Exhibit 10.23
BAY STATE GAS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Restated as of January 1, 1992)
SECOND AMENDMENT
WHEREAS Bay State Gas Company (the "Company") adopted the Bay State Gas
Company Supplemental Executive Retirement Plan (the "Plan"), originally
effective July 1, 1986, for the purpose of attracting, retaining and motivating
selected executives; and
WHEREAS, the Company amended and restated the Plan effective January 1,
1992; and
WHEREAS, the Company reserves the right to amend the Plan in Section 6.1
thereof; and
WHEREAS, the Company has most recently amended the Plan effective August 1,
1994 by a First Amendment thereto; and
WHEREAS, the Company desires further to amend the Plan;
NOW THEREFORE, the Plan is hereby further amended as follows, effective
January 1, 1997:
Section 1.7, as heretofore amended by the First Amendment to the Plan, is
hereby deleted in its entirety and a new Section 1.7 substituted therefor
to read as follows:
"1.7 'Participant' means an employee of the Company or an Affiliate who is
an officer at the vice-president or equivalent level or above who has
been approved for participation in the Plan by the Compensation
Committee. An Employee shall become a 'participant' as of the date he
or she meets the aforementioned eligibility requirements."
IN WITNESS WHEREOF, Bay State Gas Company has caused this instrument to be
executed by its duly authorized officer.
BAY STATE GAS COMPANY
ATTEST: By: /s/ Joel Singer
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/s/ Charles H. Tenney, III Its President
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Clerk
BAY STATE GAS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(Restated as of January 1, 1992)
FIRST AMENDMENT
WHEREAS Bay State Gas Company (the "Company") adopted the Bay State Gas
Company Supplemental Executive Retirement Plan (the "Plan"), originally
effective July 1, 1986, for the purpose of attracting, retaining and motivating
selected executives;
WHEREAS the Company has most recently amended and restated the Plan
effective January 1, 1992;
WHEREAS, the Company reserved the right to amend the Plan in Section 6.1
thereof; and
WHEREAS, the Company desires further to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended as follows, effective August 1,
1994:
1. Section 1.6 is hereby amended by adding at the end thereof the following
sentence:
"Earnings shall not include any amounts paid by the Company to reimburse a
Participant for the cost of premiums on any policy of insurance."
2. Section 1.7 is hereby deleted in its entirety and a new Section 1.7
substituted therefor to read as follows:
"1.7 "Participant" means an employee of the Company or an Affiliate who
is an officer at the vice president or equivalent level or above,
duly elected by the Board of Directors. An employee shall become a
"Participant" as of the date he or she meets such eligibility
requirements."
3. Section 2.3 is hereby amended by adding at the end thereof the following
sentence:
"For purposes of this Section 2.3, "cause" means:
(a) Conviction by a court of competent jurisdiction of any criminal
offense involving dishonesty or breach of trust or any felony or crime
of moral turpitude which directly and adversely affects the business
of the Company;
(b) Commission of an act of fraud against the Company; or
(c) Willful refusal to perform the duties reasonably assigned by the
Board of Directors, which refusal continues for more than ten
days after written notice to the Participant pursuant to a vote
of two-thirds of the Board of Directors."
4. Section 3.2(a) is hereby amended by deleting the last sentence thereof and
substituting therefor the following:
"For purposes of this Article, the term Early Retirement Equivalent means
the benefit payable at age 65 reduced by .4% per month for each month or
part thereof that the Early Retirement Date precedes age 65."
5. Section 3.2(b) is hereby amended by deleting the first sentence thereof and
substituting therefor the following:
"If the Participant's Early Retirement Date is prior to his having attained
age 60, said gross benefit amount will be reduced by .4% per month for each
month or part thereof that the Early Retirement Date precedes the last day
of the month in which the Participant would attain age 60 and that amount
will be payable from the Early Retirement Date through the month in which
the Participant attains age 60."
