Exhibit 10.44
SEPARATION AGREEMENT
This SEPARATION AGREEMENT, dated as of August 18, 2004 (the
"Agreement"), between CONCORD CAMERA CORP., a New Jersey corporation (the
"Company"), and RICHARD M. FINKBEINER ("Executive").
RECITALS
A. The Executive is a Senior Vice President and the Chief Financial
Officer of the Company.
B. The Company and the Executive have mutually agreed upon the
separation of the Executive from employment with the Company and upon the
timing, terms and conditions of this separation.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive,
intending to be legally bound, agree as follows:
1. EMPLOYMENT SEPARATION:
A. The separation of the Executive from his employment with
the Company and his relinquishment of the offices of Senior Vice President and
Chief Financial Officer of the Company (collectively, the "Separation") became
effective as of July 27, 2004 (the "Separation Date").
B. For purposes of the Terms of Employment of the
Executive, dated as of July 22, 2002, as amended by Amendment No. 1, dated as of
January 1, 2003 (as amended, the "Executive Employment Terms"), the effective
date of termination of the Executive's employment with the Company was the
Separation Date.
2. SEPARATION COMPENSATION AND BENEFITS:
A. Pursuant to Sections 14 and 15 of the Executive
Employment Terms: (i) in lieu of providing the Executive with 60 days' notice,
the Company will pay the Executive the equivalent of his base salary of $262,500
per annum (as in effect on the Separation Date) for the two-month period
following the Separation Date (the "Notice Payments"); and (ii) after making the
foregoing Notice Payments, the Company will pay the Executive the equivalent of
his base salary for an additional ten (10) months (the "Non-Compete Payment").
All of the above payments will be net of amounts which must be withheld in
accordance with state and federal law, and shall be payable in accordance with
the Company's regular payroll schedule. The Company's obligation to make any
Notice Payments and/or the Non-Compete Payment is conditioned upon the
Executive's compliance with the terms and conditions of this Agreement and the
Executive Employment Terms.
B. The Company will pay an additional $12,500 to the
Executive within ten (10) days of the Executive's execution and delivery of this
Agreement to the Company.
C. VACATION AND BENEFITS. The Executive shall be paid
$6,057.69 for six (6) accrued but unused vacation days. The Executive will not
be entitled to accrue any paid time off benefits, including benefits for
vacation or sick leave, or any other benefits subsequent to the Separation Date,
unless the Company is required by law to provide such benefits. All benefits to
which the Executive is entitled under the Executive Employment Terms and/or
Company policy shall terminate as of the Separation Date. For the avoidance of
doubt, this provision shall not prevent the Executive from assuming any portable
insurance coverage under which the Executive will be responsible for paying the
premiums for such coverage.
D. EXECUTIVE STOCK OPTION. Pursuant to the terms of the
Option Agreement by and between the Executive and the Company, dated as of July
22, 2002, (the "Option Agreement") the Executive was granted a stock option (the
"Option") for the purchase of up to 75,000 shares of the Company's common stock,
at an exercise price of $4.00 per share. The Executive acknowledges and agrees
that: (i) except as provided in subparagraph (ii), the Option may only be
exercised on or before October 27, 2004 as to all or part of the 37,500 option
shares that vested prior to the Separation Date and the Option, to the extent
unexercised, shall expire on October 27, 2004; (ii) if the Executive dies on or
before October 27, 2004, the Option may be exercised at any time within six
months after the Executive's death as to all or part of the 37,500 option shares
that vested prior to the Separation Date and the Option, to the extent
unexercised, shall expire six months after the Executive's death; and (iii) the
option shares that were scheduled to vest on July 22nd of 2005 and 2006 have
been forfeited.
E. EXECUTIVE SERP. Pursuant to the terms of the
Supplemental Executive Retirement Plan and Agreement by and between the
Executive and the Company, dated as of July 22, 2002, as amended effective as of
August 6, 2003 (the "Executive SERP"), two grants of deferred compensation were
made to the Executive, subject to the conditions to vesting and other terms set
forth in the Executive SERP: (i) a July 22, 2002 grant in the amount of $100,000
(the "July 2002 Grant"); and (ii) an August 6, 2003 grant for a Non-Elective
Deferred Award in the amount of $224,722 under the Company's Amended and
Restated 2002 Long Term Cash Incentive Plan (the "August 2003 Grant"). The
Executive acknowledges and agrees that:
(i) the entire amount of the August 2003 Grant was
forfeited on the Separation Date; and
(ii) with respect to the July 2002 Grant: (a) the
balances in Accounts I, II, V, VI, VII and VIII (established pursuant to the
Executive SERP) have vested and shall be paid to the Executive in a lump-sum in
the amount of $75,000 within 10 days of the Executive's execution and delivery
of this Agreement to the Company; and (b) the balances in Accounts III and IV
(established pursuant to the Executive SERP) were forfeited on the Separation
Date.
