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EXHIBIT 10.26
DEFERRED COMPENSATION PLAN AND AGREEMENT
CRYSTAL MOUNTAIN, INC. (the "Corporation") establishes this Deferred
Compensation Plan and Agreement with XXXXX XXXXXX ("Participant") this 2nd day
of February, 1995.
I. PURPOSE
The Corporation establishes this Deferred Compensation Plan and
Agreement to enable the Participant to voluntarily defer a portion of his
compensation, or be credited with amounts otherwise identified by the Board,
until termination of his duties. The compensation, or other amounts identified
shall provide a means of retirement.
II. DEFINITIONS
Section 2.01. Plan means the Deferred Compensation Plan of the
Corporation established by this Agreement.
Section 2.02. Participant means the Key Employee, Xxxxx Xxxxxx, who is
eligible for and has elected to participate in this plan.
Section 2.03. Beneficiary is a person designated by the Participant to
receive plan benefits in the event of the Participant's death.
Section 2.04. Board means the Board of Directors of the Corporation.
Section 2.05. Key Employee means Xxxxx Xxxxxx, employee of the
Corporation, who is an officer and in a managerial, key position.
III. PARTICIPATION - ELECTION PROCEDURE
Participant may elect, in writing by delivery to the Board, to defer a
portion of his compensation otherwise payable to Participant. In addition,
Participant may be awarded with amounts identified by the Board as subject to
this Plan. As of the date of this Agreement, the Board has confirmed an annual
award of 10 percent of compensation; for this purpose, "compensation" is defined
as gross salary, prior to any salary reductions or deferrals by the Participant.
For the 1994-1995 year this award amounts to $6500; provided, for the 1994-1995
year, the $6500 award will be credited at the rate of one-eighth per month of
service from the date of this agreement until September 30, 1995. In future
years, the 10 percent award will be credited at the rate of one-twelfth per
month of service.
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Any written compensation deferral election applies only to compensation
to be deferred in the period following the establishment of this Plan, and the
subsequent calendar year(s) following the year(s) of the election. In subsequent
years, the Participant must deliver the election to the Corporation prior to
January 1 of the calendar year to which the deferral of compensation relates.
IV. DEFERRED COMPENSATION
The Corporation will pay to Participant the amount of benefits
described in this Section. Benefits will be paid upon termination of employment.
The Board will maintain an account in the name of the Corporation and owned by
the Corporation, for Participant, which account will constitute a method of
valuing benefits only, and shall not constitute a trust under this Plan. The
account will reflect the total amount of deferred compensation, or amounts
identified by the Board, plus earnings or growth and less losses or reduction in
value credited or debited to the account. A Participant's account will continue
to be credited and debited as described herein until fully distributed.
Upon Participant's death, the Corporation will pay to his Beneficiary,
designated in writing, the value of his account. If a Participant does not have
a Beneficiary designation on file at the time of his death, then the Corporation
will pay his account to his surviving spouse or, if none, to the personal
representative of the Participant's estate.
V. ADMINISTRATION
Any benefits payable under this Agreement shall not be deemed salary or
other compensation to the Participant for the purpose of computing benefits to
which he may be entitled under any retirement plan or other arrangement of the
Corporation for the benefit of its employees.
Deferred compensation shall be subject to income tax withholding and
payroll taxes (FICA and FUTA) in accordance with federal, state, and local rules
concerning deferred compensation.
The Board will administer this Plan. The Board will conclusively
interpret the Plan provisions, and will decide all questions in application of
the Plan. The Board's decision will be final and binding on all parties.
The Corporation will pay the cost of the administration of this Plan.
Any notice or election required or permitted to be given will be in writing and
will be deemed filed on the date the Participant or Beneficiary personally
delivers the notice or election to the secretary of the Corporation or two
business days after sending the notice or election by certified mail.
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VI. NATURE OF PARTICIPANT'S INTEREST IN THE PLAN
A Participant's interest in this Plan and that of his designated
Beneficiary is an unsecured claim against the general assets of the Corporation
and neither the Participant nor his designated Beneficiary has any claim against
or right to the account until the Corporation distributes the account. All
amounts credited to an account are the general assets of the Corporation and may
be disposed of or used by the Corporation in such manner as it determines;
provided, at such time as amounts credited to the account are so disposed of or
used, the balance or lesser amount so disposed of or used at that time shall
continue as a method of valuing benefits under this Plan, and accrued earnings
shall thereafter be credited to the account, or such portion, at a semi-annual
rate equal to the six-month U.S. Treasury Xxxx rate in effect at that time, and
at the end of each six-month period thereafter.
A Participant or Beneficiary may not assign, pledge or otherwise
hypothecate any interest in this Plan and any attempt to assign, pledge or
encumber that interest is not valid.
V. TERM OF THE PLAN
The Plan and Agreement is effective upon its adoption by the Board of
Directors. The Plan and Agreement shall continue in effect until the benefits as
is distributed to the Participant or Beneficiary. The Board of Directors may
terminate the Plan at any time subject to the distribution requirements above.
VI. AMENDMENT
The Board of Directors may amend the plan at any time, without the
consent of any Participant or Beneficiary, provided, however, that no amendment
shall divest the Participant or Beneficiary of any benefits he or she would have
been entitled to prior to the effective date of the amendment.
CRYSTAL MOUNTAIN, INC.
By /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Its Chairman of the Board
By /s/ Xxxxxxxx X. Hard
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Xxxxxxxx X. Hard
Its Secretary
/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
PARTICIPANT
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CRYSTAL MOUNTAIN, INC.
