Unassociated Document


    AMENDMENT
      NUMBER ONE TO THE

     

    FINLAY
      ENTERPRISES, INC.

     

    DIRECTOR
      DEFERRED COMPENSATION AND STOCK PURCHASE PLAN

     

    WHEREAS,
      Finlay Enterprises, Inc. (the “Corporation”) maintains the Finlay Enterprises,
      Inc. Director Deferred Compensation and Stock Purchase Plan (the “Plan”);


     

    WHEREAS,
      pursuant to Section 12 of the Plan, the Corporation may amend the Plan at any
      time; and 

     

    WHEREAS,
      the Corporation wishes to amend the Plan to (1) provide that no future deferrals
      may be made under the Plan; (2) provide that cash awards shall be issued under
      the Plan in lieu of RSUs for eligible director fees deferred pursuant to the
      Plan with respect to the third and fourth quarters of the fiscal year ending
      January 31, 2009, and that no matching RSUs will be payable with regard to
      such
      amounts; (3) provide that, in accordance with the transition relief provided
      under Internal Revenue Service Notice 2007-86, 2007-46 IRB 990 (the “Transition
      Relief”), eligible director fees that relate to the third and fourth quarters of
      the fiscal year ending January 31, 2009 will be paid on February 2, 2009; and
      (4) make such amendments to the Plan as necessary to comply with the
      requirements of Section 409A of the Internal Revenue Code of 1986, as amended,
      and the guidance promulgated thereunder (“Code Section 409A”).

     

    NOW,
      THEREFORE, the Plan is hereby amended effective as of the 22nd
      day of
      May, 2008 as set forth below.

     

    
      	
              1.

            	
              Article
                3 of the Plan is hereby amended to include the following language
                at the
                end thereof:

            


    

     

    “Accordingly,
      with respect to the May 5, 2008 Award Date, a reduced amount of RSUs equal
      to
      the shares available for issuance under the Long Term Incentive Plans, shall
      be
      credited to Accounts on May 5, 2008 and the remaining amount of RSUs due to
      be
      credited shall be credited as soon as practicable after shares of Common Stock
      become available for issuance under the Long Term Incentive Plans, based on
      the
      value of the RSUs on May 5, 2008. Notwithstanding the foregoing, regardless
      of
      when such RSUs become available for issuance, vesting with regard to such awards
      shall begin as of the May 5, 2008 Award Date, in accordance with Section 7.1
      hereof.”

     

    
      	
              2.

            	
              Section
                6.1 of the Plan is hereby amended to include the following language
                at the
                end thereof:

            


    

     

    “In
      the
      event the aggregate number of shares of Common Stock that are issuable or being
      used for reference purposes under the Plan for any applicable period exceeds
      the
      maximum number of shares of Common Stock available for issuance under the Finlay
      Enterprises, Inc. 2007 Long Term Incentive Plan, solely with respect to Eligible
      Director Fees otherwise payable with respect to the third and fourth quarters
      of
      the fiscal year ending January 31, 2009, a cash amount equal to the amount
      of
      the Eligible Director Fees deferred pursuant to Section 6.2 below shall be
      credited to the Participant’s Account, on a book entry basis (the ‘Cash Award’),
      in lieu of RSUs. Such Cash Award shall be credited to the Participant’s Account
      as soon as practicable following the Award Date, and shall be credited with
      interest from the Award Date through the fiscal year ending January 31, 2009.
      Interest shall be calculated based on the Fidelity Managed Income Portfolio
      II
      interest rate on January 31, 2009. Cash Awards (including interest) shall be
      subject to the terms of the Plan to the extent not inconsistent with this
      paragraph.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    In
      the
      event that Cash Awards are issued pursuant to this Section 6.1, all references
      herein to ‘RSU’ shall mean ‘Cash Award,’ to the extent not inconsistent with the
      terms of the previous paragraph.”

     

    
      	
              3.

            	
              Section
                6.2 of the Plan is hereby amended to include the following language
                at the
                end thereof:

            


    

     

    “Notwithstanding
      anything herein to the contrary, the Deferral Agreement executed by the
      Participant in December 2007, shall be deemed to provide for a Cash Award for
      deferred Eligible Directors Fees otherwise payable with respect to the third
      and
      fourth quarters of the fiscal year ending January 31, 2009.”

     

    
      	
              4.

            	
              A
                new paragraph is hereby added to the end of Section 6.2 of the Plan
                to
                read as follows:

            


    

     

    “Effective
      as of May 22, 2008, no Participant may enter into a new Deferral Agreement.
      Any
      Deferral Agreement in effect as of such date shall continue in full force and
      effect, except as modified pursuant to Section 7.2 hereof.”

