2007 SUPPLEMENTAL EXECUTIVE RETIREMENT PLANEmployee Benefits Plan Agreement |
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Exhibit 10.26
SUMMIT GLOBAL
LOGISTICS, INC.
2007 SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
ARTICLE I -
PURPOSE; EFFECTIVE DATE
1.1 PURPOSE. The purpose of this
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(hereinafter, the "Plan") is
to permit a select group of
management or highly
compensated employees of
Summit Global Logistics,
Inc. (and its selected
subsidiaries and/or affiliates) to defer the receipt of income
which otherwise
would become payable to them. It is intended that this Plan, by providing these
eligible employees an opportunity to defer the receipt of income, will assist
the Company (as hereinafter defined) in retaining and attracting individuals of
exceptional ability by providing them with an additional opportunity to save
for
retirement beyond Code (as hereinafter defined) limitations imposed on
qualified
retirement plans. This Plan is intended to be "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA").
1.2 EFFECTIVE DATE. This Plan
shall be effective as of January 1, 2007.
It is the intent that all of the amounts
deferred and benefits
provided under
this Plan will
comply with the
terms of Section
409A of the Code
and
interpretive guidance issued thereunder.
1.3 UNFUNDED PLAN.
This plan is an unfunded top-hat
plan maintained
primarily to provide deferred
compensation benefits for a "select group of
management or highly-compensated
employees" within the meaning of Sections 201,
301, and 401 of ERISA, and therefore is exempt from the provisions of Parts 2,
3
and 4 of Title I of ERISA.
ARTICLE II - DEFINITIONS
For the purpose
of this Plan, the
following terms shall have the
meanings indicated, unless the context clearly indicates otherwise:
2.1 ACCOUNT(S).
"Account(s)" means the
notional account or accounts
maintained on the books of the Company
used solely to calculate
the amount
payable to each Participant under this
Plan and shall not constitute a separate
fund of assets. Account(s) shall be deemed to exist from the time amounts are
first credited to such
Account(s) until such time that the entire
Account
balance has been distributed
in accordance with
this Plan. The
Accounts
available for each Participant shall be identified as:
(a) DEFERRAL ACCOUNT;
(b) IN-SERVICE ACCOUNT;
AND,
(c) RETENTION ACCOUNT.
<PAGE>
2.2 BENEFICIARY. "Beneficiary" means the
person, persons or entity as
designated by the Participant,
entitled under Article VI to receive
any Plan
benefits payable after the Participant's death.
2.3 BOARD. "Board"
means the Board of Directors of the Company.
2.4 CHANGE OF CONTROL.
"Change of Control" means:
(a) a change in
the ownership or
effective control of the
Company, or in the ownership
of a substantial portion
of the assets of the
Company, as defined and determined under
Section 409A(a)(2)(A)(v) of the Code
(or its successor provisions), Treasury
Notice 2005-1 and Proposed Treasury
Regulation 1.409A-1 and any further interpretive
guidance issued thereunder.
Without in any way limiting the scope of
the preceding sentence,
a Change of
Control shall be deemed to occur on the
date upon which one of the following
events occurs:
i. any one person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended
(the
"Exchange Act"), or more than
one person acting as a group (as determined under
applicable Treasury regulations),
acquires ownership of stock of
the Company
that, together with stock held by such
person or group, constitutes more than
50% of either the total fair market
value or total voting power of the stock of
the Company (except that the acquisition of additional control of the Company
by
the same person or persons during
such 12-month period is not
considered to
cause a change in control of the Company); or
ii. any
one person (as
such term is used in the
Exchange Act), or more than one person
acting as a group (as determined under
applicable Treasury regulations),
acquires (or has acquired during the 12-month
period ending on the date of the most recent
acquisition by such person or
persons) ownership of stock of the
Company possessing 35% or more of the
total
voting power of the Company (except that the
acquisition of additional control
of the Company by the same person or persons during such 12-month period is not
considered to cause a change in control of the Company); or
iii. a
majority of members of the Board is replaced
during any 12-month period by
directors whose appointment
or election is not
endorsed by a majority of the
members of the Board prior to the date of the
appointment or election; or
iv. any
one person (as
such term is used in the
Exchange Act), or more than one person
acting as a group (as determined under
applicable Treasury regulations),
acquires (or has acquired during the 12-month
period ending on the date of the most recent
acquisition by such person or
persons) assets from the Company that have a total gross fair market value
equal
to or more than 40% of the total gross fair market value of all of the assets
of
the Company immediately prior to such acquisition or acquisitions.
