Exhibit 10.7
SUPPLEMENTAL RETIREMENT PLAN
SUPPLEMENTAL RETIREMENT PLAN, made as of this ______ day of ____________
by and between THE YORK WATER COMPANY, a Pennsylvania corporation with its
principal business office located at 130 East Market Street, York, Pennsylvania
(hereinafter called "Employer") and (hereinafter called "Employee"):
WITNESSETH:
WHEREAS, Employer wishes to encourage Employee's continued employment, and
Employee is willing to undertake such employment, subject to receipt of deferred
compensation upon the terms hereinafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby,
do hereby mutually agree as follows:
1. Employment
Employer hereby engages Employee upon the terms and conditions as
hereinafter provided.
2. Term
This Agreement shall continue in full force and effect until the
later of (i) the termination of Employee's employment by Employer, which shall
be at the will of the Employer and in Employer's sole discretion and without
hindrance in any manner by virtue of the terms of this Agreement to which
provision Employee hereby consents and agrees or (ii) notwithstanding such
termination of employment, payment to Employee or his designee(s) of all
benefits to which Employee shall become entitled hereunder.
3. Duties
From and after the date hereof, Employee shall serve Employer in
Employer's business in such capacity or capacities as may from time to time be
determined by the President or Board of Directors of Employer. During the period
of active, full-time employment hereunder, Employee shall;
(a) devote his full time and best efforts to the business and
affairs of Employer (allowing a reasonable time for vacation);
(b) perform such services, not unreasonable or inconsistent with
Employee's position, education, training or background, as may be designated by
the President or Board of Directors of Employer at any time and from time to
time;
(c) use his best efforts to promote the business of Employer; and
(d) hold such office or directorship in Employer, to which Employee
may from time to time be elected or appointed, without further compensation
other than that for which provision is made in this Agreement.
4. Compensation
During the period of Employee's employment hereunder, Employer
agrees to pay Employee for his services such a salary as may from time to time
be mutually agreed between Employer and Employee.
5. Definitions
The following definitions are applicable to the benefits payable
hereunder:
(a) Supplemental Retirement Benefits
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These are hereinafter more specifically defined as Normal Retirement
Benefits in paragraph (f) hereof; Early Retirement Benefits in paragraph (g)
hereof and Late Retirement Benefits in paragraph (h) hereof.
(b) Normal Retirement Age - Age sixty-five (65)
(c) Early Retirement Age
Any time on or after attainment of age fifty-five (55) and prior to
the Normal Retirement date hereunder,
(d) Disability Retirement
Employee in the active, full-time employment of Employer shall be
eligible for the Disability Retirement Benefit after six (6) months of
disability if Employer shall determine, on the basis of medical evidence
satisfactory to the Employer in the latter's sole discretion, that Employee is
disabled, mentally or physically, so as to be prevented from continuing to
render service to Employer on a regular, active, full-time basis and that such
disability is likely to be permanent and continuous during the remainder of
Employee's life.
(e) Monthly Retirement Benefit Unit
For purposes of Benefit determination hereunder, the monthly benefit
unit commencing at age sixty-five (65) is , payable for one hundred
eighty (180) consecutive months.
(f) Normal Retirement Benefit
Monthly retirement benefit unit multiplied by each calendar year of
full-time, active service with Employer completed subsequent to and
prior to attainment of age sixty-five (65).
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(g) Early Retirement Benefit
Monthly retirement benefit unit multiplied by each calendar year of
full-time, active service with the Employer subsequent to and as of the
December 31st immediately prior to the Employee's election to retire early, and
payable monthly to the December 31st following the Employee's eightieth (80th)
birthday.
(h) Late Retirement Benefit
Monthly retirement benefit unit multiplied by each calendar year of
full-time, active service with the Employer subsequent to and as of the
December 31st immediately prior to the Employee's election to retire late, and
payable monthly to the December 31 st following the Employee's eightieth (80th)
birthday.
(i) Disability Retirement Benefit
Disability Retirement Benefit will be payable and calculated in the
same manner as if the Employee had elected Early Retirement hereunder.
