EXHIBIT 10.13
THE YORK GROUP, INC.
NONQUALIFIED DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
PAGE
ARTICLE I PURPOSE OF PLAN.......................................... 1
1.1 Purpose of Plan.......................................... 1
ARTICLE II DEFINITIONS.............................................. 1
2.1 Account.................................................. 1
2.2 Base Salary.............................................. 2
2.3 Beneficiary.............................................. 2
2.4 Board.................................................... 2
2.5 Change in Control........................................ 2
2.6 Code..................................................... 2
2.7 Committee................................................ 2
2.8 Company.................................................. 2
2.9 Compensation............................................. 2
2.10 Effective Date........................................... 3
2.11 Entry Date............................................... 3
2.12 Eligible Employee........................................ 3
2.13 Nonqualified Deferral Contribution....................... 3
2.14 Participant..................................................4
PAGE
2.15 Participant Enrollment and Election Form................. 4
2.16 Plan..................................................... 4
2.17 Plan Year................................................ 4
ARTICLE III ELIGIBILITY AND PARTICIPATION............................ 4
3.1 Requirements............................................. 4
3.2 Re-Employment............................................ 5
ARTICLE IV NONQUALIFIED DEFERRAL CONTRIBUTIONS...................... 5
4.1 Nonqualified Deferral Elections.......................... 5
4.2 Payroll Deductions....................................... 5
ARTICLE V PLAN ACCOUNTS............................................ 6
5.1 Establishment of Accounts................................ 6
5.2 Allocation of Income..................................... 6
5.3 Accounting for Distributions............................. 6
ARTICLE VI VESTING.................................................. 7
6.1 Nonqualified Deferral Contributions...................... 7
ARTICLE VII PAYMENT OF BENEFITS...................................... 7
7.1 Payment of Benefits...................................... 7
PAGE
7.2 Payments Upon Hardship .................................. 8
7.3 Change in Control........................................ 8
ARTICLE VIII BENEFICIARIES............................................ 8
8.1 Designation of Beneficiaries............................. 8
ARTICLE IX ADMINISTRATION........................................... 9
9.1 Administrative Authority................................. 9
9.2 Uniformity of Discretionary Acts......................... 11
9.3 Litigation............................................... 11
9.4 Payment of Administrative Expenses....................... 11
9.5 Claims Procedure......................................... 11
9.6 Liability of Committee, Indemnification.................. 14
9.7 Expenses................................................. 14
9.8 Taxes.................................................... 14
9.9 Attorney's Fees.......................................... 14
9.10 Right to Amend........................................... 15
9.11 Employer's Right to Terminate or Suspend Plan............ 15
9.12 Construction............................................. 15
9.13 Miscellaneous............................................ 16
ARTICLE I - PURPOSE OF PLAN
1.1 PURPOSE OF PLAN. The Company intends and desires by the adoption of this
Plan to recognize the value to the Company of the services rendered by Eligible
Employees covered by the Plan and to encourage and assure their continued
service with the Company by making more adequate provisions for their future
retirement security.
This Plan is intended to be "a plan which is unfunded and maintained by an
employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees" within the meaning
of Sections 201(2) and 301(a)(3) of the Employee Retirement Income Security Act
of 1974 ("ERISA"), and is intended to be unfunded for purposes of the Code, and
shall be interpreted and administered in a manner consistent with that intent.
ARTICLE II - DEFINITIONS
2.1 ACCOUNT means those separate book accounts established and maintained under
the Plan in the name of each Participant as required pursuant to the provisions
of Article V.
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2.2 BASE SALARY means annual cash salary paid by the Company to an Eligible
Employee with respect to his or her service for the Company.
2.3 BENEFICIARY means the beneficiary or beneficiaries as designated by the
Participant.
2.4 BOARD means the Board of Directors of The York Group, Inc.
2.5 CHANGE IN CONTROL means a change in the ownership of the Company, a change
in the effective control of the Company, or a change in ownership of a
substantial portion of the assets of the Company. Such determination shall be
made by the Committee.
