Exhibit 10.28
PHILADELPHIA SUBURBAN CORPORATION
DIRECTOR DEFERRAL PLAN
In recognition of the services provided by non-employee directors,
Philadelphia Suburban Corporation wishes to make a vehicle available to them
that will facilitate the provision of additional retirement benefits to those
individuals under the terms and conditions hereinafter set forth.
ARTICLE 1
Definitions
1.1 "Account" means a bookkeeping account established pursuant to Section
3.1 which reflects the amount standing to the credit of the Participant
under the Plan.
1.2 "Affiliated Company" means any affiliate or subsidiary of the Company.
1.3 "Base Retainer" means the annual amount of retainer paid by the Company
to a Director for any calendar year including meeting fees, committee
fees and fees for committee chairs.
1.3 "Beneficiary" means the person(s) designated by a Director to receive
any benefits payable under this Plan subsequent to the Director's death.
The Committee shall provide a form for this purpose. In the event a
Director has not filed a Beneficiary designation with the Company, the
Beneficiary shall be the Director's estate.
1.4 "Board" means the Board of Directors of the Company.
1.5 "Committee" means the Compensation Committee of the Board which shall
act for the Company in making decisions and performing specified duties
with respect to the Plan.
1.6 "Company" means Philadelphia Suburban Corporation and its successors.
1.7 "Director" means each individual who serves as a non-employee member of
the Board or of the board of directors of an Employer. In the event of
the death or incompetency of a Director, the term shall mean the
Director's personal representative or guardian. An individual shall
remain a Director until that individual has received full distribution
of any amount credited to the Director's Account.
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1.8 "Effective Date" means January 1, 1995.
1.9 "Employer" means the Company and/or any Participating Employer, either
collectively or individually, as the context requires.
1.10 "Participating Employer" means any Affiliated Company which is
designated by the Board as a Participating Employer under the Plan and
whose designation as such has become effective upon acceptance of such
status by the board of directors of the Affiliated Company. A
Participating Employer may revoke its acceptance of such designation at
any time, but until such acceptance has been revoked, all the provisions
of the Plan and amendments thereto shall apply to each Director of the
Participating Employer. In the event the designation as a Participating
Employer is revoked by the board of directors of an Affiliated Company,
the Plan shall be deemed terminated only with respect to such
Participating Employer.
1.11 "Plan" means the Philadelphia Suburban Corporation Director Deferral
Plan as the same is set forth herein, and as it may be amended from time
to time.
1.12 "Plan Year" means the calendar year.
1.13 "Termination from Service" means the Director's resignation or other
termination from service as a member of the Board for any reason. Except
as otherwise provided herein, a Termination from Service shall be deemed
to have occurred on the last day of the Director's service as a member
of the Board.
ARTICLE 2
Eligibility
2.1 Each Director shall be eligible to participate in the Plan on the first
day of the calendar quarter following election as a Director.
ARTICLE 3
Benefits
3.1 The Employer shall create and maintain on its books an Account for each
Director to which it shall credit amounts contributed to the Plan
pursuant to this Article 3. The Employer shall also credit each
Director's Account with deemed earnings for each Plan Year in accordance
with the provisions of Article 8 hereof.
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3.2 At least 30 days prior to the commencement of any calendar quarter in a
Plan Year, a Director may elect to have the Employer credit to the
Director's Account an amount equal to any whole percentage or dollar
amount (or shares of stock of the Employer ("Shares") to the extent that
the Base Retainer would otherwise be paid in Shares) of the Director's
Base Retainer, if any, to be earned for the balance of such Plan Year.
If an election is made to have a contribution credited to the Director's
Account for a Plan Year, the credit shall be made at the time that such
amount would otherwise have been paid (or Shares distributed) and shall
reduce the Director's Base Retainer with respect to that Plan Year by a
corresponding amount. The Committee may establish minimum or maximum
amounts that may be deferred under this Section and may change such
standards from time to time. Any such limits shall be communicated by
the Committee to the Directors prior to the commencement of a Plan Year.
