THE
CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC.
DEFERRED COMPENSATION PLAN
Effective January 4, 2001
CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC.
DEFERRED COMPENSATION PLAN
This is the Capital Electric Construction Company, Inc.
Deferred Compensation Plan (the "Plan"), and is adopted by
CAPITAL ELECTRIC CONSTRUCTION COMPANY, INC., a Kansas corporation
("Construction"), for the purpose of providing an inducement for
continued service by designated key employees of Construction
following the merger of Construction into CENTENNIAL ENERGY
HOLDINGS, INC., a Delaware corporation ("Centennial"), whereby
Centennial will be the surviving company (the "Merger"). This
Plan further contemplates that the assets and liabilities of
Centennial acquired in connection with the Merger will be
transferred to a subsidiary of Centennial immediately following
the Merger, and that the subsidiary will become the ultimate
sponsor of this Plan. Benefits due under the Plan constitute a
mere promise by the entity maintaining this Plan (the "Employer")
to pay benefits as the Plan provides. Accordingly, Participants
are general unsecured creditors of the Employer with respect to
their benefits, and the Plan is unfunded for tax purposes. This
document contemplates the establishment of a trust after the
Merger for the purpose of holding MDU Shares under this Plan,
subject to the claims of the general creditors of the Employer
and MDU.
ARTICLE I
ADOPTION OF PLAN; PARTICIPATION
The Plan is adopted effective this 4th day of January,
2001; provided, however, that the Plan shall automatically
terminate (and any Account balances shall be forfeited entirely)
on the 30th day thereafter if the Merger Date has not then
occurred. Each individual listed on Schedule A shall be a
Participant, provided that such individual is an employee of
Construction in good standing on February 1, 2001.
ARTICLE II
VESTING; DISPOSITION OF FORFEITED SHARES
2.1 Vesting. Except as provided below, in order to become
entitled to receive the balance in the Participant's Account
maintained pursuant to Section 3.1, a Participant must not incur
a Termination voluntarily, or be Terminated for Cause, during the
period beginning on the Effective Date and ending on the Vesting
Date set forth opposite the Participant's name on Schedule A (the
"Vesting Date").
A Participant who, before the Vesting Date, incurs a
Termination voluntarily or is Terminated for Cause shall forfeit
the balance in his Account effective on the date employment
ceases; provided, however, that a Participant who dies or becomes
totally disabled before the Vesting Date shall be entitled to
receive the balance in his Account. A Participant who, before
the Vesting Date, incurs a Termination involuntarily and is not
Terminated for Cause shall be entitled to receive the balance in
his Account. A reduction in base salary, and a substantial
reduction in duties or responsibilities, shall each constitute
sufficient reason for the Participant's Termination to be deemed
involuntary, provided the Employer has had sufficient notice and
opportunity to correct such a change in the terms of the
Participant's employment.
2.2 Disposition of Forfeited Shares. If the MDU Shares credited
to any Participant's Account are forfeited pursuant to Section 2.1, the
Employer shall notify the Trustee of the forfeiture, and the Trustee shall
forthwith deliver the forfeited shares to MDU's Secretary.
ARTICLE III
CREDITS AND CHARGES TO ACCOUNTS
3.1 Account. An Account shall be established and maintained for
each Participant, which Account shall be credited with the dollar
amounts set forth opposite the Participant's name on Schedule A.
On the Merger Date, the dollar amount credited to each
Participant's Account shall be converted into a number of MDU
Shares equal to the quotient of such dollar amount divided by the
MDU Stock Price (as defined in the Acquisition Agreement dated as
of January 5, 2001, pursuant to which the Merger was
consummated). Following such conversion, and subject to all of
the terms and conditions of this Plan, each Participant shall be
entitled to receive the MDU Shares credited to his Account rather
than the dollar amount set forth in Schedule A. Each Account
shall be charged with distributions, income taxes and any other
amounts required to be withheld under Section 4.6.
3.2 Earnings. Earnings to be credited to an Account shall be
equal to the dividends declared and paid from time to time with respect
to the number of MDU Shares then credited to the Account.
ARTICLE IV
DISTRIBUTIONS
4.1 No Withdrawals. Except as otherwise provided in this article,
withdrawals are not available from an Account.