2.6 CODE means the Internal Revenue Code of 1986 and the regulations thereunder,
as amended from time to time.
2.7 COMMITTEE means the Human Resources Committee appointed by the Board.
2.8 COMPANY means The York Group, Inc. or any company which is a successor
as a result of merger, consolidation, liquidation, transfer of assets, or
other reorganization.
2.9 COMPENSATION means up to fifty (50) percent of Base Salary and up to a
hundred (100) percent of the annual cash bonus.
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2.10 EFFECTIVE DATE means the date on which the Company adopts the Plan.
2.11 ENTRY DATE means the first day of the pay period following the date on
which the individual first becomes an Eligible Employee.
2.12 ELIGIBLE EMPLOYEE means a person employed by the Company who is determined
by the Committee to be a member of a select group of management or highly
compensated employees and who is designated by the Committee to be eligible
under the Plan. For the initial Plan Year, the Committee shall notify, by
December 31, 1996, those individuals, if any, who will be Eligible Employees.
For subsequent Plan Years, the Committee shall notify, by each December 1, those
individuals, if any, who will be Eligible Employees for the next Plan Year. If
the Employer determines that an individual first becomes an Eligible Employee
during a Plan Year, the Employer shall notify such individual of its
determination and of the date during the Plan Year on which the individual shall
first become an Eligible Employee.
2.13 NONQUALIFIED DEFERRAL CONTRIBUTION means Compensation that is due to be
earned and which would otherwise be paid to the Participant, which the
Participant elects to defer under the Plan and which is credited on behalf of
each Participant by the Company pursuant to the provisions of Article IV.
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2.14 PARTICIPANT means any person so designated in accordance with the
provisions of Article III.
2.15 PARTICIPANT ENROLLMENT AND ELECTION FORM means the form on which a
Participant elects to defer Compensation hereunder and on which the Participant
makes certain other designations as required thereon.
2.16 PLAN means The York Group, Inc. Nonqualified Deferred Compensation Plan.
2.17 PLAN YEAR means the calendar year.
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.1 REQUIREMENTS. Every Eligible Employee as of the Effective Date shall be
eligible to become a Participant on the first day of the Plan Year occurring
after the Effective Date. Every other Eligible Employee shall be eligible to
become a Participant on the Entry Date occurring on or after the date on which
he or she becomes an Eligible Employee. No individual shall become a
Participant, however, if he or she is not an Eligible Employee on the date his
or her participation is to begin.
Participation in the Plan is voluntary. In order to participate, an otherwise
Eligible Employee must execute a valid Participant Enrollment and Election Form
in such
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manner as the Company may require and must agree to make Nonqualified Deferral
Contributions as provided in Article IV.
3.2 RE-EMPLOYMENT. If a Participant whose employment with the Company is
terminated is subsequently re-employed, he or she shall become a Participant in
the Plan in accordance with the provisions of Section 3.1 of this Article.
ARTICLE IV - NONQUALIFIED DEFERRAL CONTRIBUTIONS
4.1 NONQUALIFIED DEFERRAL ELECTIONS. In accordance with rules established by the
Company, a Participant may elect to make a Nonqualified Deferral Contribution
with respect to a Plan Year by use of a Participant Enrollment and Election Form
no later than the December 31st immediately preceding the Plan Year. For an
individual that first becomes an Eligible Employee during a Plan Year, the
election to make a Nonqualified Deferral Contribution for the remainder of the
Plan Year must be made prior to the Entry Date. Once made, such elections shall
be irrevocable with respect to the Plan Year.
4.2 PAYROLL DEDUCTIONS. Nonqualified Deferral Contributions shall be credited to
the Participant's Account when the respective payroll deductions are made. The
Participant may change the amount of his or her Nonqualified Deferral
Contribution amount by delivering to the Company prior to the beginning of any
Plan Year a new Participant Enrollment and Election Form, with such change being
first effective for
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Compensation to be earned in that Plan Year. Once made, a Nonqualified Deferral
Contribution payroll deduction election shall continue in force only for the
applicable Plan Year. A new Nonqualified Deferral Contribution payroll deduction
election must be made by completing a new Participant Enrollment and Election
Form for each subsequent Plan Year.