F. CONCORD CAMERA CORP. 401(k) PLAN. Executive shall
receive Executive's vested benefits under the Company's 401(k) Plan in
accordance with the terms of the plan.
G. Except as provided in this Agreement, the Executive does
not have any right, benefit or entitlement under any employee benefit plan or
deferred compensation plan in which he participated or by which he was covered
during his employment with the Company, or under any stock option agreement with
the Company. The Executive acknowledges and agrees that, except as provided in
this Agreement or as otherwise required by any mandatory and
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unwaivable provision of applicable law, all compensation and other benefits
which the Executive may be entitled to receive from the Company shall terminate
as of the Separation Date, and the Company shall have no other or further
obligations, economic or otherwise, to the Executive.
3. RESTRICTIVE COVENANTS; RETURN OF COMPANY PROPERTY;
CERTIFICATION:
A. The Executive acknowledges and agrees that he is subject
to, and bound by, the confidentiality, intellectual property and non-competition
covenants and restrictions set forth in Exhibits A and B to the Executive
Employment Terms, in each case for the respective periods set forth therein.
B. For purposes of the non-competition covenants and
restrictions set forth in Part II of Exhibit A to the Executive Employment
Terms, the post-termination period specified therein commenced on the day after
the Separation Date.
C. As required by the Executive Employment Terms, the
Executive shall immediately deliver to the Company any and all documents,
papers, records, files, recordings, digital and electronic stored information,
computer or word processing software and other material containing Confidential
Information (as defined in Executive Employment Terms) and all other property of
the Company and/or any of its subsidiaries that he has in his possession or
control, and the Executive will retain no copy, duplicate, summary or
description thereof.
4. COOPERATION AND ASSISTANCE:
A. From and after the Effective Date (as defined in Section
6(e) below), the Executive will provide such cooperation and assistance to the
Company as the Company may reasonably request in connection with any Company
matters in which the Executive was involved while in the employ of the Company,
or of which the Executive has knowledge or information by reason of his Company
employment.
B. Such cooperation and assistance by the Executive shall
be provided at such times and locations, and in such manner, as are mutually
agreeable to the Executive and the Company.
C. The Company will reimburse the Executive for all
reasonable out-of-pocket expenses (such as lodging and travel expenses) incurred
by the Executive in providing such cooperation and assistance to the Company,
subject to the receipt by the Company of appropriately itemized and documented
requests by the Executive therefor.
D. The Executive shall not be entitled to any compensation,
in addition to the compensation prescribed by Section 2 hereof, for any
cooperation and assistance provided by the Executive to the Company during the
twelve-month period following the Separation Date. For any cooperation and
assistance provided by the Executive to the Company after the expiration of the
foregoing twelve-month period, the Executive shall be entitled to such per diem
compensation as shall be mutually agreeable to the parties.
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5. GENERAL RELEASE:
A. In consideration of the compensation and other benefits
provided to the Executive hereunder, the Executive, for himself and his heirs,
executors, administrators, representatives (personal and legal) and assigns
hereby forever releases and discharges the Company and its subsidiaries and
affiliates, and their respective current and former directors, officers,
employees and shareholders and each of their respective legal representatives,
heirs, successors and assigns (collectively, the "Releasees") from any and all
charges, complaints, claims, demands, promises, agreements, causes of action,
damages, debts and liabilities of any kind or nature whatsoever, whether known
or unknown, and whether at law or in equity (collectively, "Claims"), arising
from the beginning of time through the date that the Executive signs this
Agreement, which the Executive ever had, now has or may have against the Company
or any other Releasee for or with respect to compensation and/or any other
benefits arising out of, or related in any way to, his employment with, or
Separation from, the Company, except for such Claims as arise under the express
provisions of this Agreement or under any mandatory and unwaivable provision of
applicable law.
B. Anything in this Section 5 to the contrary
notwithstanding, the parties agree that the release effected hereby is not
intended, and shall not be construed, to limit the rights of the Executive (i)
to enforce this Agreement, (ii) to indemnification in accordance with the
By-Laws of the Company and applicable New Jersey law, or (iii) to be covered as
an insured under the terms and conditions of the Company's Directors' and
Officers' Liability Insurance Policy, to the extent of the coverage, if any,
provided thereunder.