4.2 Timing of Distribution. Earnings credited to a Participant's
Account shall be distributed forthwith to the Participant, subject to tax
withholding pursuant to Section 4.6. The MDU Shares credited to
a Participant's Account shall be paid on the Vesting Date if the
Participant has been continuously employed by the Employer from
the Effective Date until the Vesting Date as described in Section
2.1.
4.3 Death or Disability. Should a Participant die or become
totally disabled before the Vesting Date and before incurring a Termination,
his Account shall be paid to his Beneficiary under Article V or to
him.
4.4 Limitation on Distributions to Covered Employees.
Notwithstanding any other provision of this article,
if a Participant is a "covered employee" as defined in Code
162(m)(3) at the time of any distribution, the maximum amount
which may be distributed from such a Participant's Account in any
Plan Year shall not exceed $1,000,000, less the amount of
compensation paid to the Participant by the Employer in such Plan
Year which is not "performance-based" (as defined in Code
162(m)(4)(C)). Such amount shall be reasonably determined by
the Administrator at the time of the proposed distribution. Any
amount not distributed to a Participant in a Plan Year as a
result of the limitation set forth in this section shall be
distributed in the next Plan Year, which may again be subject to
the limitation of this section.
4.5 Payments to Minors and Incompetents. If any person entitled
to any payment under this Plan is, in the judgment of the Administrator,
incapable of giving receipt for such payment because of minority, illness,
infirmity or other incapacity, the Administrator may pay the
amount due such person to a duly appointed legal representative,
if there is one, or, if none, to the spouse, children,
dependents, or such other persons with whom the person entitled
to payment resides. Any such payment shall be a complete
discharge of the liability of the Employer, its Affiliates, and
the Plan with respect to such payment.
4.6 Tax Withholding. The Employer shall deduct from any payment
or share delivery made under this Plan an amount equal to, or shares
having a value equal to, all or part of the federal, state and
local taxes required by law to be withheld by the Employer
(including but not limited to any amount that may be necessary to
satisfy applicable income tax withholding and employment tax
obligations, as well as the Employer's portion of all such
applicable taxes), all garnishments, and any other amounts
required to be withheld by applicable law or court order.
ARTICLE V
BENEFICIARY DESIGNATIONS
5.1 Designation of Beneficiary. Each Participant may designate
in the form and the manner specified by the Administrator a Beneficiary to
receive the payment (if any) due under Article IV at the Participant's
death. The Beneficiary of a married Participant shall be his or
her spouse, unless the Participant designates a Beneficiary other
than the spouse and the spouse consents in writing to the
designation in the form and the manner prescribed by the
Administrator. A Participant may revoke such designation at any
time and substitute therefor another Beneficiary. A married
Participant may revoke a prior Beneficiary designation only with
the consent of his or her spouse in the form and the manner
prescribed by the Administrator. A designated spousal
Beneficiary who becomes divorced from the Participant shall be
deemed to have predeceased the Participant on the date the
divorce is final; subject, however, to redesignation thereafter
under this section.
5.2 Failure To Designate a Beneficiary. If upon the death of
an unmarried Participant a Beneficiary has not been validly designated,
the Beneficiary shall be the Participant's estate.
ARTICLE VI
TRUST OBLIGATION TO PAY BENEFITS
6.1 Establishment of Trust. Immediately following the Merger,
MDU shall establish a Trust to hold the MDU Shares credited to all Accounts
as described in Section 3.1. The assets of any such Trust shall
be subject to the claims of MDU's creditors and the creditors of
the Employer and shall be maintained pursuant to a separate trust
document generally conforming to the terms of the model trust
described in Revenue Procedure 92-64.
6.2 Benefits Paid From Trust. Any payment required to be made
under this Plan to a Participant or Beneficiary shall be paid by the Trustee
to the extent of the assets held in the Trust by the Trustee, and by the
Employer to the extent the assets in the Trust are unavailable to
pay such amount.