ARTICLE V - PLAN ACCOUNTS
5.1 ESTABLISHMENT OF ACCOUNTS. There shall be established and maintained by
the Company separate Accounts in the name of each Participant, as required
and as described in this Article V.
5.2 ALLOCATION OF INCOME. Earnings shall generally be credited to the
Participant's Account balances periodically at the discretion of the Committee,
but no later than annually. For those Participant's receiving a distribution
during the Plan Year pursuant to Article VII, earnings shall be credited to the
Participant's Account through the date of distribution. The method of computing
earnings shall be determined by the Committee.
5.3 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution under
the Plan, such distribution shall be charged to the applicable Participant's
Account.
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ARTICLE VI - VESTING
6.1 NONQUALIFIED DEFERRAL CONTRIBUTIONS. A Participant shall always be one
hundred percent (100%) vested in the Nonqualified Deferral Contributions and
related earnings credited to his or her Account.
ARTICLE VII - PAYMENTS OF BENEFITS
7.1 PAYMENTS OF BENEFITS. A Participant (or Beneficiary) shall become entitled
to receive, on or about the date of the Participant's termination of employment,
retirement, disability (as determined by the Committee), or death, a cash
distribution in an amount equal to the balance in the Participant's Account as
of that date. A Participant may elect to have payments distributed in either (1)
a cash lump sum as soon as practicable and no later than thirty (30) days after
the earlier of such termination of employment, retirement, incurrence of
disability, or death, or (2) in annual installments (beginning as soon as
practicable and no later than thirty (30) days after the earlier of such
termination of employment, retirement, incurrence of disability, or death) over
the period or periods approved by the Committee and selected by the Participant.
Any death benefit payable under this Plan shall be payable to the Participant's
Beneficiary in accordance with Article VIII.
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7.2 PAYMENTS UPON HARDSHIP. In the event of a hardship of the Participant, the
Participant may apply to the Company for a lump sum distribution of all or any
part of his or her Account. Upon a finding of hardship by the Committee using
the same standards as provided under the The York Group, Inc. 401(k) Plan and
Trust, the Company shall make the appropriate distribution to the Participant
from amounts credited by the Company in respect of the Participant's Accounts.
In no event shall the aggregate amount of the distribution exceed the amount
credited to the Participant's Accounts. A distribution may be made under this
Section only with the consent of the Company's Board.
7.3 CHANGE IN CONTROL. If a Change in Control occurs, the entire balance in
the Participant's Account at the date of the Change in Control shall be
payable in the form of a lump sum distribution.
ARTICLE VIII - BENEFICIARIES
8.1 DESIGNATION OF BENEFICIARIES. Each Participant may designate any person,
persons or entity to receive such benefits as may be payable under the Plan upon
or after the Participant's death, and such designation may be changed from time
to time by the Participant by filing with the Company a new Participant
Enrollment and Election Form. Each designation will revoke all prior
designations by the same Participant. In the absence of a valid Beneficiary
designation, or if, at the time any benefit payment is due to a Beneficiary,
there is no living Beneficiary validly named or
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the Committee is unable to locate the designated Beneficiary, the Company shall
pay such benefit payments to the Participant's spouse, if then living, but
otherwise to the Participant's estate.
ARTICLE IX - ADMINISTRATION
9.1 ADMINISTRATIVE AUTHORITY. Except as otherwise specifically provided herein,
the Company shall have the sole responsibility for and the sole control of the
operation and administration of the Plan, and shall have the power and authority
to take all actions and to make all decisions and interpretations which may be
necessary or appropriate in order to administer and operate the Plan, including,
without limiting the generality of the foregoing, the power, duty, and
responsibility to:
(a) Resolve and determine all disputes or questions arising under the Plan,
including the power to determine the rights of Eligible Employees,
Participants, and Beneficiaries, and their respective benefits, and to
remedy any ambiguities, inconsistencies, or omissions in the Plan.
