EXHIBIT 10.1
FIRST AMENDMENT AND
RESTATEMENT OF
ROCK OF AGES CORPORATION
KEY EMPLOYEES DEFERRED SALARY PLAN
This amended and restated Key Employees
Deferred Salary Plan is hereby adopted this 6th day of April, 2006,
but effective January 1, 2005, by Rock of Ages Corporation, a
Delaware corporation with its principal place of business at 369
North State Street, Concord, New Hampshire 03301 (hereinafter
referred to as the "Company").
WITNESSETH:
WHEREAS, the Company, having heretofore
created a non-qualified, unfunded deferred compensation plan
(hereinafter referred to as the "Plan") for the benefit of
designated key employees of the Company, now desires to amend said
Plan in certain respects to comply with the provisions of Section
409A of the Internal Revenue Code of 1986, as amended (the "Code"),
and the U.S. Treasury Regulations from time to promulgated
thereunder (the "Regulations");
NOW THEREFORE, in consideration of the
premises, the Company does hereby amend and restate the provisions
of the Plan as follows, effective January 1, 2005:
ARTICLE I
Definitions
1.1. " Account "
shall mean the Deferred Salary Account created for the benefit of
each Participant pursuant to Article II hereof.
1.2. " Beneficiary "
shall mean an individual, trust or other entity designated as such
by a Participant from time to time pursuant to 5.2 hereof.
1.3. " Board " means
the Board of Directors of the Company, or any committee thereof to
which the administration of this Plan may lawfully be delegated
pursuant to the Bylaws of the Company.
1.4. " Company "
means Rock of Ages Corporation, any affiliate thereof, or successor
company thereto pursuant to Section 8.8 hereof.
1.5. " Disability "
means (a) as to Pre-2005 Accounts, complete and permanent inability
by reason of illness or accident to perform the duties of the
occupation at which a Participant was employed by the Company when
such Disability commenced; and (b) as to Post-2004 Accounts, if an
Employee (i) is 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 to last for
a continuous period of not less that twelve (12) months, or (ii) is
by reason of any such impairment receiving income replacement
benefits for a period of not less than three (3) months under an
accident and health plan covering employees of the Company. All
determinations as to the date and extent of Disability of any
Participant shall be made by the Board, upon the basis of such
evidence as the Board deems necessary and appropriate.
1.6. " Employee "
means any person, including an officer of the Company (whether or
not he or she is also a director thereof), who is employed by the
Company on a full-time basis, who is compensated for such
employment by a regular salary and who, in the opinion of the
Board, is a key employee of the Company in a position to contribute
materially to its continued growth and development and to its
future financial success. The term "Employee" does not include
persons who are retained by the Company only as directors,
consultants or independent contractors.
1.7. " Participant "
means an Employee who is participating in this Plan in accordance
with its terms.
1.8. " Plan Year "
means the calendar year or portion thereof during which the Plan is
in effect.
1.9. " Post-2004
Account " means an Account (or subaccount thereof) established
with respect to sums deferred or credited and/or becoming vested
and nonforfeitable after December 31, 2004, including interest
credited thereto as provided in Section 3.3 hereof.
1.10. " Pre-2005
Accounts " means an Account (or subaccount hereof) established
with respect to sums deferred and credited hereunder and becoming
vested and nonforfeitable prior to January 1, 2005, including
interest credited thereto as provided in Section 3.3.
1.11. " Retirement "
means a severance from employment with the Company upon or after
attaining age sixty (60).
1.12. " Specified
Employee " means a Participant who is a "key employee," within
the meaning of Section 416(i) of the Code (without regard to
Section 416(i)(5) thereof), of the Company, provided its stock is
publicly traded on an established securities market or otherwise,
as determined in accordance with applicable Regulations. For
purposes hereof, a Participant is a Specified Employee of the
Company with respect to a given Plan Year if, at any time during
the twelve (12) month period ending on the September 30 next
preceding the commencement of said Plan Year (the "identification
date," for purposes of Section 409A of the Code and the Regulations
thereunder), he or she is (a) an officer of the Company having an
annual compensation from the Company greater than One Hundred
Thirty-Thousand Dollars ($130,000), subject to adjustment as
provided in Section 416(i)(1)(A) of the Code and provided that no
more than fifty (50) Employees (or, if lesser, the greater of three
(3) or ten percent (10%) of the Employees) shall be treated as
officers for this purpose; (b) a five percent (5%) owner of the
Company; or (c) a one percent (1%) owner of the Company having an
annual compensation from the Company greater than One Hundred Fifty
Thousand Dollars ($150,000).
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1.13. " Termination
Date " shall mean the date of a Participant's separation from
service with the Company, by reason of death, Disability,
Retirement or otherwise.
ARTICLE II
Participation
Participation in the Plan shall be limited to
such Employees of the Company as may be from time to time
designated by the Board in its sole discretion, either by name or
by job title or description; provided that (a) all
Participants shall be drawn from the select group of management and
highly-compensated employees, within the meaning of Section
2520.104-23(d) of the U.S. Department of Labor Regulations;
(b) no more than fifty (50) employees, each of whom is an
"accredited investor" within the meaning of Rule 501 of the
Securities Act of 1933, as amended, will be entitled to become
Participants under the Plan; and (c) no Employee will be
eligible to participate unless he or she shall have fulfilled all
of the following requirements as of the time he or she begins to
participate:
(1) the Employee has attained age fifty-five
(55);
(2) the Employee is an executive officer of the
Company;
(3) the Employee has completed a minimum of ten
(10) years of continuous service with the Company; provided that
this requirement may be waived by the Board in its sole discretion
in the case of any Employee who had attained age sixty (60) as of
the effective date of this Plan and is otherwise eligible to
participate; and
(4) the Employee's annual base salary (excluding
bonuses, deferred compensation (other than deferred salary pursuant
to this Plan), fringe benefits and other non-cash compensation)
exceeds Two Hundred Thousand Dollars ($200,000); provided that
effective January 1, 2003 and on each January 1
thereafter said Two Hundred Thousand Dollar ($200,000) amount shall
be adjusted to reflect the average percentage change in the base
salaries of all officers of the Company.