3.3 Any elections under this Article shall be made in writing on such form
as the Committee shall specify. Any election by a Director pursuant to
this Section 3.3 shall be irrevocable and may not be modified in any
respect.
ARTICLE 4
Distributions to Directors
4.1 A Director's benefit under the Plan shall be distributed in one lump sum
(including Shares to the extent the Director elected to defer the
receipt of such Shares pursuant to Section 3.2), or, if the value of the
Director's Account is at least $25,000, in 12 annual installments (with
the balance to be distributed, including Shares, if applicable,
continuing to be credited with deemed earnings for each subsequent Plan
Year in accordance with the provisions of Article 8 hereof) equal to
1\12, 1\11, 1\10\, 1\9, 1\8, 1\7, 1\6, 1\5, 1\4, 1\3, 1\2, and 1\1 of
the balance then credited to the Director's Account, and shall be paid,
or commence, as soon as practicable following the completion of the
valuation of the Director's Account for the last day of the month in
which the Director has a Termination from Service; provided however,
that each Director shall make an election, in the form and manner
specified by the Committee, as to the form of payment on or before the
end of the year preceding the year of payment. If no such election has
been made by the first day of the year in which the Director has a
Termination from Service then distribution shall be delayed and shall be
made, or commence, as soon as practicable after the first day of the
year following the year in which the Director has a Termination from
Service. Notwithstanding anything herein to the contrary, in the event
that such a Director fails to make an election, distribution shall be in
the form of one lump sum payment, including Shares, paid as soon as
practicable after the first day of the year following the date the
Director has a Termination from Service.
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4.2 In the event that a Director incurs a "significant financial hardship"
while a Director, as determined by the Committee, the Director may
apply, in writing, for a withdrawal of all or a portion of the balance
credited to the Director's Account (including Shares, if elected by the
Director) in the form of a lump sum. All determinations by the Committee
regarding the existence of a financial hardship shall be made in
accordance with the provisions of the Company's Thrift Plan dealing with
whether a financial hardship exists for purposes of permitting
withdrawals thereunder. The Committee shall determine whether to permit
a such a withdrawal and, based upon the Director's application, the
amount necessary to satisfy that hardship, which shall be distributed in
a single sum (including any Shares, as elected by the Director) as soon
as practicable after the Committee's determination.
ARTICLE 5
Death Benefit
5.1 In the event of the death of a Director prior to the payment of the full
benefit due pursuant to Article 4, the Director's Beneficiary shall
receive a lump sum distribution equal to the balance of the Director's
Account on the date of death. The benefit payment to the Beneficiary
will be made as soon as practicable following the completion of the
valuation of the deceased Director's Account. In the event of the death
of a Director after payment of a benefit has commenced in installments,
pursuant to Section 4.1 hereof, the Director's Beneficiary shall receive
the payments due following the Director's death; provided, however, that
prior to receiving the next annual installment, the Beneficiary may
elect to receive, on the next payment date, in full satisfaction of the
Beneficiary's entitlement under the Plan, a lump sum distribution
(including any Shares then credited to the Director's Account) equal to
the remaining balance then credited to the Director's Account.
ARTICLE 6
Vesting
6.1 The balance credited to a Director's Account attributable to Section 3.2
shall be fully vested at all times.
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ARTICLE 7
Funding
7.1 The Board may, but shall not be required to, authorize the establishment
of a trust by the Employer to serve as the funding vehicle for the
benefits described in Article 3 hereof. In any event, the Employer's
obligation hereunder shall constitute a general, unsecured obligation,
payable solely out of its general assets, and no Director shall have any
right to any specific assets of the Employer. In addition, it is the
intention of the Employer that the Plan be unfunded for tax purposes and
for purposes of Title I of the Employee Retirement Income Security Act
of 1974, as amended.
