Exhibit 10(d)1
New Century Energies, Inc. Directors'
Voluntary Deferral Plan
Article 1. Establishment and Purpose of the Plan
1.1 Establishment. New Century Energies, Inc., a Delaware corporation,
(the "Company"), hereby establishes, as of the effective date of the merger
between Public Service Company of Colorado and Southwestern Public Service
Company, a deferred compensation plan for nonemployee directors as described
herein, which shall be known as the New Century Energies, Inc. Directors'
Voluntary Deferral Plan (the "Plan"). The Plan shall assume the liabilities of
the predecessor companies under the Public Service Company of Colorado
Directors' Voluntary Deferral Plan or the Southwestern Public Service Company
Directors' Deferred Compensation Plan with respect to any nonemployee director
of either such predecessor company who becomes a nonemployee director of the
Company.
1.2 Purpose. The Plan is intended to provide a means whereby nonemployee
directors of the Company may voluntarily defer all or a portion of their
compensation, subject the terms of the Plan.
Article 2. Administration
The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors (the "Board") of the Company. The
Committee is authorized to interpret the Plan and may, from time to time, adopt
such rules and regulations, consistent with the provisions of the Plan, as it
may deem advisable to carry out the Plan. All determinations made by the
Committee shall be final.
The Vice President of Human Resources of the Company shall, as the
delegatee of the Committee, be responsible for the day-to-day administration of
the Plan, including but not limited to, accepting deferral election forms and
accounting for deferrals and distributions under the Plan.
Article 3. Participation in the Plan
3.1 Eligibility. All nonemployee directors of the Company ("Directors")
shall be eligible to participate in the Plan. A Director shall be considered to
be a Director until the close of business on the day preceding the earlier of
(i) the first date the individual becomes a common-law employee of the Company
or any affiliate of the Company, or (ii) the first date the individual ceases to
be a member of the Board for any reason whatsoever.
3.2 Election to Participate. An eligible Director may elect to become a
participant in the Plan ("Participant") by electing to defer all or a portion of
his/her annual retainer and meeting fees ("Compensation"). A separate such
election shall be allowed with respect to the cash portion of Compensation and
with respect to the equity portion of Compensation, with the deferral percentage
with respect to each portion being in such increments as shall be prescribed by
the Committee. Any such
election shall apply to the Participant's Compensation earned on or after
January 1 of the following calendar year.
Notwithstanding the foregoing, with respect to an individual who first
becomes a Director on a day other than the first day of a calendar year and
elects to participate in that year, any such election shall apply to the
Participant's Compensation during the calendar year in which he/she first
becomes a Director and subsequent years.
3.3 Time and Manner of Making Elections. Any election as to Compensation
which may be made by a Participant must be made on or before December 31 of the
year preceding the calendar year to which the election relates; provided, that
with respect to an individual who first becomes a Director after the beginning
of a calendar year, any such election with respect to the calendar year in which
he/she first becomes a Director must be made within thirty (30) days after
becoming a Director. With respect to deferrals of Compensation to be earned in
1997 after the effective date of the Plan, elections must be made within thirty
(30) days after the effective date of the Plan. All deferral elections must be
made on such form as shall be prescribed for this purpose by the Committee.
3.4 Nature of Elections. Any election as to Compensation which may be made
by a Participant with respect to any calendar year shall be irrevocable once
made; provided, however, that a Director may stop participation in the Plan or
change the percentage deferred by delivering written notice to the Company by
December 31 in the year prior to the year in which Compensation is earned. Such
written notice of termination of participation or change in the percentage
deferred must be made on such form as may be prescribed for this purpose by the
Committee.
Plan provisions to the contrary notwithstanding, any election as to
Compensation made by a Participant with respect to any calendar year, unless
changed or revoked by the Participant prior to the expiration of the time for
making such election with respect to each subsequent calendar year, shall be
deemed to have been made with respect to each subsequent calendar year.
Article 4. Deferred Compensation Account
4.1 Directors' Accounts. The Company shall establish and maintain
individual bookkeeping accounts to reflect deferrals made by a Participant
pursuant to this Plan and accounts transferred from the Public Service Company
of Colorado Directors' Voluntary Deferral Plan or the Southwestern Public
Service Company Directors' Deferred Compensation Plan. Two individual
bookkeeping accounts shall be maintained with respect to each Participant to be
referred to as a "Cash Account" and a "Stock Account".
The Participant shall designate that deferrals made pursuant to this Plan
are to be credited to either the Cash Account or the Stock Account or that a
portion of such deferrals, in such increments as shall be prescribed by the
Committee, are to be credited to either of the Cash Account or the Stock
Account. Such designation shall be made on such form as shall be prescribed for
this purpose by the Company, and
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shall continue in effect with respect to all subsequent deferrals until changed
effective as of any January 1 by the Participant.
The appropriate account shall be credited as of the date the amount
deferred otherwise would have become due and payable to the Participant.
4.2 Additions to Cash Accounts. The balance of a Cash Account shall be
reflected in United States Dollars.
As of the first day of the month after the effective date of the Plan, an
opening balance shall be credited to the Cash Account of each Participant equal
to the balance credited to the Participant under the Public Service Company of
Colorado Director's Voluntary Deferral Plan, or the balance credited to the Cash
Account of the Participant under the Southwestern Public Service Company
Directors' Deferred Compensation Plan, as appropriate, as of the immediately
preceding day.
The Cash Account shall accrue interest each year at the rate on 1 0-Year
Treasury Notes as of the last auction date of the prior year, or such other rate
as shall be determined by the Compensation Committee. Each Participant's Cash
Account shall be credited with interest on the last day of each month. An
interest rate, which when compounded monthly equals the pre-determined annual
interest accrual, shall be applied to each month's beginning balance.
4.3 Additions to Stock Accounts. The balance of a Stock Account shall be
reflected in "Stock Units".
As of the effective date of the Plan, an opening balance shall be credited
to the Stock Account of each Participant who was a participant in the
Southwestern Public Service Company Directors' Deferred Compensation Plan equal
to the number of shares or units credited to the Stock Account of the
Participant under such plan as of the immediately preceding day converted to
Stock Units on such basis as shares of common stock of Southwestern Public
Service Company are converted in the merger into shares of common stock of the
Company ("Company Stock").
As of the date on which Compensation affected by a deferral election and
to be credited to a Participant's Stock Account would otherwise have been paid
to the Participant, the Participant's Stock Account shall be credited with a
number of Stock Units equal to the number of shares of Company Stock, to four
decimal places, that could have been purchased with such deferrals at a per
share price equal to the arithmetic mean between the highest and lowest quoted
selling prices on the New York Stock Exchange Composite Tape on the date the
Compensation would otherwise have been paid to the Participant (or, if there are
no sales on such date, then such arithmetic mean on the next succeeding day on
which there are sales will be used).
As of the payment date of any cash dividend on outstanding shares of
Company Stock, each Participant's Stock Account shall be credited with a number
of additional Stock Units equal to the number of shares of Company Stock, to
four decimal places, that could have been purchased with the base amount (as
defined below) at a per share price equal to the arithmetic mean between the
highest and lowest selling prices
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on the New York Stock Exchange Composite Tape for the payment date of the
dividend (or, if there are no sales on that date, then the arithmetic mean on
the next succeeding day on which there are sales will be used). The "base
amount" for purposes of this calculation means the dollar amount of the cash
dividends that would have been paid with respect to a number of outstanding
shares of Company Stock equal to the number of Stock Units (including fractions)
credited to the Participant's Stock Account as of the record date of such
dividend (assuming that fractional shares could be held of record and that
dividends were paid with respect thereto).
As of the payment date of any stock dividend, stock split or other
distribution on outstanding shares of Company Stock, each Participant's Stock
Account shall be credited with a number of additional Stock Units equal to the
number of shares of Company Stock that would have been distributed with respect
to a number of outstanding shares of Company Stock equal to the number of Stock
Units (including fractions) credited to the Participant's Stock Account as of
the record date of such dividend, split or other distribution (assuming that
fractional shares could be held of record and that the dividend, split or
distribution was paid with respect thereto) or the number of shares of Company
Stock that could have been purchased with the cash equivalent of any other
distribution. In the case of a stock dividend, stock split or other distribution
where the ex-date is after the record date, any Stock Units credited to the
Participant's Stock Account as of the record date of such dividend, split or
other distribution but with respect to which a distribution has been made to the
Participant after the record date and prior to the ex-date will be disregarded
for purposes of determining the additional credit under this paragraph.
In the event that the Company shall at any time be consolidated with or
merged with any other corporation and the Company is not the surviving entity,
the amounts credited to each Participant's Stock Account shall be a continuing
liability of the continuing entity and the number of Stock Units credited to the
Participant's Stock Account immediately prior to the merger or consolidation
(including fractions) shall be converted to an equivalent number of Stock Units
based upon the common stock of such continuing entity (including fractional
shares) or other consideration on the same basis as issued and outstanding
shares of Company Stock are exchanged for shares of such continuing entity
(assuming fractional shares could have been so exchanged and that fractional
shares of the continuing entity would have been issued) or other consideration.
Alternatively, each Participant may demand, or the Compensation Committee may
require, that a payment be made as of the day preceding the effective date of
such consolidation or merger of a cash amount equal to the number of Stock Units
credited to the Participant's Stock Account on such day multiplied by the
arithmetic mean between the highest and lowest selling prices for shares of
Company Stock on the New York Stock Exchange Composite Tape on such day (or, if
there are no sales on such day, such arithmetic mean on the next preceding day
on which there are such sales will be used). Such demand made by the Participant
shall be in writing and shall not be effective unless filed with the Secretary
of the Company not later than the day preceding the effective date of such
consolidation or merger.
4.4 Charges Against Accounts. Any payments made to a Participant or
his/her beneficiary shall be charged against the Participant's Cash Account or
Stock Account, as appropriate.
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4.5 Designation of Beneficiary. Each Participant shall designate a
beneficiary or beneficiaries who, upon the Participant's death, will receive the
amounts that otherwise would have been paid to the Participant under the Plan.
All designations shall be signed by the Participant and shall be made on a
"Beneficiary Designation Form." Each designation shall be effective as of the
date delivered by the Participant to the Vice President of Human Resources of
the Company.
Participants may change their designations of beneficiary by execution and
delivery of a new Beneficiary Designation Form to the Vice President of Human
Resources of the Company. The payment of amounts under the Plan shall be in
accordance with the last unrevoked Beneficiary Designation Form that has been
signed by the Participant and delivered by the Participant to the Vice President
of Human Resources prior to the Participant's death.
In the event that all beneficiaries named by a Participant pursuant to
this Section 4.5 predecease the Participant, the deferred amounts that would
have been paid to the Participant or the Participant's beneficiaries shall be
paid to the Participant's estate.
In the event that a Participant does not designate a beneficiary, or for
any reason such designation is ineffective, in whole or in part, the amounts
that otherwise would have been paid to the Participant or the Participant's
beneficiaries under the Plan shall be paid to the Participant's estate.
Article 5. Payment Generally
5.1 Payment Generally. Payment of a Participant's Cash Account shall be
made in a single lump-sum cash payment or in five (5) annual cash installments,
as elected by the Participant, beginning as soon as administratively practicable
following termination as an active member of the Board. The Participant shall
make his/her election at the time of his/her deferral election on such form as
shall be prescribed for this purpose by the Committee.
Payment of a Participant's Stock Account shall be made in shares of
Company Stock in certificate form, with the payment to be made as soon as
administratively practicable following termination as an active member of the
Board. The number of shares paid will equal the number of Stock Units credited
to the Participant's Stock Account on his/her last day of service as an active
member of the Board (with a cash equivalent paid for any fraction). If any
additional Stock Units will be credited to the Participant's Stock Account after
his/her last day of service as an active member of the Board as a result of a
cash or stock dividend paid after such date, then, at the discretion of the
Committee, the payment to the Participant or his/her beneficiary may be deferred
until after the payment date of such dividend or an additional payment may be
made consisting of an additional number of shares equal to the number of Stock
Units credited as a result of such dividend.
5.2 Hardship Withdrawals. The Committee shall have the authority to alter
the timing or manner of payment of deferred amounts in the event the Participant
establishes, to the satisfaction of the Committee, severe financial hardship. In
such
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event, the Committee may, in its sole discretion, take one or more of the
following actions:
(i) Authorize the cessation of deferrals by such Participant under the
Plan.