(j) Pre Retirement Death Benefit
The lesser of per month indexed at four percent (4%) per
annum for each complete calendar year subsequent to or one hundred
percent (100%) of monthly salary for the month in which death occurs payable for
twelve (12) consecutive months, thereafter sixty percent (60%) of the initial
monthly benefit payable for one hundred and sixty-eight (168) additional
consecutive months.
6. Supplemental Retirement Benefits
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Subject to all of the terms and conditions hereof, Employer agrees
to pay to Employee, and Employee shall be entitled to receive from Employer, the
following Supplemental Retirement Benefits as hereinbefore defined in paragraph
5(a) hereof.
(a) Normal Retirement Benefits
At such time as Employee shall attain the age of sixty-five (65)
while in the active, lull-time employment of Employer, his active, full-time
employment shall cease and Employer shall pay the Normal Retirement Benefit to
Employee. Benefits will commence on the first day of the first month next
succeeding Employee's retirement from active, full-time employment.
(b) Early Retirement Benefits
At any time after the Employee becomes eligible for Early Retirement
Benefits while in the full-time, active employment of the Employer the Employee
may elect to terminate his employment by providing three (3) months notice to
Employer. In such event, employment will terminate three (3) months after the
date notice is delivered to Employer, and Employer will commence payment of
Early Retirement Benefits hereunder on the first day of the month ext succeeding
Employee's termination of employment.
(c) Late Retirement Benefits
If mutually agreed by Employer and Employee, the Employee shall
continue in the active, full-time employment of Employer past his normal
retirement age of sixty-five (65) years, but in no event past the age of seventy
(70) years. At any time thereafter of the age of sixty-five (65) years the
Employee may elect to terminate his employment by providing three (3) months
notice to Employer. In such event employment will terminate three (3) months
after the
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date notice is delivered to Employer and in no event later than age seventy (70)
years (with or without notice prior to age seventy (70) years) and Employer will
commence payment of Late Retirement Benefits hereunder on the first day of the
month next succeeding Employee's termination of employment.
(d) Disability Retirement Benefits
If while actively employed on a full-time basis with Employer the
Employee becomes disabled and such disability continues for six (6) months and
is deemed by Employer to he permanent in accordance with paragraph 5(d) hereof,
the Employer may terminate Employee's employment and commence Disability
Retirement Benefits which shall continue only so long as Employee will suffer
from permanent disability as similarly determined by Employer in its sole
discretion.
(e) Pro Retirement Death Benefits
If Employee dies while actively employed by Employer on a full-time
basis or while disabled prior to the commencement of Disability Retirement
Benefits, the Pre Retirement Death Benefit will be payable.
(f) Termination of Employment by Employee Prior to Age 65
If the Employee terminates employment by Employer prior to age
sixty-five (65), other than as a result of death or disability or early
retirement as provided for hereunder, Employee will no longer be entitled to
receive benefits under this Agreement.
7. Eligibility in Other Employer Plans
Whether or not the Employer's regular Pension Plan is a qualified
plan under the IRC, nothing contained in this Agreement shall affect the right
of Employee to participate or to
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continue to participate in a Pension Plan or in any other supplemental
compensation arrangements which may constitute a part of Employer's regular
compensation structure or in any discretionary bonus which Employer may pay to
its Employees; and at the cessation of active, full-time employment, Employee
may retire and receive the benefits under the provisions of any such Pension
Plan or other arrangements in accordance with the terms thereof.
Any benefits payable to Employee pursuant to this Agreement shall
not be deemed salary or other eligible compensation for the purpose of computing
fringe benefits or benefits to which Employee may be entitled under any Pension
Plan or other arrangement of Employer for the compensation of its employees.
8. Employee Revocable Designation
In the event of death of Employee prior to the payment in full of
the applicable benefits hereunder, Employee's remaining monthly payments shall
be paid to such beneficiary or such beneficiaries as may have theretofore been
designated in writing by Employee on forms provided by the Employer and
containing the Employer's acknowledgment or acceptance thereof The Employee
shall have the right at any time and from time to time to change the beneficiary
regardless of whether distribution of the benefits may have commenced. In the
event of the Employee's failure to make such designation, or if no designee
shall survive the Employee, the remaining monthly payments shall be paid to
Employee's spouse; provided that if Employee's spouse shall become entitled to
payment hereunder, but shall die before payment in full of the applicable
benefits, any remainder thereof shall be paid in monthly installments either to
the issue of the Employee, per stirpes, or to Employee's estate, in the sole
discretion of the Employer.