Once an Employee is designated as a Participant in accordance
with the provisions hereof, he or she shall remain eligible to
participate for as long as he or she remains an Employee of the
Company.
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ARTICLE III
Deferred Salary
Elections and Participant Accounts
3.1. Deferral Notices;
Timing and Effect . Each Participant, by filing a Deferral
Notice in a timely manner as prescribed herein, may irrevocably
elect to defer not more than One Hundred Thousand Dollars
($100,000) of his or her annual compensation from the Company for
future distribution in accordance with the provisions of this Plan.
Each Deferral Notice shall specify a fixed percentage or a fixed
dollar amount of compensation to be deferred in accordance with the
terms of this Plan, and shall otherwise be in form and substance
satisfactory to the Company, signed by the Participant and
delivered to the Company only at the times specified in this Plan.
The initial Deferral Notice filed by a Participant in accordance
with this Section 3.1 must be delivered by the Participant to the
Company no later than thirty (30) days after first becoming
eligible to participate in the Plan, and shall be effective with
respect to compensation otherwise payable to the Participant on or
after the first day of the month following the month during which
such Deferral Notice is delivered to the Company. Any other
Deferral Notice must be delivered prior to the commencement of the
Plan Year in which the services to which the compensation to be
deferred pertains are to be performed. A Deferral Notice will
continue in effect until terminated or modified by a subsequent
Deferral Notice. Any subsequent Deferral Notice shall only apply to
compensation otherwise payable to the Participant with respect to
services performed by the Participant in a Plan Year subsequent to
that in which such subsequent Deferral Notice is delivered to the
Company.
3.2. Deferred Salary
Accounts . The Company shall create for each Participant a
Deferred Salary Account for the purpose of recording that
Participant's accumulated Deferred Salary benefits under this Plan.
Where appropriate, such Account shall consist of two subaccounts: a
Post-2004 Account and a Pre-2005 Account. Deferred Salary as
specified in the applicable Deferral Notice shall be credited by
the Company to the Deferred Salary Account of the Participant in
question. Each Participant's Deferred Salary Account shall be
deemed credited, on the date or dates for payment of compensation
in accordance with the Company's normal practices, with a dollar
amount equal to (a) the Participant's total Deferred Salary
election for the calendar year, divided by (b) the total
number of dates for payment of compensation during the calendar
year with respect to the particular Participant. The aggregate
Account balances shall be and remain part of the general
unrestricted assets of the Company, and shall be available for
investment and use by the Company in the day-to-day conduct of its
business unless and until such time as such Accounts or portions
thereof are distributed or made available to Participants as
deferred compensation benefits in accordance with Articles V and VI
hereof. No present or former Participant, nor any Beneficiary
thereof, shall have any right, title or claim in or to any specific
assets of the Company, but only a claim against the Company as a
general, unsecured creditor thereof to the extent of the
undistributed portion of his or her vested Deferred Salary Account
in accordance with the terms and conditions hereof. No Participant
may in any manner pledge, hypothecate, assign or otherwise
transfer, encumber, alienate, anticipate or borrow against his
Account or any benefit, credit or contribution under this Plan
until such time as the same shall have been distributed in
accordance with the provisions of Article VI hereof.
3.3. Interest Credited
to Participant Accounts . Interest at the rate of twelve
percent (12%) per annum shall be credited on a monthly basis to
each Participant's Deferred Salary Account based upon the
Participant's Account balance as of the close of each calendar
month, until said Account balance is fully distributed pursuant to
Articles V and VI hereof.
3.4. Annual Statement of
Account . As soon as practicable after the close of each
calendar year, the Company shall present to each Participant a
statement of his or her Deferred Salary Account showing the credit
thereto at the beginning of the year, if any, any additions thereto
and/or distributions therefrom, for the calendar year just ended,
the Participant's vested interest in his or her Account, calculated
pursuant to Article III hereof, and such other information as the
Company may deem necessary or desirable. Statements may be
presented on a more frequent basis at the option of the
Company.
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ARTICLE IV
Vesting
4.1. Participants'
Vested Interests . Subject only to the provisions of
Section 4.2 hereof, each Participant's interest in his or her
Deferred Salary Account shall at all times be vested and
nonforfeitable.
4.2. Golden Parachute
Payments . Notwithstanding any other provision of this Plan,
there shall be forfeited to the Company that portion of the
Post-2004 Account of any Participant hereunder which would, if
distributed to or received by that Participant and his or her
beneficiaries, constitute an "excess parachute payment" within the
meaning of Section 280G of the Internal Revenue Code, as amended,
for purposes of that Section and Section 4999 of the Code, in each
case as explicated by U.S. Treasury Regulations promulgated
pursuant thereto, regardless of whether the Participant's rights in
the same are vested in accordance with Section 4.1 hereof; provided
that the Company shall take all reasonable steps in accordance with
its normal personnel and compensation policies and procedures to
restructure the affected Participant's overall compensation package
from the Company in such fashion as to minimize or eliminate the
effects of this Section 4.2. Any Deferred Salary Account balance
forfeited in whole or in part under this Section 4.2 shall be
retained by the Company as part of its general unrestricted assets,
and the Company shall not be obliged to re-designate the same as
part of the Deferred Salary, nor to reallocate the same to the
Accounts of the remaining Plan Participants and Beneficiaries
hereunder.
ARTICLE V
Benefits
5.1. Retirement .
Upon or after Retirement the Participant shall be entitled to
receive the entire amount then in his Account in accordance with
the provisions of Article VI hereof, and the Participant's right
therein shall thereupon be nonforfeitable, subject only to the
provisions of Section 4.2 hereof.
5.2. Death . Upon
the death of a Participant prior to complete distribution of his or
her Plan Account, the entire amount credited to his or her Account,
subject only to the provisions of Section 4.2 hereof, shall be paid
in accordance with the Participant's election pursuant to Section
6.1 hereof to one or more individuals or trusts designated as
Beneficiaries in writing by the Participant on forms to be supplied
by the Company. Said designation shall be made initially by each
Participant within thirty (30) days after first becoming eligible
to participate in the Plan. Such designations may be periodically
reviewed and updated by the Participant, in accordance with
applicable laws and regulations including, without limitation, the
Code, and specifically as to Post-2004 Accounts, Section 409A
thereof and the Regulations. Notwithstanding the above, however, if
no such designation is in effect and on file with the Company at
the date of the Participant's death, said amount shall be payable
to the surviving spouse of the Participant, provided that at the
time of Participant's death no proceedings for divorce or legal
separation are pending, in accordance with the Participant's
election pursuant to Section 6.1 hereof, but if no such election is
in effect or on file with the Company, in accordance with the
surviving spouse's election pursuant to Section 6.1 hereof.