(ii) Provide that all, or a portion, of the balance of the Participant's
Cash Account and/or Stock Account shall immediately be paid in a lump
sum cash payment.
(iii) Provide that all, or a portion, of the installment payable over a
period of time shall immediately be paid in a lump sum cash payment.
(iv) Provide for such other installment payment schedule as deemed
appropriate by the Committee under the circumstances.
For purposes of this Section 5.2, "severe financial hardship" shall mean
any financial hardship resulting from extraordinary and unforeseeable
circumstances arising as a result of one or more recent events beyond the
control of the Participant. In any event, payment may not be made to the extent
such emergency is or may be relieved: (i) through reimbursement or compensation
by insurance or otherwise, (ii) by liquidation of Participant's assets, to the
extent the liquidation of such assets would not itself cause severe financial
hardship; and (iii) by cessation of deferrals under the Plan. Withdrawals of
amounts because of a severe financial hardship may only be permitted to the
extent reasonably necessary to satisfy the hardship. Examples of what are not
considered to be severe financial hardships include the need to send a
Participant's child to college or the desire to purchase a home. The
Participant's Cash Account and Stock Account will be adjusted in accordance with
the Plan up to the date of distribution.
The severity of the financial hardship shall be judged by the Committee.
The Committee's decision with respect to the severity of financial hardship and
the manner in which, if at all, the participant's future deferral opportunities
shall cease, and/or the manner in which, if at all, the payment of deferred
amounts to the Participant shall be altered or modified, shall be final,
conclusive, and not subject to appeal.
5.3 Death or Disability. If a Participant dies or becomes disabled,
payment of the entire remaining balance of his/her Cash Account and Stock
Account shall be made in a single lump-sum payment within thirty (30) calendar
days following death or termination as an active member of the Board.
Payment of the Participant's Cash Account (or the remaining portion
thereof) shall be made in cash.
Payment of a Participant's Stock Account shall be made in shares of
Company Stock in certificate form. The number of shares paid will equal the
number of Stock Units credited to the Participant's Stock Account on his/her
last day of service as an active member of the Board (with a cash equivalent
paid for any fraction). If any additional Stock Units will be credited to the
Participant's Stock Account after his/her last day of service as an active
member of the Board as a result of a cash or stock
6
dividend paid after such date, then, at the discretion of the Committee, the
payment to the Participant may be deferred until after the payment date of such
dividend or an additional payment may be made consisting of an additional number
of shares equal to the number of Stock Units credited as a result of such
dividend.
For purposes of this section, disability shall mean total and permanent
disability within the meaning of the pension plan sponsored by the Company, as
determined in good faith by the Committee, upon receipt of sufficient competent
medical advice from one or more individuals, selected by the Committee, who are
qualified to give professional medical advice.
Article 6. Rights of Participants
6.1 Contractual Obligation. The Plan shall create a contractual obligation
on the part of the Company to make payments to or with respect to the
Participant when due under the terms of the Plan. Payments shall be made out of
the general funds of the Company except as provided in Section 6.2.
6.2 Unsecured Interest. No Participant or party claiming an interest in
deferred amounts shall have any interest whatsoever in any specific asset of the
Company. To the extent that any party acquires a right to receive payments under
the Plan, such right shall be equivalent to that of an unsecured general
creditor of the Company.
The Company may establish one or more trusts, with such trustee as the
Committee may approve, for the purpose of providing for the payment of deferred
amounts. Such trust(s) may be irrevocable, but the assets thereof shall be
subject to the claims of the Company's general creditors. To the extent any
deferred amounts under the Plan are actually paid from any such trust, the
Company shall have no further obligation with respect thereto, but to the extent
not so paid, such deferred amounts and contributions shall remain the obligation
of, and shall be paid by, the Company.
Article 7. Withholding of Taxes
The Company hereby reserves the right to require Participants to remit to
the Company an amount sufficient to satisfy Federal, state, and local
withholding tax requirements, or to deduct from payments made pursuant to the
Plan, or from other payments due from the Company to the Participant, amounts
sufficient to satisfy withholding tax requirements.
Article 8. Miscellaneous
8.1 Nontransferability. Participants' rights to deferred amounts, and
interest earned thereon under the Plan as well as other compensation earned
under the Plan may not be sold, transferred, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution. In
no event shall the Company make any payment under the Plan to any assignee or
creditor of a Participant. Any funds so set aside or acquired shall remain
subject to the claims of the creditors of the Company, present and future.
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8.2 Severability. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
8.3 Amendment and Termination. The Company hereby reserves the right to
amend, modify, or terminate the Plan or any part thereof, from time to time, by
action of the Committee with approval by the Board; provided that no such
amendment or termination shall in any material manner adversely affect any
Participant's rights to deferred amounts, together with interest earned thereon
as well as other compensation earned under the Plan, without the consent of the
Participant.
8.4 Successors. All obligations of the Company under the Plan shall be
binding on any successor to the Company, whether the existence of such successor
is the result of a direct or indirect purchase, merger, consolidation, or
otherwise, of all or substantially all of the business and/or assets of the
Company. Upon the occurrence of such an event, the term "Company" as used in
this Agreement shall be deemed to refer to such successor or survivor entity or
entities.
8.5 Laws Governing. This plan shall be construed in accordance with and
governed by the laws of the State of Colorado.
8.6 Costs of the Plan. All costs of implementing and administering the
Plan shall be borne by the Company.
8.7 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein shall also include the feminine; the plural shall
include the singular, and the singular shall include the plural.
8
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>7
<DESCRIPTION>NCE SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
<TEXT>
Exhibit 10(e)1
NEW CENTURY ENERGIES
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
(As Adopted Effective January 1, 1998)
NEW CENTURY ENERGIES
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
Table of Contents
ARTICLE I GENERAL
Sec. 1.1 Name of Plan................................................ 1
Sec. 1.2 Purpose..................................................... 1
Sec. 1.3 Effective Date.............................................. 1
Sec. 1.4 Company..................................................... 1
Sec. 1.5 Participating Employers..................................... 1
Sec. 1.6 Construction and Applicable Law............................. 1
ARTICLE II DEFINITIONS
Sec. 2.1 Accrual Percentage.......................................... 2
Sec. 2.2 Actuarial Equivalent........................................ 2
Sec. 2.3 Beneficiary................................................. 2
Sec. 2.4 Board....................................................... 2
Sec. 2.5 Change In Control........................................... 2
Sec. 2.6 Committee................................................... 3
Sec. 2.7 Final Average Compensation.................................. 4
Sec. 2.8 Normal Retirement Benefit................................... 4
Sec. 2.9 Normal Retirement Date...................................... 4
Sec. 2.10 Participant................................................. 4
Sec. 2.11 Plan Year................................................... 4
Sec. 2.12 PSCo SERP................................................... 4
Sec. 2.13 Retirement Plan............................................. 4
Sec. 2.14 SPS SERP.................................................... 4
Sec. 2.15 Successor Employer.......................................... 4
Sec. 2.16 Year of Vesting Service..................................... 4
ARTICLE III PARTICIPATION
Sec. 3.1 Eligibility for Participation............................... 5
Sec. 3.2 Cessation of Participation.................................. 5
Sec. 3.3 No Guarantee of Employment.................................. 5
ARTICLE IV BENEFITS
Sec. 4.1 Amount of Normal Retirement Benefit......................... 5
Sec. 4.2 Special Provisions for PSCo, and SPS SERP Participation..... 6
Sec. 4.3 Vesting of Benefit ......................................... 6
ARTICLE V FORM OF PAYMENT AND COMMENCEMENT DATE
Sec. 5.1 Normal Form ................................................ 7
Sec. 5.2 Reduction for Early Retirement ............................. 7
Sec. 5.3 Optional Forms ............................................. 7
Sec. 5.4 Commencement Date .......................................... 7
Sec. 5.5 Disability Before Retirement ............................... 7
Sec. 5.6 Death Prior to Termination of Employment ................... 7
i
Sec. 5.7 Death After Termination of Employment ...................... 8
Sec. 5.8 Benefit Upon Change In Control ............................. 8
ARTICLE VI ADMINISTRATION
Sec. 6.1 Administration by the Committee ............................ 8
Sec. 6.2 Withholding of Taxes ....................................... 8
Sec. 6.3 Unfunded and Unsecured Plan ................................ 9
ARTICLE VII AMENDMENT AND TERMINATION
Sec. 7.1 Amendment .................................................. 9
Sec. 7.2 Termination of Plan ........................................ 9
ARTICLE VIII MISCELLANEOUS
Sec. 8.1 Designation of Beneficiary ................................. 9
Sec. 8.2 Benefits May Not Be Assigned or Alienated .................. 9
Sec. 8.3 Headings ................................................... 10
Sec. 8.4 Capitalized Definitions .................................... 10
Sec. 8.5 Gender ..................................................... 10
Sec. 8.6 Use of Compounds of Word "Here . ........................... 10
Sec. 8.7 Construed as a Whole ....................................... 10
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NEW CENTURY ENERGIES
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE I
GENERAL
Sec. 1.1 Name of Plan. The name of this plan is "New Century
Energies Supplemental Executive Retirement Plan" (referred to hereinafter as
the "Plan").
Sec. 1.2 Purpose. The Plan has been established to provide supplemental
retirement benefits and certain benefits upon disability or death before
retirement to certain select management or highly compensated employees so that
such employees may be retained and their productive efforts encouraged. This
Plan is a replacement as of the Effective Date of the PSCo SERP and the SPS
SERP. On and after the Effective Date, the benefits to which individuals are
entitled under said SERPs are incorporated in this Plan and they cease to be
eligible for any separate benefit under those SERPs.
(a) If the individual is a Participant in this Plan on or after January 1,
1998, the benefit shall be determined and paid solely pursuant to the
terms of this Plan, and the provisions of the PSCo SERP or the SPS SERP
shall no longer apply except as expressly provided in this Plan. ,
(b) If an individual who was a participant in the PSCo SERP or the SPS SERP
is not a Participant in this Plan on or after January 1, 1998, the
benefit shall be determined and paid pursuant to the provisions of the
PSCo SERP or the SPS SERP, whichever was applicable, as in effect on
December 31, 1997.
Sec. 1.3 Effective Date. The "Effective Date" of the Plan is January
1, 1998.
Sec. 1.4 Company. For purposes of this Plan, "Company" means New
Century Energies, Inc., a Delaware corporation, and any Successor Employer
thereof.
Sec. 1.5 Participating Employers. The Company is a "Participating
Employer" in the Plan. Any subsidiary of the Company shall become a
Participating Employer in this Plan upon being so designated in a written action
by the Committee, effective as of the date specified by the Committee. Any
Successor Employer to a Participating Employer shall also be a Participating
Employer. A Participating Employer shall cease to be such effective as of the
date specified in a written action by the Committee; provided, however, that
such action shall not cause Participants employed by such employer to forfeit
vested benefits accrued prior to such date.
Sec. 1.6 Construction and Applicable Law. The Plan is intended to be an
unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The Plan shall be
administered and construed consistent with said intent. This Plan also shall be
governed and construed in accordance with the laws of the State of Colorado as
applied to contracts executed and to be wholly performed within said state to
the extent that such laws are not preempted by the laws of the United States of
America.
ARTICLE II
DEFINITIONS
Sec. 2.1 Accrual Percentage. "Accrual Percentage" means the percentage
(not in excess of 100%) of a Participant's Normal Retirement Benefit which has
accrued under this Plan as of any date. The Normal Retirement Benefit shall
accrue monthly over a period of 20 years commencing from the Participant's date
of employment with the Participating Employers with a portion equal to 1/240 of
the total benefit accruing at the end of each month during such 20-year period,
provided the individual is employed by a Participating Employer on the last day
of said month. If an individual became a Participant on the Effective Date, the
Participant's Accrual Percentage as of the Effective Date shall be based on a
period of employment that includes all service which was recognized on the day
before the Effective Date for purposes of determining the Participant's benefit
under the PSCo SERP or the SPS SERP. The Committee may, in its sole discretion,
specify in the notice of participation that a particular Participant will be
treated as having additional employment with the Participating Employers for
purposes of calculating the Participant's Accrual Percentage under this Section.
Sec. 2.2 Actuarial Equivalent."Actuarial Equivalent" means a benefit of
equivalent value determined by the Committee upon advice of the actuary for the
Retirement Plan using the actuarial factors used for the corresponding type of
calculation under the Retirement Plan.
Sec. 2.3 Beneficiary. "Beneficiary" means the person or persons
designated as such pursuant to the provisions of Sec. 8. 1.
