IBS INTERACTIVE, INC.
DEFERRED COMPENSATION PLAN
EFFECTIVE MAY 1, 1999
PURPOSE
The purpose of the Plan is to provide specified benefits to a select
group of senior management who contribute materially to the continued growth,
development and future business success of IBS Interactive, Inc. (the
"Company"), a Delaware corporation. The Plan shall be unfunded for tax purposes
and for purposes of Title I of ERISA.
ARTICLE 1
DEFINITIONS
For purposes of the Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following meanings:
1.1 "ACCOUNT BALANCE" shall mean, with respect to a Participant, a credit on
the records of the Company equal to the sum of the Deferral Account
balance. The Account Balance, shall be a bookkeeping entry only and shall
be utilized solely as a device for the measurement and determination of
the amounts to be paid to a Participant, or his designated Beneficiary,
pursuant to the Plan.
1.2 "ANNUAL DEFERRAL AMOUNT" shall mean that portion of a Participant's
Salary or Bonus that a Participant elects to have, and is deferred, in
accordance with Article 3, for any Plan Year.
1.3 "BENEFICIARY" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under the Plan upon the death of a Participant.
1.4 "BENEFICIARY DESIGNATION FORM" shall mean the form established by the
Committee for a Participant to designate one or more Beneficiaries.
1.5 "BOARD" shall mean the board of directors of the Company.
1.6 "BONUS" shall mean any bonus awarded to the Participant for services
rendered to the Company by the Participant.
1.7 "CHANGE IN CONTROL" shall be deemed to occur in the event that any of the
following circumstances have occurred:
(a) Any "person" or "group" within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act (i) becomes the "beneficial owner",
as defined in Rule 13d-3 under the Exchange Act, of 50% or more of
the combined voting power of the Company's then outstanding
securities, otherwise than through a transaction or series of
related transactions arranged by, or consummated with the prior
approval of, the Board or (ii) acquires by proxy or otherwise the
right to vote 50% or more of the then outstanding voting
securities of the Company, otherwise than through an arrangement
or arrangements consummated with the prior approval of the Board,
for the election of directors, for any merger or consolidation of
the Company or for any other matter or question.
(b) During any period of 24 consecutive months (not including any
period prior to the adoption of this Section), Present Directors
and/or New Directors cease for any reason to constitute a majority
of the Board. For purposes of the preceding sentence, "Present
Directors" shall mean individuals who at the beginning of such
consecutive 24-month period were members of the Board and "New
Directors" shall mean any director whose election by the Board or
whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the directors then
still in office who were Present Directors or New Directors.
(c) Consummation of (i) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation
or pursuant to which shares of Stock would be converted into cash,
securities or other property, other than a merger of the Company
in which the holders of Stock immediately prior to the merger have
the same proportion and ownership of common stock of the surviving
corporation immediately after the merger or (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets
of the Company; PROVIDED, THAT, the divestiture of less than
substantially all of the assets of the Company in one transaction
or a series of related transactions, whether effected by sale,
lease, exchange, spin-off sale of the stock or merger of a
subsidiary or otherwise, shall not constitute a Change in Control.
For purposes of this Section 1.7, the rules of Section 318(a) of the Code
and the regulations issued thereunder shall be used to determine stock
ownership.
1.8 "CODE"shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.9 "COMMITTEE" shall mean the Compensation Committee appointed by the Board,
or if no such committee is appointed, the full Board.
1.10 "COMPANY" shall mean IBS Interactive, Inc., a Delaware corporation, and
any successor to all or substantially all of the Company's assets or
business.
