Unassociated Document


    AMENDMENT
      NUMBER FOUR TO THE

     

    FINLAY
      ENTERPRISES, INC.

     

    EXECUTIVE
      DEFERRED COMPENSATION AND STOCK PURCHASE PLAN

    
 

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

     

    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, in accordance with the transition
      relief provided under Internal Revenue Service Notice 2007-86, 2007-46 IRB
      990
      (the “Transition Relief”), deferral agreements with respect to bonus amounts
      payable on April 25, 2009 will be amended to provide that such deferred amounts
      will be paid on such date so that no deferral will occur with respect to such
      bonus amounts; and (3) 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 April 25, 2008 Award Date, 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 April 25, 2008. Notwithstanding the foregoing, regardless of when such RSUs
      become available for issuance, vesting with regard to such awards shall begin
      as
      of the April 25, 2008 Award Date, in accordance with Section 7.1
      hereof.”

     

    
      	
              2.

            	
              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, provided,
      that
      Deferral Agreements entered into with respect to the 2008 bonus payable on
      April
      25, 2009 (the ‘April 2009 Bonus’) shall be paid in accordance with Section 6.4
      below.”

     

    
      	
              3.

            	
              Section
                6.3 of the Plan is hereby amended to include the following
                sentence:

            


    

     

    “No
      Matching RSUs shall be credited with respect to the April 2009
      Bonus.”

     


    
      
         

      

      
         

        
          

        

      

      
         

      

    


    


     

    
      	
              4.

            	
              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.
      Notwithstanding anything herein to the contrary, in accordance with the
      transition relief provided under Internal Revenue Service Notice 2007-86,
      2007-46 IRB 990 (the ‘Transition Relief’), subject to the consent of the
      Participant, the Deferral Agreement in effect with regard to the April 2009
      Bonus, shall be deemed to be amended to delete the Deferral Period thereunder
      and to provide for payment of such deferred amounts on April 25,
      2009.”

     

    
      	
              5.

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

            


    

     

    “Payments
      made pursuant to this Section 7.2, shall be subject to the Delay Period, as
      defined in and provided under Section 13.14 hereof.

     

    Notwithstanding
      the foregoing, prior to a Participant’s termination of employment 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
      employment.”

     

    
      	
              6.

            	
              Section
                7.3 of the Plan is hereby amended to delete subsection (c) thereof
                and to
                redesignate subsection (d) and subsection
                (c).

            


    

     

    
      	
              7.

            	
              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.”

     

    
      	
              8.

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

            


    

     


    
      
         

      

      
        2

        
          

        

      

      
         

      

    


    


     

    “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 employment 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 employment 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 employment’ or like
      terms shall mean Separation from Service. Any amounts deferred hereunder that
      are subject to Section 409A and payable to a ‘specified employee’ (as defined in
      Section 409A) shall be delayed in accordance with the requirements of Section
      409A until the day immediately following the six month anniversary of such
      employee’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

               

            


    

    


     

    
      
         

      

      
        3