9. Employer's Election
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Notwithstanding that an effective designation of a beneficiary or
beneficiaries entitled to receive payment of benefits or remainder thereof may
then be in force, the Board of Directors of Employer may, at its option, at any
time or from time to time in its absolute and sole discretion, accelerate the
time and the manner of making payment of any one or more Benefit Installments,
or may anticipate any payments thereof in event of any emergency or necessity
affecting the personal or family affairs or Employee or any beneficiary of
Employee, if the latter is deceased.
10. Minority or Disability
If Employer in its sole discretion shall deem any person entitled to
receive any payments under this Agreement to be unable to care for his or her
affairs because of illness or accident, or is a minor, any such payments (unless
a prior claim therefore shall have been made by a duly appointed Guardian,
committee or other legal representative) may be made to the spouse, child or
chit then, parent, brother or sister of such person;, or to any third person or
entity deemed by the Employer to have incurred expense for such person, in such
manner and amount as Employer may determine. Any such payment shall be a
complete discharge to the extent thereof of the obligations of Employer under
this Agreement.
11. Non-alienation of Benefits
None of the rights, interest or benefits contemplated under this
Agreement may be sold, given away, assigned, transferred, pledged, mortgaged,
alienated, hypothecated or in any way encumbered or disposed of by Employee, or
any executor, administrator, heir, legatee, distributee, relative or any other
person or entity, whether or not in being, claiming under Employee by virtue of
this Agreement, and none of the rights, interest or benefits contemplated by
this Agreement shall be subject to execution, attachment or similar process. Any
(or
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attempted) sale, gift, assignment, transfer, pledge, mortgage, alienation,
hypothecation or encumbrance, or other disposition of this Agreement or of such
rights, interest or benefits contrary to the foregoing provisions, or the levy
or any attachment or similar process thereon, shall be null and void and without
effect.
12. Discharge Provisions
(a) Notwithstanding anything which might be herein contained to the
contrary, it being clearly understood and agreed upon by the parties hereto the
EMPLOYMENT OF THE EMPLOYEE IS AND SHALL REMAIN EMPLOYMENT SOLELY AT THE WILL OF
THE EMPLOYER, the Employer may at any time discharge Employee, whether or not
for cause, in which event or in the event Employee sues or in any manner
contests such "at will" employment or Employer's right to discharge Employee,
then upon written notice to Employee and effective immediately upon the mailing
thereof in the manner set forth in paragraph 19 hereof, Employee's right to
receive benefits hereunder shall be fixed and determined as of such date;
provided that nothing herein shall affect Employee's right to receive payment of
such benefits in the manner and at the time herein provided, except as otherwise
provided in paragraph 12(b) hereof.
(b) If the Employee is discharged without cause, a monthly benefit
payable for one hundred and eighty (180) consecutive months will be payable upon
the discharged Employee's attainment of age sixty-five (65), or in the event of
his prior death. The benefit payable under this paragraph will be calculated
using the then discounted present value of the discharged Employee's monthly
retirement benefit units accrued on the Employer's books as of the December 31st
immediately prior to the date when the Employees rights to receive benefit is
fixed under paragraph 12(a) hereof. The monthly benefit will be determined
assuming that the
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discounted present value is payable for one hundred and eighty (180) consecutive
equal monthly installments assuming interest at the same rate as used in
determining the present value, No disability retirement benefits will be payable
under this provision.
(c) In the event that Employee shall be convicted of a crime
involving Employee's business affairs or in the event that Employer shall have
reasonable cause to believe Employee to be guilty of any such crime, all rights
of Employee under this Agreement shall terminate immediately, and Employer shall
have the right to terminate and make no payments whatsoever of Benefit
Installments or Disability Benefits hereunder, notwithstanding that such amounts
would constitute alt or a portion of the benefits otherwise payable hereunder.