2.5 CODE. "Code" means the Internal Revenue Code of 1986, as amended,
and any successor thereto.
2
<PAGE>
2.6 COMMITTEE.
"Compensation
Committee" means the
Compensation
Committee appointed by the Board to administer the Plan pursuant to Article
VII.
2.7 COMPANY. "Company" means
Summit Global Logistics,
Inc., a New
Jersey corporation or any successor to the business thereof; provided, however,
that for purposes of eligibility
to participate in the Plan and employment
status, Company shall include any
directly or indirectly affiliated
subsidiary
corporations, any other affiliate designated by the Board.
2.8 COMPENSATION.
"Compensation" means
the base salary payable
to
Participant and bonus or incentive compensation
earned by a Participant with
respect to employment services performed
for the Company by the Participant and
considered to be "wages" for
purposes of federal income tax withholding.
For
purposes of this Plan only,
Compensation shall be
calculated before reduction
for any amounts deferred by the Participant
pursuant to the Company's
tax
qualified plans which may be
maintained under Section 401(k) or
Section 125 of
the Code but shall exclude "wages" associated with the exercise of
stock options
by the Participant or income arising from other equity instruments (e.g., stock
units, restricted stock units or restricted stock)
awarded to a Participant.
Inclusion of any other forms of compensation,
including commissions payable, is
subject to Committee approval.
2.9 DEFERRAL ELECTION.
"Deferral Election" means an irrevocable written
commitment made by a Participant to
defer a portion of his/her Compensation
as
set forth in
Article III, and as
permitted by the Committee
in its sole
discretion. The Deferral Election shall apply to each payment of
salary and/or
bonus payable to a Participant,
and shall specify the Account or
Accounts to
which the Compensation deferred shall be
credited. Such designation
shall be
made in the form of a whole percentage
or an exact stated dollar amount. Such
Deferral Election shall
be made on an Election
Form and at a time deemed
acceptable to the Committee. A Deferral
Election with respect to any bonus or
incentive compensation which is based on
services performed over a period of at
least twelve (12) months shall be made no later than six (6) months prior to
the
end of such performance period.
2.10 DEFERRAL PERIOD.
"Deferral Period" means each
calendar year,
except that if a Participant first becomes
eligible after the beginning of a
calendar year, the initial Deferral
Period shall be the date the
Participant
first becomes eligible
to participate in this Plan
through and including
December 31st of that calendar
year. For purposes of
deferrals related to
Participant's annual bonus or other incentive
based compensation, "Deferral
Period" shall mean the Company's Fiscal Year.
2.11 DETERMINATION DATE.
"Determination Date" means each business day.
2.12 DISABILITY. "Disability" means the Participant is: (i) unable to
engage in any
substantial gainful activity
by reason of
any medically
determinable physical or mental impairment
which can be expected to result in
death or can be expected to last for a
continuous period of not less
than 12
months, or (ii) by reason of any
medically determinable physical
or mental
impairment which can be expected to result in death or can be
expected to last
for a continuous period of not less than 12 months, receiving income replacement
or other disability benefits
for a period of not less than 3 months
under an
accident and health plan covering employees of the participant's employer.
3
<PAGE>
2.13 DISTRIBUTION ELECTION. "Distribution Election" means the form of
payment for benefits payable from each
Account under this Plan, as elected by
the Participant on an Enrollment Form prescribed by the Committee.
2.14 FINANCIAL HARDSHIP. "Financial Hardship" means a severe
financial
hardship to the Participant
resulting from an illness
or accident of the
Participant, the Participant's
spouse, or a dependent (as
defined in Section
152(a) of the Code) of the Participant,
loss of the Participant's
property due
to casualty, or other similar extraordinary
and unforeseeable circumstances
arising as a result of events beyond the control of the participant,
provided,
that such financial hardship
may not be relieved through
reimbursement or
compensation from insurance or
otherwise, by liquidation of the Participant's
assets, to the extent the liquidation
of such assets would not cause severe
financial hardship, or
by cessation of
deferrals under the
Plan. The
determination of whether a Financial Hardship
exists shall be subject to and
determined in accordance with relevant tax guidance issued under Section 409A
of
the Code.
2.15 INTEREST.
"Interest" means
the amount credited
to or charged
against a Participant's Account(s) on
each Determination Date, which shall be
based on the Valuation Funds chosen by
the Participant as provided in Section
2.21, below and in a manner consistent
with Section 4.3, below. Such credits or
charges to a Participant's Account may be either positive or negative to
reflect
the increase or
decrease in value of the
Account in accordance
with the
provisions of this Plan.