Sec. 2.4 Board. "Board" means the Board of Directors of the Company.
Sec. 2.5 Change In Control. A "Change In Control" is the occurrence
of any of the events described in subsections (a) through (d) below:
(a) Either (i) receipt by the Company of a report on Schedule 13D, or an
amendment to such a report, filed with the Securities and Exchange
Commission pursuant to Section 13(d) of the Securities Exchange Act of
1934 (die "1934 Act") disclosing that any person (as such term is used
in Section 13(d) of the 1934 Act) ("Person"), is the beneficial owner,
directly or indirectly, of twenty percent or more of the combined
voting power of the outstanding stock of the Company, or (ii) actual
knowledge by the Board of facts on the basis of which any Person is
required to file such a report on Schedule 13D, or to make an amendment
to such a report, with the SEC (or would be required to file such a
report or amendment upon the lapse of the applicable period of time
specified in Section 13(d) of the 1934 Act) disclosing that such Person
is the beneficial owner, directly or indirectly, of twenty percent or
more of the combined voting power of the outstanding stock of the
Company.
(b) Purchase by any Person, other than the Company or a wholly-owned
subsidiary of the Company, of shares pursuant to a tender or exchange
offer to acquire any stock of the Company (or securities convertible
into stock) for cash, securities or any other consideration provided
that, after consummation of the offer, such Person is the beneficial
owner (as defined in Rule l3d-3 under the 1934 Act), directly or
indirectly, of twenty percent or more of the combined voting power of
the outstanding stock of the Company
-2-
(calculated as provided in paragraph (d) of Rule l3d-3 under the 1934
Act in the case of rights to acquire stock).
(c) Approval by the shareholders of the Company of a transaction described
in any of the following paragraphs:
(1) Any consolidation or merger of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which
shares of stock of the Company would be converted into cash,
securities or other property, other than a consolidation or merger
of the Company in which holders of its stock immediately prior to
the consolidation or merger own at least a majority of the
combined voting power of the outstanding stock of the surviving
corporation immediately after the consolidation or merger (or at
least a majority of the combined voting power of the outstanding
stock of a corporation which owns directly or indirectly all of
the voting stock of the surviving corporation).
(2) Any consolidation or merger in which the Company is the continuing
or surviving corporation but in which the shareholders of the
Company immediately prior to the consolidation or merger do not
hold at least a majority of the combined voting power of the
outstanding stock of the continuing or surviving corporation
(except where such holders of stock hold at least a majority of
the combined voting power of the outstanding stock of the
corporation which owns directly or indirectly all of the voting
stock of the Company).
(3) Any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all the
assets of the Company (except such a transfer to a corporation
which is wholly owned, directly or indirectly, by the Company), or
any complete liquidation of the Company.
(4) Any merger or consolidation of the Company where, after the merger
or consolidation, one Person owns 100% of the shares of stock of
the Company (except where the holders of the Company's voting
stock immediately prior to such merger or consolidation own at
least a majority of the combined voting power of the outstanding
stock of such Person immediately after such merger or
consolidation).
(d) A change in the majority of the members of the Board within a 24-month
period unless the election or nomination for election by the Company's
shareholders of each new director was approved by the vote of at least
two-thirds of the directors then still in office who were in office at
the beginning of the 24-month period.
A Change In Control occurs on the date that an event described in subsection
(a), (b) or (d) occurs. In the case of a transaction described in subsection (c)
which is subject to approval by the shareholders, the Change In Control occurs
on the date the transaction is completed.
Sec. 2.6 Committee. "Committee" means the Compensation Committee of the
Board or such other committee as may be appointed by the Board to administer the
Plan. However, no member of the Committee who is also a Participant in this Plan
may participate in or vote on any matter involving the Plan.
-3-
Sec. 2.7 Final Average Compensation. "Final Average Compensation" means
the average of the highest three calendar years of Compensation to which the
Participant is entitled from the Participating Employers during the five
calendar year period immediately preceding the calendar year in which the
Participant's retirement or other separation from service occurs (or the average
of the years during such period in which the Participant received Compensation,
if the Participant received Compensation in fewer than three such years). For
purposes of this Section, the Participant's Compensation for a year is the
Participant's base pay from the Participating Employers as of December 31st of
that year, plus any bonus earned by the Participant for that year under the
Company's Annual Incentive Plan (before any reductions for pre-tax contributions
under any Company 401(k) savings plan, deferred compensation plan or other
benefit plan, and before withholding of taxes).
Sec. 2.8 Normal Retirement Benefit. "Normal Retirement Benefit" means the
benefit calculated under Sec. 4. 1.
Sec. 2.9 Normal Retirement Date. "Normal Retirement Date" means the first
day of the calendar month coincident with or next following the Participant's
attainment of age 62.
Sec. 2.10 Participant. "Participant" means an individual defined as such in
Sec. 3. 1.
Sec. 2.11 Plan Year. "Plan Year" means the 12-consecutive-month period
commencing January I and ending December 31.
Sec. 2.12 PSCo SERP. "PSCo SERP" means the Public Service Company of
Colorado Supplemental Executive Retirement Plan for Key Employees as in effect
on August 1, 1997.
Sec. 2.13 Retirement Plan. "Retirement Plan" means the New Century Energies
Retirement Plan, as it may be amended from time to time.
Sec. 2.14 SPS SERP. "SPS SERP" means the Southwestern Public Service
Company Supplemental Retirement Income Plan as in effect on August 1, 1997.
Sec. 2.15 Successor Employer. "Successor Employer" means any entity that
succeeds to the business of the Company or another Participating Employer
through merger, consolidation, acquisition of all or substantially all of its
assets, or any other means.
Sec. 2.16 Year of Vesting Service. "Year of Vesting Service" means a
Plan Year in which an individual is a Participant in this Plan for all or a
portion of the Plan Year, measured in years and completed months as a
Participant (with each completed month expressed as one-twelfth of a year). In
calculating Years of Vesting Service, an individual who becomes a Participant as
of the Effective Date shall receive retroactive credit for all years of
participation credited to the Participant for purposes of vesting under the PSCo
SERP or the SPS SERP prior to the Effective Date.
-4-
ARTICLE III
PARTICIPATION
Sec. 3.1 Eligibility for Participation. A select management or highly
compensated employee of the Company or another Participating Employer shall
become a Participant in the Plan upon being designated as such by the Committee
in a written notice issued by the Committee to the Participant at the time of
the designation, effective as of the date specified in the notice and subject to
any additional conditions or limitations specified in the notice.
Sec. 3.2 Cessation of Participation. An employee shall cease to be a
Participant on the pa earliest of (i) the date he or she ceases to be an
employee of the Participating Employers, (ii) the date he or she receives a
written notice from the Committee revoking his or her status as a Participant,
or (iii) the date he or she fails to meet the requirements of any regulations
which may be issued by the U.S. Department of Labor that define the phrase
"select group of management or highly compensated employees" under ERISA.
Service or earnings after the date the individual ceases to be a Participant
shall be disregarded for purposes of this Plan, but the individual shall remain
entitled to any benefits under this Plan which have become vested prior to that
date.
Sec. 3.3 No Guarantee of Employment. Participation in the Plan does not
constitute a guarantee or contract of employment with the Participating
Employers. Such participation shall in no way interfere with any rights the
Participating Employers would have in the absence of such participation to
determine the duration of the employee's employment with the Participating
Employers.
ARTICLE IV
BENEFITS
Sec. 4.1 Amount of Normal Retirement Benefit. Subject to the provisions of
Sections 4.2 and 4.3 below, the Normal Retirement Benefit under this Plan of a
Participant who is vested under Sec. 4.3 shall be a monthly amount equal to the
excess, if any, of the amount determined in subsection (a) over the amount
determined in subsection (b):
(a) One-twelfth of 55 % of the Participant's Final Average Compensation
multiplied by the Participant's Accrual Percentage.
(b) The monthly pension to which the Participant is entitled to receive
under the Retirement Plan in the form of a life-only annuity commencing
on the first day of the month following the later of (i) the
Participant's normal retirement age under the Retirement Plan, or (ii)
the date the Participant's retirement or other separation from service
with the Participating Employers occurs. This amount shall be
determined without regard to the actual benefit paid under the
Retirement Plan or the actual time or form of such benefit. If the
Participant has elected under the Retirement Plan to have all or part
of the Participant's "Retirement Program Credits" contributed to the
New Century Energies, Inc. Employees' Savings and Stock Ownership Plan
for Non-Bargaining Unit Employees, or any successor to such plan, the
monthly pension determined under this subsection (b) shall be increased
to reflect the amount
-5-
to which the Participant would have been entitled under the Retirement
Plan if such credits had instead been allocated to the Retirement Plan.
Sec. 4.2 Special Provisions for PSCo and SPS SERP Participation. For
Participants who participated in the PSCo SERP or the SPS SERP on the day before
the Effective Date, the Normal Retirement Benefit under Sec. 4.1 shall not be
less than the Actuarial Equivalent (expressed in the Normal Form payable under
Sec. 5. 1) of whichever of the following benefits is applicable:
(a) If the Participant retires or otherwise separates from service with the
Participating Employers prior to May 1, 2000, the accrued benefit
determined as of the date of separation from service under the PSCo
SERP or the SPS SERP (whichever covered the Participant on the
Effective Date).
(b) If the Participant retires or otherwise separates from service with the
Participating Employers on or after May 1, 2000, the accrued benefit
determined under the PSCo SERP or the SPS SERP (whichever covered the
Participant on the Effective Date), determined by assuming that the
Participant separated from service on May 1, 2000. However, whether the
Participant is vested in such benefit shall be determined pursuant to
Sec. 4.3 of this Plan as of the date the Participant's actual
separation from service occurs.
Sec. 4.3 Vesting of Benefit. A Participant's Normal Retirement Benefit
shall become vested upon the earlier of
(a) The Participant's completion of five Years of Vesting Service.
(b) The Participant's attainment of age 60.
Notwithstanding the foregoing, the Participant shall not be vested in any
benefit under this Plan and the entire benefit shall be forfeited if the
Participant's employment is terminated by his or her Participating Employer
because of the Participant's fraud or dishonesty which has resulted in, or is
likely to result in, material economic damage to a Participating Employer, as
determined in good faith by the Committee. The determination of the Committee
with respect to the Participant's conduct shall be conclusive, whether or not
there are related judicial or other proceedings and without regard to the
outcome of any such proceeding. A Participant who is not vested under this
Section on the date his or her retirement or other separation from service
occurs shall not be eligible to receive any benefit under this Plan.
-6-
ARTICLE V
FORM OF PAYMENT AND COMMENCEMENT DATE
Sec. 5.1 Normal Form. In the event of the Participant's retirement or other
separation from service (except for death or disability) with the Participating
Employers on or after attaining age 62, payment of the Participant's vested
Normal Retirement Benefit shall commence on the first day of the month
coinciding with or next following the date on which such retirement or other
separation from service occurs and continue each month thereafter until 240
monthly payments have been made.
Sec. 5.2 Reduction for Early Retirement. In the event the Participant's
retirement or other separation from service (except for death or disability)
from the Participating Employers occurs prior to his or her attainment of age
62, the Normal Retirement Benefit will be paid commencing on the first day of
the month following the, later of (i) the date the Participant attains age 55,
or (ii) the date the separation from service occurred, unless a later
commencement date is elected pursuant to Sec. 5.3, but shall in all events
commence by the first day of the month coinciding with or next following the
date the Participant attains age 62. The payments shall continue each month
thereafter until a total of 240 monthly payments have been made. The amount of
the Participant's Normal Retirement Benefit shall be reduced by five-twelfths of
one percent for each month by which the commencement date precedes the first day
of the month coinciding with or next following the date the Participant will
attain age 62.
Sec. 5.3 Optional Forms. Upon written application by a Participant not
later than 12 months before the date payments are to commence under Sec. 5. 1 or
5.2, or with Committee consent (which shall be granted in its sole discretion)
for periods of less than 12 months before said date, the benefit to which a
Participant is entitled under Sec. 5.1 or Sec. 5.2 shall be payable, on an
Actuarial Equivalent basis, in the form of a single lump sum or in the form of
any annuity option permitted under the Retirement Plan.