     

    
      	
              5.

            	
              Section
                6.3 of the Plan is hereby amended to include the following language
                at the
                end thereof:

            


    

     

    “Notwithstanding
      the foregoing, no Matching RSUs shall be made with respect to Eligible Director
      Fees deferred pursuant to Section 6.1 hereof and otherwise payable with respect
      to the third and fourth quarters of 2008.”

     

    
      	
              6.

            	
              Section
                6.4 of the Plan is hereby amended in its entirety to read as
                follows:

            


    

     

    “Each
      Deferral Agreement shall specify a Deferral Period with respect to the RSU
      to
      which it pertains. Notwithstanding the foregoing, the Deferral Period may be
      extended or may expire earlier as provided in Section 7.2 and Article
      12.”

     

    
      	
              7.

            	
              A
                new paragraph is hereby added to Section 7.2 of the Plan, immediately
                following the second paragraph thereof, to read as
                follows:

            


    

     

    “With
      respect to Cash Awards made pursuant to Section 6.1 hereof, subject to the
      consent of the Participant, payment of such Cash Awards (including interest)
      shall be made in accordance with the transition relief under Internal Revenue
      Service Notice 2007-86, 2007-46 IRB 990 (the ‘Transition Relief’), on February
      2, 2009.

     


    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    


    


     

    Notwithstanding
      the foregoing, prior to a Participant’s termination of directorship for any
      reason other than due to death, Disability or Change in Control, the Participant
      will be given the opportunity to elect to defer receipt of Common Stock with
      respect to each vested Matching RSU (and cash in lieu of fractional shares
      calculated in accordance with Section 6.5 hereof) following any such termination
      (a ‘Re-Deferral Election’); provided,
      that
      such Re-Deferral Election (i) may not take effect until at least twelve (12)
      months after the date the Re-Deferral Election is made; (ii) must be for a
      period of five (5) years from the date such payment would otherwise have been
      made following any such termination pursuant to the previous paragraph of this
      Section 7.2; and (iii) may not be made less than twelve (12) months prior to
      the
      date payment would otherwise have been made following any such termination
      pursuant to the previous paragraph of this Section 7.2. No Re-Deferral Election
      may be made by a Participant on or after such Participant’s termination of
      directorship.”

     

    
      	
              8.

            	
              The
                third sentence of Article 12 of the Plan is hereby amended to read
                as
                follows:

            


    

     

    “Upon
      termination of the Plan, any vested RSU shall be paid in accordance with Section
      7.2 of the Plan and any nonvested RSU shall be cancelled and
      terminated.”

     

    
      	
              9.

            	
              A
                new Section 13.14 is hereby added to the Plan to read as
                follows:

            


    

    

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      



    
      “13.14
        Section
        409A of the Code

       

      To
        the
        extent applicable, the Plan is intended to comply with or be exempt from
        the
        applicable requirements of Code Section 409A and the regulations and
        guidance promulgated thereunder (collectively, ‘Section 409A’) and shall be
        limited, construed and interpreted in accordance with such intent. In the
        event
        that any arrangement provided for under the Plan constitutes a nonqualified
        deferred compensation arrangement under Section 409A, it is intended that
        such
        arrangement be designed in a manner that complies with Section 409A. A
        termination of directorship shall not be deemed to have occurred for purposes
        of
        any provision of this Plan providing for the payment of any amounts upon
        or
        following a termination of directorship unless such termination is also a
        ‘separation from service’ within the meaning of Section 409A (a ‘Separation
        from Service’) and, for purposes of any such provision of this Plan, references
        to a ‘termination,’ ‘termination of directorship’ or like terms shall mean
        Separation from Service. In the event a Participant under the Plan becomes
        a
‘specified employee’ (as defined in Section 409A), any amounts deferred
        hereunder that are subject to Section 409A shall be delayed in accordance
        with
        the requirements of Section 409A until the day immediately following the
        six
        month anniversary of such Participant’s Separation from Service (such period,
        the ‘Delay Period’). Notwithstanding the foregoing, the Corporation does not
        guarantee, and nothing in the Plan is intended to provide a guarantee of,
        any
        particular tax treatment with respect to payments or benefits under the Plan,
        and the Corporation shall not be responsible for their compliance with or
        exemption from Section 409A and the guidance issued
        thereunder.”

    

     

    
      	 	
              FINLAY
                ENTERPRISES, INC.

            
	 	 
	 	
              /s/
                Arthur E. Reiner

            
	 	
              By:
                Arthur E. Reiner

            
	 	
              Title:
                Chairman & CEO

               

            


    

    


     

    
      
        
        

      

      
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