2.16 PARTICIPANT. "Participant" means any individual who is eligible,
pursuant to Section 3.1, below, to participate in this Plan, and who either,
has
elected to defer Compensation under this Plan in accordance with Article III,
below, or who is determined by the
Committee in its sole discretion
as being
eligible to receive
a Retention Contribution
under this Plan.
Such its
individual shall remain a
Participant in this Plan for the period
of deferral,
or credit, and until such time as all benefits payable under this Plan have
been
paid in accordance with the provisions hereof.
2.17 PLAN. "Plan"
means this Supplemental Executive
Retirement Plan as
amended from time to time.
2.18 QUALIFIED PLAN.
"Qualified Plan" means the defined contribution or
401(k) plan in which the Participant participates.
2.19 RETENTION
CONTRIBUTION. "Retention
Contribution" means the annual
discretionary contribution, if any,
made by the Company to the
Participant's
Retention Account under Section 4.5, below.
2.20 RETIREMENT. "Retirement" means the termination
of a Participant's
employment with the Company, for reasons
other than death or Disability, on or
after the earlier of: (a)
attainment of age 55 with at
least ten (10) years of
continuous service with the Company; or (b) attainment of age sixty-five (65).
2.21 SPECIFIED EMPLOYEES. "Specified
Employees" means key employees, as
defined in Section 416(i) of the Code
without regard to paragraph (5) thereof,
of the Company.
4
<PAGE>
2.22 VALUATION
FUNDS. "Valuation Funds"
means one or more of the
hypothetical investment funds or indices
managed by an investment manager that
are selected by the
Committee. These Valuation
Funds are used solely
to
calculate the Interest that is credited to each Participant's
Account(s) in
accordance with Article
IV, below, and not
represent, nor should they be
interpreted to convey any beneficial
interest or ownership on the part of the
Participant in any asset or other property of the Company.
Participants may
allocate their Account(s) between Valuation
Funds. Exhibit A attached hereto
sets forth the available Valuation Funds
which may be amended from time to time
in the sole and absolute discretion of the Committee.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.1 ELIGIBILITY AND
PARTICIPATION.
(a) ELIGIBILITY. Eligibility to participate in the Plan shall
be limited to those senior
management employees of the
Company who have annual
compensation equal to or in excess of $220,000 or who are designated as
eligible
to participate by the Committee from time to time.
(b) PARTICIPATION. An individual's participation in the Plan
shall be effective upon
notification to the individual by
the Committee or its
designee of his/her
eligibility to participate,
and the earlier
of a
contribution under this Plan being made on behalf of the Participant
by the
Company or the completion and submission of an Enrollment Form, Allocation
Form,
and a Distribution Election to the Committee
no later than fifteen (15) days
prior to the beginning of the Deferral Period.
(c) FIRST-YEAR
PARTICIPATION. When an individual first becomes
eligible to participate in this Plan, a Deferral Election may be submitted to
the Committee within
thirty (30) days
after the Committee
notifies the
individual of eligibility
to participate. Such
Deferral Election will be
effective only with
regard to Compensation
earned and payable
following
submission of the Deferral Election to the Committee.
3.2 FORM OF DEFERRAL ELECTION.
A Participant may irrevocably elect to
make a Deferral Election no later than
fifteen (15) days prior to the beginning
of the Deferral Period by
submitting the Enrollment
Form permitted by the
Committee. The Deferral Election shall specify the following:
(a) DEFERRAL
AMOUNTS; ACCOUNTS. A Deferral Election shall be
made with respect to each payment
of Compensation payable by the Company to a
Participant during the Deferral Period,
and shall designate the portion of each
deferral that shall be allocated
among either the
Deferral or In-Service
Accounts. In addition, no amounts shall be deferred into an
In-Service Account
once payments have commenced under the terms of this Plan and until such time
as
the entire Account Balance has been completely
distributed. The Participant
shall set forth the amount of his salary to be
deferred as a whole percentage
amount of Compensation, and with respect
to the deferral of bonus Compensation,
a stated dollar amount
or a whole percentage amount
above a stated dollar
amount.
5
<PAGE>
(b) ALLOCATION
TO VALUATION FUNDS. The
Participant shall
specify in a separate form
(known as the
"Allocation Form") filed with the
Committee, the Participant's
initial allocation of the amounts
deferred into
each Account among the various available Valuation Funds.
