EXHIBIT 10-33
AMENDMENT NO. 9
to
THE SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
of
NEW YORK STATE ELECTRIC & GAS CORPORATION
The Supplemental Executive Retirement Plan of
New York State Electric & Gas Corporation (the "Plan") is
hereby amended, effective as of January 7, 1994, as
follows:
1. The following sentence is added at the end
of Paragraph 3 of the Plan:
The benefit payable pursuant to this Paragraph 3
shall be calculated by subtracting the benefit
payable under the Corporation's Retirement Benefit
Plan for Employees from the benefit without tax
limitations described in the first sentence of this
Paragraph 3.
2. The following two sentences are added at
the end of the first paragraph of Paragraph 4A of the
Plan:
Additionally, upon and after a Change in Control (as
defined in Paragraph 7 hereof), all Key Persons
whose employment is terminated at age 55 or later
for any reason other than death or Cause (as defined
in Paragraph 7 hereof) shall be entitled to receive
the retirement benefit described in this Paragraph
4A, as well as any benefits provided pursuant to the
terms of Paragraph 3 hereof. For purposes of the
benefits payable pursuant to the immediately preced-
ing sentence, the benefit calculated under Paragraph
4A hereof shall be determined by applying the same
reduction in benefits for commencement prior to age
60 as is applied upon early retirement under the
Corporation's Retirement Benefit Plan for Employees.
3. Clause (i) of the first sentence of the
second paragraph of Paragraph 4A is amended to read, in
its entirety, as follows:
...(i) any amounts received by the Key Person pursu-
ant to Paragraph 3 hereof or from the Company's tax
qualified Retirement Benefit Plan for Employees
(prior to reduction for the survivor's benefit or
ten year certain benefit) and...
4. The third paragraph of Paragraph 4A of the
Plan is amended to read, in its entirety, as follows:
For purposes of making the subtraction set
forth in the immediately preceding paragraph, if
(i) a Key Person retires at or after age 60 (or age
55 in the case of a Participant in the Corporation's
tax qualified Retirement Benefit Plan for Employees
who is described in Section 2 of Article XI of said
plan) and prior to age 62, or (ii) a Key Person's
employment is terminated, upon and after a Change in
Control (as defined in Paragraph 7 hereof), for any
reason other than death or Cause (as defined in
Paragraph 7 hereof) at or after age 55 and prior to
age 62, the amount of social security benefits
subtracted will be the amount of estimated social
security benefits that the Plan Administrator esti-
mates that the Key Person would have received if he
had retired at age 62.
5. The introductory phrase of the last sen-
tence of Paragraph 4C is amended to read, in its entire-
ty, as follows:
Except as specifically provided in the last two sen-
tences of the first paragraph of Paragraph 4A hereof
or in the second and third sentences of Paragraph 4B
hereof,
6. Paragraph 6 of the Plan is amended to read,
in its entirety, as follows:
6. Funding. There will be no funding of any
amounts to be paid pursuant to this Plan; provided,
however, that the Corporation, in its discretion,
may establish a trust to pay such amounts, which
trust shall be subject to the claims of the
Corporation's creditors in the event of the
Corporation's bankruptcy or insolvency; and pro-
vided, further, that the Corporation shall remain
responsible for the payment of any such amounts
which are not so paid by any such trust.
7. The following new Paragraph 7 is added to
the Plan:
7. Definitions of Cause and Change in Control.
"Cause" for termination by the Corporation
of a Key Person's employment (for purposes of
this Plan), after any Change in Control, shall
mean (i) the willful and continued failure by
the Key Person to substantially perform the Key
Person's duties with the Corporation (other
than any such failure resulting from the Key
Person's incapacity due to physical or mental
illness) after a written demand for substantial
performance is delivered to the Key Person by
the Board of Directors, which demand specifi-
cally identifies the manner in which the Board
of Directors believes that the Key Person has
not substantially performed the Key Person's
duties, or (ii) the willful engaging by the Key
Person in conduct which is demonstrably and
materially injurious to the Corporation or its
subsidiaries, monetarily or otherwise. For
purposes of clauses (i) and (ii) of this defi-
nition, no act, or failure to act, on the Key
Person's part shall be deemed "willful" unless
done, or omitted to be done, by the Key Person
not in good faith and without reasonable belief
that the Key Person's act, or failure to act,
was in the best interest of the Corporation.
A "Change in Control" shall be deemed to
have occurred if the conditions set forth in
any one of the following paragraphs shall have
been satisfied:
(i) any Person (as defined in this
Paragraph 7) is or becomes the Beneficial Owner
(as defined in this Paragraph 7), directly or
indirectly, of securities of the Corporation
(not including in the securities beneficially
owned by such Person any securities acquired
directly from the Corporation or its affili-
ates) representing 25% or more of the combined
voting power of the Corporation's then out-
standing securities; or
(ii) during any period of two con-
secutive years (not including any period prior
to January 7, 1994), individuals who at the
beginning of such period constitute the Board
of Directors and any new director (other than a
director designated by a Person who has entered
into an agreement with the Corporation to ef-
fect a transaction described in paragraph (i),
(iii) or (iv) of this Change in Control defini-
tion) whose election by the Board of Directors
or nomination for election by the Corporation's
stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in
office who either were directors at the begin-
ning of the period or whose election or nomina-
tion for election was previously so approved,
cease for any reason to constitute a majority
thereof; or
(iii) the shareholders of the Corpo-
ration approve a merger or consolidation of the
Corporation with any other corporation, other
than (x) a merger or consolidation which would
result in the voting securities of the Corpora-
tion outstanding immediately prior thereto
continuing to represent (either by remaining
outstanding or by being converted into voting
securities of the surviving entity), in combi-
nation with the ownership of any trustee or
other fiduciary holding securities under an
employee benefit plan of the Corporation, at
least 75% of the combined voting power of the
voting securities of the Corporation or such
surviving entity outstanding immediately after
such merger or consolidation, or (y) a merger
or consolidation effected to implement a recap-
italization of the Corporation (or similar
transaction) in which no Person acquires more
than 50% of the combined voting power of the
Corporation's then outstanding securities; or
(iv) the shareholders of the Corpo-
ration approve a plan of complete liquidation
of the Corporation or an agreement for the sale
or disposition by the Corporation of all or
substantially all the Corporation's assets.
For purposes of the definition of Change in
Control in this Paragraph 7:
"Beneficial Owner" shall have the meaning de-
fined in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Ex-
change Act of 1934, as amended from time to
time.
"Person" shall have the meaning given in Sec-
tion 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof;
however, a Person shall not include (i) the
Corporation or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities
under an employee benefit plan of the Corpora-
tion or any of its subsidiaries, (iii) an un-
derwriter temporarily holding securities pursu-
ant to an offering of such securities, or (iv)
a corporation owned, directly or indirectly, by
the stockholders of the Corporation in substan-
tially the same proportions as their ownership
of stock of the Corporation.