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1.11 "DEDUCTION LIMITATION" shall mean the following limitation on a benefit
that may otherwise be distributable under the Plan. Except as otherwise
provided, this limitation shall be applied to all distributions that are
subject to the Deduction Limitation. If the Company determines in good
faith prior to a Change in Control that there is a reasonable likelihood
that any compensation paid to a Participant for a taxable year of the
Company would not be deductible by the Company solely by reason of the
limitation under Code Section 162(m), then to the extent deemed necessary
by the Company to ensure that the entire amount of any distribution to
the Participant prior to the Change in Control is deductible, the Company
may defer all or any portion of a distribution under the Plan. Any
amounts deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with Section 3.5,
below, even if such amount is being paid out in installments. The amounts
so deferred and amounts credited thereon shall be distributed to the
Participant or his Beneficiary (in the event of the Participant's death)
at the earliest possible date, as determined by the Company in good
faith, on which the deductibility by the Company of compensation paid or
payable to the Participant for the taxable year of the Company during
which the distribution is made will not be limited by Code Section 162(m)
or, if earlier, the effective date of a Change in Control.
Notwithstanding anything in the Plan to the contrary, the Deduction
Limitation shall not apply to any distributions made after a Change in
Control.
1.12 "DEFERRAL ACCOUNT" shall mean (i) the sum of all of a Participant's
Annual Deferral Amounts, plus (ii) amounts credited in accordance with
the applicable crediting provisions of the Plan that relate to the
Participant's Deferral Account, less (iii) all distributions made to the
Participant or his Beneficiary pursuant to the Plan that relate to his
Deferral Account.
1.13 "DISABILITY" means a Participant's inability to engage in any substantial
gainful activity because of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted,
or can be expected to last, for a continuous period of 12 months or
longer. A Participant shall not be considered to be disabled hereunder
unless the Participant furnishes proof of the disability in such form and
manner, and at such times, as the Committee may require.
1.14 "DISABILITY BENEFIT" shall mean the benefit set forth in Article 8.
1.15 "ELECTION FORM" shall mean the form established from time to time by the
Committee for a Participant to elect to defer a portion of his salary
under the Plan.
1.16 "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
1.17 "MONTHLY INSTALLMENTS" shall mean monthly installment payments calculated
in the following manner. Each monthly installment shall be equal to the
Participant's Account Balance as of the date of the Participant's
Retirement, death, Disability or Termination of Employment, divided by
the number of months over which the elected monthly installment payments
shall be paid. The Participant's Account Balance remaining after each
payment shall be appropriately adjusted to reflect the appreciation or
depreciation in value and the net income or loss on the funds which
remain in the Deferral Account.
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1.18 "PARTICIPANT" shall mean any employee (i) who is selected by the
Committee to participate in the Plan (ii) who signs an Election Form and
a Beneficiary Designation Form, and (iii) whose signed Election Form and
Beneficiary Designation Form are accepted by the Committee. A spouse or
former spouse of a Participant shall not be treated as a Participant in
the Plan or have an account balance under the Plan, even if he has an
interest in the Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal separation or
divorce.
1.19 "PLAN" shall mean the IBS Interactive, Inc. Deferred Compensation Plan,
as it may be amended from time to time.
1.20 "PLAN YEAR" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
1.21 "PRE-RETIREMENT SURVIVOR BENEFIT" shall mean the benefit set forth in
Article 6.
1.22 "RETIREMENT," "RETIRE(S)" or "RETIRED" shall mean, with respect to an
Employee, severance from employment from the Company for any reason
(other than a leave of absence, death or Disability) on or after the
attainment of age sixty (60).
1.23 "RETIREMENT BENEFIT" shall mean the benefit set forth in Article 5.
1.24 "SALARY" shall mean the base salary paid to a Participant for services
performed for the Company during any Plan Year.
1.25 "SHORT-TERM PAYOUT" shall mean the payout set forth in Section 4.1.
1.26 "TERMINATION BENEFIT" shall mean the benefit set forth in Article 7.
1.27 "TERMINATION OF EMPLOYMENT" or "TERMINATES EMPLOYMENT" shall mean the
severing of employment with the Company, voluntarily or involuntarily,
for any reason other than Retirement, Disability, death or an authorized
leave absence.
1.28 "UNFORESEEABLE FINANCIAL EMERGENCY" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting
from (i) a sudden and unexpected illness or accident of the Participant
or a dependent of the Participant, (ii) a loss of the Participant's
property due to casualty, or (iii) such other extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant, all as determined in the sole discretion of
the Committee.