Such right of Employer shall be in addition to, and not in lieu of, any and all
other rights which Employer may have in such event. The provisions hereof shall
be applicable notwithstanding that payment of such Benefit Installments or
Disability Benefits may have theretofore commenced under any provision of this
Agreement.
13. Non Competition Provision
Notwithstanding anything herein contained to the contrary, no
payment of any then unpaid installments of benefits under this Agreement shall
be made and all rights under this Agreement of the Employee, his spouse,
executors or administrators, or other persons claiming through or on behalf of
Employee to receive payments thereof, shall be forfeited, unless such forfeiture
is waived by Employer's Board of Directors, if the Employee engages in or takes
part in any business enterprise of any kind during employment by Employer or
within a period of three (3) years after termination of such employment or at
any time while the Employee is receiving benefits hereunder for any reason
whatsoever, within a sixty (60) mile radius of York, Pennsylvania, whether as an
Employee or as an owner directly or indirectly, which manufacture,
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produces or sells any article then manufactured, produced or sold by the
Employer or by a present or future holding company of Employer or subsidiary of
Employer or of such holding company, or which may be in any other way directly
or indirectly competitive with the business of the Employer or such holding
company or subsidiary of Employer.
14. No Trust Relationship
Nothing contained in this Agreement and no action taken pursuant to
the provisions of this Agreement shall create or be construed to create a trust
or security relationship of any kind, nor a fiduciary relationship between
Employer and Employee, or any designated beneficiary of the latter or other
person presently or prospectively entitled to the receipt of payments hereunder.
To the extent that any person becomes entitled, presently or prospectively, to
receive payments from Employer under this Agreement, such right shall be no
greater than the right shall be no greater than the right of any unsecured
general creditor of the Employer.
15. Power and Authority
The Employer through either its Board of Directors or Executive
Committee shall have full power and authority to interpret, construe and
administer this Agreement, and any such interpretation or construction hereof by
the Employer, or other action hereunder, including the amount or recipient of
any one or more payments of the benefits payable hereunder, shall be binding and
conclusive on all persons, whether in being or not. Employer shall not be liable
to any person, whether in being or not, for any action taken or omitted in
connection with the interpretation and administration of this Agreement, unless
attributable to the willful misconduct or bad faith of Employer, it being
understood and agreed, however, that the employment of Employee is and shall
continue to be solely at the will of the Employer.
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16. Waiver of Breach
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right of
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
17. Modification
This Agreement shall not be modified or amended except by written
Agreement duly executed by Employee and Employer.
18. Severability
If any clause, sentence, paragraph, section or part of this
Agreement shall be held by any court of competent jurisdiction to be invalid,
such judgment shall not affect, impair or invalidate any of the other parts
hereof.
19. Notices
Any notice required or permitted to be given under this Agreement
shall be sufficient if in writing and sent by registered or certified mail, if
to Employee, to his address as shown on the books of Employer, and if to
Employer, to the address shown above, or such other address as Employer may have
designated in writing, or if such written notice is actually received by the
person to whom sent.
20. Claims Procedure
A claim for benefits must be filed before payment of retirement or
death benefits will commence. A claim shall be deemed filed when an Employee or
his beneficiary or representative requests, in writing, payment of benefits due
under the Plan. The claim may be
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filed with the Plan Administrator or any officer of Employer. In the event that
a claim for benefits is filed, the Plan Administrator, within three (3) months
after the claim is filed, shall give notice of the decision on the claim; and if
notice on the denial of a claim is not furnished, and the claim has not been
granted within the three (3) month claim processing period, the claim shall be
deemed denied for all purpose of processing to the review stage as hereinafter
described.
(a) The three (3) month time period mentioned above may be extended
by the Plan Administrator for an additional three (3) months if special
circumstances require an extension of time for processing the claim. If an
extension is required, the Plan Administrator shall furnish written notice of
the three (3) month extension to the claimant prior to the termination of the
initial three (3) month period. The extension notice shall indicate the special
circumstances requiring an extension of time and the date by which the Plan
Administrator expects to render the final decision.
(b) The Plan Administrator shall provide to every claimant who is
denied a claim for benefits written notice setting forth:
(i) the specific reason or reasons for the denial,
(ii) the specific reference to the pertinent Plan
provisions on which the denial is based,
(iii) a description of any additional material or
information necessary for the claimant to perfect the claim arid an
explanation of why such material or information is necessary, and
(iv) an explanation of the Plan's claim review
procedure.