Sec. 5.4 Commencement Date. Retirement benefits shall commence in
accordance with Sec. 5.1 and Sec. 5.2; provided, however, that the Committee
may, in its discretion, after receiving a Participant's lump sum election under
Sec. 5.3, determine that payment shall be made at a later date than that
specified or requested by the Participant. In the event that all or a portion of
any payment under this Article V shall be rendered nondeductible by the
Participating Employers pursuant to Internal Revenue Code Section 162(m) or any
successor provision at the time of the Participant's retirement or termination,
the Committee shall defer any such nondeductible portion to a time period when
such payment would otherwise be deductible by the Participating Employers, and
shall adjust the deferred payment on an Actuarial Equivalent basis to reflect
the date payment is actually made.
Sec. 5.5 Disability Before Retirement. If, while employed by a
Participating Employer, a Participant becomes totally and permanently disabled,
as determined by the Committee, and is separated from service, the monthly
vested Normal Retirement Benefit shall be paid to the Participant beginning on
the first day of the month following the date of the Participant's separation
from service, without any reduction for early commencement of the payments, and
shall continue until a total of 240 monthly payments have been made. For
purposes of this Section, "disabled" means, for a period of up to 24 consecutive
months, a Participant's inability as a result of an accident or illness to
perform the essential functions of the Participant's current position or any
position the Participant held within the 90 day period immediately prior to such
accident or illness, and at the end of said 24 month period, the Participant is
-7-
permanently unable to engage in any and every occupation or business for
compensation or profit for which the Participant is reasonably fitted by
education, training or experience.
Sec. 5.6 Death Prior to Termination of Employment. If a vested
Participant dies while employed by a Participating Employer (and prior to
commencement of a pension due to disability under Sec. 5.5), the Participant's
Beneficiary shall receive, beginning the first day of the month following the
Participant's death, a monthly payment equal to 50% of the Participant's Normal
Retirement Benefit until a total of 240 monthly payments have been made to the
Beneficiary.
Sec. 5.7 Death After Termination of Employment. If a vested Participant
dies after leaving the employ of the Participating Employers and prior to
Participant's receipt of 240 benefit payments, the Participant's Beneficiary
shall receive payments determined as follows:
(a) The monthly payment will be an amount which is equal to 50 % of
Participant's monthly vested Normal Retirement Benefit from the Plan
which the Participant was receiving immediately preceding the
Participant's death, (or would have been entitled to receive upon
attaining age 62 if the Participant died prior to commencing to receive
payments).
(b) The monthly benefit determined under subsection (a) shall be paid
beginning the first day of the month after the date of death if the
Participant was receiving payments prior to death, and otherwise shall
commence on the first day of the month following the date the
Participant would have attained age 62. Payments shall cease when the
Participant and the Participant's Beneficiary have received a total of
240 monthly benefit payments collectively.
(c) The Committee may in its sole discretion pay any benefit under this
Section in a lump sum in accordance with Sec. 5.3 or may pay a reduced benefit
determined pursuant to Sec. 5.2 commencing at any time determined by the
Committee after the later of the Participant's death or the date the Participant
would have attained age 55.
Sec. 5.8 Benefit Upon Change In Control. If a Participant's retirement
or other separation from service with the Participating Employers occurs within
24 months after a Change In Control, notwithstanding any provision of this Plan
to the contrary, the Participant's entire benefit hereunder shall be paid within
30 days following the separation from service in a single lump stun that is the
Actuarial Equivalent of the benefit to which the Participant was otherwise
entitled.
ARTICLE VI
ADMINISTRATION
Sec. 6.1 Administration by the Committee. The Committee shall administer
the Plan, establish, adopt, or revise such rules and regulations as it may deem
necessary or advisable for the on of the Plan and interpret the provisions of
the Plan. The Committee shall have discretionary authority to interpret the
Plan, and the interpretations of the Committee shall be conclusive.
Sec. 6.2 Withholding of Taxes. The benefits payable under this Plan
shall be subject to the deduction of any federal, state, or local income taxes
or other taxes which are required to be withheld from such payments by
applicable laws and regulations.
-8-
Sec. 6.3 Unfunded and Unsecured Plan. The Plan is an unfunded and
unsecured nonqualified plan for federal income tax, ERISA and Department of
Labor purposes. It is a condition of the Plan, and each Participant expressly
agrees, that the Participant and the Participant's Beneficiary shall look solely
to the Participating Employers for payment of benefits under the Plan, whether
such payments are made from the general funds of the Participating Employers or
otherwise. No Participant or Beneficiary shall have any interest whatsoever in
any specific asset of the Participating Employers. To the extent that any
Participant or Beneficiary acquires a right to receive payments under this Plan,
such right shall be no greater than the right of any unsecured general creditor
of the Participating Employers.
ARTICLE VII
AMENDMENT AND TERMINATION
Sec. 7.1 Amendment. The Board may amend the Plan at any time in whole or
in part for any reason. No amendment shall decrease the benefits that have
accrued under the Plan prior to the date of such amendment based on earnings and
service prior to such date, but the amendment may decrease or eliminate future
accruals (including any continuing accruals under the provisions of the PSCo
SERP or the SPS SERP).
Sec. 7.2 Termination of Plan. The Board may terminate the Plan at any
time. After such termination, no employee shall become a Participant, no further
benefits shall accrue under the Plan, and each Participant shall become 100%
vested in the benefit accrued prior to the date of termination. At the
discretion of the Committee, the benefits accrued prior to termination of the
Plan may be either distributed to Participants (or Beneficiaries in the event of
death) in a lump sum on an Actuarial Equivalent basis as of a date determined by
the Committee which is after the date of termination, or distributed in
accordance with Article V.
ARTICLE VIII
MISCELLANEOUS
Sec. 8.1 Designation of Beneficiary. Each Participant under the Plan may
name any Beneficiary or Beneficiaries (who may be named contingently or
successively) to whom any benefit under the Plan otherwise due to the
Participant may be paid in case of the Participant's death before receiving any
or all of such benefit. Any subsequent designation shall revoke all prior
designations by the same Participant. If the Participant does not designate a
beneficiary, or if none of those designated are alive or existing at the time
the Beneficiary is to be identified to receive a benefit under the Plan, or if
the person receiving benefits as the beneficiary hereunder dies with no
contingent beneficiary designated, the Beneficiary shall be the Participant's
estate.
Sec. 8.2 Benefits May Not Be Assigned or Alienated. Neither a Participant
nor any Beneficiary shall have the right to sell, assign, transfer, encumber or
otherwise convey any right to receive any payment hereunder. No part of the
amounts payable hereunder shall be subject to seizure or sequestration for the
payment of any debts or judgments owed by a Participant or any other person.
-9-
Sec. 8.3 Headings. Headings at the beginning of articles and sections
hereof are for convenience of reference, shall not be considered a part of the
text of the Plan, and shall not influence its construction.
Sec. 8.4 Capitalized Definitions. Capitalized terms used in the Plan
shall have their meaning as defined in the Plan unless the context clearly
indicates to the contrary.
Sec. 8.5 Gender. Any references to the masculine gender include the
feminine and vice versa.
Sec. 8.6 Use of Compounds of Word "Here". Use of the words "hereof",
"herein", "hereunder", or similar compounds of the word "here" shall mean and
refer to the entire Plan unless the context clearly indicates to the contrary.
Sec. 8.7 Construed as a Whole. The provisions of the Plan shall be
construed as a whole in such manner as to carry out the provisions hereof and
shall not be construed separately without relation to the context.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by
its duly authorized officer this 3rd day of August, 1998.
NEW CENTURY ENERGIES, INC.
/s/ Bill D. Helton
------------------
By Bill D. Helton
Its Chief Executive Officer
-10-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>8
<DESCRIPTION>NCE SALARY DEF. & SUPP. SAVINGS PLAN EXEC OFFICERS
<TEXT>
Exhibit 10(f)1
NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR EXECUTIVE OFFICERS
(As Adopted Effective July 1, 1998)
NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR EXECUTIVE OFFICERS
TABLE OF CONTENTS
ARTICLE I GENERAL
Sec. 1. 1 Name of Plan .............................................. 1
Sec. 1.2 Purpose..................................................... 1
Sec. 1.3 Effective Date.............................................. 1
Sec. 1.4 Company..................................................... 1
Sec. 1.5 Participating Employers .................................... 1
Sec. 1.6 Construction and Applicable Law ............................ 1
ARTICLE II DEFINITIONS
Sec. 2.1 Accounts ................................................... 1
Sec. 2.2 Base Salary................................................. 2
Sec. 2.3 Beneficiary................................................. 2
Sec. 2.4 Board....................................................... 2
Sec. 2.5 Code........................................................ 3
Sec. 2.6 Committee................................................... 3
Sec. 2.7 Common Shares............................................... 3
Sec. 2.8 Company Credits............................................. 3
Sec. 2.9 Compensation................................................ 3
Sec. 2.10 Disability................................................. 3
Sec. 2.11 ERISA...................................................... 3
Sec. 2.12 Investment Credits......................................... 3
Sec. 2.13 Participant................................................ 3
Sec. 2.14 Plan Year.................................................. 3
Sec. 2. 15 Prior PSCo Plan........................................... 3
Sec. 2.16 Prior SPS Plan............................................. 3
Sec. 2.17 Retirement................................................. 4
Sec. 2.18 Savings Plan............................................... 4
Sec. 2.19 Successor Employer......................................... 4
Sec. 2.20 Valuation Date............................................. 4
ARTICLE III PARTICIPATION
Sec. 3.1 Eligibility for Participation .............................. 4
Sec. 3.2 Duration of Participation .................................. 4
Sec. 3.3 No Guarantee of Employment ................................. 5
ARTICLE IV DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS
Sec. 4.1 Election to Defer Compensation.............................. 5
Sec. 4.2 Company Credits ............................................ 7
i
Sec. 4.3 Investment Credits and Valuation of Accounts ............... 7
Sec. 4.4 Dividends on Common Shares ................................. 8
Sec. 4.5 Adjustment of Stock Accounts for Splits, Dividends, Etc .... 8
ARTICLE V DISTRIBUTION OF ACCOUNTS
Sec. 5.1 Time for Distribution ...................................... 9
Sec. 5.2 Manner of Payment .......................................... 9
Sec. 5.3 Amount of Payment .......................................... 9
Sec. 5.4 Beneficiary Designation .................................... 9
Sec. 5.5 Distributions for Severe Financial Hardship ................ 9
Sec. 5.6 Modification of Elections for Tax Considerations ........... 10
Sec. 5.7 Withholding and Taxes ...................................... 10
ARTICLE VI ADMINISTRATION
Sec. 6.1 Administration by the Committee ............................ 11
Sec. 6.2 Claims Procedure ........................................... 11
ARTICLE VII AMENDMENT AND TERMINATION
Sec. 7.1 Amendment .................................................. 11
Sec. 7.2 Termination of Plan ........................................ 11
ARTICLE VIII MISCELLANEOUS
Sec. 8.1 Unsecured Obligations ...................................... 12
Sec. 8.2 Benefits May Not Be Assigned or Alienated .................. 12
Sec. 8.3 Incompetency................................................ 12
Sec. 8.4 Notices..................................................... 12
Sec. 8.5 Severability................................................ 12
Sec. 8.6 Headings.................................................... 12
Sec. 8.7 Capitalized Definitions .................................... 12
Sec. 8.8 Gender ..................................................... 12
Sec. 8.9 Use of Compounds of Word "Here ............................. 13
Sec. 8. 10 Construed as a Whole ..................................... 13
ii
NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR EXECUTIVE OFFICERS
ARTICLE I
GENERAL
Sec. 1.1 Name of Plan. The name of this plan is the "New Century Energies
Salary Deferral and Supplemental Savings Plan for Executive Officers" (referred
to hereinafter as the "Plan").
Sec. 1.2 Purpose The Plan has been established to provide additional
future income to certain select executive officers through voluntary deferrals
of Compensation and Company Credits related to matching contributions under the
Savings Plan. Those portions of the Prior PSCo Plan and the Prior SPS Plan that
covered individuals who are Participants in this Plan as of July 1, 1998 were
merged into this Plan as of that date, and the benefits of such Participants
under the applicable Prior Plan shall thereafter be provided pursuant to the
provisions of this Plan.
Sec. 1.3 Effective Date. The "Effective Date" of the Plan, the date as of
which the Plan was established, is July 1, 1998.
Sec. 1.4 Company. For purposes of this Plan, "Company" means New Century
Energies, Inc., a Delaware corporation, and any Successor Employer thereof.