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ARTICLE 2
PARTICIPATION
2.1 SELECTION BY COMMITTEE. Participation in the Plan shall be limited to a
select group of senior management employees, as determined by the
Committee in its sole discretion.
2.2 ENROLLMENT REQUIREMENTS. To become a Participant, each selected employee
shall complete, execute and return to the Committee an Election Form and
a Beneficiary Designation Form within 30 days after he is selected to
participate in the Plan. In addition, the Committee may establish
additional enrollment requirements from time to time.
2.3 COMMENCEMENT OF PARTICIPATION. An employee selected under Section 2.1
shall become a Participant on the first day of the month following the
month in which the employee completes the enrollment requirements set
forth in Section 2.2. If an employee fails to meet all such requirements
within the time period required under Section 2.2, such Employee shall
not be eligible to participate in the Plan until the first day of the
Plan Year following the delivery to and acceptance by the Committee of
the required documents.
2.4 TERMINATION OF PARTICIPATION AND/OR DEFERRALS. If the Committee
determines in good faith that a Participant no longer qualifies as a
member of a select group of senior management employees, the Committee
shall have the right in its sole discretion, to (i) terminate any
deferral election the Participant has made for the remainder of the Plan
Year in which the Participant's membership status changes, (ii) prevent
the Participant from making future deferral elections, and/or (iii)
immediately distribute the Participant's then Account Balance as a
Termination Benefit and terminate the Participant's participation in the
Plan.
ARTICLE 3
DEFERRAL COMMITMENTS/COMPANY MATCHING/CREDITING/TAXES
3.1 AMOUNT OF DEFERRAL. Except as otherwise provided in this Article 3, for
each Plan Year, a Participant may elect to defer any portion of his
Salary and/or Bonus.
3.2 ELECTION TO DEFER. For each Plan Year in which a Participant wishes to
defer a portion of his Salary and/or Bonus, the Participant must make an
irrevocable deferral election for that Plan Year. Such election shall be
made by filing an Election Form with the Committee before the end of the
Plan Year preceding the Plan Year for which the election is made. If no
such Election Form is received by the Committee for a Plan Year, the
Annual Deferral Amount shall be zero for that Plan Year.
3.3 WITHHOLDING OF ANNUAL DEFERRAL AMOUNTS. For each Plan Year, the Annual
Deferral Amount shall be withheld from each regularly scheduled payroll
in equal amounts, as adjusted from time to time for increases and
decreases in Salary, and from Bonuses, if applicable.
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3.4 VESTING. A participant shall at all times be 100% vested in his Deferral
Account.
3.5 CREDITING/DEBITING OF ACCOUNT BALANCES. In accordance with, and subject
to, the rules and procedures that are established form time to time by
the Committee, in its sole discretion, amounts shall be credited or
debited to a Participant's Account Balance in accordance with the
following rules:
(a) ELECTION OF INVESTMENT. A Participant shall elect, on the Election
Form, one or more investment vehicles ("Investments") as a basis
to determine the additional amounts to be credited or debited to
his Account Balance. The Participant shall specify the percentage
of his Account Balance to be allocated to each Investment. The
Participant may change his Investment election at such intervals
and by such means as the Committee shall designate.
(b) CREDITING OR DEBITING METHOD. A Participant's Account Balance
shall be credited or debited on a daily basis based on the
performance of each Investment selected by the Participant, as
determined by the Committee in its sole discretion, as though the
Participant's Account Balance were invested in the Investments
selected by the Participant.
(c) NO ACTUAL INVESTMENT. Investments are to be used for measurement
purposes only, and a Participant's election of any such
Investment, the allocation to his Account Balance thereto, the
calculation of additional amounts and the crediting or debiting of
such amounts to Participant's Account Balance shall not be
considered or construed in any manner as an actual investment of
his Account Balance in any such Investment. If the Company, in its
discretion, invests funds in any or all of the Investment(s), no
Participant shall have any rights in or to such Investments.
Without limiting the foregoing, a Participant's Account Balance
shall at all times be a bookkeeping entry only and shall not
represent any investment made on his behalf by the Company, and
the Participant shall at all times remain an unsecured creditor of
the Company.