6. Article IV is hereby amended by adding at the end thereof a new Section 4.4
to read in its entirety as follows:
"4.4 Change of Control. Notwithstanding Section 4.3, if a
Participant who was a Participant prior to a Change of Control
terminates employment subsequent to such Change of Control, the
Participant will be entitled to a benefit, payable as provided in
Section 3.5, in an amount equal to the benefit determined under
Section 3.1 or 3.2, whichever is applicable, based on the
Participant's Earnings and Service as of his termination of
employment. A Participant to whom this Section 4.4 applies shall
be deemed to have completed five years of Service (or, if
greater, the Participant's actual service) for purposes of
Sections 2.1 and 5.1 and, in the event of the Participant's death
after his termination of employment but prior to the time
benefits commence, the Participant shall be deemed to have been
actively employed at the time of his death for purposes of
Section 5.1.
For purposes of this Section 4.4, a "Change of Control" shall be
considered to have occurred if:
(a) Any person, entity or group of persons (other than the Company
or any wholly-owned subsidiary of the Company), within the
meaning of sections 13(d) or 14(d) of the Securities Exchange
Act of 1934 (the "Act"), becomes the beneficial owner, within
the meaning of Rule 13d-3 promulgated under the Act, directly or
indirectly, of 25% or more of the Company's then outstanding
shares of common stock, par value $3.33 1/3 per share ("Common
Stock");
(b) Any person, entity or group of persons (other than the Company
or any wholly-owned subsidiary of the Company), after purchasing
Common Stock of the Company in a tender or exchange offer,
becomes the beneficial owner, directly or indirectly, of 25% or
more of the Common Stock;
(c) The shareholders of the Company approve (i) a merger or
consolidation of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which the
shares of Common Stock would be converted into cash, securities
or other property, or (ii) any sale, lease, exchange or other
transfer of all or substantially all of the Company's assets; or
(d) There is a change in a majority of the members of the Company's
Board of Directors within a 25-month period, unless such change
has been approved by two-thirds of the Directors then still in
office who were in office at the beginning of the 25-month
period."
7. Section 6.1 is hereby amended by adding at the end of the second sentence
thereof (ending "the needs of the situation") the following clause:
"provided, that the Participant or, in the case of the Participant's
death, the Surviving Spouse of the Participant agrees to such
modification or waiver."
8. Article VI is hereby amended by adding a new Section 6.1A thereto read in
its entirety as follows:
"6.1A Attorney's Fees. The Company will pay the costs and expenses
incurred by a Participant, including without limitation reasonable
attorney's fees, in an action to obtain or enforce any rights or
benefits under the Plan in which the Participant
is successful."
IN WITNESS WHEREOF, Bay State Gas Company has caused this instrument to be
executed by its duly authorized officer.
BAY STATE GAS COMPANY
Date: October 7, 1994 By: /s/ Paul A. Ford
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Title -- Senior Vice President, Operations
51634
BAY STATE GAS COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Restated
January 1, 1992
PREAMBLE
The name of this plan is the "Bay State Gas Company Supplemental Executive
Retirement Plan" (the "Plan"). The Plan has been established by Bay State Gas
Company (the "Company") for the purpose of providing a supplemental amount of
retirement income in order to attract, retain, and motivate selected
executives. The Plan, as originally adopted effective July 1, 1986, and amended
and restated July 1, 1990, shall become effective as further amended and
restated January 1, 1992.
ARTICLE I
DEFINITIONS
1.1 "Affiliate" means any corporation, partnership, or other organization
which is designated as an "Affiliate" by the Committee and adopts the Plan.
1.2 "Basic Plan" means the Bay State Gas Company Pension Plan, as amended
from time to time.
1.3 "Basic Plan Benefit" means the amount of benefit payable from the Basic
Plan to a Participant (after adjustment for benefits payable for service
with an Affiliate) in the form of a straight life annuity.
1.4 "Committee" means a committee made up of the Company's Chief Executive
Officer, Chief Financial Officer, and Senior Vice President of Human
Resources and Division Management, or such other persons as may be
designated from time to time by the Board of Directors of the Company.
1.5 "Compensation Committee" means the committee of the Board of Directors
charged with the responsibility for compensation and employee benefit
matters.