Sec. 1.5 Participating Employers. The Company is a "Participating
Employer" in the Plan. Any subsidiary of the Company shall become a
Participating Employer in this Plan upon being so designated in a written action
by the Committee, effective as of the date specified by the Committee. Any
Successor Employer to a Participating Employer shall also be a Participating
Employer. A Participating Employer shall cease to be such effective as of the
date specified in a written action by the Committee; provided, however, that
such action shall not cause Participants employed by such employer to forfeit
benefits accrued prior to such date.
Sec. 1.6 Construction and Applicable Law. The Plan is intended to be an
unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. The
Plan is not intended to qualify under Code Section 401(a) or 403(a). The Plan
shall be administered and construed consistent with said intent. This Plan also
shall be governed and construed in accordance with the laws of the State of
Colorado as applied to contracts executed and to be wholly performed within said
state to the extent that such laws are not preempted by the laws of the United
States of America.
ARTICLE II
DEFINITIONS
Sec. 2.1 Accounts. "Accounts" shall be established for each eligible
Participant reflecting the amounts owed to the Participant or the Participant's
Beneficiary under the terms of this Plan. The following Accounts may be
established for each Participant:
(a) Cash Account. A Cash Account shall be established to which shall be
credited the amounts of Compensation deferred by the Participant under
Sec. 4.1 (other than amounts the Participant has elected to have
deposited in his or her Directable Stock Account) and the Investment
Credits under Sec. 4.3 related to those deferrals. The Committee may
maintain sub-accounts for a Participant within the Cash Account to
reflect the investment options for that Account under Sec. 4.3.
(b) Stock Accounts. The following types of Stock Accounts shall be
established for a Participant:
(1) Directable Stock Account. The Participant's Directable Stock
Account shall be credited with all amounts of Compensation
deferred by the Participant under Sec. 4.1 and accumulated
Investment Credits on those deferrals which the Participant has
elected to be deemed to have been invested in Common Shares.
(2) Nondirectable Stock Account. The Participant's Nondirectable
Stock Account shall be credited with any Company Credits
determined under Sec. 4.2, and adjustments under Sec. 4.4 and
Sec. 4.5 related to those credits.
(c) Prior Plan Accounts. The Accounts of an individual who is a
Participant in this Plan on July 1, 1998 and who was a participant in
the Prior PSCo Plan or the Prior SPS Plan on June 30, 1998, shall be
initially credited as of July 1, 1998 as follows:
(1) The Participant's Cash Account shall be credited with the balance
credited to his or her cash account in the Prior PSCo Plan as of
June 30, 1998 and the Participant's Nondirectable Stock Account
shall be credited with the number of Common Shares. credited to
his or her stock account under the Prior PSCo Plan as of June 30,
1998.
(2) The Participant's Nondirectable Stock Account will be credited
with a number of Common Shares equal to the value of the
Participant's matching account under the Prior SPS Plan on June
30, 1998, and the Participant's Directable Stock Account will be
credited with a number of Common Shares equal to the value of the
Participant's other accounts under the Prior SPS Plan on that
date, in each case divided by the average of the high and low
sale prices of a Common Share on the New York Stock Exchange on
June 30, 1998. This paragraph will be applied by assuming that
June 30, 1998 is a "valuation date" under the Prior SPS Plan.
Each Participant is always 100% vested in amounts credited to his or her
Accounts.
Sec. 2.2 Base Salary. "Base Salary" means a Participant's annual salary
rate in effect from time to time during each Plan Year, unreduced for any salary
deferrals under any Company savings, incentive or other employee benefit plan.
Sec. 2.3 Beneficiary. "Beneficiary" means the person or persons designated
as such pursuant to the provisions of Sec. 5.4.
See. 2.4 Board. "Board" means the board of directors of the Company.
-2-
Sec. 2.5 Code. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
Sec. 2.6 Committee. "Committee" means the Compensation Committee of the
Board or any other committee appointed by the Board to administer the Plan.
However, no member of the Committee who is also a Participant in this Plan may
participate in or vote or any matter involving the Plan.
Sec. 2.7 Common Shares. "Common Shares" means shares of the Company's
common stock.
Sec. 2.8 Company Credits. "Company Credits" are the credits allocable to
the Participant's Nondirectable Stock Account pursuant to Sec. 4.2.
Sec. 2.9 Compensation "Compensation" for a Plan Year means the
compensation to which the Participant is entitled from the Participating
Employers with respect to the Plan Year, including any Base Salary payable
during the Plan Year, any annual incentive bonus earned under the Company's
annual incentive plan for the Plan Year and payable in the following Plan Year,
and any cash or Company stock incentive bonus earned for the Plan Year under any
other plan that may be established by the Company, if so permitted by the terms
of such plan (regardless of when paid).
See. 2.10 Disability. "Disability" means, for a period of up to 24
consecutive months, a Participant's inability as a result of an accident or
illness to perform the essential functions of the Participant's current position
or any position the Participant held within the 90 day period immediately prior
to such accident or illness, and at the end of said 24 month period, the
Participant is permanently unable to engage in any and every occupation or
business for compensation or profit for which the Participant is reasonably
fitted by education, training or experience.
See. 2.11 ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
Sec. 2.12 Investment Credits. "Investment Credits" are the gains or losses
allocable to the Cash Accounts of a Participant under Sec. 4.3 based on the
investment indexes elected by the Participant, and adjustments for dividends and
other transactions to the Participant's Stock Accounts under Sec. 4.4 and Sec.
4.5.
Sec. 2.13 Participant. A "Participant" means any executive officer of a
Participating Employer who has been designated in writing by the Committee as
eligible for this Plan.
See. 2.14 Plan Year. A "Plan Year" is the 12-consecutive-month period
commencing on each January 1 and ending on the following December 3 1. However,
the first Plan Year of the Plan begins on July 1, 1998 and ends on December 31,
1998.
See. 2.15 Prior PSCo Plan. "Prior PSCo Plan" means the Public Service
Company of Colorado Executive Savings Plan, as in effect on June 30, 1998.
Sec. 2.16 Prior SPS Plan. "Prior SPS Plan" means the Southwestern Public
Service Company Non-Qualified Salary Deferral Plan, as in effect on June 30,
1998.
-3-
Sec. 2.17 Retirement. "Retirement" means termination of employment with a
Participating Employer after attaining age 62.
See. 2.18 Savings Plan. "Savings Plan" means the New Century Energies
Savings Plan, as it may be amended from time to time.
Sec. 2.19 Successor Employer. A "Successor Employer" is any entity that
succeeds to the business of the Company or another Participating Employer
through merger, consolidation, acquisition of all or substantially all of its
assets, or any other means and which elects before or within a reasonable time
after such succession, by appropriate action evidenced in writing, to continue
the Plan.
See. 2.20 Valuation Date. "Valuation Date" means each date on which the
Accounts of Participants are valued for purposes of this Plan. Valuation Dates
shall include the last day of each month and such other dates as the Committee
determines are necessary or advisable for the administration of the Plan.
ARTICLE III
PARTICIPATION
Sec. 3.1 Eligibility for Participation. A Participant's eligibility under
this Plan shall be subject to the following:
(a) The Participant will become eligible to elect to make deferrals under
Sec. 4.1 and to receive Company Credits under Sec. 4.2 effective as
of the date specified by the Committee in the written notice of
participation. However, deferrals will not commence under Sec. 4. 1
until the effective date of an election filed pursuant to that
section.
(b) An employee who is designated as a Participant before the last
calendar quarter of a Plan Year may wait until the following year to
make deferrals of Compensation or may elect to make deferrals for the
partial Plan Year (for Compensation earned after the calendar quarter
of the election to defer), and in either case such Participant shall
be eligible for Company Credits under Section 4.2 for the partial
Plan Year, unless the Committee determines otherwise at the time the
employee is designated as a Participant.
Sec. 3.2 Duration of Participation. An employee who becomes a Participant
shall continue to be eligible to make elections under Sec. 4.1 thereafter,
subject to the following:
(a) The Participant's deferrals shall cease on the earliest of.
(1) The date the Participant terminates employment with the
Participating Employers.
(2) The date specified in a written notice issued by the Committee
revoking the individual's status as a Participant.
(3) The date the Participant fails to meet the requirements of any
regulations which may be issued by the Department of Labor that
define the phrase "select group of management or highly
compensated employees" under ERISA.
-4-
(b) An individual shall continue to be a Participant for purposes of the
provisions of the Plan other than Sec. 4.1 or Sec. 4.2 until the date
all of his or her Accounts have been distributed.
(c) If an employee who has elected to make deferrals under Sec. 4. 1 for
a particular Plan Year is subsequently determined not to be eligible
to be a Participant for that Plan Year, the employee's deferral
election for that year will be canceled and any amounts which may
have already been deferred for that year will be promptly refunded to
the employee.
Sec. 3.3 No Guarantee of Employment. Participation in the Plan does not
constitute a guarantee or contract of employment with the Participating
Employers. Such participation shall in no way interfere with any rights the
Participating Employers would have in the absence of such participation to
determine the duration of the employee's employment.
ARTICLE IV
DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS
See. 4.1 Election to Defer Compensation. An eligible Participant may elect
to have Compensation with respect to each Plan Year credited to his or her Cash
Account and/or Directable Stock Account rather than being paid in cash, subject
to any limitations that may be imposed by the Committee. Elections shall be made
on forms specified by the Committee for purposes of this Plan, and shall be
filed in the manner specified by the Committee. The Compensation for a Plan Year
of a Participant who elects deferrals under this section shall be reduced by the
percentage or amount so elected, subject to the following:
(a) Elections for each Plan Year must be filed during the election period
specified by the Committee for that Plan Year, which period must end
on or prior to December 31 of the previous year, subject to the
following:
(1) If an individual (other than a former Participant) is designated
as a Participant during a Plan Year, any election for that Plan
Year must be filed within 30 days after the date the Participant
received the notice of participation, and deferrals shall
commence as of the first day of the calendar quarter after the
election is received by the Committee. Such an election shall
apply to Base Salary payable during that Plan Year for payroll
periods beginning on or after the first day of said quarter and
to any incentive compensation for that Plan Year which is subject
to a requirement that the individual remain employed to a date
that is on or after the first day of said quarter.
(2) A former Participant who is again designated as a Participant may
not commence deferrals until January 1 of the Plan Year following
the designation of participation, and an election to defer for
such Plan Year must be made prior to said January 1.
(3) Except as provided in paragraph (4), elections for the Plan Year
commencing July 1, 1998 must be filed by June 30, 1998.
(4) Notwithstanding anything in this Plan to the contrary, if a
Participant was a participant in the Prior PSCo Plan or the Prior
SPS Plan on June 30, 1998, any
-5-
election in effect under such Prior Plan shall continue in effect
for purposes of this Plan for the 1998 Plan Year, and no new
election shall be allowed under this Plan for that Plan Year. Any
such election under a Prior Plan shall not apply to Compensation
with respect to Plan Years commencing after 1998.
(b) The Participant may elect to defer either (i) any whole percent (in
10% increments) of Compensation payable with respect to the Plan Year,
or (ii) any percent or dollar amount of Compensation up to the amount
required for the Participant to receive the maximum Company Credit
under Sec. 4.2. However, the total deferrals during any Plan Year may
not reduce the Participant's Compensation payable during that Plan
Year (after deduction of the deferrals under this Plan) to less than
$100,000 (or the dollar amount in effect for that Plan Year under Code
Section 414(q)(1)(B), if greater).
(c) The deferred compensation credited under this section on behalf of a
Participant shall be allocated to the Participant's Cash Account
and/or Directable Stock Account (as elected by the Participant) as of
the date that the Compensation would otherwise have been paid to the
Participant in cash. The amount of Common Shares to be allocated to a
Directable Stock Account shall be determined by dividing the credit by
the average of the high and low sales prices of a Common Share on the
New York Stock Exchange on the business day proceeding the date the
credit is made.
(d) The Participant must file a separate deferral election for each Plan
Year with respect to which deferrals are to be made under this Plan.
An election for a Plan Year shall become irrevocable on the first day
of that year, subject to subsection (e). Elections will not carry
over into subsequent Plan Years. However, an election for a
particular Plan Year shall apply to all Compensation with respect to
that Plan Year, including incentive bonuses or other amounts earned
during that year but paid in subsequent Plan Years.
(e) Notwithstanding the foregoing provisions of this section:
(1) All deferrals by a Participant shall cease as of (i) the date the
Participant receives a hardship withdrawal under any qualified
defined contribution plan subject to Code Section 401(k)
maintained by the Company or any of its affiliates which requires
that deferrals be suspended for a certain period of time
following such withdrawal, or (ii) the date the Participant
receives a withdrawal from this Plan for severe financial
hardship due to an unforeseeable emergency under Sec. 5.5.