ARTICLE VII
ADMINISTRATION AND CLAIMS
7.1 Plan Administration. The Administrator shall have sole
discretionary responsibility for the operation, interpretation, and
administration of the Plan. Any action taken on any matter
within the discretion of the Administrator shall be final,
conclusive, and binding on all parties. In order to discharge
its duties hereunder, the Administrator shall have the power and
authority to adopt, interpret, alter, amend or revoke rules
necessary to administer the Plan, to delegate its duties and to
employ such outside professionals as may be required for prudent
administration of the Plan. The Administrator shall also have
the right within the scope of his authority (if a designee of the
Employer) to enter into agreements on behalf of the Employer
necessary to administer the Plan. Any Participant who is acting
as Administrator shall not be entitled to make decisions with
respect to his own participation and entitlement to payment under
the Plan.
7.2 Claims Procedures
(a) Applicability. This section sets forth the exclusive
procedures governing benefits under the Plan. No legal action
may be brought by any person claiming entitlement to benefits
until after the procedures set forth herein have been exhausted.
(b) General Rules. Thirty days before a Participant's Vesting
Date the Administrator shall send to the affected Participant (or
Beneficiary, as the case may be) and to the Trustee a written
notice setting forth the Participant's Account balance. Unless
the Employer notifies the Trustee prior to the Vesting Date that
the Participant has forfeited the Participant's Account, the
Trustee shall deliver the MDU Shares in Participant's Account
(less taxes described in Section 4.6) automatically on the
Participant's Vesting Date.
(c) Claim for Benefits. Any person claiming entitlement to
benefits for which the Administrator refuses to authorize payment
shall file a written claim for benefits with the Administrator at
the offices of the Employer. The claim must set forth the basis
for the claim and be signed by the claimant.
(d) Determination. Within 60 days of receiving a claim for
benefits, the Administrator shall make a determination on the
claim, and notify the claimant in writing of the determination.
If the claim is approved, the Administrator shall direct the
Trustee to commence payment in accordance with the provisions of
Article IV. If the claim is denied, in whole or in part, the
Administrator's notice to the claimant shall explain the specific
reasons for the denial, refer to the specific Plan provisions on
which the denial is based, describe any additional material or
information necessary for the claimant to perfect the claim (if
possible), and explain the steps and time limit for requesting
appeal of the determination.
(e) Appeal of Determination. A claimant (or authorized
representative) shall have 60 days in which to file an appeal of
the determination, measured from the date the Administrator's
notice described in paragraph (d) is mailed. An appeal must (i)
be in writing, (ii) set forth each ground and supporting fact on
which the appeal is based and (iii) provide any other comments
the claimant believes pertinent and helpful to his appeal. When
making an appeal, a claimant may review the documents that were
pertinent to the Administrator's denial of his claim. Any
claimant who fails to file an appeal timely shall be estopped and
barred from any further challenge to the Administrator's
determination to deny the claim.
(f) Review by Committee. Upon receipt of a written appeal,
the Employer shall appoint a committee, composed of at least 2
individuals who did not participate in the original denial of the
claim, to conduct a full and fair review of the appeal. The
committee shall complete its review and decide the appeal within
60 days after the written appeal was received by the Employer.
In conducting its review, the committee may, in its sole
discretion, require the Employer or the claimant to submit such
additional documents or other evidence as the committee deems
necessary or appropriate. The review committee's decision shall
be final and binding on all persons with respect to the
claimant's appeal. If the appeal is denied in whole or in part,
the committee shall notify the claimant in writing, setting forth
the specific reasons for the denial and the specific plan
provisions on which the denial is based. The committee shall
have the sole discretion to interpret any provision of the Plan
that is pertinent to the outcome of the appeal.
7.3 Reimbursement of Costs. If any person institutes legal
action to enforce any of the provisions of the Plan, the prevailing party
in such legal action shall be reimbursed by the other party for the prevailing
party's costs, including, without limitation, reasonable fees of
attorneys, accountants and similar advisors, and expert
witnesses.
ARTICLE VIII
MISCELLANEOUS
8.1 Nontransferability. The right of a Participant or Beneficiary
to benefits under the Plan shall not be assigned, alienated,
transferred, pledged or encumbered. Neither the Employer, its
Affiliates, nor the Plan shall be liable for or subject to the
debts or liabilities of a Participant.