1.6 "Earnings" means a Participant's average annual total cash compensation
for his highest 36 months during his final ten years of employment with
the Company and its Affiliates, which compensation shall include any
contributions through a salary reduction agreement to a cash or deferred
plan under IRC Section 401(k) and shall include any incentive compensation
awards under the Company's Key Employee Incentive Compensation Plan.
Incentive Compensation awards shall be included in earnings for the period
in which the award was earned, regardless of when the award was paid. The
incentive compensation awards included shall not exceed three annual
awards, whether or not such incentive compensation was deferred under the
Company's Key Officer Deferred Compensation Plan, and shall exclude any
other incentive compensation
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In the case of a Participant having less than 36 months of employment with
the Company and its Affiliates, "Earnings" means his average annual total
compensation for his or her total final continuous period of employment
with the Company and its Affiliates.
1.7 "Participant" means an employee of the Company or an Affiliate who is an
officer at the vice president or equivalent level or above who has been
approved for participation in the Plan by the Compensation Committee. An
Employee shall become a "Participant" as of the date he or she meets the
aforementioned eligibility requirements.
1.8 "Retirement" means the termination of a Participant's employment with the
Company and its Affiliates on one of the retirement dates specified in
Section 2.1.
1.9 "Service" means a Participant's years of service for vesting purposes
under the terms of the Basic Plan and, if approved by the Compensation
Committee, years of service with another organization(s) prior to Service
with the Company.
1.10 "Surviving Spouse" means the spouse of a deceased Participant.
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ARTICLE II
ELIGIBILITY FOR BENEFITS
2.1 Retirement Dates. Each Participant is eligible to retire and receive a
benefit under the Plan beginning on one of the following dates:
(a) "Normal Retirement Date," which is the first day of the month in
which the Participant reaches age 65 and has 5 years of Service.
(b) "Early Retirement Date," which is the first day of any month
after the Participant reaches age 55 and has 5 years of Service.
(c) "Postponed Retirement Date," which is the first day of any month
following the Participant's Normal Retirement Date in which the
Participant terminates employment with the Company.
2.2 Disability. If, prior to his Retirement Date, a Participant sustains a
total disability as determined by the Committee, he shall be entitled to
receive a benefit hereunder beginning on any Early Retirement Date or on
his Normal Retirement Date at the Participant's election.
2.3 Non-Competition or Discharge For Cause. If any Participant entitled to a
benefit under the Plan is discharged for cause, or enters into competition
with the Company, or interferes with the relations between the Company and
any customer, or engages in any activity that would result in any decrease
in or loss of revenues by the Company, the rights of such Participant to a
benefit under the Plan, including the rights of a Surviving Spouse to a
benefit, will be forfeited, unless the Committee determines that such
activity is not detrimental to the best interests of the Company. However,
if the individual ceases such activity and notifies the Committee in
writing of this action, then the Participant's right to receive a benefit,
and any right of a Surviving Spouse to a benefit, may be restored within 60
days of said notification, unless the Committee in its sole discretion
determines that the prior activity has caused serious injury to the
Company, which determination will be final and conclusive.
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ARTICLE III
AMOUNT AND FORM OF RETIREMENT BENEFIT
3.1 Benefit at Normal Retirement. The annual retirement benefit payable at a
Participant's Normal Retirement Date as a single life annuity under the
Plan will equal 4% of Earnings times completed years and full months of
his Service, up to 15 years of Service, less the sum of the Benefit
Offsets defined below calculated as benefits payable at age 65. The
maximum annual benefit hereunder, payable as a single life annuity, shall
be an amount equal to 60% of the Participant's Earnings, less the sum of
the Benefit Offsets.
For purposes of this Article, the term Benefit Offsets means the sum of
the following annual amounts to which the Participant may be entitled,
payable in the form of a single life annuity: (i) the amount of any Basic
Plan retirement benefit excluding any Early Retirement Supplement payments
made prior to age 62, (ii) the amount of any retirement benefit payable
from a defined benefit plan of any prior employer of the Participant, and
(iii) the amount of any retirement benefit payable from a defined benefit
plan of any company affiliated with the Company.