Deferrals under this section may not recommence until the first
day of the second Plan Year beginning after the date deferrals
ceased under the previous sentence, and no further deferrals
shall be made from Compensation with respect to Plan Years prior
to said second Plan Year.
(2) The Committee may in its sole discretion cancel a Participant's
deferral election for the current Plan Year (and for Compensation
not yet paid with respect to any previous Plan Years) upon the
request of a Participant if the Committee determines that an
event has occurred which would make the Participant eligible for
a withdrawal for severe financial hardship due to an
unforeseeable emergency under Sec. 5.5. Deferrals under this
section may not recommence until the first day of the second Plan
Year beginning after the date deferrals ceased under the previous
sentence, and no further deferrals shall be made from
Compensation with respect to
-6-
Plan Years prior to said second Plan Year. The Participant may
request that deferrals cease under this paragraph whether or not
the Participant requests a withdrawal under Sec. 5.5.
Sec. 4.2 Company Credits. Subject to the Committee's discretion, the
Nondirectable Stock Account of each eligible Participant will be credited for
each Plan Year with a Company Credit representing a number of Common Shares,
determined as follows:
(a) The Company Credit for a Plan Year will be equal to the amount
determined under paragraph (1) minus the amount determined under
paragraph (2), with the result divided by the amount determined under
paragraph (3), and with the result then rounded to four decimal
places, as follows:
(1) A dollar amount equal to 50% of the smaller of (i) the sum of the
amount of Base Salary the Participant deferred under this Plan
for the Plan Year and the Participant's pre-tax contributions to
the Savings Plan for the Plan Year, or (ii) 8 % of the
Participant's "compensation" for the Plan Year recognized by the
Savings Plan for purposes of determining matching contributions
under that Plan (but disregarding the limit on such compensation
under Code Section 401(a)(17)); minus
(2) The dollar amount of matching contributions actually made to the
Savings Plan for the Participant for the Plan Year; divided by
(3) The average of the high and low sale prices of a Common Share on
the New York Stock Exchange on the business day preceding the
date the matching contribution is made to the Savings Plan.
(b) Notwithstanding subsection (a), a Participant will receive the
Company Credit for a Plan Year only if the Participant participates
in the Savings Plan and makes the maximum dollar amount of pre-tax
contribution permitted by the Savings Plan for that year.
(c) The Company Credit for an eligible Participant for a Plan Year will
be allocated to the Participant's Nondirectable Stock Account on the
date the matching contribution for such Plan Year is (or would be)
made under the Savings Plan.
(d) Each Participant's Nondirectable Stock Account shall also be credited
with any Common Shares deferred under any annual incentive plan, or
other plan that may be established by the Company, for that portion
of the award which is otherwise payable in Common Shares. Such credit
shall occur as of the date such shares would otherwise have been
distributed to the Participant.
(e) Notwithstanding the foregoing, the Company Credits for the period
from July I to December 31, 1998 under this Section will be based
only on compensation and contributions during that period.
Sec. 4.3 Investment Credits and Valuation of Accounts. The Accounts of each
Participant will be adjusted as of each Valuation Date to reflect Investment
Credits, deferrals allocated to the Account under Sec. 4. 1, Company Credits
allocated under Sec. 4.2, credits to Stock Accounts
-7-
under Sec. 4.4, adjustments of Stock Accounts under Sec. 4.5, and distributions
from Accounts under Article V, since the previous Valuation Date, subject to the
following:
(a) Investment Credits on each Cash Account will be based on the
investment index or indexes selected by the Participant to measure
the deemed rate of investment return on his or her Account. The
investment indexes will be the same as the investment options under
the Savings Plan (except the NCE Stock Fund), and such other
investment options as the Committee makes available under this Plan
from time to time.
(b) A Participant may file separate investment elections for the existing
Cash Account balance and for future amounts to be credited to the
Participant's Cash Account and/or Directable Stock Account. The
Participant may also elect to have amounts transferred between his or
her Cash Account and Directable Stock Account. The amount of Common
Shares to be credited upon a transfer into a Directable Stock Account
shall be determined as provided in Sec. 4. 1 (c).
(c) All investment elections shall be in accordance with such rules and
regulations as the Committee may establish from time to time. The
Committee may also establish such procedures for the valuation of
Accounts as the Committee determines in its sole discretion will
reasonably reflect the period of time amounts were credited to each
Account.
(d) Notwithstanding the foregoing, the Committee may modify or disregard
an investment election filed by a Participant to the extent the
Committee determines that such action is necessary to comply with the
terms of this Plan or to avoid adverse tax consequences to the
Participant or the Participating Employers.
(e) Notwithstanding anything in the Plan to the contrary, the
Participating Employers shall be under no obligation to purchase any
investments used for determining Investment Credits or to purchase
Common Shares. The investment indexes and Common Shares are used
solely for the recordkeeping purpose of measuring gains and losses on
each Participant's Accounts, and the Participant's Accounts are not
actually being invested in the indexes or in Common Shares.
Sec. 4.4 Dividends on Common Shares. Each Participant's Stock Accounts
shall be credited as of each dividend payment date for Common Shares with that
number of shares obtained by dividing:
(a) the amount of any dividends that would be payable on the number of
shares (including fractional shares, carried out to four decimal
places) credited to each Stock Account of such Participant as of the
record date for payment of such dividend, by
(b) the average of the high and low sale price of a Common Share on the
New York Stock Exchange on the day preceding the date of such
dividend payment.
See. 4.5 Adjustment of Stock Accounts for Splits, Dividends, Etc. In the
event of any change in the outstanding Common Shares of the Company by reason of
any share dividend or split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of Common Shares or other similar
corporate change, the Committee shall make appropriate adjustment in the number
of the Common Shares in the Participants' Stock Accounts.
-8-
ARTICLE V
DISTRIBUTION OF ACCOUNTS
Sec. 5.1 Time for Distribution. Except as provided in Sec. 5.5 and the last
paragraph of this Section, all Account balances shall be distributed to the
Participant or Beneficiary within 30 days after the earliest to occur of:
(a) The Participant's Retirement,
(b) The date the Participant is determined by the Committee to have
incurred a Disability.
(c) The date of the Participant's death.
(d) Any other termination of the Participant's employment with the
Participating Employers.
However, any Company Credit for the final partial Plan Year of participation
shall be distributed at the time it is credited to the Participant's
Nondirectable Stock Account.
Sec. 5.2 Manner of Payment. The balance in a Participant's Cash Account and
the value of whole and fractional shares in the Participant's Stock Accounts
shall be paid in cash in a single lump sum payment.
Sec. 5.3 Amount of Payment. The amount of cash to be distributed to a
Participant with respect to the Participant's Cash Account shall be the balance
of such account as of the end of the month prior to the distribution. The amount
of cash to be distributed to a Participant with respect to the Participant's
Stock Accounts shall be the number of shares credited to such Accounts as of the
end of the month prior to the distribution multiplied by the average of the high
and low sales price of a Common Share on the New York Stock Exchange on the last
trading day of the month prior to the distribution.
Sec. 5.4 Beneficiary Designation Each Participant shall have the right, at
any time, to designate any person or persons as Beneficiary or Beneficiaries to
whom payments under this Plan shall be made in the event of the Participant's
death prior to complete distribution of the amount credited to the Participant's
Accounts. Each Participant shall have the right to change his or her Beneficiary
designation at any time. Each Beneficiary designation shall become effective
only when filed in writing with the Committee during the Participant's life on a
form prescribed by the Committee. The rights of each Beneficiary shall be
subject to the terms and conditions specified on the designation form to the
extent consistent with the terms of the Plan. If a Participant fails to
designate a Beneficiary as provided above, or if all designated Beneficiaries
predecease the Participant, then the Beneficiary shall be the Participant's
estate.
Sec. 5.5 Distributions for Severe Financial Hardship. Notwithstanding the
foregoing sections of this Article V, the Committee in its sole discretion may
approve a request by a Participant for a withdrawal from the Participant's
deferred amounts due to an unforeseeable emergency. An "unforeseeable emergency"
is severe financial hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as defined
in Code Sec. 152(a) of the Participant, loss of the Participant's property due
to casualty, or other similar extraordinary and
-9-
unforeseeable circumstances caused by an event beyond the control of the
Participant. Unforeseeable emergencies specifically do not include the need to
pay for the education of a Participant's child or the desire to purchase a home.
Any such early withdrawal approved by the Committee may not exceed the amount
reasonably necessary to meet the emergency. Payment may not be made to the
extent that such hardship is or may be relieved by any of the following means:
(a) Through reimbursement or compensation by insurance or otherwise.
(b) By liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship.
(c) By cessation of deferrals under the Plan.
Sec. 5.6 Modification of Elections for Tax Considerations. Notwithstanding
anything to the contrary in the foregoing sections of this Article V or in any
election filed by a Participant:
(a) If the Committee determines, based on advice of legal counsel or a
final determination by the Internal Revenue Service or a court of
competent jurisdiction, that a Participant or Beneficiary may be held
to be in constructive receipt of benefits under this Plan and
required to recognize such benefit immediately or retroactively for
income tax purposes, the Committee may in its sole discretion take
either of the following actions:
(1) Distribute the entire affected benefit in a single lump sum as
soon as administratively feasible.
(2) Take written action modifying the Participant's election and/or
the terms of the Plan (retroactively, if necessary) in a manner
that win eliminate the allegation of constructive receipt while
at the same time carrying out the Participant's original intent
to the extent possible.
(b) The Committee may postpone any payment to be made to a Participant or
Beneficiary until a subsequent fiscal year of the Participating
Employers to the extent the Committee determines to be necessary in
order to avoid the loss of an income tax deduction under Code Section
162(m).
Sec. 5.7 Withholding and Taxes. The benefits payable under this Plan shall
be subject to the deduction of any federal, state, or local income taxes or
other taxes which are required to be withheld from such payments by applicable
laws and regulations. Any Social Security (FICA) taxes which must be withheld
prior to the distribution of benefits to the Participant shall be withheld from
the amounts deferred, or from the Participant's other compensation, as
determined by the Committee. The Participating Employers provide no assurances
or guarantees regarding the tax treatment of amounts deferred or payments made
under this Plan. Each Participant is solely responsible for any applicable
income, excise and other taxes, penalties or interest (including any excise tax
under Code Section 4999).
-10-
ARTICLE VI
ADMINISTRATION
Sec. 6.1 Administration by the Committee. The Committee shall administer
the Plan, shall establish, adopt, or revise such rules and regulations as it may
deem necessary or advisable for the administration of the Plan, and shall have
discretionary authority to interpret the provisions of the Plan. The
interpretations of the Committee shall be conclusive on all parties.
Sec. 6.2 Claims Procedure. A Participant or Beneficiary may make a claim
for Plan benefits by filing a written request with the Committee. The claim
shall be determined by the Committee within 90 days after the receipt of the
written claim (unless the Committee extends the period for up to an additional
90 days).
(a) Notice of the Committee's decision shall be communicated to the
claimant in writing. If the claim is denied, the notice shall include
the specific reasons for the denial (including reference to pertinent
Plan provisions), a description of any additional material or
information necessary for the Committee to reconsider the claim, the
reasons for any of such additional material or information, and an
explanation of the review procedure.
(b) The claimant or a duly authorized representative may, within 60 days
after receiving such written notice, request in writing that the
Committee review its decision. The Committee may afford the claimant a
hearing and shall afford the claimant the opportunity to review all
pertinent documents and submit issues and comments orally or in
writing. The Committee shall render a review decision in writing
within 60 days after receipt of request for review (unless the
Committee extends the review period for up to an additional 60 days).
The review proceeding shall be conducted in accordance with the rules
and regulations adopted from time to time by the Committee.
ARTICLE VII
AMENDMENT AND TERMINATION
Sec. 7.1 Amendment. The Plan may be amended in whole or in part at any
time for any reason by action of the Board, or by action of any person to whom
that authority has been delegated by the Board. No amendment shall decrease the
benefits under the Plan which have accrued prior to the date such amendment is
adopted, but may modify future Investment Credits to Accounts or the deemed
investments of Accounts in periods following the amendment.