8.2 Binding Effect. The Plan shall be binding upon and inure to the
benefit of the Employer, its successors and assigns, and the
Participant and his or her heirs, executors, administrators and
legal representatives.
8.3 No Rights Implied. No Plan provision shall confer upon any
Participant the right to continue as a member of the Board or as an employee
of the Employer or any Affiliate.
8.4 Applicable State Law. The Plan shall be construed in
accordance with and governed by the laws of the State of Kansas.
8.5 Entire Agreement. The Plan constitutes the entire
understanding and agreement with respect to the subject matter contained
herein, and there are no agreements, understandings, restrictions,
representations or warranties among any Participant or
Beneficiary and the Employer other than those set forth or
provided for herein.
8.6 Amendment or Termination of Plan. The Employer may amend or
terminate the Plan at any time; provided, however, that, except as provided
in Article I, no such amendment or termination shall be effective if it has
the effect of eliminating or reducing a Participant's Account below
the balance calculated under the Plan immediately before giving
effect to such amendment or termination.
ARTICLE IX
DEFINITIONS
The following terms shall have the meanings set forth
in this article, unless a different meaning is plainly required
by the context:
"Account" means the book entry account established and
maintained for each Participant under Section 3.1.
"Administrator" means a committee of two or more
members of the Board as selected to serve by such Board. If no
such committee exists, then the Administrator means the Board.
"Affiliate" means any parent corporation (within the
meaning of Code 424(e)) or subsidiary corporation (within the
meaning of Code 424(f)).
"Beneficiary" means an individual, trust or other
entity entitled to receive payment on account of a Participant's
death.
"Board" means the board of directors of the Employer.
"Centennial" means Centennial Energy Holdings, Inc., a
Delaware corporation.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Construction" means Capital Electric Construction
Company, Inc., a Kansas corporation.
"Effective Date" means the effective date of this Plan
set forth in Article I.
"Employer" means Construction, MDU, any Affiliate of
MDU, or any other entity to which substantially all of the assets
of the trade or business of Construction have been transferred
(directly or indirectly), as the case may be, for any period
during which such entity maintains this Plan.
"MDU" means MDU Resources Group, Inc., a Delaware
corporation.
"MDU Share" means one share of the Common Stock, par
value $1.00 per share, and the associated preference share
purchase rights, of MDU.
"Merger" means the merger of Construction into
Centennial pursuant to the Acquisition Agreement referred to in
Section 3.1.
"Merger Date" means the closing date of the Merger.
"Participant" means an individual named in Schedule A.
"Plan" means this Capital Electric Construction
Company, Inc. Deferred Compensation Plan as set forth herein, as
it may be amended from time to time.
"Plan Year" means each calendar year.
"Terminated for Cause" means a Termination occasioned
by (i) criminal conduct, (ii) failure of the Participant to
perform his duties with the skill, knowledge, and diligence
reasonably expected of personnel in similar positions or refusal
to carry out such reasonable tasks as reasonably directed, (iii)
refusal to perform employment duties on a full-time basis, (iv)
refusal to act in accordance with any lawful instructions of a
more senior employee, or (v) misconduct which could be seriously
damaging to the Employer without a reasonable good faith belief
by the Participant that his conduct was in the best interest of
the Employer.
"Termination" means the Participant terminates
employment with all of (i) MDU, (ii) any Affiliates of MDU
(including the Employer) and (iii) any other entity to which
substantially all of the assets of the trade or business of
Construction have been transferred (directly or indirectly).
"Trust" means the legal entity created by the Trust
Agreement.
"Trust Agreement" means the trust instrument entered
into among MDU, Centennial (or its assigns), and a trustee, as it
may be amended from time to time.
"Trustee" means the trustee serving from time to time
under the Trust Agreement.
IN WITNESS WHEREOF, Construction has caused this Plan
to be executed by a duly authorized officer effective as of the
Effective Date.
CAPITAL ELECTRIC CONSTRUCTION
COMPANY, INC.
By: /s/ Robert E. Doran
Robert E. Doran, III, President
SCHEDULE A
(Capital Electric Construction Company, Inc.)
The maximum number of shares that could be issued under this
Plan, as of the Plan's adoption date, was 67,597 shares (not
adjusted for the October 2003 three-for-two stock split).