Exhibit 10.10
INNOTRAC CORPORATION
DEFERRED COMPENSATION PLAN
(Effective As of October 16, 1997)
INNOTRAC CORPORATION
DEFERRED COMPENSATION PLAN
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TABLE OF CONTENTS
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ARTICLE I INTRODUCTION AND ESTABLISHMENT...................................1
ARTICLE II DEFINITIONS.....................................................2
2.1 Account...........................................................2
2.2 Anniversary Date..................................................2
2.3 Beneficiary.......................................................2
2.4 Change in Control.................................................2
2.5 Code..............................................................3
2.6 Company...........................................................3
2.7 Compensation......................................................3
2.8 Deferral Subaccount...............................................3
2.9 Effective Date....................................................3
2.10 Election Form.....................................................3
2.11 Employee..........................................................3
2.12 Employer..........................................................3
2.13 Employer Credit Subaccount........................................3
2.14 ERISA.............................................................3
2.15 40l(k) Plan.......................................................3
2.16 Participant.......................................................4
2.17 Plan..............................................................4
2.18 Plan Administrator................................................4
2.19 Plan Year.........................................................4
2.20 Section 40l(a)(17) Limitation.....................................4
2.21 Valuation Date....................................................4
2.22 Year of Service...................................................4
ARTICLE III PARTICIPATION..................................................5
3.1 Eligibility to Participate........................................5
3.2 Deferral Election.................................................5
3.3 Time and Manner of Election.......................................5
3.4 Change of Election................................................6
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ARTICLE IV INTEREST OF PARTICIPANTS........................................7
4.1 Accounting for Participants' Interests............................7
4.2 Vesting of a Participant's Account................................8
4.3 Distribution of a Participant's Account...........................9
4.4 Withdrawals During Employment.....................................9
ARTICLE V PLAN ADMINISTRATOR..............................................11
5.1 Members..........................................................11
5.2 Action...........................................................11
5.3 Right and Duties.................................................11
5.4 Compensation, Indemnity and Liability............................12
5.5 Taxes............................................................12
ARTICLE VI CLAIMS PROCEDURE...............................................13
6.1 Claims for Benefits..............................................13
6.2 Appeals..........................................................13
ARTICLE VII AMENDMENT AND TERMINATION.....................................14
7.1 Amendments.......................................................14
7.2 Termination of Plan..............................................14
ARTICLE VIII MISCELLANEOUS................................................15
8.1 Limitation on Participant's Rights...............................15
8.2 Benefits Unfunded................................................15
8.3 Other Plans......................................................15
8.4 Receipt or Release...............................................15
8.5 Governing Law....................................................16
8.6 Adoption of Plan by Related Employers............................16
8.7 Gender, Tense, and Headings......................................16
8.8 Successors and Assigns; Nonalienation of Benefits................16
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ARTICLE I
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INTRODUCTION AND ESTABLISHMENT
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Innotrac Corporation (the "Company") hereby establishes the Innotrac
Corporation Deferred Compensation Plan (the "Plan") for the benefit of certain
management and highly compensated employees of the Company and affiliated
adopting employers, as such employees are selected by the Chairman of the Board
of Directors (or his designee) of the Company. The Plan provides supplemental
benefits for eligible employees whose benefits under the Innotrac Corporation
Employee Retirement Plan are limited by the provisions of the Internal Revenue
Code of 1986, as amended, or the Employee Retirement Income Security Act of
1974, as amended. The Plan shall be effective as of October 16, 1997.
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ARTICLE II
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DEFINITIONS
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When used in this Plan, the following terms shall have the meanings
set forth below unless a different meaning is plainly required by the context:
2.1 "Account" means the records maintained by the Plan Administrator
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to determine each Participant's interest under this Plan. Such Account may be
reflected as an entry in the Employer's records, or as a separate account under
any trust established to provide benefits under the Plan, or as a combination of
both. Each Participant's Account shall consist of at least two subaccounts: a
Deferral Subaccount and an Employer Credit Subaccount. The Plan Administrator
may establish such additional subaccounts as it deems necessary for the proper
administration of the Plan.