3.6 FICA AND OTHER TAXES. For each Plan Year in which an Annual Deferral
Amount is being withheld from a Participant, the Company shall withhold
from that portion of the Participant's Salary and/or Bonus that is not
being deferred, in a manner determined by the Company, the Participant's
share of FICA and other employment taxes attributable to such Annual
Deferral Amount. If necessary, the Committee may reduce the Annual
Deferral Amount in order to comply with this Section 3.6.
3.7 DISTRIBUTIONS. The Company shall withhold from any payments made to a
Participant hereunder all federal, state and local income, employment and
other taxes required to be withheld by the Company, in connection with
such payments, in amounts and in a manner to be determined in the sole
discretion of the Company.
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ARTICLE 4
SHORT-TERM PAYOUT; UNFORESEEABLE FINANCIAL EMERGENCIES
4.1 SHORT-TERM PAYOUT. In connection with each election to defer an Annual
Deferral Amount, a Participant may irrevocably elect to receive a future
"Short-Term Payout" from the Plan with respect to such Annual Deferral
Amount. Subject to the Deduction Limitation, the Short-Term Payout shall
be a lump sum payment in an amount equal to the Annual Deferral Amount
plus amounts credited or debited in the manner provided in Section 3.5,
determined at the time that the Short-Term Payout becomes payable (rather
than the date of a Termination of Employment). Subject to the Deduction
Limitation and the other terms and conditions of the Plan, each
Short-Term Payout elected shall be distributed within 60 days after the
first day of any Plan Year designated by the Participant that is at least
five Plan Years after the Plan Year in which the Annual Deferral Amount
is actually deferred. For example, if a five year Short-Term Payout is
elected for Annual Deferral Amounts that are deferred in the Plan Year
commencing January 1, 2000, the five-year Short-Term Payout would become
payable during a 60-day period commencing January 1, 2005.
4.2 OTHER BENEFITS TAKE PRECEDENCE OVER SHORT-TERM. Should an event occur
that triggers a benefit under Article 5, 6, 7 or 8, any Annual Deferral
Amount, plus amounts credited or debited thereon, that is subject to a
Short-Term Payout election under Section 4.1 shall not be paid in
accordance with Section 4.1 but shall be paid in accordance with the
other applicable Article.
4.3 WITHDRAWAL PAYOUT/SUSPENSIONS FOR UNFORESEEABLE FINANCIAL EMERGENCIES. If
the Participant experiences an Unforeseeable Financial Emergency, the
Participant may petition the Committee to (i) suspend any deferrals
required to be made by a Participant and/or (ii) receive a partial or
full payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to
satisfy the Unforeseeable Financial Emergency. If, subject to the sole
discretion of the Committee, the petition for a suspension and/or payout
is approved, the suspension shall take effect upon the date of approval
and any payout shall be made within 60 days of the date of approval. The
payment of any amount under this Section 4.3 shall not be subject to the
Deduction Limitation.
ARTICLE 5
RETIREMENT BENEFIT
5.1 RETIREMENT BENEFIT. Subject to the Deduction Limitation, a Participant
who Retires shall receive, as a Retirement Benefit, his Account Balance.
5.2 PAYMENT OF RETIREMENT BENEFIT. A Participant, in connection with his
commencement of participation in the Plan, shall elect on an Election
Form to receive the Retirement Benefit in a lump sum or in Monthly
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Installments over a period of 24 to 120 months (as specified in the
Election Form). The Participant may change his payment election annually
by submitting a new Election Form to the Committee, provided that any
such Election Form is submitted at least one year prior to the
Participant's Retirement and is accepted by the Committee in its sole
discretion. The Election Form most recently accepted by the Committee
shall govern the payout of the Retirement Benefit. If a Participant does
not make any election with respect to the payment of the Retirement
Benefit, then such benefit shall be payable in a lump sum. Payments shall
begin within 60 days of the date the Participant Retires. Any payment
made shall be subject to the Deduction Limitation.