See. 7.2 Termination of Plan. The Company, by action of the Board, may
terminate the Plan at any time. After such termination, no employee shall become
a Participant, and no further amounts shall be credited pursuant to Sec. 4.1 or
Sec. 4.2 to Accounts of Participants. At the discretion of the Company, the
amounts credited to the Accounts of Participants may be either (i) distributed
to Participants as of a date determined by the Company which is after the date
of termination based on values determined as of the last day of the month
preceding the distribution, or (ii) distributed in accordance with Article V.
-11-
ARTICLE VIII
MISCELLANEOUS
Sec. 8.1 Unsecured Obligations. A Participant's credits in his or her
Accounts shall be an unsecured obligation of the Participating Employers to pay
the Participant (or the Participant's Beneficiary, in the event of the
Participant's death) the actual amount of the credits at the time designated in
Article V. Each Participant or Beneficiary is only a general creditor of the
Participating Employers with respect to his or her Accounts. Accounts are
maintained for recordkeeping purposes only. Notwithstanding the foregoing,
obligations to pay benefits under this Plan may be satisfied by distributions
from a grantor trust created by the Company in its sole discretion for such
purpose. Each Participant shall cooperate with the Committee and shall execute
any documents or submit to any physical examination reasonably required by the
Committee in connection with the administration of the Plan.
Sec. 8.2 Benefits May Not Be Assigned or Alienated. Neither a Participant
nor any Beneficiary shall have the right to sell, assign, transfer, encumber or
otherwise convey any right to receive any payment hereunder. No part of the
amounts payable hereunder shall be subject to seizure or sequestration for the
payment of any debts or judgments owed by a Participant or any other person.
However, the Committee may offset the obligations to the Participant or the
Participant's Beneficiary hereunder by any amounts the Participant owes to the
Participating Employers, provided that such amounts owed by the Participant are
not related in any way to the benefits payable under this Plan and were not
incurred in anticipation of the benefits to which the Participant may become
entitled hereunder.
Sec. 8.3 Incompetency. Every person receiving or claiming benefits under
this Plan shall be conclusively presumed to be mentally competent until the date
on which the Committee receives a written notice in a form and manner acceptable
to the Committee that such person is incompetent and that a guardian,
conservator or other person legally vested with the care of his or her estate
has been appointed. In such event, the Committee may direct payments of benefits
to such guardian, conservator or other person legally vested with the care of
the person's estate and any such payments so made shall be a complete discharge
of the Participating Employers to the extent so made.
Sec. 8.4 Notices. Notices required by this Plan to be given to the
Committee or a Participant shall be in writing and shall be considered to have
been duly given or served if personally delivered, or sent by first class,
certified or registered mail.
Sec. 8.5 Severability. The invalidity or partial invalidity of any portion
of this Plan shall not invalidate the remainder thereof, and said remainder
shall remain in full force and effect.
Sec. 8.6 Headings. Headings at the beginning of articles and sections
hereof are for convenience of reference, shall not be considered a part of the
text of the Plan, and shall not influence its construction.
Sec. 8.7 Capitalized Definitions . Capitalized terms used in the Plan shall
have their meaning as defined in the Plan unless the context clearly indicates
to the contrary.
Sec. 8.8 Gender. Any references to the masculine gender include the
feminine and vice versa.
-12-
Sec. 8.9 Use of Compounds of Word "Here". Use of the words "hereof",
"herein", "hereunder". or similar compounds of the word "here" shall mean and
refer to the entire Plan unless the context clearly indicates to the contrary.
Sec. 8.10 Construed as a Whole. The provisions of the Plan shall be
construed as a whole in such manner as to carry out the provisions hereof and
shall not be construed separately without relation to the context.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed by its
duly authorized officer this 3rd day of August 1998.
NEW CENTURY ENERGIES, INC.
By: /s/Bill D. Helton
Its Chief Executive Officer
-13-
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>9
<DESCRIPTION>NCE SALARY DEF. & SUPP. SAVINGS PLAN KEY MANAGERS
<TEXT>
Exhibit 10(g)1
NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR KEY MANAGERS
(As Adopted Effective July 1, 1998)
NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR KEY MANAGERS
TABLE OF CONTENTS
ARTICLE I GENERAL
Sec. 1.1 Name of Plan............................................. 1
Sec. 1.2 Purpose.................................................. 1
Sec. 1.3 Effective Date........................................... 1
Sec. 1.4 Company.................................................. 1
Sec. 1.5 Participating Employers ................................. 1
Sec. 1.6 Construction and Applicable Law ......................... 1
ARTICLE II DEFINITIONS
Sec. 2.1 Accounts................................................. 2
Sec. 2.2 Base Salary.............................................. 3
Sec. 2.3 Beneficiary.............................................. 3
Sec. 2.4 Board.................................................... 3
Sec. 2.5 Code..................................................... 3
Sec. 2.6 Committee................................................ 3
Sec. 2.7 Common Shares............................................ 3
Sec. 2.8 Company Credits.......................................... 3
Sec. 2.9 Compensation............................................. 3
Sec. 2.10 Disability.............................................. 3
Sec. 2.11 ERISA................................................... 3
Sec. 2.12 Investment Credits...................................... 3
Sec. 2.13 Participants............................................ 3
Sec. 2.14 Plan Year............................................... 4
Sec. 2.15 Prior PSCo Plan......................................... 4
Sec. 2.16 Prior SPS Plan.......................................... 4
Sec. 2.17 Retirement.............................................. 4
Sec. 2.18 Savings Plan............................................ 4
Sec. 2.19 Successor Employer...................................... 4
Sec. 2.20 Valuation Date.......................................... 4
ARTICLE III PARTICIPATION
Sec. 3.1 Eligibility for Participation ........................... 4
Sec. 3.2 Duration of Participation ............................... 5
Sec. 3.3 No Guarantee of Employment .............................. 5
ARTICLE IV DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS
Sec. 4.1 Election to Defer Compensation .......................... 5
Sec. 4.2 Company Credits ......................................... 7
-i-
Sec. 4.3 Investment Credits and Valuation of Accounts ............ 8
Sec. 4.4 Dividends on Common Shares .............................. 8
Sec. 4.5 Adjustment of Stock Accounts for Splits, Dividends, Etc . 9
ARTICLE V DISTRIBUTION OF ACCOUNTS
Sec. 5.1 Time for Distribution ................................... 9
Sec. 5.2 Manner of Payment ....................................... 9
Sec. 5.3 Amount of Payment ....................................... 9
Sec. 5.4 Beneficiary Designation . ............................... 9
Sec. 5.5 Distributions for Severe Financial Hardship ............. 10
Sec. 5.6 Modification of Elections for Tax Considerations ........ 10
Sec. 5.7 Withholding and Taxes ................................... 11
ARTICLE VI ADMINISTRATION
Sec. 6.1 Administration by the Committee ......................... 11
Sec. 6.2 Claims Procedure ........................................ 11
ARTICLE VII AMENDMENT AND TERMINATION
Sec. 7.1 Amendment................................................ 12
Sec. 7.2 Termination of Plan ..................................... 12
ARTICLE VIII MISCELLANEOUS
Sec. 8.1 Unsecured Obligations ...................................... 12
Sec. 8.2 Benefits May Not Be Assigned or Alienated .................. 12
Sec. 8.3 Incompetency ............................................... 12
Sec. 8.4 Notices .................................................... 13
Sec. 8.5 Severability................................................ 13
Sec. 8.6 Headings.................................................... 13
Sec. 8.7 Capitalized Definitions .................................... 13
Sec. 8.8 Gender...................................................... 13
Sec. 8.9 Use of Compounds of Word "Here" ............................ 13
Sec. 8.10 Construed as a Whole....................................... 13
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NEW CENTURY ENERGIES
SALARY DEFERRAL AND SUPPLEMENTAL SAVINGS PLAN
FOR KEY MANAGERS
ARTICLE I
GENERAL
Sec. 1.1 Name of Plan. The name of this plan is the "New Century Energies
Salary Deferral and Supplemental Savings Plan for Key Managers" (referred to
hereinafter as the "Plan").
Sec. 1.2 Purpose. The Plan has been established to provide additional
future income to certain key managers through voluntary deferrals of
Compensation and Company Credits related to matching contributions under the
Savings Plan. The Prior PSCo Plan and the Prior SPS Plan, other than the
portions of those plans which covered individuals who are participants in the
New Century Energies Salary Deferral and Supplemental Savings Plan for Executive
Officers on July 1, 1998, were merged into this Plan as of that date. The
benefits of all individuals covered by the portions of the Prior Plans which
were merged into this Plan shall thereafter be provided pursuant to the
provisions of this Plan. If an individual's benefit from a Prior Plan has been
merged into this Plan but the individual is not designated as a Participant
under this Plan, the individual shall nevertheless be deemed to be a
"Participant" under the provisions of this Plan (other than Article III and
Sections 4.1 and 4.2) until the benefits with respect to the Prior Plan have
been distributed.
Sec. 1.3 Effective Date. The "Effective Date" of the Plan, the date as of
which the Plan was established, is July 1, 1998.
Sec. 1.4 Company. For purposes of this Plan, "Company" means New Century
Energies, Inc., a Delaware corporation, and any Successor Employer thereof.
Sec. 1.5 Participating Employers The Company is a "Participating Employer"
in the Plan. Any subsidiary of the Company shall become a Participating Employer
in this Plan upon being .so designated in a written action by the Committee,
effective as of the date specified by the Committee. Any Successor Employer to a
Participating Employer shall also be a Participating Employer. A Participating
Employer shall cease to be such effective as of the date specified in a written
action by the Committee; provided, however, that such action shall not cause
Participants employed by such employer to forfeit benefits accrued prior to such
date.
Sec. 1.6 Construction and Applicable Law. The Plan is intended to be an
unfunded plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employees,
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. The
Plan is not intended to qualify under Code Section 401(a) or 403(a). The Plan
shall be administered and construed consistent with said intent. This Plan also
shall be governed and construed in accordance with the laws of the State of
Colorado as applied to contracts executed and to be wholly performed within said
state to the extent that such laws are not preempted by the laws of the United
States of America.
ARTICLE II
DEFINITIONS
Sec. 2.1 Accounts. "Accounts" shall be established for each eligible
Participant reflecting the amounts owed to the Participant or the Participant's
Beneficiary under the terms of this Plan. The following Accounts may be
established for each Participant:
(a) Cash Account. A Cash Account shall be established to which shall be
credited the amounts of Compensation deferred by the Participant
under Sec. 4.1 (other than amounts the Participant has elected to
have deposited in his or her Directable Stock Account) and the
Investment Credits under Sec. 4.3 related to those deferrals. The
Committee may maintain sub-accounts for a Participant within the Cash
Account to reflect the investment options for that Account under Sec.
4.3.
(b) Stock Accounts. The following types of Stock Accounts shall be
established for a Participant:
(1) Directable Stock Account. The Participant's Directable Stock
Account shall be credited with all amounts of Compensation
deferred by the Participant under Sec. 4.1 and accumulated
Investment Credits on those deferrals which the Participant has
elected to be deemed to have been invested in Common Shares.
(2) Nondirectable Stock Account. The Participant's Nondirectable
Stock Account shall be credited with any Company Credits
determined under Sec. 4.2, and adjustments under Sec. 4.4 and
Sec. 4.5 related to those credits.
(c) Prior Plan Accounts. The, Accounts of an individual who is a
Participant in this Plan on July 1, 1998 (or is deemed to be a
Participant for certain purposes pursuant to Sec. 1.2) and who was a
participant in the Prior PSCo Plan or the Prior SPS Plan on June 30,
1998, shall be initially credited as of July 1, 1998. as follows:
(1) The Participant's Cash Account shall be credited with the balance
credited to his or her cash account in the Prior PSCo Plan as of
June 30, 1998 and the Participant's Nondirectable Stock Account
shall be credited with the number of Common Shares credited to
his or her stock account under the Prior PSCo Plan as of June 30,
1998.
(2) The Participant's Nondirectable Stock Account win be credited
with a number of Common Shares equal to the value of the
Participant's matching account under the Prior SPS Plan on June
30, 1998, and the Participant's Directable Stock Account will be
credited with a number of Common Shares equal to the value of the
Participant's other accounts under the Prior SPS Plan on that
date, in each case divided by the average of the high and low
sale prices of a Common Share on the New York Stock Exchange on
June 30, 1998. This paragraph will be applied by assuming that
June 30, 1998 is a "valuation date" under the Prior SPS Plan.
Each Participant is always 100 % vested in amounts credited to his or her
Accounts.