2.2 "Anniversary Date" means the last day of each Plan Year.
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2.3 "Beneficiary" means the person or persons last designated in
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writing by the Participant to receive the amount in his Account in the event of
such Participant's death; or if no designation shall be in effect at the time of
a Participant's death or if all designated Beneficiaries shall have predeceased
the Participant, then the Beneficiary shall be the following, in the order
listed:
(a) Such Participant's surviving spouse, if any;
(b) Otherwise, the Participant's estate.
2.4 "Change in Control" means the purchase or other acquisition after
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the date hereof by any person, entity or group of persons, within the meaning of
section 13(d) or 14(d) of the Securities Exchange Act of 1934 ("Act"), or any
comparable successor provisions, of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Act) of 30 percent or more of either the
outstanding shares of common stock or the combined voting power of Company's
then outstanding voting securities entitled to vote generally, or the approval
by the stockholders of Company of a reorganization, merger, or consolidation, in
each case, with respect to which persons who were stockholders of Company
immediately prior to such reorganization, merger or consolidation do not
immediately thereafter, own more than 50 percent of the combined voting power
entitled to vote generally in the election of the directors of the reorganized,
merged or consolidated Company's then outstanding securities, or a liquidation
or dissolution of Company or the sale of all or substantially all of Company's
assets. For purposes of this Section 2.4, acquisition
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of the common stock of the Company by an employee benefit plan sponsored or
maintained by the Company or its affiliate (or a trust maintained for such plan)
shall not be considered a Change in Control.
2.5 "Code" means the Internal Revenue Code of 1986, as amended.
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2.6 "Company" means Innotrac Corporation, or its successor or
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successors.
2.7 "Compensation" means "Compensation" as that term is defined in
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the 401(k) Plan, as the same may be amended from time to time, but without
regard to the Section 401(a)(17) Limitation. Compensation shall also include
amounts deferred by the Employee under this Plan or other deferred compensation
plans of the Employer (except to the extent specified by the Employer).
2.8 "Deferral Subaccount" means the subaccount of a Participant's
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Account maintained to reflect his interest in the Plan attributable to his
deferrals of Compensation and earnings or losses credited to such account.
2.9 "Effective Date" means October 16, 1997.
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2.10 "Election Form" means the form prescribed by the Plan
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Administrator on which a Participant may specify the amount of his Compensation
that is to be deferred pursuant to the provisions of Article III.
2.11 "Employee" means any management or highly compensated employee
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of an Employer.
2.12 "Employer" means the Company and each affiliated employer which
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has adopted the Plan with the consent of the Company.
2.13 "Employer Credit Subaccount" means the subaccount of a
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Participant's Account maintained to reflect his interest in the Plan
attributable to the Employer's contribution credits, and any earnings or losses
credited to such account.
2.14 "ERISA" means the Employee Retirement Income Security Act of
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1974, as amended.
2.15 "40l(k) Plan" means the Innotrac Corporation Employee Retirement
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Plan, as it may be amended from time to time. Any reference herein to a
provision or term of the 401(k) Plan shall mean such provision or term as it may
be amended from time to time.
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2.16 "Participant" means any eligible Employee who has satisfied the
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requirements for participation in this Plan and who has an Account.
2.17 "Plan" means the Innotrac Corporation Deferred Compensation
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Plan, as it may be amended from time to time.
2.18 "Plan Administrator" means the committee or individual appointed
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pursuant to the provisions of this Plan to administer the Plan. In the absence
of such appointment, the Company shall be the Plan Administrator.
2.19 "Plan Year" means the 12-month period January 1 to December 31.
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2.20 "Section 40l(a)(17) Limitation" means the limitation on an
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Employee's compensation that may be used for benefit calculation purposes in the
401(k) Plan that is set forth in Code Section 40l(a)(17), as it may be increased
from time to time in accordance with applicable IRS rules.
2.21 "Valuation Date" means the Annual Valuation Date, December 31,
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and any other date(s) selected by the Plan Administrator in its sole discretion
as of which the Accounts of Participants are valued.