However, if the Participant dies with no surviving spouse, or if
proceedings for divorce or legal separation from the spouse are
pending at the time of Participant's death, said amount shall be
paid to his or her living descendants, per stirpes, or, if none, to
equally his or her living parents, or, if none, to his or her
estate, in any case pursuant to Section 6.1(c) hereof, subject to a
term certain of ten (10) years.
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5.3. Disability . An
expressed purpose of this Plan is to provide additional
compensation for Participants and their Beneficiaries in the event
of disability. Accordingly, a Participant shall be deemed to have
reached Retirement on the last day in any calendar month in which
he or she is deemed to have suffered a Disability, and shall be
entitled to and shall be paid benefits as provided in Section 5.1
hereof.
5.4. Other Separation
from Service . If a Participant separates from service with the
Company for any reason other than those set forth in Sections 5.1
through 5.3 hereof (regardless of whether his or her status as an
Employee of the Company is also terminated), the Participant shall
be entitled to receive the entire amount credited to his or her
Account, subject to the provisions of Section 4.2 hereof, in which
case distribution shall be made in the manner prescribed for such
distributions in Article VI hereof. Said amount shall be
distributed to the Participant, and/or to his or her Beneficiaries
in the event of death subsequent to termination, commencing upon
the earliest date that the Participant would have been eligible for
Retirement had he or she not separated from service with the
Company to that date. Notwithstanding the foregoing, the Company
may in its sole discretion elect to make full or partial payment in
a lump sum at the time of termination of participation or at any
time or times thereafter, but only if and to the extent permitted
by applicable laws and regulations including, without limitation,
the Code and, specifically as to Post-2004 Accounts, Section 409A
thereof and the Regulations.
ARTICLE VI
Distribution of
Benefits
6.1. Methods of
Distribution . Upon becoming entitled to distribution of his or
her Deferred Salary Account in accordance with Article V hereof,
the Participant or his or her Beneficiaries shall be paid the
amount credited to the Participant's Account as of the date he or
she ceased active participation in the Plan, plus interest credited
on the undistributed Account balance thereafter, pursuant to
Section 3.3 hereof. Said amount shall be payable as provided
herein, as elected in writing by the Participant on forms to be
supplied by the Company. Such election shall be made initially by
each Participant within thirty (30) days after first becoming
eligible to participate in the Plan. Such designations may be
periodically reviewed and updated by the Participant, in accordance
with applicable laws and regulations including, without limitation,
the Code, and specifically as to Post-2004 Accounts, Section 409A
thereof and the Regulations. Notwithstanding the above, however, if
no such election is in effect and on file with the Company at the
time of the Participant's death, said amount shall be paid in the
manner prescribed in Section 5.2 hereof. In all other cases said
amount shall be payable as follows:
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(a) Interest only on the undistributed Account
balance as credited, at the rate provided in Section 3.3 hereof,
payable monthly, quarterly or annually for the life or life
expectancy of the Participant or the joint lives or life
expectancies of the Participant and his or her spouse, with
distribution of the remaining Account balance to occur upon the
death of the Participant or of the latter to die of the Participant
and his or her spouse; or
(b) As provided in paragraph (a) hereof, but
subject to a term certain of not less than ten (10) nor more than
twenty (20) years with respect to such payment of interest only;
or
(c) Level payment amortization of the
Participant's Account balance as of the commencement of payments,
plus interest on the undistributed Account balance at the rate
provided in Section 3.3 hereof, over any of the time periods
available under paragraphs (a) and (b) hereof.
(d) In such other form of payment as may be
determined by the Board in its sole discretion, provided a timely
election is filed by the Participant as prescribed herein and by
applicable laws and regulations.
Notwithstanding any other provision hereof, in the event of a
distribution of benefits pursuant to Section 5.1 or 5.4 hereof to a
Participant who is a Specified Employee, distribution of such
Participant's Post-2004 Account shall commence on the earlier of
(A) six (6) months after the date of separation from service, or
(B) the death of the Employee. In such event, the initial
distribution of such Post-2004 Account shall, provided the
Participate so elects in a timely manner as prescribed herein and
by applicable laws and regulations, include a lump sum payment of
interest accrued on such Account pursuant to Section 3.3 hereof
during the period from separation from service until the date of
such initial distribution.
The method of distribution hereunder shall only be subject to
change by the Company (i) with the consent of the affected
Participants, or that of their Beneficiaries if and as applicable;
and (ii) if and to the extent permitted by applicable laws and
regulations including, without limitation, the Code and,
specifically as to Post-2004 Accounts, Section 409A thereof and the
Regulations.
6.2. Payment
Procedures . All payments provided for by this Plan shall be
made in conformity with the regular payroll procedures in use by
the Company at the time of payment. Notwithstanding any of the
provisions hereof, the Company may withhold from any payment to be
made hereunder such amount as it may be required to withhold under
any applicable federal, state or other law, and may transmit such
withheld amounts to the applicable taxing authority. The
undistributed portion of any deferred compensation payable
hereunder shall at all times be subject to set-off for any and all
debts owed to the Company by the Participant or his or her estate
and Beneficiaries.
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ARTICLE VII
Plan Administration
7.1. General . The
Company shall be the Plan Administrator of this Plan, and as such
shall have full power and discretionary authority to administer the
operation of the Plan and to interpret, construe and apply the
provisions thereof. The Plan Administrator may delegate
responsibilities for the operation and administration of the Plan
by written agreement with the person or persons to whom such
responsibilities are so delegated. The Plan Administrator is hereby
designated as the agent of the Plan for service of legal process.