(c) MAXIMUM
DEFERRAL. The maximum amount of
Compensation that
may be deferred shall be no more than seventy-five percent (75%) of base salary
and one hundred percent (100%) of annual bonus or incentive compensation.
3.3 PERIOD OF COMMITMENT. Any Deferral
Election made by a Participant
with respect to Compensation
shall remain in effect for the
next succeeding
Deferral Period, and shall
remain in effect for all future
Deferral Periods
unless revoked or amended in writing by
the Participant and
delivered to the
Committee no later than fifteen (15) days prior to the beginning of a
subsequent
Deferral Period, except that if a Participant suffers a Disability or
terminates
employment with Company prior to the end
of the Deferral Period, the Deferral
Period shall end as of the date of Disability or termination.
3.4 MODIFICATION OF
DEFERRAL ELECTION. Except as provided in Sections
3.3, above, and 5.5 below, a Deferral
Election shall be irrevocable by the
Participant during a Deferral Period.
3.5 CHANGE IN STATUS. If the
Committee determines that a
Participant's
employment performance is no longer at a level that warrants
reward through
participation in this Plan, but does not terminate the Participant's employment
with Company, the Participant's
existing Deferral Election shall terminate at
the end of the Deferral Period, and no new Deferral Election may be made by
such
Participant after notice of such determination is given by the Committee,
unless
the Participant later
satisfies the requirements
of Section 3.1.
If the
Committee, in its sole discretion,
determines that the Participant
no longer
qualifies as a member of a select group of
management or highly compensated
employees, as determined in accordance with the ERISA, and interpretive
guidance
issued thereunder the
Committee may, in its sole discretion
terminate any
Deferral Election for that year, and
prohibit the Participant from making any
future Deferral Elections.
3.6 DEFAULTS IN EVENT OF
INCOMPLETE OR INACCURATE DEFERRAL ELECTIONS.
In the event that a Participant submits a Deferral Election to the Committee
that contains information
necessary to the efficient operation of this Plan
which, in the sole discretion of the Committee, is incomplete or inaccurate,
the
Committee shall be authorized to treat the incomplete or inaccurate Deferral
Election as if the following elections had been made by the Participant,
and
such information shall be communicated to the Participant:
(a) If no Account is
listed - treat as if the Deferral Account
was elected;
(b) If Accounts listed equal less than 100% - treat as if the
balance was deferred into Deferral Account;
(c) If Accounts listed equal more than 100% -proportionately
reduce each Account to equal 100%;
6
<PAGE>
(d) If In-Service Account is listed, but no deferrals can be
made into that Account due to the fact
that benefits are being paid from that
In-Service Account, then the amounts elected to be deferred shall be credited
to
the Deferral Account during such period of payment, after which time the
balance
of the amounts elected
to be deferred shall
be credited to a
subsequent
In-Service Account with a distribution
date as elected or as provided in sub-
section (i), below;
(e) If no Valuation
Fund is selected - treat as if the Money
Market Fund was elected;
(f) If Valuation
Fund(s) selected equal less than 100% - treat
as if the Money Market Fund was elected for remaining balance;
(g) If Valuation
Fund(s) selected equal
more than 100% -
proportionately reduce each Valuation Fund to equal 100%;
(h) If no Distribution
Election is chosen -treat as if
lump
sum was elected for
In-Service Account and
treat as if three (3) year was
elected for Deferral Account; and,
(i) If no time of payment is chosen for
In-Service Account
-treat as if the earliest possible
date available under the
provisions of
Section 5.3, below was elected.
ARTICLE IV - DEFERRED COMPENSATION ACCOUNT
4.1 ACCOUNTS. The
Compensation deferred by a Participant
under the
Plan, and Interest shall be credited to the Participant's Account(s) as
selected
by the Participant; any Retention Contributions
and Interest thereon shall be
credited to the Participant's
Retention Account. Separate
accounts may be
maintained on the books of the Company to reflect the different Accounts chosen
by the Participant, and the
Participant shall designate the portion of each
deferral that will be credited to each
Account as set forth in Section 3.2(a),
above. These Accounts
shall be used solely to calculate the amount payable to
each Participant under this Plan and shall not constitute a separate fund of
assets.
4.2 TIMING
OF CREDITS; WITHHOLDING. A
Participant's deferred
Compensation shall be credited to each
Account designated by the Participant as
soon as administratively practical
after the date the






