) If the Net Sales falls between two benchmark Sales levels,
determine the incremental percentage achieved between the
lower Sales benchmark and the higher Sales benchmark (the
"Incremental Percentage"):
EXCELLENT ($990M) - GOOD ($835M) = $155M
INCREMENTAL PERCENTAGE =
SALES IN EXCESS OF LOWER BENCHMARK ($900M - $835M = $ 65M)/
DIFFERENCE BETWEEN HIGH AND LOW BENCHMARKS ($155M) = 41.9%
Page 4 of 7
As amended through 06/30/04
(2) Determine the difference between the percentage of Net Income
paid for the lower and higher sales benchmark levels (the
"Payout Differential"):
EXCELLENT PAYOUT PERCENTAGE (15.0%)
- GOOD PAYOUT PERCENTAGE (12.5%)
= 2.5 PERCENTAGE POINTS
(3) Multiply the Incremental Percentage by the Payout Differential:
41.9% X 2.5 PCT. PTS. = 1.0475 PERCENTAGE POINTS
(4) Add the result in (3) above to the lower benchmark Payout
Percentage benchmark:
12.5% + 1.0475% = 13.5475%
(5) To determine the amount of the Performance Pool generated by
Sales, multiply the result of (4) above by 0.2 (because Sales
determines 20% of the Performance Pool) by Net Income:
0.135475 X 0.2 X 60M = $1.6257M
NET INCOME (NI) INTERPOLATION:
(1) If NI falls between two NI benchmark levels, determine the
incremental percentage achieved between the lower benchmark
and the higher benchmark (the "Incremental Percentage"):
EXCELLENT ($75M) - GOOD ($56.5M) = $18.5M
NI IN EXCESS OF LOWER BENCHMARK ($60M - $56.5M = $3.5M)/
DIFFERENCE BETWEEN HIGH AND LOW BENCHMARKS ($18.5M) = 18.9%
(2) Determine the difference between the percentage of Net Income
paid for the lower and higher Net Income benchmark levels (the
"Payout Differential"):
EXCELLENT PAYOUT PERCENTAGE (15.0%)
- GOOD PAYOUT PERCENTAGE (12.5%)
= 2.5 PERCENTAGE POINTS
(3) Multiply the Incremental Percentage by the Payout Differential:
18.9% X 2.5 PCT. PTS. = 0.4725 PERCENTAGE POINTS
(4) Add the result in (3) above to the lower benchmark Payout
Percentage benchmark:
12.5% + 0.4725% = 12.9725%
Page 5 of 7
As amended through 06/30/04
(5) To determine the amount of the Performance Pool generated by
Net Income, multiply the result of (4) above by 0.4 (because
Net Income determines 40% of the Performance Pool) and by Net
Income:
0.129725 X 0.4 X 60M = $3.1134M
RETURN ON EQUITY (ROE) INTERPOLATION:
(1) If ROE falls between two ROE benchmark levels, determine the
incremental percentage achieved between the lower benchmark
and the higher benchmark (the "Incremental Percentage"):
EXCELLENT (12.9%) - GOOD (10.2%) = 2.7%
ROE IN EXCESS OF LOWER BENCHMARK (12% - 10.2% = 1.8%)/
DIFFERENCE BETWEEN HIGH AND LOW BENCHMARKS (2.7%) = 66.67%
(2) Determine the difference between the percentage of Net Income
paid for the lower and higher ROE benchmark levels (the
"Payout Differential"):
EXCELLENT PAYOUT PERCENTAGE (15.0%)
- GOOD PAYOUT PERCENTAGE (12.5%)
= 2.5 PERCENTAGE POINTS
(3) Multiply the Incremental Percentage by the Payout Differential:
66.67% X 2.5 PCT. PTS. = 1.66675 PERCENTAGE POINTS
(4) Add the result in (3) above to the lower benchmark Payout
Percentage benchmark:
12.5% + 1.66675% = 14.16675%
(5) To determine the amount of the Performance Pool generated by
ROE, multiply the result of (4) above by 0.4 (because ROE
determines 40% of the Performance Pool) and by Net Income:
0.1416675 X 0.4 X 60M = $ 3.4M
FISCAL 2004-2006 PERFORMANCE POOL
SALES $1,625,700
NI 3,113,400
ROE 3,400,000
----------
$8,139,100
==========
LESS ANY ADJUSTMENTS
NECESSARY SO THAT THE
12.5% OF NET INCOME
Page 6 of 7
As amended through 06/30/04
CAP DESCRIBED ABOVE IS
NOT EXCEEDED
EQUALS LTIP
PERFORMANCE POOL
ALTERNATE ASSUMPTION
Assume, on the other hand, that for the Fiscal 2004-2006 Performance Period, Net
Income = $60M and ROE = 12.0%, as in the prior interpolation example, but Sales
= $650M (instead of $900M). Since the Threshold performance level was not
achieved for Sales, the Fiscal 2004-2006 Performance Pool would be:
NI $ 3,113,400*
ROE 3,400,000*
------------
SALES -0-
$6,513,400
============
LESS ANY ADJUSTMENTS
NECESSARY SO THAT THE
12.5% OF NET INCOME
CAP DESCRIBED ABOVE IS
NOT EXCEEDED
EQUALS LTIP
PERFORMANCE POOL
- ------------------------
* As calculated in accordance with the prior interpolation example which begins
on page 5.
Page 7 of 7