Decisions concerning the identification of employees and positions
within the Company to be covered by the Plan shall be made by the
Compensation Committee of the Board. Within the framework of the
foregoing, no officer, director or employee of the Company
exercising policy-making or administrative functions with respect
to the Plan, either individually or in concert with others, shall
have any voice in any decision directly affecting his or her own
Deferred Salary Account or the determination, distribution or
administration thereof.
7.2. Benefit Application
and Appeals Procedure . The Participant or his or her
Beneficiaries under this Plan shall make application for Deferred
Salary payments and have his or her application reviewed under the
following procedure:
(a) The applicant shall apply for such payments
by filing a written request with the Plan Administrator upon a form
to be furnished by the Plan Administrator for such purpose. The
applicant shall submit to the Plan Administrator a death
certificate or such other documents as may be required by the Plan
Administrator to verify the application prior to payment. Any
failure to comply with this requirement within a reasonable time
(not less than sixty (60) days following the date of request) may,
within the discretion of the Plan Administrator, terminate such
applicant's right to benefits hereunder.
(b) If an application is wholly or partially
denied the Plan Administrator shall furnish the Participant with
written notice of the denial within ninety (90) days of the date
the original application was filed (or, if later, the date that all
additional information required to process the application was
received by the Plan Administrator). This notice of denial shall
provide (1) the reason for the denial, (2) specific reference to
pertinent Plan provisions on which the denial is based, (3) a
description of any additional information needed to perfect the
application and an explanation of why such information is
necessary, and (4) an explanation of the Plan's benefit application
and claims procedures.
(c) The Participant shall have sixty (60) days
from receipt of the denial notice in which to make written
application for review by the Plan Administrator. The Participant
may request that the review be in the nature of a hearing. The
Participant shall have the right (1) to representation, (2) to
review pertinent documents, and (3) to submit comments in
writing.
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(d) The Plan Administrator shall issue a decision
on such review within sixty (60) days (one hundred twenty (120)
days if a hearing is requested and held) after receipt of an
application for review as provided in paragraph (c), which decision
shall be final and binding upon all parties.
ARTICLE VIII
Miscellaneous
Provisions
8.1. Limited
Liability . Except as expressly provided herein, nothing
contained in this instrument shall be construed to commit the
shareholders, officers or Board of Directors of the Company or the
Company itself to any liability for any payment now or hereafter to
any Participant or to his or her Beneficiaries.
8.2. No Expansion of
Employee Rights . This Plan shall not be considered a guarantee
of employment to any Participant hereunder for any period of time
whatsoever, and the inclusion of any Participant in the Plan does
not insure his or her retention as an employee of the Company or of
his or her continued participation in this Plan, except with
respect to amounts previously credited to his or her Deferred
Salary Account, subject to the provisions of Article IV hereof.
8.3. Termination and
Amendment . The Company reserves the right from time to time to
terminate or amend in whole or in part any or all of the provisions
of the Plan by resolution of its Board of Directors, such
termination or amendment to become effective as of the date
specified by the Board of Directors in said resolution; provided
that this Plan may not be so terminated or amended as to any
Participant or his or her Beneficiaries after deferred compensation
benefits have been accrued to that Participant's Deferred Salary
Account in such a manner as to reduce, modify or terminate such
benefits to the said Participant or his or her Beneficiaries,
without their written consent, subject to the provisions of Article
IV hereof.
8.4. Captions . All
article and section headings and captions in this Plan are intended
merely for convenience and shall in no way be deemed to modify or
supplement the actual terms and provisions set forth.
8.5. Other Benefits,
Agreements and Contracts . Nothing contained herein shall in
any way limit any Participant's right to participate in or benefit
from any employee pension or welfare benefit plan or program for
which said Participant is or may otherwise become eligible by
reason of his or her employment; provided, however, that no award,
credit or distribution of Deferred Salary or other benefits or
payments hereunder shall be deemed to be or treated as compensation
for the purposes of calculating contributions, benefits or payments
under any of said plans or programs. This Plan shall not be deemed
to replace or supplant any agreement or contract of employment
between the Company and any Participant, whether oral or written,
but shall be considered a supplement thereto.
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8.6. Insurance and Other
Corporate Assets . If the Company shall acquire an insurance
policy, annuity contract or any other asset in connection with the
liabilities assumed by it hereunder, it is expressly understood and
agreed that no Participant or Beneficiary shall have any right with
respect to, or claim against, such policy, contract, or asset,
except as expressly provided by the terms of such policy or
contract, in the title to such other asset or in any separate
agreement or understanding concerning the same. Such policy,
contract, or asset shall not be deemed to be held under any trust
for the benefit of any Participant or his or her Beneficiaries, or
to be held in any way as collateral security for the fulfillment of
the obligations of the Company under this Plan, except as may be
expressly provided by the terms of such policy, contract, in the
title to such other asset or in any separate agreement or
understanding concerning the same, all of which shall otherwise be
and remain general, unpledged and unrestricted assets of the
Company.
8.7. Governing Law .
This Plan shall be governed and construed in accordance with the
laws of the United States of America and, to the extent not
preempted thereby, those of the State of New Hampshire. The
Merrimack County, New Hampshire Superior Court and the United
States District Court for the District of New Hampshire shall be
deemed the sole convenient and appropriate forums for the
litigation of all suits, actions and claims arising herefrom.
8.8. Binding Effect
. This Plan shall be binding upon the Company and its successors
and assigns, and upon each Participant and his or her estate,
heirs, assigns and Beneficiaries, unless and until terminated or
amended by the Company as provided herein. In the event the Company
becomes a party to any merger, consolidation, reorganization or
other transaction resulting in any change in the ownership or
control of the Company, this Plan shall remain in full force and
effect as an obligation of the Company or its successors in
interest unless and until so terminated or amended, subject to the
provisions of Article IV hereof.
8.9. Severability .
In the event any provision of this Plan shall be held invalid,
unenforceable or illegal by any administrative body or by a court
of competent jurisdiction, as sustained on appeal; or by any
governmental, legislative or other action, then said provision
shall be null, void and of no effect in its application hereto and
such action shall not invalidate or render unenforceable any other
provision hereof.
8.10. Gender and
Number . All words herein denoting gender shall be deemed to
refer to the feminine, masculine or neuter, singular or plural, as
the context and facts require such construction.