6. ADDITIONAL ACKNOWLEDGMENTS AND AGREEMENTS. The Executive
understands, acknowledges and agrees that:
(a) No rights or Claims that may arise after the date on
which the Executive executes this Agreement are being waived by the Executive;
(b) The Executive has consulted with an attorney prior to
executing this Agreement;
(c) The Executive has twenty-one (21) days from his receipt
of this Agreement within which to review and consider this Agreement;
(d) The Executive has seven (7) days following his execution
of this Agreement within which to revoke this Agreement; and
(e) This Agreement shall not become effective or enforceable
until (i) the seven (7) day revocation period described in clause (d) above
shall have expired (such expiration date being referred to herein as the
"Effective Date"); and (ii) the Executive shall have ratified, confirmed and
extended the release effected by Section 5 hereof by executing and delivering to
the Company on the Effective Date a Release in the form attached hereto as
Exhibit A (the "Release").
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7. NO DISPARAGING OR DETRIMENTAL COMMUNICATIONS:
A. The Executive shall refrain from making any statements or other
communications of a defamatory, disparaging, derogatory or otherwise negative
nature to any person or entity concerning (i) the Company or any of its
subsidiaries or affiliates, or any of their respective directors, officers,
employees or shareholders, (ii) any product or service provided by the Company
or any of its subsidiaries or affiliates, or (iii) the future prospects of the
Company or any of its subsidiaries or affiliates.
B. The Company and its subsidiaries and affiliates shall refrain
from making any statements or other communications of a defamatory, disparaging,
derogatory or otherwise negative nature to any person or entity concerning the
Executive or the employment relationship of the Executive with the Company or
any of its subsidiaries or affiliates.
C. In response to any questions regarding the separation of the
Executive from his employment with the Company, the Company shall provide a
response similar to the following: "Richard Finkbeiner is separating from the
Company to pursue other personal and business interests." Further, in response
to a request for an employment reference from a potential employer or
representative of a potential employer such as a headhunter or staffing company,
the Company shall state that it is Company policy not to provide any information
other than the dates of employment and description of job duties. If requested
by a potential employer or representative of a potential employer, the Company
shall provide the Executive's dates of employment and description of his job
duties as the Senior Vice President and the Chief Financial Officer of the
Company.
D. The parties agree that it shall not be a violation of this
Section 7 for either party to make truthful statements when required to do so by
a court of law, by any governmental agency having supervisory authority over the
party, or by any administrative or legislative body with apparent jurisdiction
to order the party to divulge, disclose or make accessible such information.
8. SPECIFIC PERFORMANCE. The Executive acknowledges and agrees that
the remedies of the Company at law for any breach or threatened breach of any of
the provisions of Sections 3 and/or 7(A) would be inadequate and that the
Company would suffer irreparable damages as a result of such breach or
threatened breach. The Executive, therefore, agrees that, in the event of any
such breach or threatened breach, the Company, without posting any bond, shall
be entitled, in addition to any available rights or remedies at law, to bring an
action in any court of competent jurisdiction for the purpose of obtaining
equitable relief in the form of specific performance, a temporary restraining
order, a temporary or permanent injunction, or any other equitable remedy which
may then be available.
9. MISCELLANEOUS:
A. NOTICES. For purposes of this Agreement, all notices and
other communications required or permitted to be given hereunder shall be in
writing and shall have been duly given when personally delivered or when mailed
by certified or registered mail, postage prepaid, return receipt requested,
addressed as follows (or to such other address as either party may provide to
the other party by like notice):
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If to the Company: Concord Camera Corp.
4000 Hollywood Blvd., Suite 650N
Hollywood, Florida 33021
Attention: Chairman and CEO
If to the Executive: Richard M. Finkbeiner
750 Ranch Road
Weston, Florida 33326
B. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard to
the principles thereof relating to conflicts of law.
C. JURISDICTION AND VENUE. Each of the parties irrevocably
and unconditionally (i) accepts, consents and submits to the exclusive
jurisdiction of the courts of the State of Florida for Broward County and the
United States District Court of the Southern District of Florida (Miami
Division) for the purpose of any action or proceeding arising out of, or
relating to, this Agreement, (ii) waives any objection that it may now or
hereafter have to the laying of venue of any such action or proceeding in any
such court, and (iii) waives and agrees not to plead or claim in any such court
that any such action or proceeding brought therein has been brought in an
inconvenient forum; provided, however, that the parties acknowledge and agree
that any action or proceeding brought by the Company pursuant to Section 8 may
be brought in any court of competent jurisdiction, anything in this Section 9(C)
to the contrary notwithstanding.