5.3 DEATH PRIOR TO COMPLETION OF RETIREMENT BENEFIT. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
years and in the same amounts as that benefit would have been paid to the
Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, equal to the Participant's unpaid remaining Account Balance.
ARTICLE 6
PRE-RETIREMENT SURVIVOR BENEFIT
6.1 PRE-RETIREMENT SURVIVOR BENEFIT. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he Retires, Terminates Employment, or suffers a Disability.
6.2 PAYMENT OF PRE-RETIREMENT SURVIVOR BENEFIT. A Participant, in connection
with his commencement of participation in the Plan, shall elect on an
Election Form whether the Pre-Retirement Survivor Benefit shall be
distributed to his Beneficiary in a lump sum or in Monthly Installments
over a period of 24 to 120 months (as specified in the Election Form).
The Participant may annually change this election to an allowable
alternative payout period by submitting a new Election Form to the
Committee, which form must be accepted by the Committee in its sole
discretion. The Election Form most recently accepted by the Committee
prior to the Participant's death shall govern the payout of the
Participant's Pre-Retirement Survivor Benefit. If a Participant does not
make any election with respect to the payment of the Pre-Retirement
Survivor Benefit, then such benefit shall be paid in a lump sum. Payment
to the Beneficiary shall begin within 60 days after the date on which the
Committee is provided with satisfactory proof of the Participant's death.
Any such payments shall be subject to the Deduction Limitation.
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ARTICLE 7
TERMINATION BENEFIT
7.1 TERMINATION BENEFIT. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit equal to the Participant's Account
Balance if a Participant Terminates Employment prior to his Retirement,
death or Disability.
7.2 PAYMENT OF TERMINATION BENEFIT. A Participant, in connection with his
commencement of participation in the Plan, shall elect on an Election
Form to receive the Termination Benefit in a lump sum or in Monthly
Installments over a period of 24 to 120 months (as specified in the
Election Form). The Participant may change his payment election annually
by submitting a new Election Form to the Committee, provided that any
such Election Form is submitted at least one year prior to the
Participant's Termination of Employment and is accepted by the Committee
in its sole discretion. The Election Form most recently accepted by the
Committee shall govern the payout of the Termination Benefit.
Notwithstanding the foregoing, if a Participant does not make any
election with respect to the payment of the Termination Benefit or if the
Participant's Account Balance on the date he Terminates Employment is
less than $25,000, the Termination Benefit shall be paid in a lump sum.
Payment of the Termination Benefit shall begin within 60 days after the
Participant Terminates Employment and shall be subject to the Deduction
Limitation.
ARTICLE 8
DISABILITY WAIVER AND BENEFIT
8.1 DISABILITY WAIVER.
(a) WAIVER OF DEFERRAL. A Participant who is determined by the
Committee to be suffering from a Disability shall be excused from
fulfilling that portion of the Annual Deferral Amount commitment
that would otherwise have been withheld from a Participant's
Salary or Bonus for the Plan Year during which the Participant
first suffers a Disability. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for
all other purposes of the Plan.
(b) RETURN TO WORK. If a Participant returns to employment after a
Disability ceases, the Participant may elect to defer an Annual
Deferral Amount for the Plan Year following his return to
employment or service and for every Plan Year thereafter while a
Participant; provided such deferral elections are otherwise
allowed and an Election Form is delivered to, and accepted by, the
Committee for each such election in accordance with Article 3.
8.2 CONTINUED ELIGIBILITY: DISABILITY BENEFIT. A Participant suffering a
Disability shall continue to be eligible for the benefits provided for in
Articles 4, 5, 6 or 7 in accordance with the provisions of those
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Articles. Notwithstanding the above, the Committee shall, in the case of
a Participant who is otherwise eligible to Retire, deem the Participant
to have Retired as soon as practicable after such Participant is
determined to be suffering a Disability, in which case the Participant
shall be paid a Retirement Benefit in accordance with Article 5. In the
case of a Participant who is not otherwise eligible to Retire, the
Committee may, in its sole discretion, deem the Participant to have
Terminated Employment at any time after such Participant is determined to
be suffering from a Disability, in which case such Participant shall
receive a Termination Benefit equal to his Account Balance on the date of
the deemed Termination of Employment. The Termination Benefit shall be
paid in accordance with Section 7.2 as if the deemed Termination of
Employment was an actual Termination of Employment.