8.11. Missing Payees;
Notices . Each current and former Participant and each
Beneficiary must file with the Administrator from time to time in
writing his or her post office address and each change of post
office address. The Company shall not be required to search for or
locate a current or former Participant or Beneficiary. All notices,
statements or other communications required or permitted to be
given pursuant hereto shall be in writing and shall be hand
delivered or sent by U.S. Mail or private express company, postage
prepaid, addressed to the party in question at his or her last
known address, and when so given shall be deemed delivered for all
purposes on the date of delivery, if hand delivered, or on the date
of mailing, if mailed.
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8.12. Nonalienation of
Benefits . Benefits payable under this Plan shall not, to the
full extent permitted by applicable law, be subject in any manner
to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution or levy of any kind,
either voluntary or involuntary, prior to being actually received
by the person entitled to the benefit under the terms of the Plan.
Any attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge or otherwise dispose of any right to
benefits payable hereunder shall be void; provided, however, that
benefits payable hereunder are subject to set-off as provided in
Section 6.2 hereof.
IN WITNESS WHEREOF, the Company has caused
this amended and restated Key Employees Deferred Salary Plan to be
executed as of the day and year first above written.
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COMPANY:
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ROCK OF AGES CORPORATION
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By: /s/ Charles M. Waite
Charles M.
Waite, Chairman-
Compensation Committee
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EXHIBIT 10.6
EMPLOYMENT
AGREEMENT
(Richard M. Urbach)
This Agreement made this 15th day of
September, 2004, by and among ROCK OF AGES CORPORATION, a Delaware
corporation, with a principal place of business at 772 Graniteville
Road, Graniteville, Vermont 05641 ("Company"), and RICHARD M.
URBACH ("Employee") residing at 524 Rockland Drive, Pittsburgh,
Pennsylvania 15239.
FACTUAL BACKGROUND:
A. Employee has been
Regional Operations Manager of Rock of Ages Memorials, Inc. and has
been an employee of the Company's wholly-owned subsidiary, Rock of
Ages Memorials, Inc. since November 1999 pursuant to an Employment
Agreement dated November 4, 1999 (the "Prior Agreement"). Company
and Employee now wish to continue Employee's employment in a new
position as Regional Vice President/Western Region, reporting to
the President/COO of the Memorials Division of the Company, with
principal responsibility for supervising, coordinating and
developing retail sales and operations for the Western region, (the
"Position") along with such other duties and responsibilities as
Company may assign to Employee; and Employee wishes to accept such
employment subject to the terms and conditions of this
agreement.
B. Company and its direct
and indirect subsidiaries, affiliates, parent and successors and
assigns are sometimes herein referred to as the "ROAC Corporate
Group."
C. Company and the ROAC
Corporate Group quarry and manufacture granite memorials, monuments
and other granite products, perform services related thereto; and
market and sell granite, marble, bronze and other memorials and
monuments, burial lots, crypts, niches and products related
thereto, and services related to such products both at wholesale
and retail in the United States and in various foreign countries
(Company's "Business" or "Restricted Business") and have
accumulated valuable and confidential information including trade
secrets and know-how relating to technology, manufacturing
procedures, formulas, machines, marketing plans, sources of supply,
business strategies and other business records.
D. The agreement by
Employee to enter into the covenants contained herein is a
condition precedent to the continued employment of Employee in the
Position, Employee acknowledges the same and that his execution of
this agreement is an express condition of his continued employment;
and that said covenants are given as material consideration for
such employment and the other benefits conferred upon him by this
agreement.
E. As used herein the term
"Company" shall refer to Company and where applicable to any direct
or indirect subsidiary or affiliate of Company for which Employee
may from time to time be performing services under this
agreement.
NOW, THEREFORE, in consideration of such
employment and other valuable consideration, receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Employment .
Company agrees to employ Employee, and Employee accepts employment
in the Position, reporting to the President/COO of the Memorials
Division of the Company, all upon the terms and conditions
hereinafter set forth.
2. Duties and
Policies .
(a) Duties . The Employee agrees to devote
his full time and best efforts to his employment duties in the
Position, subject to the rights of Company in the second sentence
of this Section 2(a), and to such other duties as may be assigned
to him from time to time by Company. Company reserves the right in
its sole discretion to request Employee to perform no duties for it
under this agreement from time to time or at any time for such
periods of time during the Term as it in its sole discretion may
determine and in the event Company takes such action, Employee will
thereafter not be eligible for any further increases in his Annual
Base Salary or for any bonuses until Company requests, if ever,
Employee return to active work.
(b) Policies . Employee agrees to abide by
the policies, rules, regulations or usages applicable to Employee
as established by Company from time to time and provided to
Employee in writing.
3. Term . The term
of this agreement (herein the "Term") shall be five (5) years,
beginning on the date hereof, unless terminated earlier as
hereinafter provided.
4. Compensation .
For all services to be rendered by Employee in any capacity
hereunder, the Company shall pay Employee the following:
(a) Salary . The Company shall pay
Employee an annual base salary of One Hundred Thirty Thousand
Twelve Dollars ($130,012) less withholding and other taxes required
by federal and state law (the "Annual Base Salary"), payable in
equal monthly installments, or as otherwise required by law. Any
increases in Annual Base Salary shall be in the sole discretion of
the Company, it being understood such increases are not guaranteed,
but are subject to Employee's job performance and the determination
of the Company, in its sole discretion, to award such salary
increases to Employee. Salary increases are not contemplated until
January 2006.
(b) Bonus . Employee may also be awarded a
bonus or bonuses from time to time during the Term at such time, if
any, as the Company may determine, in its sole discretion, to award
such bonuses.
2
5. Fringe Benefits .
During the term of this agreement, Employee shall be entitled to
participate in such fringe benefits as, from time to time, may be
applicable to the Company's similarly situated employees, subject
to the terms and conditions of such fringe benefit plans. The
Employee's "Initial Fringe Benefits" include those listed on
EXHIBIT 5 attached hereto and incorporated herein by reference. The
Initial Fringe Benefits may be phased out and terminated and the
Company may substitute for the Initial Fringe Benefits such
different and/or additional fringe benefits as the Company from
time to time, after the date hereof, makes available for the
Company's similarly situated employees.