ARTICLE 8
Investments
8.1 The balance credited to a Director's Account (other than Shares) shall
be deemed to be invested in an interest bearing instrument which shall
provide for interest to be credited and compounded monthly at an
effective rate equal to 50 basis points in excess of the prime
commercial lending rate established by Mellon Bank N.A., or such other
bank determined by the Committee to be the Company's primary bank as of
the beginning of any Plan Year, as in effect on the 15th day of each
month (or if such day is a non-business day, on the first business day
thereafter) during which there is a positive balance in a Director's
Account. Interest shall be applied to the average balance of each
Director's Account during the prior 30-day period. For any Plan Year,
the Committee may determine to make available, and announce to the
Directors the procedure to elect, other deemed forms of investment for
the amounts credited to the Accounts. A Director's Account, to the
extent credited with any Shares, shall be deemed to earn any dividends
paid with respect to such Shares and the accumulated dividends, as and
when sufficient in amount, shall be deemed invested in additional whole
Shares.
ARTICLE 9
Administration
9.1 The Committee shall have full power and authority to interpret the Plan,
to prescribe, amend and rescind any rules, forms and procedures as it
deems necessary or appropriate for the proper administration of the Plan
and to make any other determinations and to take any other such actions
as it deems necessary or advisable in carrying out its duties under the
Plan. All action taken by the Committee arising out of, or in connection
with, the administration of the Plan or any rules adopted thereunder,
shall, in each case, lie within its sole discretion, and shall be final,
conclusive and binding upon the Employer, the Board, all Employees, all
beneficiaries of Employees and all persons and entities having an
interest therein.
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9.2 Members of the Committee shall serve without compensation for their
services unless otherwise determined by the Board. All expenses of
administering the Plan shall be paid by the Employer.
9.3 The Company shall indemnify and hold harmless each member of the
Committee from any and all claims, losses, damages, expenses (including
counsel fees) and liability (including any amounts paid in settlement of
any claim or any other matter with the consent of the Board) arising
from any act or omission of such member, except when the same is due to
gross negligence or willful misconduct.
9.4 Any decisions, actions or interpretations to be made under the Plan by
the Company, the Employer or the Committee (other than in the
administration of the Plan) shall be made in its sole discretion, not in
any fiduciary capacity and need not be uniformly applied to similarly
situated individuals and shall be final, binding and conclusive on all
persons interested in the Plan.
ARTICLE 10
Amendment
10.1 The Plan may be amended by the Committee at any time and from time to
time all without prior notice to any person or entity; provided,
however, that no such amendment shall have the effect of divesting a
Director of the benefit which the Director would otherwise receive
hereunder at the time the amendment is adopted.
ARTICLE 11
Termination
11.1 Continuance of the Plan is completely voluntary and is not assumed as a
contractual obligation of the Employer. The Committee, acting on behalf
of the Employer, shall have the right to terminate the Plan in whole or
in part at any time all without prior notice to any person or entity;
provided, however, that such termination shall not have the effect of
divesting a Director of the benefit which the Director would otherwise
receive hereunder at the time of the termination.
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ARTICLE 12
Miscellaneous
12.1 Nothing contained herein shall be construed as conferring upon a
Director the right to continue in such capacity.
12.2 The rights and obligations created hereunder shall be binding on a
Director's heirs, executors and administrators and on the successors and
assigns of the Employer.
12.3 The provisions of the Plan shall be construed and applied under the laws
of the Commonwealth of Pennsylvania.
12.4 The rights of any Director under this Plan are personal and may not be
assigned, transferred, pledged or encumbered. Any attempt to do so shall
be void. In addition, a Director's rights hereunder are not subject, in
any manner, to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment by creditors of the
Director or the Director's Beneficiary.
12.5 If any provision of the Plan shall be held invalid or unenforceable,
such invalidity or unenforceability shall not effect any other
provisions hereof and the Plan shall be construed and enforced as if
such provisions had not been included.
12.6 The headings and captions herein are provided for convenience only, and
shall not be construed as part of the Plan, and shall not be employed in
the construction of the Plan.
12.7 Any benefit payable to or for the benefit of a payee who is a minor, an
incompetent person, or is otherwise incapable of receipting therefore
shall be deemed paid when paid to such person's guardian or to the party
providing, or a reasonably appearing to provide, the care for such
person, and such payment shall fully discharge the Employer, the
Committee, the Board and all other parties with respect thereto.