(b) Adopt such rules of procedure and regulations as in its opinion may be
necessary for the proper and efficient administration of the Plan and as
are consistent with the Plan.
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(c) Implement the Plan in accordance with its terms and the rules and
regulations adopted as above.
(d) Make determinations with respect to the eligibility of any Eligible
Employee as a Participant and make determinations concerning the crediting
and distribution of Plan Accounts.
(e) Appoint any persons or firms, or otherwise act to secure specialized
advice or assistance, as it deems necessary or desirable in connection
with the administration and operation of the Plan, and the Company shall
be entitled to rely conclusively upon, and shall be fully protected in
any action or omission taken by it in good faith reliance upon the
advice or opinion of such firms or persons. The Company shall have the
power and authority to delegate from time to time by written instrument
all or any part of its duties, powers, or responsibilities under the
Plan, both ministerial and discretionary, as it deems appropriate, to
any person or committee, and in the same manner to revoke any such
delegation of duties, powers, or responsibilities. Any action of such
person or committee in the exercise of such delegated duties, powers, or
responsibilities shall have the same force and effect for all purposes
hereunder as if such action had been taken by the Company. Further, the
Company may authorize one or more persons to execute any certificate or
document on behalf of the Company, in which event any person notified by
the Company of such authorization shall be entitled to accept and
conclusively rely upon any such certificate or document
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executed by such person as representing action by the Company until such
third person shall have been notified of the revocation of such authority.
9.2 UNIFORMITY OF DISCRETIONARY ACTS. Whenever in the administration or
operation of the Plan discretionary actions by the Company are required or
permitted, such actions shall be consistently and uniformly applied to all
persons similarly situated, and no such action shall be taken which shall
discriminate in favor of any particular person or group of persons.
9.3 LITIGATION. Except as may be otherwise required by law, in any action or
judicial proceeding affecting the Plan, no Participant or Beneficiary shall be
entitled to any notice or service of process, and any final judgment entered in
such action shall be binding on all persons interested in, or claiming under,
the Plan.
9.4 PAYMENT OF ADMINISTRATION EXPENSES. All expenses incurred in the
administration and operation of the Plan shall be paid by the Company.
9.5 CLAIMS PROCEDURE.
(a) Notice of Claim. Any Eligible Employee or Beneficiary, or the duly
authorized representative of an Eligible Employee or Beneficiary, may
file with the Committee a claim for a Plan benefit. Such a claim must be
in writing on a form provided by the Committee and must be delivered to
the Committee, in
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person or by mail, postage prepaid. Within ninety (90) days after the
receipt of such a claim, the Committee shall send to the claimant, by
mail, postage prepaid, a notice of the granting or the denying, in whole
or in part, of such claim, unless special circumstances require an
extension of time for processing the claim. In no event may the
extension exceed ninety (90) days from the end of the initial period. If
such an extension is necessary, the claimant will be given a written
notice to this effect prior to the expiration of the initial ninety (90)
day period. The Committee shall have full discretion to deny or grant a
claim in whole or in part in accordance with the terms of the plan. If
notice of the denial of a claim is not furnished in accordance with this
Section, the claim shall be denied and the claimant shall be permitted
to exercise his or her right to review pursuant to Sections 9.5(c) and
9.5(d) of the Plan, as applicable.
(b) Action on Claim. The Committee shall provide to every claimant who is
denied a claim for benefits a written notice setting forth, in a manner
calculated to be understood by the claimant:
(i) The specific reason or reasons for the denial;
(ii) A specific reference to the pertinent Plan provisions on which
the denial is based;
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(iii) A description of any additional material or information
necessary of the claimant to perfect the claim and an
explanation of why such material or information is necessary;
and
(iv) An explanation of the Plan's claim review procedure.
(c) Review of Denial. Within sixty (60) days after the receipt by a claimant
of written notification of the denial (in whole or in part) of a claim,
the claimant or the claimant's duly authorized representative, upon
written application to the Committee, delivered in person or by
certified mail, postage prepaid, may review pertinent documents and may
submit to the Committee, in writing, issues and comments concerning the
claim.