2.22 "Year of Service" means a 12 consecutive month period during
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which a Participant has 1,000 hours of service, as determined under and
consistent with the terms of the 401(k) Plan.
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ARTICLE III
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PARTICIPATION
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3.1 Eligibility to Participate. The Chairman of the Board of
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Directors of the Company (the "Board") or its designee shall specify the
Employees of the Employer who are eligible to participate in the Plan and the
effective date and period of each such Employee's eligibility to participate.
Such eligibility designation may be made by establishing a minimum compensation
level for participation or by the use of such other criteria as the Board deems
appropriate from time to time. An Employee designated as eligible to
participate shall become a Participant on the eligibility date specified by the
Board in its discretion, provided in all instances that the Employee completes
the Election Form provided for in Section 3.3 below. A Participant shall
continue to be eligible to participate in the Plan until earlier of (a) the date
as of which the Board determines he is no longer eligible, (b) his death, or (c)
his termination of service, retirement or distribution due to disability.
3.2 Deferral Election. Each Participant may elect to defer under the
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Plan any whole percentage of his Compensation in the manner described in Section
3.3. The amount deferred by the Participant shall be deducted each pay period
in which the Participant has Compensation during his period of participation in
the Plan.
3.3 Time and Manner of Election. An eligible Employee desiring to
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exercise a deferral election must, prior to the beginning of each Plan Year (or
within thirty (30) days of his initial eligibility to participate or within
thirty (30) days of the Effective Date of the Plan) complete an Election Form
indicating the percentage of Compensation to be deferred under the Plan. Such
election must be made prior to the period of service for which the Compensation
subject to the deferral election would otherwise be payable. If a Participant
fails to file a properly completed and duly executed Election Form with the Plan
Administrator by the prescribed time, he will be deemed to have elected not to
defer any Compensation under this Plan for the Plan Year, except to the extent
the Plan Administrator in its sole discretion permits an extension of the
election period. Except as provided in Section 3.4, a Participant may not,
after the applicable election date, discontinue his election to participate or
change the percentage of Compensation he has elected to defer for a Plan Year.
The Participant shall designate on the Election Form (or on a separate
form provided by the Plan Administrator) a Beneficiary to receive payment of
amounts in his Account in the event of his death.
In the Plan Year for which an eligible Employee is first eligible to
participate in the Plan, if the Employee fails to properly file an Election
form, he will be deemed to have made an election of zero deferrals and the
minimum earnings rate.
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3.4 Change of Election. Upon written notice to the Plan
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Administrator by December 31st of a Plan Year, a Participant may increase,
decrease, or discontinue his deferral election for the following Plan Year;
provided, however, that (a) the form and amount deferred, and (b) the amount to
be deferred after such election, satisfy the provisions of Sections 3.2 and 3.3.
If the Participant fails to deliver a change of Election Form in the manner
provided in this section, his prior deferral election shall remain in effect for
the following Plan Year.
In addition, a Participant may at any time during the Plan Year
terminate an election and discontinue future deferrals of Compensation under
this Plan by providing written notice to the Plan Administrator prior to the
start of the next payroll period for which Compensation will be payable. In
such event, Compensation earned for services subsequent to such termination
notice will be paid directly to the Participant and will not be subject to his
prior deferral election. A Participant who elects to discontinue participation
in the Plan for a Plan Year may not recommence participation in the Plan until
the next following Plan Year (or such later Plan Year in which he is again
eligible to participate), provided the Participant completes and executes the
required Election Form. Increases or decreases in the amount a Participant
elects to defer (other than a suspension of deferrals) shall not be permitted
during the Plan Year.
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ARTICLE IV
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INTEREST OF PARTICIPANTS
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4.1 Accounting for Participants' Interests.
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(a) Deferral Subaccount. Each Participant's Deferral Subaccount
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shall be credited with the amounts of Compensation deferred by the Participant
under this Plan. The timing and manner in which amounts are credited to
Participants' Accounts under this Plan shall be determined by the Company and
the Plan Administrator in their discretion, but his deferral election shall be
applied to each pay period in which he has Compensation during his period of
participation in the Plan.