3.2 Benefit at Early Retirement. The annual benefit payable at a
Participant's Early Retirement Date will equal the gross benefit
determined in Paragraph 3.1 before reduction for the Benefit Offsets,
based upon his Earnings and Service at his Early Retirement Date, subject
to the following adjustments:
(a) If the Participant's Early Retirement Date is on or after his
having attained age 60, said gross benefit amount will be reduced by
the sum of the Benefit Offsets calculated as immediate benefits
payable at the Early Retirement Date under the terms of the
respective plans, or if such Benefit Offset amounts are either not
immediately payable at the Early Retirement Date under the terms
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of such plans or are not readily determinable based on the information
available to the Company, then such Benefit Offset amounts shall be
equal to the Early Retirement Equivalent of the Benefit Offset amounts
payable at age 65. For purposes of this Article, the term Early
Retirement Equivalent means the benefit payable at age 65 reduced by
4.8% per year for each year or part thereof that the early retirement
data precedes age 65.
(b) If the Participant's Early Retirement Date is prior to his having
attained age 60, said gross benefit amount will be reduced by 4.8% per
year for each year or part thereof that the Early Retirement Date
precedes the last day of the month in which the Participant would
attain age 60 and that amount will be payable from the Early
Retirement Date through the month in which the Participant attains age
60. Commencing the first day of the next month, that amount will be
further reduced by the sum of the Benefit Offsets calculated as
immediate benefits payable at the Early Retirement Date under the
terms of the respective plans, or if such amounts are either not
immediately payable at age 60 or are not readily determinable based
upon information available to the Company, then such amounts shall be
equal to the Early Retirement Equivalent of the Benefit Offset amounts
payable at age 65.
3.3 Benefit at Postponed Retirement. The annual benefit payable at a
Participant's Postponed Retirement Date will be equal to the benefit
determined in accordance with Section 3.1 but based upon his or her
Service and Earnings up to his or her Postponed Retirement Date.
3.4 Disability Benefit. A Participant who sustains a total and permanent
disability pursuant to Section 2.2 may elect to begin to receive benefits
on the date elected pursuant to Section 2.2. The amount of his benefit
shall be determined as provided above for a benefit at his Normal
Retirement Date or Early Retirement Date, but based upon the
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Service he would have accrued had he continued as an employee of the
Company until the date benefits began hereunder, and based upon his
Earnings had his rate of base pay (as in effect immediately prior to
such disability) continued until the date on which benefit payments
begin hereunder, plus his highest three consecutive incentive
compensation awards.
3.5 Form of Benefit. The benefit determined under the Plan will be
payable in an annuity or lump sum form, as elected by the Participant.
If payment in the form of an annuity is elected, the annuity type
shall be the same as that elected by the Participant with respect to
his benefit, if any, payable under the Basic Plan. If benefits
hereunder are paid in an annuity form other than a straight life
annuity, the amount of the benefit from this Plan shall be reduced by
the Basic Plan's factors for payment in a form other than a straight
life annuity. If payment in the form of a lump sum is elected, the
lump sum amount payable will be calculated in the same manner and
according to the same interest rates and mortality tables as under the
Basic Plan.
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ARTICLE IV
PAYMENT OF RETIREMENT BENEFITS
4.1 Time of Payment. Annuity benefits payable in accordance with Article III
will commence on the Participant's date of Retirement as the Participant
may elect. Benefits will continue to be paid on the first day of each
succeeding month. The last payment will be made on the first day of the
month in which the retired Participant dies unless otherwise elected in
accordance with Section 3.5. Lump sum benefits payable in accordance with
Article III will be payable as soon as practicable after the Participant's
date of Retirement.
4.2 Coordination With Basic Plan. In the case of a Participant who is eligible
to receive a normal or early retirement benefit under the Basic Plan, his
benefit under the Plan shall be paid beginning at the same time as such
Basic Plan benefit except in the case of a Participant whose Early
Retirement Date occurs prior to age 60.
4.3 Pre-Retirement Termination. No benefits are payable under the Plan if a
Participant terminates employment for any reason, other than death, prior
to his or her Retirement date, except as explicitly provided in this Plan.
