EXHIBIT 10-48
NEW YORK STATE ELECTRIC & GAS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Amended and Restated Effective May 1, 1998
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
1. Establishment of the Plan and Effective Date. New York
State Electric & Gas Corporation (hereinafter called the
"Corporation") has established a Supplemental Executive
Retirement Plan (hereinafter called the "Plan"). The Corporation
is the Plan Sponsor.
Energy East Corporation (hereinafter called "EEC") is the
common parent of an "affiliated group", within the meaning of
Section 1504 of the Internal Revenue Code of 1986, as amended
(hereinafter that affiliated group is called the "EEC Group").
The Corporation is one of the members of the EEC Group
(hereinafter members of the EEC Group individually are called a
"Member" and collectively are called "Members").
The purpose of the Plan is to increase retirement benefits
for the salaried employees of those Members that elect to
participate beyond those currently provided for in the
Corporation's tax qualified Retirement Benefit Plan for Employees
(hereinafter those Members that elect to participate are called
"Participating Members"). The Plan is effective as of September
7, 1984 and will continue in effect unless terminated or modified
by the Corporation.
2. Plan Administrator. The Plan Administrator is the
Corporation.
3. Provisions Applicable to All Salaried Employees
Concerning Pension Benefits. All employees of Participating
Members, other than ones included in a unit of employees covered
by a collective bargaining agreement, shall receive the amount of
benefits specified under the Corporation's tax qualified
Retirement Benefit Plan for Employees (i) without regard to any
limitations imposed on these pension benefits by any provision of
the Internal Revenue Code of 1986, as amended, and the
regulations thereunder, whether now existing or as may hereafter
be adopted and (ii) by including as "Basic Compensation" for
purposes of said plan any amounts of the salaried employee's
compensation that would constitute "Basic Compensation" under
said plan but for the salaried employee's election to defer such
amount pursuant to any Participating Member's Deferred
Compensation Plan for Salaried Employees (hereinafter called a
"Deferred Compensation Plan"). Payment of this benefit shall be
made in the same form as elected by the salaried employee under
the Corporation's tax qualified Retirement Benefit Plan for
Employees. The benefit payable pursuant to this Paragraph 3
shall be calculated by subtracting the sum of (i) the benefit
payable under the Corporation's tax qualified Retirement Benefit
Plan for Employees and (ii) any benefit payable pursuant to
Section 7 of a Deferred Compensation Agreement executed pursuant
to a Deferred Compensation Plan in order to defer part of the
salaried employee's compensation (other than awards pursuant to
the Corporation's Annual Executive Incentive Plan, its
predecessor plan, the Annual Executive Incentive Compensation
Plan or any incentive plan of a Participating Member) from the
benefit described in the first sentence of this Paragraph 3.
4. Provisions Applicable to Certain Key Persons Concerning
Pension Benefits.
A. Determination of Benefit. In addition to the benefits
provided pursuant to Paragraph 3 hereof, all Key Persons who
retire from the EEC Group either voluntarily or by reason of a
disability at 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 as in effect on June 30, 1997) or later shall be entitled to
receive a total retirement benefit equivalent to the percentage
of the average of such Key Person's highest three years of
earnings within the last ten years of employment with a
Participating Member that is determined as follows: (i) the
percentage benefit shall be 45% for each Key Person who has ten
years of service; (ii) the percentage amount shall be increased
by one percentage point per year for each additional full year of
Service up to a maximum of 75% for forty or more years of
service. For the purpose of determining the earnings of a Key
Person who is a participant in the Corporation's Annual Executive
Incentive Plan or Long Term Executive Incentive Share Plan (or
their respective predecessor plans, the Annual Executive
Incentive Compensation Plan and the Performance Share Plan, or
any incentive plan of a Participating Member), there shall be
excluded any amounts received pursuant to such plans.
Additionally, upon and after a Change in Control (as defined in
Paragraph 7 hereof), all Key Persons whose employment is
terminated from the EEC Group 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 preceding 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 tax qualified Retirement Benefit Plan for
Employees.
From the amount determined in accordance with the
provisions of this paragraph there shall be subtracted
(i) any amounts received by the Key Person pursuant to
Paragraph 3 hereof or from the Corporation's tax
qualified Retirement Benefit Plan for Employees (prior
to reduction for the survivor's benefit or ten year
certain benefit) and (ii) any social security benefits
which the Key Person is eligible or expected to become
eligible to receive as determined by the Plan
Administrator. If after the subtraction there remains
a positive amount, that amount shall be paid by the
Corporation as an additional benefit to the Key Person
in accordance with the terms of this Plan.
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 as in
effect on June 30, 1997) 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 estimates that the
Key Person would have received if he had retired at age
62.
B. Survivor's Benefit. One-half of any amount
being paid to a key person pursuant to Paragraph 4A
hereof after retirement will be paid to the surviving
spouse of the Key Person during the spouse's lifetime
upon the death of the Key Person after retirement. If
a Key Person dies prior to retirement and such Key
Person would have been entitled to payments pursuant to
Paragraph 4A hereof if, at the time of his death, he
had retired rather than died, his spouse shall be paid
during her lifetime the amount specified in the next
sentence of this Paragraph 4B. Said amount shall be
determined by applying the first sentence of this
Paragraph 4B as if the Key Person had retired on the
date of his death, rather than dying on such date, and
survived long enough to receive the first payment due
to him pursuant to Paragraph 4A hereof.