SUMMARY PLAN DESCRIPTION
1. Name of Plan. Crystal Mountain, Inc. Deferred Compensation Plan and
Agreement.
2. Name and Address of Plan Sponsor. Crystal Mountain, Inc.; Xxx Xxxxxxx
Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxxxx 00000.
3. Name, Address and Telephone Number of Plan Administrator. Crystal
Mountain, Inc.; Xxx Xxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxxx,
Xxxxxxxxxx 00000, (000) 000-0000.
4. Name and Address of Agent for Service of Legal Process.
Xxxxxxxx X. Hard, c/o Crystal Mountain, Inc.; Xxx Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxxxx 00000
5. Employer Identification Number: 00-0000000.
Plan Number - 003.
6. Plan Fiscal Year. September 30.
7. Type of Welfare Benefit Plan. Executive Deferred Compensation Plan.
8. Participants. One (1) participant: Xxxxx Xxxxxx.
9. Type of Administration of Plan.
The Plan provides benefits under the terms of a Deferred Compensation
Plan and Agreement.
10. Sources of Contributions to the Plan.
Employer - 100 percent by identification of amount(s) subject to the
Plan, and by Participant deferral of compensation.
11. Terms of Plan. Upon Participant's termination of employment,
Participant or his Beneficiary will receive benefits equal to amounts
identified by the Employer as subject to the Plan, plus amounts
deferred by Participant, plus earnings or growth and less losses or
reduction in value credited or debited to an account owned by the
Corporation and maintained as a method of measuring benefits in the
manner described in the Plan.
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This is a general, brief description of benefits under the
Plan. Any discrepancy between this Summary and the Plan document, which
is on file in the offices of the Corporation shall be governed by the
Plan document.
12. ERISA Rights.
As a participant in the Plan, you are entitled to certain rights and
protections under the Employee Retirement Income Security Act of 1974 (ERISA).
ERISA provides that all Plan participants shall be entitled to:
(a) Examine, without charge, at the Plan Administrator's office and
at other specified locations (such as worksites) all Plan
documents, including insurance contracts and copies of all
documents filed by the Plan with the U.S. Department of Labor,
such as detailed annual reports and Plan descriptions.
(b) Obtain copies of all Plan documents and other Plan information
upon written request to the Plan Administrator. The Plan
Administrator may make a reasonable charge for the copies.
In addition to creating rights for Plan participants, ERISA imposes
duties upon the people who are responsible for the operation of the employee
benefit plan. The people who operate this Plan, called "fiduciaries" of the
Plan, have a duty to do so prudently and in the interest of you and other Plan
participants and beneficiaries. No one, including your employer, or any other
person may fire you or otherwise discriminate against you in any way to prevent
you from obtaining a benefit or from exercising your rights under ERISA. If your
claim for a benefit is denied in whole or in part, you must receive a written
explanation of the reason for the denial. You have the right to have the Plan
reviewed and your claim reconsidered. Under ERISA, there are avenues you can
take to enforce the above rights. For instance, you may file suit in a Federal
court. In such a case, the court may require the Plan Administrator to provide
the materials and pay you up to $100 a day until you receive the materials,
unless the materials were not sent because of reasons beyond the control of the
Plan Administrator. If you have a claim for benefits which is denied or ignored,
in whole or in part, you may file suit in a state or Federal court. If it should
happen that Plan fiduciaries misuse the Plan's money, or if you are
discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor, or you may file suit in Federal court. The court
will decide who should pay court costs and legal fees. If you are unsuccessful,
the court may order you to pay these costs and fees, for example, if it finds
your claim is frivolous. If you have any questions about your Plan, you should
contact the Plan Administrator. If you have any questions about this statement
or about your rights under ERISA, you should
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contact the nearest Area Office of the U.S. Labor--Management Services
Administration, Department of Labor.
12. Appeal Procedure.
A participant or a beneficiary ("Claimant") may file with the Plan
Administrator a written claim for benefits, if the participant or beneficiary
determines the distribution procedures of the Plan have not provided him his
proper Nonforfeitable Accrued Benefit. The Plan Administrator must render a
decision on the claim within 60 days of the Claimant's written claim for
benefits. The Plan Administrator must provide adequate notice in writing to the
Claimant whose claim for benefits under the Plan and the Plan Administrator has
denied. The Plan Administrator's notice to the Claimant must set forth:
(a) The specific reason for the denial;
(b) Specific references to pertinent Plan provisions on which the
Plan Administrator based its denial;
(c) A description of any additional material and information
needed for the Claimant to perfect his claim and an
explanation of why the material or information is needed; and
(d) That any appeal the Claimant wishes to make of the adverse
determination must be in writing to the Plan Administrator
within 75 days after receipt of the Plan Administrator's
notice of denial of benefits. The Plan Administrator's notice
must further advise the Claimant that his failure to appeal
the action to the Plan Administrator in writing within the
75-day period will render the Plan Administrator's
determination final, binding and conclusive.
If the Claimant should appeal to the Plan Administrator, he, or his
duly authorized representative, may submit, in writing, whatever issues and
comments he, or his duly authorized representative, feels are pertinent. The
Claimant, or his duly authorized representative, may review pertinent Plan
documents. The Plan Administrator will re-examine all facts related to the
appeal and make a final determination as to whether the denial of benefits is
justified under the circumstances. The Plan Administrator must advise the
Claimant of its decision within 60 days of the Claimant's written request for
review, unless special circumstances (such as a hearing) would make the
rendering of a decision within the 60-day limit unfeasible, but in no event may
the Plan Administrator render a decision respecting a denial for a claim for
benefits later than 120 days after its receipt of a request for review.