Fringe benefits as used in this section do
not include cash compensation, stock options or other compensation.
The Company reserves the right to modify, eliminate or change
fringe benefits in its discretion. Fringe benefits provided to
Employee will, however, generally be not less advantageous to
Employee than those provided by Company to its similarly situated
employees.
6. Termination .
(a) Termination because of Death or Total
Disability . This Agreement will terminate automatically upon
the date of Employee's death or Total Disability. The Employee
shall be deemed to have incurred a Total Disability:
(i) if Company maintains a long-term disability
policy in effect for the benefit of Employee, on the date when the
Employee shall have received total disability benefits under said
policy for a period of six (6) months;
(ii) if no such long-term disability insurance
policy is in effect, on the date when the Employee suffers from a
physical or mental disability of such magnitude and effect that the
Employee is unable to perform the essential functions of Employee's
assigned position with or without reasonable accommodation and such
disability continues during a period of twelve (12) continuous or
non-continuous months within eighteen (18) month period beginning
on the first day of the month period beginning on the first day of
the month in which the first day of disability occurs;
(iii) if Employee illegally uses drugs and, as a
result, performance of his duties and/or employment with Company is
in any way impaired; or
(iv) on the date when Employee receives more than
12 weeks of payments under the Social Security Act because of
determination by the Social Security Administration that Employee
is totally disabled.
3
Total Disability as set forth in subsections (ii) or (iii) above
shall be deemed to have occurred upon the written certification to
Company thereof by the Employee's personal physician, which
certification may be requested in writing by Company. If the
Employee does not have a personal physician or refuses to consult
with his personal physician, Company may select a licensed
physician, board-certified in internal medicine or family practice,
at Employee's cost, to examine the Employee, which physician shall,
for purposes hereof, be deemed to be the Employee's personal
physician; provided, that if the Employee refuses to be examined by
this deemed personal physician within thirty (30) days after the
physician's appointment by Company, then the Employee may at
Company's election be conclusively presumed to have become Totally
Disabled as of the close of such thirty (30) day period. If Company
disagrees with the opinion of the Employee's personal physician,
then Company may select a second licensed, board-certified
physician, at Company's cost, to examine the Employee. If said two
(2) physicians disagree as to whether Employee is Totally Disabled,
then the personal physician and this second physician shall then
select a third licensed, board-certified physician, with the cost
of this third physician to be split between Employee and Company,
to examine the Employee. Upon examination of the Employee by the
three (3) physicians, each physician shall render an opinion with
respect to the condition of the Employee in regards to his Total
Disability, and the opinion of a majority of the physicians shall
be binding upon all parties.
(b)
Termination Without Cause . Subject to the provisions of
this Section 6(b), Company shall have the right to terminate this
agreement and Employee's employment under this agreement without
cause. A termination of this agreement without cause is herein
sometimes referred to as a "Termination Without Cause" or as
"Terminated Without Cause". If this agreement is Terminated Without
Cause by the Company, the Company agrees to pay, and Employee
agrees to accept as Employee's sole and exclusive remedy and
damages therefor the following: (a) the Company's payment of
severance pay based on Employee's Annual Base Salary at the date of
termination which will be continued from said date and paid over a
period equal to the lesser of the balance of the Term of this
agreement or twelve (12) months (the "Severance Pay.) Other than
the above Severance Pay, Company and Employee agree that Employee
shall not receive and Company will not pay any other compensation
or fringe benefits under this agreement after the date of the
Termination Without Cause.
(c)
Termination With Cause . Company may terminate this
agreement and the employment of the Employee at any time with Cause
and without further notice. Cause for Company's termination of
Employee shall include, without limitation, conduct by the Employee
which constitutes cause under applicable law or the occurrence of
any of the following events: (i) repeated neglect of, inattention
to, or failure to timely perform Employee's duties; (ii) excessive
absences and/or tardiness; (iii) misappropriation of supplies,
equipment, or funds of Company, ROAC Corporate Group or any
predecessor to the Company or ROAC Corporate Group (collectively,
the "Predecessors"); (iv) insubordination towards directors or
officers to whom the Employee reports; (v) repeated discourtesy to,
harassment of, or intimidation of employees or customers; (vi)
falsification of Company's, ROAC Corporate Group's, or any
Predecessor's business or employment records; (vii) illegal use of
drugs or abuse of alcohol which in any way affects Employee's
performance of his duties and/or employment with the Company;
(viii) violation, default or breach of any of Employee's covenants
and agreements under this agreement; (ix) the commission by
Employee of any criminal activity against Company, ROAC Corporate
Group, or any of the Predecessors or their employees, agents and
customers, or conduct which the Company's Board of Directors
reasonably believes constitutes such criminal activity; or (x) any
inappropriate behavior which the Company's Board of Directors
reasonably determines will have or has had an adverse affect on the
reputation, business, trademarks, trade names and ROA Brands,
and/or financial affairs of Company or the ROAC Corporate Group,
(any such termination is herein sometimes referred to as a
"Termination With Cause" or as "Terminated With Cause"). In the
event that Employee's employment is Terminated With Cause or
Employee resigns in lieu of such termination, Employee shall only
be entitled to be paid any expenses he has incurred prior to the
termination and for which he is entitled to reimbursement
hereunder, and such pro-rated Annual Base Salary as he may have
earned up to the date of termination.
4
(d)
Termination by the Employee . Employee may resign from
employment at any time for any reason and terminate this agreement
by giving thirty (30) days' written notice to Company (any such
termination is herein sometimes referred to as a "Voluntary
Termination") of such intention. In such event, Company may, in its
discretion, permit the Employee to work through the notice period
or accept the Employee's immediate resignation. In the event of a
Voluntary Termination, Employee shall not be entitled to payment of
any further Annual Base Salary, compensation or benefits, under the
terms of this agreement (including the Severance Pay), provided,
however, that the Company shall continue to pay Employee through
the notice period unless Employee opts for immediate resignation.
Employee shall only be entitled to be paid any expenses he has
incurred prior to the date of such resignation and for which he is
entitled to reimbursement hereunder, and such pro-rated Annual Base
Salary as he may have earned up to the date of termination.
(e) Applicability of Covenants.
