with the provisions of the Pension Plan without regard to any limitations imposed by the Code Sections 401(a)(17) and 415, less the related Maximum Benefit to which such spouse is entitled and (ii) if applicable, a Cash Balance Benefit determined in accordance with the provisions of the Pension Plan without regard to any limitations imposed by Code Sections 401(a)(17) and 415, less the related Maximum Benefit to which such spouse is entitled and less any amount of the Cash Balance Benefit previously paid to the Participant. Payments shall commence under this Section 2.02 as soon as administratively practicable on the first day of the first month coincident with or after the date the Participant would have been able to receive his benefit under Section 2.01 assuming the Participant’s Termination of Employment occurred as of the date of his death, with actual payment(s) commencing or paid within 90 days thereof.
Article III. Administration of the Plan
affected may be terminated by the Administrator which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such benefits that it deems appropriate.
3.05 Status of Plan. The benefits under this Plan shall not be funded, but shall constitute liabilities of Central Hudson payable when due.
3.06 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of employment between Central Hudson and any Participant, or as a right of any Participant to be continued in employment of Central Hudson, or as a limitation on the right of Central Hudson to discharge any of its employees, with or without cause.
3.07 Applicable Law. All questions pertaining to the construction, validity and effect of the Plan shall be determined in accordance with the laws of the United States and to the extent not pre-empted by such laws, by the laws of the State of New York.
3.08 Inclusion of Energy Group Participants. This Plan shall only apply to Energy Group Participants if Energy Group’s Board of Directors adopts this Plan.
3.09 Accrual of Benefits and Participation after December 31, 2005. Effective as of December 31, 2005, the Plan is terminated with no future Benefit payable with respect to any Participant who, as of December 31, 2005, is not vested in a Benefit under Article II of the Plan (as determined under the Pension Plan) and no employee of Energy Group or Central Hudson may become a Participant in the Plan on or after December 31, 2005. A Participant who, as of December 31, 2005, has a vested benefit under Article II will not accrue any additional Benefit under the Plan after December 31, 2005 and his Benefit under the Plan will be determined as of December 31, 2005, based on the Participant’s Unrestricted Benefit and Maximum Benefit as of December 31, 2005.
3.10 Pre-2008 Payments. If a Participant commences payment of benefits in conjunction with his benefit under the Pension Plan prior to January 1, 2008, then such benefit shall be payable for the remainder of 2007 and subsequent calendar years at the same time and in the same form elected by the Participant under the Pension Plan. Such time and form of payment shall not be subject to change after January 1, 2008 and shall not be affected by any changes in the time or form of payment of the benefit under the Pension Plan that occur on or after January 1, 2008.
Article IV. Section 409A Provisions
4.01 Discretionary Acceleration of Payments. Subject to Sections 3.02 and 4.05(a), to the extent permitted by Section 409A of the Code, the Plan Administrator may, in its sole discretion, accelerate the time or schedule of a payment under the Plan. The provision is intended to comply with the exception to accelerated payments under Treasury Regulation Section 1.409A-3(j) and shall be interpreted and administered accordingly.
4.02 Delay of Payments. To the extent permitted under Section 409A of the Code, the Plan Administrator may, in its sole discretion, delay payment under any of the following circumstances, provided that the Plan Administrator treats all payments to similarly situated Participants on a reasonably consistent basis:
(a) A Payment may be delayed where the Plan Administrator reasonably anticipates that the making of the payment will violate federal securities laws or other applicable law; provided that the delayed payment is made at the earliest date at which the Plan Administrator reasonably anticipates
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that the making of the payment will not cause such violation. For purposes of the preceding sentence, the making of a payment that would cause inclusion in gross income or the application of any penalty provision or other provision of the Code is not treated as a violation of applicable law.
(b) A payment may be delayed upon such other events and conditions as the Internal Revenue Service may prescribe in generally applicable guidance published in the Internal Revenue Bulletin. To the extent permitted under Section 409A of the Code, the Plan Administrator may, in its sole discretion, delay payment under any of the following circumstances, provided that the Plan Administrator treats all payments to similarly situated Participants on a reasonably consistent basis:
4.03 Actual Date of Payment. To the extent permitted by Section 409A of the Code, the Plan Administrator may delay payment in the event that it is not administratively possible to make payment on the date (or within the periods) specified in the Plan, or the making of the payment would jeopardize the ability of Central Hudson (or any entity which would be considered to be a single employer with Central Hudson under Section 414(b) or Section 414(c) of the Code) to continue as a going concern. Notwithstanding the foregoing, payment must be made no later than the latest possible date permitted under Section 409A of the Code.