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ARTICLE V
DEATH BENEFITS PAYABLE
5.1 Surviving Spouse Benefit. If a Participant dies while still actively
employed and either after 5 years of Service or after age 65, but prior to
Retirement, the Surviving Spouse will receive a benefit from the Plan. The
benefit payable under this Article V shall be determined as follows:
(a) If the Participant dies after attaining eligibility for Early or
Normal Retirement, but prior to Retirement, the Surviving Spouse will
receive a benefit equal to 50% of the amount of the Participant's
benefit determined and paid in the same manner as provided in Article
III, calculated as if the Participant had retired and commenced
receiving a benefit on the first day of the month following the date
of his death in the form of a 50% Joint and Survivor Annuity with his
Surviving Spouse as beneficiary. The benefit will be payable monthly
for the life of the Surviving Spouse and will commence on the first
day of the month following the month in which the Participant dies.
(b) Effective June 1, 1990, if the Participant dies after 5 years of
Service, but prior to his Early Retirement Date, the Surviving Spouse
will receive a benefit equal to 50% of the gross amount of the
Participant's benefit determined and paid in the same manner as
provided in Article III, Paragraph 3.2, calculated based on Earnings
and Service at date of death and as if the Participant had retired at
age 55 and commenced receiving a benefit in the form of a 50% Joint
and Survivor Annuity with his Surviving Spouse as beneficiary. The
benefit is payable monthly for the life of the Surviving Spouse and
will commence on the first day of the month following the month in
which the Participant attains age 55.
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ARTICLE VI
MISCELLANEOUS
6.1 Termination, Amendment, Suspension. The Board of Directors of the
Company may, in its sole discretion, terminate, suspend, or amend the
Plan at any time or from time to time, in whole or in part. The
Compensation Committee may in its sole discretion in special cases
such as Participant illness, extraordinary service, etc., modify or
waive ancillary Plan provisions to meet the needs of the situation.
However, no termination, amendment, suspension or modification of the
Plan will affect a retired Participant's right or the right of a
Surviving Spouse to continue to receive a benefit in accordance with
the Plan as in effect on the date such Participant or Surviving Spouse
commenced to receive a benefit hereunder, nor will any such
termination, amendment, suspension or modification result in a
reduction of Participant's accrued benefit based on the Participant's
Earnings and Service to the date of such change in the Plan.
6.2 No Guarantee of Employment. Nothing contained herein will confer upon
any Participant the right to be retained in the employ of the Company
or any Affiliate, nor will it interfere with the right of the Company
or an Affiliate to discharge or otherwise deal with a Participant
without regard to the existence of the Plan.
6.3 Funding. The Plan is unfunded and the Company will make Plan benefit
payments solely on a current disbursement basis out of the general
assets of the Company.
6.4 No Alienation or Assignment of Benefit. To the maximum extent
permitted by law, no benefit under the Plan shall be assignable or
subject in any manner to alienation, sale, transfer, claims of
creditors, pledge, attachment, or encumbrance of any kind.
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6.5 Administration. The Committee may adopt rules and regulations to assist it
in the administration of the Plan. The Committee shall have the sole
authority to interpret the Plan based on its intent, and any decision by
the Committee with regard to any Participant's or Surviving Spouse's
benefit hereunder shall be conclusive and binding.
6.6 Participant's Access to Documents. Each Participant will receive a copy of
the Plan.
6.7 Governing Law. The Plan is established under and will be construed in
accordance with the laws of the Commonwealth of Massachusetts.
6.8 Gender and Number. The masculine gender, where appearing in the Plan, will
be deemed to include the feminine gender, and the singular may include the
plural, unless the context clearly indicates otherwise.
6.9 Headings. Headings are included for convenience of reference only and are
not to be used in interpreting the Plan.
EXECUTED this 28th day of April, 1992.
BAY STATE GAS COMPANY
By: /s/ Paul A. Ford
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Title: Senior Vice President
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ASSET:
By: /s/ Charles H. Tenney, III
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Title: Clerk
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