D. NO JURY TRIAL. Each of the parties hereby IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING ARISING OUT OF, OR RELATING TO, THIS AGREEMENT.
E. AMENDMENTS. This Agreement may not be amended except by
written instrument signed by each of the parties hereto.
F. NO WAIVER. The failure of a party to insist upon strict
compliance with any term, condition or provision of this Agreement shall not be
deemed (i) a waiver of the right of such party thereafter to insist upon strict
compliance with that term, condition or provision, or any other term, condition
or provision, of this Agreement, or (ii) a waiver of the right of such party to
insist upon strict compliance with any other term, condition or provision of
this Agreement.
G. ASSIGNMENTS:
(i) Neither this Agreement nor any of the rights or
obligations of the Executive hereunder shall be assignable or delegable by the
Executive; and any purported assignment or delegation by the Executive in
violation of the foregoing shall be null and void from its inception and of no
force and effect.
(ii) This Agreement may be assigned by the Company to
any person or entity which is the successor in interest to substantially all of
the assets or business operations of
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the Company; and, upon any such assignment, the rights and obligations of the
Company hereunder shall become the rights and obligations of such successor.
H. NO MITIGATION. The Executive shall not be required to
mitigate the amount of any payment provided for hereunder by seeking other
employment; and the Executive shall not be required to pay the Company any
amounts that the Executive may receive from any such alternative employment.
I. SEVERABILITY. If any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
J. TAX WITHHOLDING. The Company may withhold from any
amounts payable to the Executive under this Agreement any federal, state and
local taxes that may be required to be withheld pursuant to any applicable law
or regulation.
K. BINDING EFFECT. This Agreement shall inure to the
benefit of, and shall be binding upon, the Company and the Executive and their
respective successors, personal or legal representatives, and permitted assigns.
L. CAPTIONS. The section and paragraph captions in this
Agreement are for convenience of reference only and shall not have any effect
upon the interpretation of this Agreement.
M. COUNTERPARTS. This Agreement may be executed in
counterparts and by the parties on separate counterparts, each of which shall be
an original, but all of which together shall constitute one and the same
instrument.
N. FILING OF THIS AGREEMENT WITH THE SEC. Executive
acknowledges that the Company will be required to file this Agreement with the
U.S. Securities and Exchange Commission as an exhibit to one or more of the
Company's periodic reports.
IN WITNESS WHEREOF, each of the parties has executed this Agreement on
the date set forth after its signature below.
CONCORD CAMERA CORP.
By: /s/ Alan Schutzman
-------------------------------------
Alan Schutzman, Senior Vice President
and General Counsel
Date of Execution: Sept. 1, 2004
/s/ Richard M. Finkbeiner
-------------------------------------
Richard M. Finkbeiner
Date of Execution: Sept. 1, 2004
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EXHIBIT A
GENERAL RELEASE
In consideration of the compensation and other benefits provided to the
undersigned (the "Executive") under the Separation Agreement, dated as of
September __, 2004 between Concord Camera Corp. (the "Company") and Executive
(the "Separation Agreement"), the Executive, for himself and his heirs,
executors, administrators, representatives (personal and legal) and assigns
hereby forever releases and discharges the Company and its subsidiaries and
affiliates, and their respective current and former directors, officers,
employees and shareholders and each of their respective legal representatives,
heirs, successors and assigns (collectively, the "Releasees") from any and all
charges, complaints, claims, demands, promises, agreements, causes of action,
damages, debts and liabilities of any kind or nature whatsoever, whether known
or unknown, and whether at law or in equity (collectively, "Claims"), arising
from the beginning of time through the date that the Executive signs this
Agreement, which the Executive ever had, now has or may have against the Company
or any other Releasee for or with respect to compensation and/or any other
benefits arising out of, or related in any way to, his employment with, or
Separation from, the Company, except for such Claims as arise under the express
provisions of this Agreement or under any mandatory and unwaivable provision of
applicable law.
Anything to the contrary notwithstanding, the parties agree that the
release effected hereby is not intended, and shall not be construed, to limit
the rights of the Executive (i) to enforce the Separation Agreement, (ii) to
indemnification in accordance with the By-Laws of the Company and applicable New
Jersey law, or (iii) to be covered as an insured under the terms and conditions
of the Company's Directors' and Officers' Liability Insurance Policy, to the
extent of the coverage, if any, provided thereunder.
/s/ Richard M. Finkbeiner
-------------------------------------
Richard M. Finkbeiner
Dated: Sept. 1, 2004