ARTICLE 9
BENEFICIARY DESIGNATION
9.1 BENEFICIARY. Each Participant shall have the right, at any time, to
designate his Beneficiary(ies) to receive any benefits payable under the
Plan to a Beneficiary upon the death of a Participant.
9.2 BENEFICIARY DESIGNATION CHANGE. A Participant shall designate his
Beneficiary by completing and signing the Beneficiary Designation Form,
and returning it to the Committee or its designated agent. A Participant
shall have the right to change a Beneficiary by submitting a new
Beneficiary Designation Form under Committee's rules and procedures, as
in effect from time to time. Upon the acceptance by the Committee of a
new Beneficiary Designation Form, all Beneficiary designations previously
filed shall be canceled. The Committee shall be entitled to rely on the
last Beneficiary Designation Form accepted by the Committee prior to his
death.
9.3 NO BENEFICIARY DESIGNATION. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1 and 9.2 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's surviving spouse shall be deemed to be his designated
Beneficiary. If the Participant has no surviving spouse, the benefits
remaining under the Plan to be paid to a Beneficiary shall be payable to
the Participant's estate.
9.4 DISCHARGE OF OBLIGATIONS. The payment of benefits hereunder to a
Beneficiary shall fully and completely discharge the Company and the
Committee from all further obligations under the Plan with respect to the
Participant.
ARTICLE 10
TERMINATION, AMENDMENT OR MODIFICATION
10.1 TERMINATION. Although the Company anticipates that it will continue the
Plan for an indefinite period of time, the Company reserves the right to
terminate the Plan at any time with respect to any or all Participants,
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by action of the Board. Upon the termination of the Plan, the Account
Balances of the affected Participants (determined as if they had
Terminated Employment on the termination date of the Plan or, if the Plan
is terminated after a Participant was eligible to Retire, then as if the
Participant had Retired on the termination date of the Plan) shall be
paid to the Participants as follows. If the Plan is terminated prior to a
Change in Control, the Company may, in its sole discretion and
notwithstanding any elections made by the Participant, pay such benefits
in a lump sum or in annual installments of up to 10 years, with amounts
credited and debited during the installment period as provided herein. If
the Plan is terminated after a Change in Control, the Company shall pay
such benefits in a lump sum as soon as practicable after such
termination. The termination of the Plan shall not adversely affect any
Participant or Beneficiary who has become entitled to the payment of any
benefits under the Plan as of the date of termination; provided, however,
that the Company may accelerate installment payments by paying the
Account Balance in a lump sum or in fewer Monthly Installments.
10.2 AMENDMENT. The Company may, at any time, amend or modify the Plan, in
whole or in part, by action of the Board; provided, however, that no
amendment or modification shall decrease or restrict the value of a
Participant's Account Balance or affect any Participant or Beneficiary
who has become entitled to the payment of benefits under the Plan as of
the date of the amendment or modification; provided, however, that the
Company may accelerate installment payments by paying the Account Balance
in a lump sum or in fewer Monthly Installments.
10.3 EFFECT OF PAYMENT. The full payment of the applicable benefit under
Articles 4, 5, 6, 7, 8 shall completely discharge all obligations to a
Participant and his designated Beneficiaries under the Plan.
ARTICLE 11
ADMINISTRATION
11.1 COMMITTEE DUTIES. The Plan shall be administered by the Committee.
Members of the Committee may be Participants. The Committee shall have
the discretion and authority to (i) make, amend, interpret, and enforce
all appropriate rules and regulations for the administration of the Plan
and (ii) decide or resolve any and all questions including
interpretations of the Plan, as may arise in connection with the Plan.
Any individual serving on the Committee who is a Participant shall not
vote or act on any matter relating solely to himself. When making a
determination or calculation, the Committee shall be entitled to rely on
information furnished by a Participant or the Company.