(d) Decision on Review. Upon the Committee's receipt of a notice of a
request for review, the Committee shall make a prompt decision on the
review and shall communicate the decision on review in writing to the
claimant. The decision on review shall be written in a manner
calculated to be understood by the claimant and shall include
specific reasons for the decision and specific references to the
pertinent Plan provisions on which the decision is based. The
decision on review shall be made not later than sixty (60) days after
the Committee's receipt of a request for a review, unless special
circumstances require an extension of time for processing, in which
case a decision shall be rendered not later than one hundred twenty
(120) days after receipt of the
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request for review. If an extension is necessary, the claimant shall be
given written notice of the extension by the Committee prior to the
expiration of the initial sixty (60) day period. If notice of the
decision on review is not furnished in accordance with this Section, the
claim shall be denied on review.
9.6 LIABILITY OF COMMITTEE, INDEMNIFICATION. To the extent permitted by law, the
Committee shall not be liable to any person for any action taken or omitted in
connection with the interpretation and administration of this Plan unless
attributable to his or her own bad faith or willful misconduct.
9.7 EXPENSES. The cost of the establishment of the Plan and the adoption of the
Plan by Company, including but not limited to legal and accounting fees, shall
be borne by Company.
9.8 TAXES. All amounts payable hereunder shall be reduced by any and all
Federal, state, and local taxes imposed upon an Eligible Employee or his or her
Beneficiary which are required to be paid or withheld by Company. The
determination by the Company regarding applicable income and employment tax
withholding requirements shall be final and binding on the Eligible Employee.
9.9 ATTORNEY'S FEES. The Company shall pay the reasonable attorney's fees
incurred by any Eligible Employee in an action brought against Company to
enforce
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the Eligible Employee's rights under the Plan, provided that such fees shall
only be payable in the event that the Eligible Employee prevails in such action.
9.10 RIGHT TO AMEND. The Company, by written instrument executed by the Company,
shall have the right to amend the Plan, at any time and with respect to any
provisions hereof, and all parties hereto or claiming any interest hereunder
shall be bound by such amendment; provided, however, that no such amendment
shall deprive a Participant or Beneficiary of a right accrued hereunder prior to
the date of the amendment.
9.11 EMPLOYER'S RIGHT TO TERMINATE OR SUSPEND PLAN. The Company reserves the
right, at any time, to terminate the Plan and/or its obligation to make further
credits to Plan Accounts. The Company also reserves the right, at any time, to
suspend the operation of the Plan for a fixed or indeterminate period of time.
9.12 CONSTRUCTION. If any provision of the Plan is held to be illegal or void,
such illegality or invalidity shall not affect the remaining provisions of the
Plan, but shall be fully severable, and the Plan shall be construed and enforced
as if said illegal or invalid provision had never been inserted herein. For all
purposes of the Plan, where the context permits, the singular shall include the
plural, and the plural shall include the singular. Headings of Articles and
Sections herein are inserted only for convenience of reference and are not to be
considered in the construction of the Plan. The laws of the state of Texas shall
govern, control, and determine all questions of law arising with
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respect to the Plan and the interpretation and validity of its respective
provisions, except where those laws are preempted by the laws of the United
States. Participation under the Plan will not give any Participant the right to
be retained in the service of the Company nor any right or claim to any benefit
under the Plan unless such right or claim has specifically accrued hereunder.
The Plan is intended to be and at all times shall be interpreted and
administered so as to qualify as an unfunded deferred compensation plan, and no
provision of the Plan shall be interpreted so as to give any individual any
right in any assets of the Company which right is greater than the rights of a
general unsecured creditor of the Company.
9.13 MISCELLANEOUS. This Plan constitutes a mere promise by the Company to make
benefit payments in the future. Additionally, a Participant's rights to benefit
payments under the Plan are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors of the Participant or the Participant's Beneficiaries.
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ATTEST/WITNESS: THE YORK GROUP, INC.
____________________________ By: ________________________
Print Name: Print Name:
____________________________ ________________________________
Date: ________________________
[SEAL]
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