4.04 Discharge of Obligations. The payment to a Participant or his beneficiary of his entire benefit under the Plan shall discharge all obligations of the Affiliated Group to such Participant or beneficiary under the Plan with respect to that Plan benefit.
4.05 Compliance with Section 409A of the Code.
(a) Notwithstanding anything contained in the Plan to the contrary, if the Participant is a “specified employee,” as determined under Central Hudson’s policy for identifying specified employees on the date of his “separation from service” within the meaning of Section 409A of the Code, then to the extent required in order to comply with Section 409A of the Code, all amounts payable under the Plan that constitute a “deferral of compensation” within the meaning of Section 409A of the Code, that are provided as a result of a “separation from service” within the meaning of Section 409A of the Code and that would otherwise be paid during the first six months following such separation from service shall be accumulated through and paid or provided on the first day of the seventh month immediately following the month of such separation from service (or, if the Participant dies during such six-month period, within 30 days after the Participant’s death).
(b) Notwithstanding anything contained in the Plan to the contrary, the term “Termination of Employment” or words or phrases of similar import shall mean a “separation from service” as defined in Section 409A of the Code and the effective date of a Participant’s “separation from service” as defined in Section 409A of the Code shall constitute a “Termination of Employment”. Central Hudson and the Participant shall take all steps necessary to ensure that a Termination of Employment shall constitute a “separation from service” within the meaning of Section 409A of the Code, and any benefit payable as a result of a Participant’s Termination of Employment shall be paid or provided, if and only if, such Termination of Employment constitutes a “separation from service” within the meaning of Section 409A of the Code. Upon a sale or other disposition of the assets of Central Hudson or any Affiliate to an unrelated purchaser, Central Hudson reserves the right, to the extent permitted by Section 409A of the Code, to determine whether Participants providing services to the purchaser after and in connection with the purchase transaction have experienced a “separation from service” as defined in Section 409A of the Code.
(c) It is intended that the payments and benefits provided under the Plan shall comply with the requirements of Section 409A of the Code. The Plan shall be construed, administered,
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and governed in a manner that effects such intent, and Central Hudson shall not take any action that would be inconsistent with such intent. Without limiting the foregoing, the payments and benefits provided under the Plan may not be deferred, accelerated, extended, paid out or modified in a manner that would result in the imposition of an additional tax under Section 409A of the Code upon the Participant. Although Central Hudson shall use its best efforts to avoid the imposition of taxation, interest and penalties under Section 409A of the Code, the tax treatment of the benefits provided under the Plan is not warranted or guaranteed. Neither Central Hudson, its affiliates, directors, officers, employees nor its advisers shall be held liable for any taxes, interest, penalties or other monetary amounts owed by the Participant or other taxpayer as a result of the Plan. Any reference in the Plan to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to such Section 409A by the U.S. Department of Treasury or the Internal Revenue Service.
4.06 Grandfathered Participants. The individuals who were participants of the Plan, vested, and terminated employment as of December 31, 2004 (the “Grandfathered Participants”) and, therefore, whose entire benefit under Article V of Part One of the Plan qualifies as an “amount deferred” prior to January 1, 2005 within the meaning of Section 409A of the Code, shall participate in, and be governed by the terms and conditions of, Part One of the Plan. It is intended that such amounts shall be exempt from the application of Section 409A of the Code. Nothing contained herein is intended to materially enhance a benefit or right existing under Part One of the Plan or add a new material benefit or right to Part One of the Plan with respect to Grandfathered Participants.
IN WITNESS WHEREOF, Central Hudson Gas & Electric Corporation has caused this instrument to be executed by its duly authorized officer on this ___ day of December, 2007.
| | | |
| CENTRAL HUDSON GAS & ELECTRIC CORPORATION |
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| By: | /s/ Steven V. Lant |
| |
|
| | | Steven V. Lant, Chairman, Chief Executive Officer of
Central Hudson Gas & Electric Corporation |
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CENTRAL HUDSON GAS & ELECTRIC CORPORATION
RETIREMENT BENEFIT RESTORATION PLAN
AMENDED AND RESTATED AS OF JANUARY 1, 2008
Exhibit A—Covered Participants
Steven V. Lant
Carl E. Meyer
Joseph J. DeVirgilio, Jr
Charles A. Freni
Thomas C. Brocks
Donna S. Doyle
Michael L. Mosher
Stacey A. Renner
Denise D. VanBuren
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