11.2 AGENTS. In the administration of the Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties as
it sees fit (including acting through a duly appointed representative)
and may from time to time consult with counsel who may be counsel to the
Company.
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11.3 BINDING EFFECT OF DECISIONS. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
11.4 INDEMNITY OF COMMITTEE. The Company shall indemnify and hold harmless the
members of the Committee, and any employee to whom the duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with
respect to the Plan, except in the case of willful misconduct by the
Committee or any of its members or any such employee.
11.5 COMPANY INFORMATION. To enable the Committee to perform its functions,
the Company shall supply full and timely information to the Committee on
all matters relating to the compensation of its Participants, the date
and circumstances of the Retirement, Disability, death or Termination of
Employment, and such other pertinent information as the Committee may
reasonably require.
ARTICLE 12
OTHER BENEFITS AND AGREEMENTS
12.1 COORDINATION WITH OTHER BENEFITS. The benefits provided for a Participant
and Participant's Beneficiary hereunder are in addition to any other
benefits available to such Participant under any other plan or program
for employees of the Company. The Plan shall supplement and shall not
supersede, modify or amend any other such plan or program except as may
otherwise be expressly provided.
ARTICLE 13
CLAIMS PROCEDURES
13.1 PRESENTATION OF CLAIM. Any Participant or Beneficiary of a deceased
Participant (a "Claimant") may deliver to the Committee a written claim
for benefits under the Plan. All claims must be filed within 180 days of
the date on which the event that caused the claim to arise occurred. The
claim must specify the determination desired by the Claimant.
13.2 NOTIFICATION OF DECISION. The Committee shall consider a Claimant's claim
within a reasonable time, and shall notify the Claimant in writing of its
decision on a claim. If the claim is denied, in whole or in part, such
notice must set forth, in a manner calculated to be understood by the
Claimant: (i) the specific reason(s) for the denial of the claim; (ii)
specific reference(s) to pertinent provisions of the Plan upon which such
denial was based; (iii) a description of any additional material or
information necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary; and (iv) an
explanation of the claim review procedure set forth in Section 13.3.
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13.3 REVIEW OF A DENIED CLAIM. Within 60 days after receiving a notice from
the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant's duly authorized representative) may file with
the Committee a written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review procedure began,
the Claimant (or the Claimant's duly authorized representative) may: (i)
review pertinent documents; (ii) submit written comments or other
documents; and/or (iii) request a hearing, which the Committee, in its
sole discretion, may grant.
13.4 DECISION ON REVIEW. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written
request for review of the denial, unless a hearing is held or other
special circumstances require additional time, in which case the
Committee's decision must be rendered within 120 days after such date.
Such decision must be written in a manner calculated to be understood by
the Claimant, and it must contain: (i) specific reasons for the decision;
(ii) specific reference(s) to the pertinent Plan provisions upon which
the decision was based; and (iii) such other matters as the Committee
deems relevant.
ARTICLE 14
MISCELLANEOUS
14.1 STATUS OF PLAN. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that is unfunded and is
maintained by the Company primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees within the meaning of ERISA Sections 201(2), 302(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
14.2 UNSECURED GENERAL CREDITOR. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of the Company. For purposes of the
payment of benefits hereunder, any and all of the Company's assets shall
be, and remain, the general, unpledged unrestricted assets of the
Company. The Company's obligation under the Plan shall be merely that of
an unfunded and unsecured promise to pay money in the future.
14.3 COMPANY'S LIABILITY. The Company's liability for the payment of benefits
shall be defined only by the Plan and the Election Form signed by the
Company and a Participant. The Company shall have no obligation to a
Participant under the Plan except as expressly provided in the Plan.
14.4 NONASSIGNABILITY. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate,
mortgage or otherwise encumber, transfer, hypothecate, alienate or convey
in advance of actual receipt, the amounts, if any, payable hereunder, or
any part thereof, which are, and all rights to which are expressly
declared to be, unassignable and non-transferable. No part of the amounts
payable shall, prior to actual payment, be (i) subject to seizure,
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attachment, garnishment or sequestration for the payment of any debts,
judgments, alimony or separate maintenance owed by a Participant or any
other person, (ii) transferable by operation of law in the event of a
Participant's or any other person's bankruptcy or insolvency, or (iii)
transferable to a spouse as a result of a property settlement or
otherwise.