(b) Employer Credit Subaccount. The Employer Credit Subaccount is
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determined under subsection (i), subject to the additional terms of subsections
(ii) and (iii).
(i) At the end of each Plan Year, an Employer contribution credit
for that Plan Year to a Participant's Employer Credit Subaccount is made by
applying the appropriate percentage to the amounts of Compensation (but not
more than 30% of Compensation, excluding any bonus compensation) deferred
by the Participant under Section 3.2 of this Plan for the Plan Year based
on the Participant's full Years of Service as of the end of the Plan Year:
Years of Service Percentage of Deferred Compensation
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less than 5 25%
5 but less than 8 50%
8 but less than 10 75%
10 or more 100%
(ii) At the end of the Plan Year, an Employer contribution credit
for that Plan Year to a Participant's Employer Credit Subaccount is made by
calculating the amount that would have been the earnings rate on the amount
of the Employer contribution credit made for that Plan Year under (i) above
if such amount had been credited monthly at the end of each calendar month
and invested in the manner indicated under subsection (c) below.
(iii) In the Plan Year during which the Participant terminates
service, retires or dies, the Employer contributions determined under
subsections (i) and (ii) above shall be prorated for the period prior to
the Valuation Date established for the payment of benefits under Section
4.3 and shall be credited as of such Valuation Date.
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(c) Account Earnings or Losses. The Participant's Account shall be
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credited with earnings (or losses) each Valuation Date. The earnings rate
credited to the Participant's Account will be determined assuming the amounts
credited to his Account were invested in the investment funds the Participant
has selected from the funds made available under the Plan for such purpose by
the Board or its designee. The Participant must make his initial selection
among such funds on the form provided for such purpose by the Plan Administrator
in one percent (1%) increments. Thereafter, the Participant may change his
election with respect to prior deferrals and future deferrals of Compensation
once each calendar quarter to be effective as of the first day of the
immediately following calendar quarter by submitting a new election form to the
Plan Administrator. The use of a Participant's funds election is solely for the
purpose of valuing his Account and does not in any way require the Employer or
any trustee of assets designated as available to pay Plan benefits to make such
investments.
4.2 Vesting of a Participant's Account. A Participant's Account
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shall be vested as provided in this Section 4.2.
(a) A Participant's interest in the value of his Deferral Subaccount
shall at all times be 100% vested and nonforfeitable.
(b) A Participant's interest in the value of his Employer Credit
Subaccount shall be vested and nonforfeitable at the end of the Plan Year in
which the Participant attains Years of Service in accordance with the following
schedule:
Years of Service Vested Percentage
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Less than 2 0%
2 20%
3 40%
4 60%
5 80%
6 or more 100%
In the year in which a Participant retires or terminates service with
the Employer (including termination for disability under Section 4.3), Years of
Service and vesting for the purpose of the foregoing vesting schedule is
determined upon the Participant's termination of service.
(c) A Participant's interest in the value of his Employer Credit
Subaccount shall be 100% vested upon a Change in Control or upon the
Participant's death notwithstanding any other provision herein.
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4.3 Distribution of a Participant's Account. A Participant's
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Account shall be distributed as provided in this Section 4.3. A Participant's
Account shall continue to be credited with earnings or losses under Section 4.1
until the Account is fully distributed.
(a) Termination of Service or Retirement. In the event the
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Participant has a termination of service or retires, the amounts credited to his
Account shall be paid to such Participant in either a lump sum or in
substantially equal annual installments over a period of years (not to exceed
10), as designated by the Participant, which election must be made at least
twenty-four (24) months prior to his termination of service or retirement.
Payments commence as soon as practical after such termination of employment;
provided, however, the Participant may elect to delay the commencement of
payment until the date specified by the Participant on a form provided for such
purpose by the Plan Administrator, provided such election to defer payment is
made at least twenty-four (24) months prior to the date of his termination of
service or retirement. A Participant may not defer the commencement of payment
beyond the date he reaches age seventy (70).