Employee's covenants in sections 7, 8, 9 and 10 of this agreement
shall apply notwithstanding any termination under this agreement,
and the time periods referenced in section 10 shall run from the
later of the date of termination, expiration or resignation, or the
date of expiration of the Severance Pay, if applicable.
7. Non-Disclosure of
Confidential Information . Employee acknowledges that during
his employment, he has and will become fully familiar with all
aspects of the Company's Businesses and the ROAC Corporate Group's
businesses and will obtain access to confidential and proprietary
information relating to such businesses. Employee understands,
agrees and covenants that such information is valuable and Employee
has no property interest in it. Therefore, Employee covenants and
agrees that during his employment with Company and the ROAC
Corporate Group and thereafter Employee will not use, disclose,
communicate or divulge such information to any person not employed
by Company and the ROAC Corporate Group or use such information
except as may be necessary to perform his duties as an Employee
under this agreement. Employee's obligations in this section shall
survive the expiration of the Term of this agreement and/or
termination of Employee's employment under this agreement for any
reason whatsoever.
5
8. Non-Solicitation of
Employees, Clients and Customers . During the Term of this
agreement and for the period of Employee's non-competition covenant
set forth in Section 10 hereof, following the termination of this
agreement, Employee agrees not to, on his own behalf or on behalf
of any other person, corporation, firm or entity, directly or
indirectly, solicit or induce any client, customer, employee or
sales representative of Company or the ROAC Corporate Group to stop
doing business with or to leave any of said companies for any
reason whatsoever or to hire any of said companies' employees.
9. Return of
Property . Upon termination or nonrenewal of this agreement for
any reason, Employee agrees to immediately return all Company and
ROAC Corporate Group property, whether confidential or not, without
keeping any copies or excerpts thereof, including, but not limited
to, computers, printers, customer lists, samples, product
information, financial information, price lists, marketing
materials, keys, credit cards, automobiles, technical data,
research, blueprints, trade secrets information, and all
confidential or proprietary information.
10. Non-Competition
Covenant by Employee . Company and the Employee agree that
Company is currently engaged in the Restricted Business and Company
and the ROAC Corporate Group are engaged in the Restricted Business
in all of the states of the United States and in all of the
provinces of Canada (herein the territory of all such states and
provinces is referred to as the "Restricted Territory") and has
hired the Employee to expand and grow the Restricted Business in
the Restricted Territory. Accordingly, as a material and essential
inducement to Company to continue the Employee's employment in the
Position and in consideration of Company's agreements with the
Employee under this agreement, Employee agrees that during the Term
of this agreement and, if for any reason whatsoever this agreement
is terminated, lapses, is not renewed, or if Employee is not
employed by the Company after the end of the Term hereof for any
reason, or if Employee after the Term remains an Employee of the
Company and thereafter ceases to be an employee of the Company,
then in any such case, for a period of two (2) years thereafter
(and in the case where Severance Pay applies, for a period of two
(2) years following the last payment of Severance Pay), Employee
will not, in the Restricted Territory, directly or indirectly, in
any manner whatsoever:
(a) compete with Company, its successor and
assigns, or the ROAC Corporate Group, its successors and assigns,
in the Restricted Business;
(b) engage in the Restricted Business, except as
an employee of Company or the ROAC Corporate Group;
(c) have any ownership interest in (other than
the ownership of less than five percent (5%) of the ownership
interests of a company whose stock or other ownership interests are
publicly traded) any business entity which engages, directly or
indirectly, in the Restricted Business in the Restricted Territory
except for any ownership interest owned by Employee during the Term
of this agreement, and after termination of this agreement, in the
Company or in any member of the ROAC Corporate Group;
6
(d) contract, subcontract, work for, solicit work
from, solicit Company or ROAC Corporate Group employees for, or
solicit customers for, advise or become affiliated with, any
business entity which engages in the Restricted Business in the
Restricted Territory except as an employee of Company or of the
ROAC Corporate Group; or
(e) lend money or provide anything of value to
any entity which engages in the Restricted Business in the
Restricted Territory.
The term "compete" as used in this Section 10
means engage in competition, directly or indirectly, either as an
owner, agent, member, consultant, partner, sole proprietor,
stockholder, or any other ownership form or other capacity.
While the restrictions as set forth herein
and in Section 10 are considered by the parties hereto to be
reasonable in all circumstances, it is recognized that any one or
more of such restrictions might fail for unforeseen reasons.
Accordingly, it is hereby agreed and declared that if any of such
restrictions shall be adjudged to be void as unreasonable in all
circumstances for the protection of Company and the ROAC Corporate
Group and their interests, but would be valid if part of the
wording thereof were deleted, the period thereof reduced, or the
range of activities or area dealt with reduced in scope, such
restrictions shall apply with the minimum modification as may be
necessary to make them valid and effective, while still affording
to Company and the ROAC Corporate Group the maximum amount of
protection contemplated thereby.
Employee represents that he has carefully
reviewed Employee's restrictive non-competition covenant set forth
in this Section 10 and non-solicitation covenant in Section 8 and
has determined that these covenants will not impose undue hardship,
financial or otherwise, on Employee; that their Restrictive
Territory and duration will not impose a hardship on Employee; that
they protect Company's and the ROAC Corporate Group's legitimate
interests in their investment in Employee and their Restricted
Business; and that in Employee's opinion Employee not being able to
compete in the Restrictive Territory for the duration of this
covenant will not be injurious to the public interest.
Employee agrees that Employee's breach of his
covenants in this Sections 7, 8, 9 and 10 will cause irreparable
harm to Company and the ROAC Corporate Group.
11. Loyalty .
Employee shall devote his full time and best efforts to the
performance of his employment under this agreement. During the term
of this agreement, Employee shall not at any time or place
whatsoever, either directly or indirectly, engage in the Restricted
Business or any other profession or active business to any extent
whatsoever, except on or pursuant to the terms of this agreement,
or with the prior written consent of Company. Employee agrees that
he will not, while this agreement is in effect, do any unlawful
acts or engage in any unlawful habits or usages which injure,
directly or indirectly, Company and its Business or the ROAC
Corporate Group and its businesses. Company agrees that if it
exercises its rights in Section 2(a) hereof to have Employee
perform no duties for it, then during such period of time during
the Term as Employee is so not performing his duties, Employee may
engage in other employment which does not violate the
non-competition covenant in Section 10 and his other covenants in
Sections 7, 8, 9, 10 and 11 of this agreement.
