Exhibit 10.4
AMENDMENT NO. 2
TO
AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN AND AGREEMENT
FOR ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
This Amendment No. 2 (this "Amendment"), dated as of November 28, 2005,
amends the Amended and Restated Supplemental Executive Retirement Plan and
Agreement for ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated as of August 18, 2004 (the "SERP") by and
between Concord Camera Corp. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Executive").
WHEREAS, pursuant to Section 885(f) of the American Jobs Creation Act
of 2004 Public Law 108-357 (the "Act"), the provisions of Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), will be applicable to
certain nonqualified deferred compensation plans, as defined in such Section
409A, with respect to amounts deferred after December 31, 2004;
WHEREAS, amounts deferred on or prior to December 31, 2004 but not
vested on such date will be subject to Section 409A;
WHEREAS, amounts deferred and vested on or prior to December 31, 2004
will not be subject to Section 409A provided the plan under which the deferred
amounts were made is not materially modified after October 3, 2004
("Grandfathered Amounts");
WHEREAS, on December 20, 2004, the United States Department of the
Treasury and the Internal Revenue Service published Notice 2005-1 ("Notice
2005-1") to provide transitional guidance under Section 409A of the Code;
WHEREAS, Notice 2005-1 permits an amendment of a plan on or prior to
December 31, 2005 to terminate the plan as to Grandfathered Amounts and
distribute the Grandfathered Amounts without subjecting the Grandfathered
Amounts to Section 409A, provided that the Grandfathered Amounts are includible
in the participant's income in calendar year 2005; and
WHEREAS, the parties hereto desire to amend the SERP to terminate the
SERP as to the Grandfathered Amounts and to provide for the distribution of the
Grandfathered Amounts during calendar year 2005.
NOW THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree to the following:
1. The SERP is hereby amended as of the date hereof to add the
following new paragraph 10 to the end of Article X:
"10. An Account with a balance that was vested as of December
31, 2004 is not subject to the provisions of Section 409A (each such
Account, a "Grandfathered Account" and, collectively, the
"Grandfathered Accounts"). As of November 28, 2005, this Plan and
Agreement is terminated as to Grandfathered Accounts. Notwithstanding
any other provision of this Plan and Agreement to the contrary, the
entire balance in each Grandfathered Account shall be distributed to
the Executive on or before December 31, 2005. The provisions of
paragraph 11, Article V of this Plan and Agreement shall not apply to
any such termination."
2. Continued Effect. Except as hereby amended, the SERP shall remain in
full force and effect including, but not limited to, the provisions applicable
to 409A Accounts (as such term is defined in the SERP).
3. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment on the day
and year first above written.
CONCORD CAMERA CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP & General Counsel
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