If his election as to the form of payment or time of payment is not
made at least twenty-four (24) months prior to the date of his termination of
service or retirement, the balance credited to his Account shall be paid to him
as he most recently elected to commence such payments (but at least twenty-four
months prior to the date of his termination of service or retirement, as
applicable). In the absence of a valid election, the balance credited to his
Account shall be paid to him in a lump sum as soon as practical after his
effective date of termination of service or retirement.
If the payout is due to the Participant's suffering a disability (as
determined by the Plan Administrator based on eligibility for the Company's long
term disability benefits plan), the twenty-four (24) month restriction will not
apply and the Participant's most recent election as to the time and/or method of
payment will apply.
(b) Death of Participant. In the event of the death of a
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Participant, distribution of the balance credited to a Participant's Account as
of the date of his death shall be made in a lump sum to his Beneficiary as soon
as practical following his death. If the Participant dies after payment of his
interest in the Plan has commenced, but prior to payment of his entire Account,
the remaining balance will be paid in a lump sum to his Beneficiary (or
Beneficiaries) as soon as possible following his death.
4.4 Withdrawals During Employment. Except as expressly provided in
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this Section 4.4, no payment of benefits shall be made under this Plan prior to
a Participant's termination of employment. A Participant who is suffering an
unforeseen and severe financial hardship as a result of an illness or accident
of the Participant or his immediate family, or loss of Participant's property
due to casualty, or for such other reasons as the Plan Administrator may
establish, may file a written request with the Plan Administrator for
distribution of all or a
9
portion of the amount credited to his Account and vested under Section 4.2. The
Plan Administrator shall have sole discretion to determine whether to grant a
Participant's hardship request and the amount to distribute to the Participant.
The Plan Administrator shall not authorize distribution of an amount in excess
of that reasonably necessary to alleviate the Participant's hardship. Any
Participant who receives a hardship withdrawal under this section shall not be
eligible to make additional deferrals of Compensation to the Plan for a period
of twelve (12) months immediately following the date of the withdrawal. If such
Participant becomes eligible to reparticipate in the Plan prior to the last day
of a Plan Year, he must elect to reparticipate within thirty (30) days of the
date he is eligible to reparticipate. If he does not elect within such thirty-
day period, he shall not be eligible to reparticipate until the first day of the
immediately following Plan Year.
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ARTICLE V
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PLAN ADMINISTRATOR
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5.1 Members. The Plan Administrator shall be a committee or an
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individual appointed by the Company to serve at its pleasure, provided that in
the absence of such appointment the Company shall be the Plan Administrator and
shall have the duties of the Plan Administrator provided for herein. Members of
the committee shall not be required to be employees of the Company or
Participants. Any committee member may resign by giving notice, in writing,
filed with the Company.
5.2 Action. Action of the Plan Administrator may be taken with or
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without a meeting of committee members; provided, however, that any action shall
be taken only upon the vote or other affirmative expression of a majority of the
committee members qualified to vote with respect to such action. If a member of
the committee or the appointed individual is a Participant in the Plan, he shall
not participate in any decision which solely affects his own Account. The Plan
Administrator shall for purposes of administering the Plan choose a secretary
who shall keep minutes of the Plan Administrator's proceedings and all records
and documents pertaining to the administration of this Plan. The secretary may
execute any certificate or any other written direction on behalf of the Plan
Administrator.
5.3 Right and Duties. The Plan Administrator shall administer and
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manage the Plan and shall have all powers necessary to accomplish that purpose,
including (but not limited to) the following:
(a) To construe, interpret, and administer this Plan;
(b) To make allocations and determinations required by this Plan, and
to maintain records regarding Participants' Accounts;
(c) To compute and certify to the Employer the amount and kinds of
benefits payable to Participants or their Beneficiaries, and to determine the
time and manner in which such benefits are to be paid;
(d) To authorize all disbursements by the Employer pursuant to this
Plan;
(e) To maintain (or cause to be maintained) all the necessary records
of the administration of this Plan;
(f) To make and publish such rules for the regulation of this Plan as
are not inconsistent with the terms hereof;
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(g) To delegate to other individuals or entities from time to time
the performance of any of its duties or responsibilities hereunder;
(h) To establish or to change the investment funds or arrangements
under Section 4.1(d) of the Plan; and
(i) To hire agents, accountants, actuaries, consultants and legal
counsel to assist in operating and administering the Plan.