C. Payment of Benefit. Benefits payable under
Paragraph 4A of this Plan shall be payable monthly to
the Key Person.
All benefits payable pursuant to Paragraphs 4A and
4B of this Plan will cease upon the death of the
surviving spouse of the Key Person or, if there is no
surviving spouse, upon the death of the Key Person. No
rights shall accrue under this paragraph to (i) the
estate of the Key Person, (ii) any beneficiary of the
Key Person other than a surviving spouse or (iii) the
estate of the surviving spouse.
Except as specifically provided in the last two
sentences of the first paragraph of Paragraph 4A hereof
or in the second and third sentences of Paragraph 4B
hereof, no benefits will be paid to the Key Person or
any surviving spouse pursuant to this plan if the Key
Person dies prior to retirement from the EEC Group or the
employment of the Key Person is terminated by the Member
that employs the Key Person and such termination is not in
connection with the Key Person becoming an Employee of
another Member.
D. Definition of Key Person. For purposes of
this Plan, the term "Key Person" means a person who has
at least 10 years of service and either (i) who, for at
least 5 years, either had been an officer of a
Participating Member or had a salary grade level of at
least 18, or (ii) who was, on December 31, 1990, a
member of the Executive Staff of the Corporation and
who first became a member of the Executive Staff of the
Corporation at least 5 years prior to his retirement.
5. Other Provisions. The Corporation reserves the right to
terminate or modify the Plan in whole or in part at any time by
action of the Board of Directors of the Corporation. Any such
termination or modification shall not affect rights previously
accrued. Participation in the Plan shall not be deemed to be an
employment contract. A participant's rights and benefits under
the Plan may not be assigned, pledged, or encumbered by the
participant, his estate or beneficiary. The Plan Administrator
will make such decisions, rules and regulations as are necessary
to administer the Plan and interpret the provisions of the Plan.
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 provided, further, that the
Corporation shall remain responsible for the payment of any such
amounts which are not so paid by any such trust.
7. Definitions of Cause and Change in Control.
"Cause" for termination from the EEC Group 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 Member that employs the Key Person (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 of that Member, which demand specifically
identifies the manner in which the Board of Directors of that
Member 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 any Member, monetarily or otherwise. For purposes
of clauses (i) and (ii) of this definition, 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 EEC Group.
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 EEC (not
including in the securities beneficially owned by such
Person any securities acquired directly from EEC or its
affiliates) representing 25% or more of the combined voting
power of the EEC's then outstanding securities; or
(ii) during any period of two consecutive years (not
including any period prior to May 1, 1998), individuals who
at the beginning of such period constitute the Board of
Directors of EEC and any new director (other than a director
designated by a Person who has entered into an agreement
with EEC to effect a transaction described in paragraph (i),
(iii) or (iv) of this Change in Control definition or a
director whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitations of proxies or consents by
or on behalf of a Person other than the Board of Directors
of EEC) whose election by the Board of Directors of EEC or
nomination for election by EEC'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 beginning
of the period or whose election or nomination for election
was previously so approved, cease for any reason to
constitute a majority thereof; or
(iii) the shareholders of EEC approve a merger or
consolidation of EEC with any other corporation, other than
(x) a merger or consolidation which would result in the
voting securities of EEC outstanding immediately prior
thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity), in combination with the ownership of
any trustee or other fiduciary holding securities under an
employee benefit plan of EEC or a subsidiary of EEC, at
least 75% of the combined voting power of the voting
securities of EEC or such surviving entity outstanding
immediately after such merger or consolidation or (y) a
merger or consolidation effected to implement a
recapitalization of EEC (or similar transaction) in which no
Person acquires more than 50% of the combined voting power
of EEC's then outstanding securities; or
(iv) the shareholders of EEC approve a plan of
complete liquidation of EEC or an agreement for the sale or
disposition by EEC of all or substantially all EEC's assets.
For purposes of the definition of Change in Control in
this Paragraph 7:
"Beneficial Owner" shall have the meaning
defined in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended from time to
time.
"Person" shall have the meaning given in
Section 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) EEC or any
of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under any employee
benefit plan of EEC or any of its subsidiaries,
(iii) an underwriter temporarily holding
securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly
or indirectly, by the stockholders of EEC in
substantially the same proportions as their
ownership of stock of EEC.
IN WITNESS WHEREOF OF THE ADOPTION OF THIS AMENDED AND
RESTATED PLAN, NYSEG has set its hand and seal to this amended
and restated plan as of the 1st day of May, 1998.
NEW YORK STATE ELECTRIC & GAS
CORPORATION
By___________________________
Title:
Attest _____________________
D.W. Farley
Vice President and
Secretary
STATE OF NEW YORK )
)ss:
COUNTY OF TOMPKINS )
I, _________________ a Notary Public in and for the
aforesaid jurisdiction, do hereby certify that _________________,
who is personally known to me to be the person who executed the
foregoing amended and restated NYSEG Supplemental Executive
Retirement Plan, personally appeared before me in the aforesaid
jurisdiction, and as _________________________ of New York State
& Electric & Gas Corporation and by virtue of the power and
authority vested in him, acknowledged the same to be the act and
deed of New York State Electric & Gas Corporation and he executed
the same as such.
Given under my hand and seal this ____ day of ______, 1998.
_______________________
Notary Public