14.5 NOT A CONTRACT OF EMPLOYMENT. The terms and conditions of the Plan shall
not be deemed to constitute a contract of employment between the Company
and the Participant. Nothing in the Plan shall be deemed to give a
Participant the right to be retained in the service of the Company as an
employee, or to interfere with the right of the Company to discipline or
discharge the Participant at any time.
14.6 FURNISHING INFORMATION. A Participant or his Beneficiary will cooperate
with the Committee by furnishing any and all information requested by the
Committee and take such other actions as may be requested in order to
facilitate the administration of the Plan and the payments of benefits
hereunder, including but not limited to taking such physical examinations
as the Committee may deem necessary.
14.7 GOVERNING LAW. Subject to ERISA, the provisions of the Plan shall be
construed and interpreted according to the internal laws of the State of
New Jersey without regard to its conflicts of laws principles.
14.8 NOTICE. Any notice or filing required or permitted to be given to the
Committee under the Plan shall be sufficient if in writing and
hand-delivered, or sent by registered certified mail, to the address
below:
IBS Interactive, Inc.
Compensation Committee
2 Ridgedale Avenue, Suite 350
Cedar Knolls, New Jersey 07927
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under the Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
14.9 SUCCESSORS. The provisions of the Plan shall bind and inure to the
benefit of the Company and its successors and assigns and the Participant
and the Participant's Beneficiaries.
14.10 VALIDITY. In case any provision of the Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof; and the Plan shall be construed and enforced as
if such illegal or invalid provision had never been inserted herein.
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14.11 INCOMPETENT. If the Committee determines in its discretion that a benefit
under the Plan is to be paid to a minor, a person declared incompetent or
to a person incapable of handling the disposition of that person's
property, the Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any payment of a
benefit shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.
14.12 COURT ORDER. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been
named as a party. In addition, if a court determines that a spouse or
former spouse of a Participant has an interest in the Participant's
benefits under the Plan in connection with a property settlement or
otherwise, the Committee, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately
distribute the spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
14.13 DISTRIBUTION IN THE EVENT OF TAXATION. If, for any reason, all or any
portion of Participant's benefits under the Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the Committee
for a distribution of such taxable portion. Upon the grant of such a
petition, which grant shall not be unreasonably withheld (and which,
after a Change in Control, shall be granted), the Company shall
distribute to the Participant immediately available funds in an amount
equal to the taxable portion of his benefit (which amount shall not
exceed a Participant's unpaid Account Balance under the Plan). If the
petition is granted, the tax liability distribution shall be made within
90 days of the date when the Participant's petition is granted. Such a
distribution shall affect and reduce the benefits to be paid under the
Plan.
14.14 LEGAL FEES TO ENFORCE RIGHTS. It is the intent of the Company that a
Participant not be required to incur any legal fees or disbursements
associated with (i) the interpretation of any provision in, or obtaining
of any right or benefit under the Plan, or (ii) the enforcement of his
rights under the Plan, including without limitation the initiation or
defense of any litigation or other legal action, because the cost and
expense thereof would substantially detract from the benefits extended to
the Participant hereunder. Accordingly, if it should appear to any
Participant that the Company, or any successor corporation has failed to
comply with any of its obligations under the Plan or any agreement
thereunder or, if the Company, or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation or
other legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the Company
irrevocably authorizes such Participant to retain counsel of his choice
at the expense of the Company to represent such Participant in connection
with the initiation or defense of any litigation or other legal action,
whether by or against the Company, or any director, officer, shareholder
or other person affiliated with the Company, or any successor thereto in
any jurisdiction.
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IN WITNESS WHEREOF, the Company has signed the Plan document as of
May 1, 1999.
IBS Interactive, Inc.
By: /s/ Nicholas R. Loglisci, Jr.
______________________________________
Title: Chief Executive Officer
___________________________________
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