The Plan Administrator shall have the exclusive discretionary
authority to construe and to interpret the Plan, to decide all questions of
eligibility for benefits and to determine the amount and manner of payment of
such benefits, and its decisions on such matters shall be final and conclusive
on all parties.
5.4 Compensation, Indemnity and Liability. The Plan Administrator
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shall serve as such without bond and without compensation for services
hereunder. All expenses of the Plan and the Plan Administrator shall be paid by
the Employer. If the Plan Administrator is a committee, no member of the
committee shall be liable for any act or omission of any other member of the
committee, nor for any act or omission on his own part, excepting his own
willful misconduct. The Employer shall indemnify and hold harmless the Plan
Administrator and each member of the committee, if any, against any and all
expenses and liabilities, including reasonable legal fees and expenses, arising
out of his membership on the committee, excepting only expenses and liabilities
arising out of his own willful misconduct.
5.5 Taxes. If the whole or any part of any Participant's Account
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shall become liable for the payment of any estate, inheritance, income, or other
tax which the Employer shall be required to pay or withhold, the Employer shall
have the full power and authority to withhold and pay such tax out of any monies
or other property in its hand for the account of the Participant whose interests
hereunder are so liable. The Employer shall provide the Participant notice of
such withholding. Prior to making any payment, the Employer may require such
releases or other documents from any lawful taxing authority as it shall deem
necessary.
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ARTICLE VI
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CLAIMS PROCEDURE
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6.1 Claims for Benefits. If a Participant or Beneficiary (hereafter,
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"Claimant") does not receive timely payment of any benefits which he believes
are due and payable under the Plan, he may make a claim for benefits to the Plan
Administrator. The claim for benefits must be in writing and addressed to the
Plan Administrator or to the Company. If the claim for benefits is denied, the
Plan Administrator shall notify the Claimant in writing within 90 days after the
Plan Administrator initially received the benefit claim. However, if special
circumstances require an extension of time for processing the claim, the Plan
Administrator shall furnish notice of the extension to the Claimant prior to the
termination of the initial 90-day period and such extension shall not exceed one
additional, consecutive 90-day period. Any notice of a denial of benefits shall
advise the Claimant of the basis for the denial, any additional material or
information necessary for the Claimant to perfect his claim, and the steps which
the Claimant must take to have his claim for benefits reviewed.
6.2 Appeals. Each Claimant whose claim for benefits has been denied
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may file a written request for a review of his claim by the Plan Administrator.
The request for review must be filed by the Claimant within 60 days after he
received the written notice denying his claim. The decision of the Plan
Administrator will be made within 60 days after receipt of a request for review
and shall be communicated in writing to the Claimant. Such written notice shall
set forth the basis for the Plan Administrator's decision. If there are special
circumstances which require an extension of time for completing the review, the
Plan Administrator's decision shall be rendered not later than 120 days after
receipt of a request for review.
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ARTICLE VII
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AMENDMENT AND TERMINATION
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7.1 Amendments. The Board shall have the right in its sole
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discretion to amend this Plan in whole or in part at any time; provided,
however, that no such amendment shall reduce the amounts credited at that time
to any Participant's Account. Any amendment shall be in writing and executed by
a duly authorized officer of the Company. All Participants shall be bound by
such amendment.
7.2 Termination of Plan. The Company expects to continue this Plan,
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but does not obligate itself to do so. The Company reserves the right to
discontinue and terminate the Plan at any time, in whole or in part, for any
reason (including a change, or an impending change, in the tax laws of the
United States or any State). If the Plan is terminated, the Plan Administrator
shall be notified of such action in a writing executed by a duly authorized
officer of the Company, and the Plan shall be terminated at the time therein set
forth. Termination of the Plan shall be binding on all Participants, but in no
event may such termination reduce the amounts credited at that time to any
Participant's Account. If this Plan is terminated, amounts theretofore credited
to Participants' Accounts shall either be paid in a lump sum immediately, or
distributed in some other manner consistent with this Plan, as determined by the
Plan Administrator in its sole discretion.