7
12. Governing Law,
Jurisdiction and Venue . This agreement shall be governed by
and construed in accordance with the laws of the State of
Vermont.
13. Headings . The
descriptive headings of the several sections of this agreement are
inserted for convenience of reference only and shall not control or
affect the meanings or construction of any of the provisions
hereof.
14. Severability and
Violation of Laws . If any provision of this agreement shall be
held invalid or unenforceable according to law, such provision
shall be modified to the extent necessary to bring it within the
legal requirements. Any such invalidity or unenforceability shall
not affect the remaining provisions of this agreement, and such
remaining provisions shall continue in full force and effect.
15. Specific
Performance . The Employee hereby agrees and stipulates that it
would be impossible to measure in monetary terms the damages which
would be suffered by Company in the event of any breach by Employee
of Sections 7, 8, 9, 10, 11 and 12 of this agreement. Therefore, if
either party hereto shall institute any action in equity to enforce
such sections of this agreement, it is agreed that the other party
hereto waives any claim or defense that the plaintiff has an
adequate remedy at law, and the other party hereto agrees that the
plaintiff is entitled to specific performance of such terms of the
agreement.
16. Notices . Any
notice or other communication required or permitted under this
agreement shall be in writing and shall be deemed to have been duly
given (i) upon hand delivery, or (ii) on the third day following
delivery to the U.S. Postal Service as certified or registered
mail, return receipt requested and postage prepaid, or (iii) on the
first day following delivery to a nationally recognized United
States overnight courier service for next business day delivery
with fee prepaid or (iv) when telecopied or sent by facsimile
transmission if an additional notice is also given under (i), (ii)
or (iii) above within three days thereafter. Any such notice or
communication shall be directed to a party at its address set forth
or at such other address as may be designated by a party in a
notice given to all other parties hereto in accordance with the
provisions of this Section.
8
For the Company:
Mr. Rick Wrabel
President/COO-Memorials Division
Rock of Ages Corporation
772 Graniteville Road
Graniteville, VT 05641
Telephone: (802) 476 3121
Telecopy: (802) 476 3110
with a copy to:
Michael Tule,
Vice President and General Counsel
Rock of Ages Corporation
369 North State Street
Concord, NH 03301
Telephone: (603) 225-8397
Telecopy: (603) 225-4801
For the Employee:
Richard M. Urbach
524 Rockland Drive
Pittsburgh, PA 15239
17. Assignment . The
rights and obligations of Company together with its obligations and
all of the Employee's covenants and agreements hereunder may be
assigned by Company to any third party by operation of law or by
contractual assignment; and upon such assignment Company shall be
relieved of all of its obligations, agreements, duties and
covenants hereunder. The rights and obligations of the Employee
under this agreement are not assignable.
18. Complete and Entire
Agreement . This agreement contains all of the terms agreed
upon by the parties with respect to the subject matter hereof and
supersedes all prior agreements, representations and warranties of
the parties as to the subject matter hereof. The Prior Agreement is
specifically terminated hereby in all respects and superceded
entirely by the terms and provisions of this agreement.
19. Amendments .
This agreement may be amended, or any provision of the agreement
may be waived, provided that any such amendment or waiver will be
binding on the parties only if such amendment or waiver is set
forth in a writing executed by all parties hereto. The waiver by
any party hereto of a breach of any provision of this agreement
shall not operate or be construed as a waiver of any other
breach.
9
20. Survival .
Sections 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18 and 20 shall
survive expiration of the Term of this agreement and/or termination
of Employee's employment under this agreement.
21. Arbitration .
The parties agree to submit any claim, action, grievance or
controversy (the "Grievance") arising under or out of this
Agreement to final and binding arbitration in accordance with the
Employment Dispute Resolution Rules of the American Arbitration
Association. A request for arbitration must be filed with the
American Arbitration Association within six (6) months after the
grieving party knew or had reason to know of the events giving rise
to the Grievance, and a copy of the arbitration request must be
served upon the other party in accordance with Section 17. The
decision of the arbitrator on any Grievance submitted under this
Section 21 will be final and binding on the parties. The cost of
the arbitrator and arbitration proceedings shall be borne equally
by the parties, and the arbitration shall be conducted in
Burlington, Vermont. The parties agree that the arbitrator shall
have no authority to add to, subtract from or modify in any way,
the terms or provisions of this agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this agreement, all as of the date first written
above.
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WITNESS:
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ROCK OF AGES CORPORATION
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/s/ Paul H. Hutchins
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/s/ Rick Wrabel
Rick Wrabel,
President/COO
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WITNESS:
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/s/ Paul H. Hutchins
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/s/Richard M. Urbach
Richard M.
Urbach
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10
EXHIBIT 5
Rock of Ages
Corporation
Non-Union Employee Benefits Overview
Group Benefits ---------------------------------------
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Benefit
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Description
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When Am I Eligible?
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Benefit Paid By
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Medical Coverage
(for full-time employees
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Dual Choice: Indemnity plan with vision care or managed plan
with vision care and a dental plan option.
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Fist of the month following 30 days of employment.
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Rock of Ages pays 83% for the indemnity plan and 95% for the
managed plan (88% with the dental plan option
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Short-Term Disability
(STD) Insurance
(for full-time employees)
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Provides 60% of base salary for up to 26 weeks. Five day waiting
period unless hospitalized.
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First of the month following 30 days of employment.
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Rock of Ages
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Long-Term Disability
(LTD) Insurance
(for full-time employees)
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Continues 60% of base salary after 26 weeks of Short-Term
Disability.
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First of the month following 30 days of employment.
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Rock of Ages
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Basic Life Insurance and Accidental Death &
Dismemberment
(for full-time employees)
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Provides term life insurance and ADD at 1 1/2 times salary.
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First of the month following 30 days of employment.
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Rock of Ages
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401k Savings Plan
(for permanent employees)
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Optional pension benefit allows employee to defer pretax up to
100% of income into a choice of fifteen investmen
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