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(c) In the event that the claim of the Employee or his beneficiary
or representative is denied, the claimant or his duly authorized representative
may request a review of the denied claim by means of a written application for
review delivered to the Plan Administrator. Pursuant to this right of Review,
the claimant Or his duly authorized representative may review pertinent
documents and submit issues and comments in writing.
(d) Any request for review of a denied claim must be filed no later
than sixty (60) days after the earlier of receipt by the claimant of written
notification of the three (3) month claim processing period including any
extension thereof.
(e) In the event a request for review has been made as herein
provided, the Plan Administrator shall make a decision On the request for review
within sixty (60) days after the receipt by the Plan Administrator of the
request for the review, unless special circumstances require an extension of
time for processing the review, in which case the Plan Administrator shall
render a decision as soon as possible, but in no event later than one hundred
and twenty (120) days after the Plan Administrator has received the request for
review.
If an extension is required, the Plan Administrator shall furnish
written notice of the extension to the claimant prior to the commencement of the
extension. The decision on review shall he furnished to the claimant in writing
within the time for review and shall include specific reasons for the decision,
as well as specific references to the pertinent Plan provisions on which the
decision is based.
(f) If the Plan Administrator is unable after diligent search to
locate an employee or former employee participant or beneficiary to whom a
benefit is due under the provisions of this Plan, such benefit shall be
forfeited on the last day of the Plan Year in which
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such search is concluded, If a claim is made subsequently by such participant or
beneficiary for the benefit so forfeited, such benefit shall be restored in
full.
21. Plan Administrator
The Plan Administrator shall be The York Water Company.
22. Gender and Plural
All references made and pronouns used herein shall be construed in
the singular or plural, and in such gender as the context may require.
23. Captions
The captions of the various provisions shall not be deemed a part of
this Agreement and shall not be construed in any way to limit the contents
hereof but are inserted herein only for reference and for convenience of the
parties.
24. Governing State Law
This Agreement may be executed at different times in different
places, but all questions concerning the construction or validity hereof, or
relating to performance hereunder, shall be determined in accordance with the
laws of the Commonwealth of Pennsylvania.
25. Duplicate Originals
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument, and there shall be no requirement to produce
another counterpart.
26. Successors or Assigns
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It is hereby agreed that the terms and provisions of this
Supplemental Retirement Plan shall be binding upon the successors or assigns of
The York Water Company (Employer).
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IN WITNESS WHEREOF, the Employer has caused this Agreement to be
executed by its duly authorized officers, and the Employee has hereunto set his
hand and seal as of the day and year first above written.
ATTEST: THE YORK WATER COMPANY
- ----------------------- ------------------------------
Secretary President
(SEAL) ------------------------------
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TO WHOM IT MAY CONCERN
I designate the following as my beneficiary for the Supplemental Retirement Plan
of The York Water Company.
Name of Beneficiary
Primary
Name __________________________________________
Address __________________________________________
Relationship __________________________________________
Secondary
Name __________________________________________
Address __________________________________________
Relationship __________________________________________
Signed ____________________
Date ____________________
Commonwealth of Pennsylvania )
) SS:
County of York :
On this, the ____ day of ____________, 2004, before me, a Notary Public, the
undersigned personally appeared, known to me (or satisfactorily proven) to be
the person whose name is subscribed to the within instrument and acknowledged
that he executed the same for the purposes therein contained.
In Witness Whereof, I hereunto set my hand and official seal.
-------------------------
Notary Public
Schedule 10.7
Monthly Retirement Pre Retirement Death
Name Effective Date Benefit Unit Benefit
---- -------------- ------------------ --------------------
Jeffrey S. Osman October 15, 1984 $115.74 $3333.00
Kathleen M. Miller February 9, 2004 116.14 6666.70
Vernon L. Bracey February 10, 2004 122.55 6430.49
Jeffrey R. Hines May 1, 1990 120.12 3208.33
Duane R. Close October 15, 1984 102.88 2917.00
Bruce C. McIntosh April 15, 1999 146.20 4316.66