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ARTICLE VIII
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MISCELLANEOUS
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8.1 Limitation on Participant's Rights. Participation in this Plan
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shall not give any Participant the right to be retained in the Company's employ
or any right or interest in this Plan or any assets of the Company other than as
herein provided. The Company reserves the right to terminate the employment of
any Participant without any liability for any claim against the Company under
this Plan, except to the extent provided herein.
8.2 Benefits Unfunded. The benefits provided by this Plan shall be
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unfunded. All amounts payable under this Plan to Participants shall be paid
from the general assets of the Company or Employer, and nothing contained in
this Plan shall require the Company or Employer to set aside or hold in trust
any amounts or assets for the purpose of paying benefits to Participants. This
Plan shall create only a contractual obligation on the part of the Company or
Employer, and Participants shall have the status of general unsecured creditors
of the Company or Employer under the Plan with respect to amounts of
Compensation they defer hereunder or any other obligation of the Employer to pay
benefits pursuant hereto. Any funds of the Employer available to pay benefits
pursuant to the Plan shall be subject to the claims of general creditors of the
Company or Employer, and may be used for any purpose by the Company or Employer.
Notwithstanding the preceding paragraph, the Company or Employer may
at any time transfer assets to a trust for purposes of paying all or any part of
its obligations under this Plan. However, to the extent provided in the trust
only, such transferred amounts shall remain subject to the claims of general
creditors of the Company and Employer only in accordance with the terms of such
trust. To the extent that assets are held in the trust when a Participant's
benefits under the Plan become payable, the Plan Administrator shall direct the
trustee to make trust assets available to pay such benefits to the Participant.
Any payments made to a Participant or Beneficiary from such trust shall relieve
the Company and Employer from any further obligations under the Plan only to the
extent of such payment.
8.3 Other Plans. This Plan shall not affect the right of any
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eligible Employee or Participant to participate in and receive benefits under
and in accordance with the provisions of any other employee benefit plans which
are now or hereafter maintained by the Employer, unless the terms of such other
employee benefit plan or plans specifically provide otherwise.
8.4 Receipt or Release. Any payment to a Participant in accordance
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with the provisions of this Plan shall, to the extent thereof, be in full
satisfaction of all claims against the Plan Administrator and the Company, and
the Plan Administrator may require such Participant, as a condition precedent to
such payment, to execute a receipt and release to such effect.
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8.5 Governing Law. This Plan shall be construed, administered, and
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governed in all respects in accordance with applicable federal law and, to the
extent not preempted by federal law, in accordance with the laws of the State of
Georgia. If any provisions of this instrument shall be held by a court of
competent jurisdiction to be invalid or unenforceable, the remaining provisions
hereof shall continue to be fully effective.
8.6 Adoption of Plan by Related Employers. With the consent of the
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Company, any corporation related to the Company by stock ownership is authorized
to adopt the Plan by action of its board of directors. The action taken by the
board shall include the effective date of the adoption of the Plan by such
related employer.
8.7 Gender, Tense, and Headings. In this Plan, whenever the context
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so indicates, the singular or plural number and the masculine, feminine, or
neuter gender shall be deemed to include the other. Headings and subheadings in
this Plan are inserted for convenience of reference only and are not considered
in the construction of the provisions hereof.
8.8 Successors and Assigns; Nonalienation of Benefits. This Plan
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shall inure to the benefit of and be binding upon the parties hereto and their
successors, heirs and assigns; provided, however, that the amounts credited to
the Account of a Participant shall not (except as provided in Section 5.5) be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of any kind, either
voluntary or involuntary, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise dispose of any right to
any benefits payable hereunder, including, without limitation, any assignment or
alienation in connection with a separation, divorce, child support or similar
arrangement, shall be null and void and not binding on the Plan or the Company.
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IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officer to be effective as of October 16, 1997.
COMPANY:
INNOTRAC CORPORATION
By: /s/ Scott Dorfman
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Title: President
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