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Sec. 2.2 Base Salary. "Base Salary" means a Participant's annual salary
rate in effect from time to time during each Plan Year, unreduced for any salary
deferrals under any Company savings, incentive or other employee benefit plan.
Sec. 2.3 Beneficiary. "Beneficiary" means the person or persons designated
as such pursuant to the provisions of Sec. 5.4.
Sec. 2.4 Board. "Board" means the board of directors of the Company.
Sec. 2.5 Code. "Code" mean the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
Sec. 2.6 Committee. "Committee" means the Compensation Committee of the
Board or any other committee appointed by the Board to administer the Plan.
However, no member of the Committee who is also a Participant in this Plan may
participate in or vote or any matter involving the Plan.
Sec. 2.7 Common Shares. "Common Shares" means shares of the Company's
common stock.
Sec. 2.8 Company Credits. "Company Credits" are the credits allocable to
the Participant's Nondirectable Stock Account pursuant to Sec. 4.2.
Sec. 2.9 Compensation. "Compensation" for a Plan Year means the
compensation to'. which the Participant is entitled from the Participating
Employers with respect to the Plan Year, including any Base Salary payable
during the Plan Year, any annual incentive bonus earned under the Company's
annual incentive plan for the Plan Year and payable in the following Plan Year,
and any cash or Company stock incentive bonus earned for the Plan Year under any
other plan that may be. established by the Company, if so permitted by the terms
of such plan (regardless of when paid).
Sec. 2.10 Disability. "Disability" means, for a period of up to 24
consecutive months, a Participant's inability as a result of an accident or
illness to perform the essential functions of the Participant's current position
or any position the Participant held within the 90 day 'period immediately prior
to such accident or illness, and at the end of said 24 month period, the
Participant is permanently unable to engage in any and every occupation or
business for compensation or profit for which the Participant is reasonably.
fitted by education, training or experience.
Sec. 2.11 ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
Sec. 2.12 Investment Credits. "Investment Credits" are the gains or losses
allocable to the Cash Accounts of a Participant under Sec. 4.3 based on the
investment indexes elected by the Participant, and adjustments for dividends and
other transactions to the Participant's Stock Accounts under Sec. 4.4 and Sec.
4.5.
Sec. 2.13 Participant. A "Participant" means any key manager of a
Participating Employer who is a Highly Compensated Employee as defined in Code
Section 414(q), who has been designated in writing by the Committee as eligible
for this Plan, and who does not participate in the New Century Energies Salary
Deferral and Supplemental Savings Plan for Executive Officers. For
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purposes of applying the $80,000 limit (as adjusted) under Code Section 414(q),
the Participant's compensation shall not include deferrals made under this Plan.
Sec. 2.14 Plan Year. A "Plan Year" is the 12-consecutive-month period
commencing on each January 1 and ending on the following December 3 1. However,
the first Plan Year of the Plan begins on July 1, 1998 and ends on December 31,
1998.
Sec. 2.15 Prior PSCo Plan. "Prior PSCo Plan" means the Public Service
Company of Colorado Executive Savings Plan, as in effect on June 30, 1998.
Sec. 2.16 Prior SPS Plan. "Prior SPS Plan" means the Southwestern Public
Service Company Non-Qualified Salary Deferral Plan, as in effect on June 30,
1998.
Sec. 2.17 Retirement. "Retirement" means termination of employment with a
Participating Employer after attaining age 62.
Sec. 2.18 Savings Plan. "Savings Plan" means the New Century Energies
Savings Plan, as it may be amended from time to time.
Sec. 2.19 Successor Employer. A "Successor Employer" is any entity that
succeeds to the business of the Company or another Participating Employer
through merger, consolidation, acquisition of all or substantially all of its
assets, or any other means and which elects before or within a reasonable time
after such succession, by appropriate action evidenced in writing, to continue
the Plan.
Sec. 2.20 Valuation Date. "Valuation Date" means each date on which the
Accounts of Participants are valued for purposes of this Plan. Valuation Dates
shall include the last day of each month and such other dates as the Committee
determines are necessary or advisable for the administration of the Plan.
ARTICLE III
PARTICIPATION
Sec.3.1 Eligibility for Participation. A Participant's eligibility under
this Plan shall be subject to the following:.
(a) The Participant will become eligible to elect to make deferrals under
Sec. 4.1 and to receive Company Credits under Sec. 4.2 effective as
of the date specified by the Committee in the written notice of
participation. However, deferrals will not commence under Sec. 4.1
until the effective date of an election filed pursuant to that
section.
(b) An employee who is designated as a Participant before the last
calendar quarter of a Plan Year may wait until the following year to
make deferrals of Compensation or may elect to make deferrals for the
partial Plan Year (for Compensation earned after the calendar quarter
of the election to defer), and in either case such Participant shall
be eligible for Company Credits under Section 4.2 for the partial
Plan Year, unless the Committee determines otherwise at the time the
employee is designated as a Participant.
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Sec. 3.2 Duration of Participation. An employee who becomes a Participant
shall continue to be eligible to make elections under Sec. 4.1 thereafter,
subject to the following:
(a) The Participant's deferrals shall cease on the earliest of
(1) The date the Participant terminates employment with the
Participating Employers.
(2) The date specified in a written notice issued by the Committee
revoking the individual's status as a Participant.
(3) The date the Participant fails to meet the requirements of any
regulations which may be issued by the Department of Labor that
define the phrase "select group of management or highly
compensated employees" under ERISA.
(b) An individual shall continue to be a Participant for purposes of the
provisions of the Plan other than Sec. 4.1 or See. 4.2 until the date
all of his or her Accounts have been distributed.
(c) If an employee who has elected to make deferrals under Sec. 4.1 for a
particular Plan Year is subsequently determined not to be eligible to
be a Participant for that Plan Year, the employee's deferral election
for that year will be canceled and any amounts which may have already
been deferred for that year will be promptly refunded to the
employee.
Sec. 3.3 No Guarantee of Employment. Participation in the Plan does not
constitute a guarantee or contract of employment with the Participating
Employers. Such participation shall in no way interfere with any rights the
Participating Employers would have in the absence of such participation to
determine the duration of the employee's employment.
ARTICLE IV
DEFERRED COMPENSATION AND CREDITS TO ACCOUNTS
Sec. 4.1 Election to Defer Compensation. An eligible Participant may elect
to have Compensation with respect to each Plan Year credited to his or her Cash
Account and/or Directable Stock Account rather than being paid in cash, subject
to any limitations that may be imposed by the Committee. Elections shall be made
on forms specified by the Committee for purposes of this Plan, and shall be
filed in the manner specified by the Committee. The Compensation for a Plan Year
of a Participant who elects deferrals under this section shall be reduced by the
percentage or amount so elected, subject to the following:
(a) Elections for each Plan Year must be filed during the election period
specified by the Committee for that Plan Year, which period must end
on or prior to December 31 of the previous year, subject to the
following:
(1) If an individual (other than a former Participant) is designated
as a Participant during a Plan Year, any election for that Plan
Year must be filed within 30 days after the date the Participant
received die notice of participation, and deferrals shall
commence as of the first day of the calendar quarter after the
election is received by the Committee. Such an election shall
apply to Base Salary payable during that Plan
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Year for payroll periods beginning on or after the first day of
said quarter and to any incentive compensation paid for that Plan
Year which is subject to a requirement that the individual remain
employed to a date that is on or after the first day of said
quarter.
(2) A former Participant who is again designated as a Participant may
not commence deferrals until January 1 of the Plan Year following
the designation of participation, and an election to defer for
such Plan Year must be made prior to said January 1.
(3) Except as provided in paragraph (4), elections for the Plan Year
commencing July 1, 1998 must be filed by June 30, 1998.
(4) Notwithstanding anything in this Plan to the contrary, if a
Participant was a participant in the Prior PSCo Plan or the Prior
SPS Plan on June 30, 1998, any election in effect under such
Prior Plan shall continue in effect for purposes of this Plan for
the 1998 Plan Year, and no new election shall be allowed under
this Plan for that Plan Year. Any such election under a Prior
Plan shall not apply to Compensation with respect to Plan Years
commencing after 1998.
(b) The Participant may elect to defer either (i) any whole percent (in 10
% increments) of Compensation payable with respect to the Plan Year,
or (ii) any percent or dollar amount of Compensation up to the amount
required for the Participant to receive the Company Credit under Sec.
4.2. However, the total deferrals during any Plan Year may not reduce
the Participant's Compensation payable during that Plan Year (after
deduction of the deferrals under this Plan) to less than the dollar
amount in effect for that Plan Year under Code Section 414(q)(1)(B)
($80,000 for 1998).
(c) The deferred compensation credited under this section on behalf of a
Participant shall be allocated to the Participant's Cash Account
and/or Directable Stock Account (as elected by the Participant) as of
the date that the Compensation would otherwise have been paid to the
Participant in cash. Ile amount of Common Shares to be allocated to a
Directable Stock Account shall be determined by dividing the credit by
the average of the high and low sales prices of a Common Share-on the
New York Stock Exchange on the business day proceeding the date the
credit is made.
(d) The Participant must file a separate deferral election for each
Plan Year with respect to which deferrals are to be made under this
Plan. An election for a Plan Year shall become irrevocable on the
first day of that year, subject to subsection (e). Elections will not
carry over into subsequent Plan Years. However, an election for a
particular Plan Year shall apply to all Compensation with respect to
that Plan Year, including incentive bonuses or other amounts earned
during that year but paid in subsequent Plan Years.
(e) Notwithstanding the foregoing provisions of this section:
(1) All deferrals by a Participant shall cease as of (i) the date the
Participant receives a hardship withdrawal under any qualified
defined contribution plan subject to Code Section 401(k)
maintained by the Company or any of its affiliates which requires
that deferrals be suspended for a certain period of Lime
following such withdrawal, or (ii) the date the Participant
receives a withdrawal from this Plan for severe financial
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hardship due to an unforeseeable emergency under Sec. 5.5.
Deferrals under this section may not recommence until the first
day of the second Plan Year beginning after the date deferrals
ceased under the previous sentence, and no further deferrals
shall be made from Compensation with respect to Plan Years prior
to said second Plan Year.
(2) The Committee may in its sole discretion cancel a Participant's
deferral election for the current Plan Year (and for Compensation
not yet paid with respect to any previous Plan Years) upon the
request of a Participant if the Committee determines that an
event has occurred which would make the Participant eligible for
a withdrawal for severe financial hardship due to an
unforeseeable emergency under Sec. 5.5. Deferrals under this
section may not recommence until the first day of the second Plan
Year beginning after the date deferrals ceased under the previous
sentence, and no further deferrals shall be made from
Compensation with respect to Plan Years prior to said second Plan
Year. The Participant may request that deferrals cease under this
paragraph whether or not the Participant requests a withdrawal
under Sec. 5.5.
Sec. 4.2 Company Credits. Subject to the Committee's discretion, the
Nondirectable Stock Account of each eligible Participant will be credited for
each Plan Year with a Company Credit representing a number of Common Shares,
determined as follows:
(a) The Company Credit for a Plan Year will be equal to the amount
determined under paragraph (1) minus the amount determined under
paragraph (2), with the result divided by the amount determined under
paragraph (3), and with the result then rounded to four decimal
places, as follows:
(1) A dollar amount equal to 50 % of the smaller of (i) the sum of
the amount of Base. Salary the Participant deferred under this
Plan for the Plan Year and the Participant's pre-tax
contributions to the Savings Plan for the Plan Year, or (h) 8 %
of the Participant's "compensation" for the Plan Year recognized
by the Savings Plan for purposes of determining matching
contributions. under that Plan (but disregarding the limit on
such compensation under Code Section 401(a)(17));
(2) The dollar amount of matching contributions actually made to the
Savings Plan for the Participant for the Plan Year; divided by
(3) The average of the high and low sale prices of a Common Share on
the New York Stock Exchange on the business day preceding the
date the matching contribution is made to the Savings Plan.
(b) Notwithstanding subsection (a), a Participant will receive the
Company Credit for a Plan Year only if the Participant participates
in the Savings Plan and makes the maximum dollar amount of pre-tax
contribution permitted by the Savings Plan for that year.
(c) The Company Credit for an eligible Participant for a Plan Year will
be allocated to the Participant's Nondirectable Stock Account on the
date the matching contribution for such Plan Year is (or would be)
made under the Savings Plan.
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(d) Each Participant's Nondirectable Stock Account shall also be credited
with any Common Shares deferred under any annual incentive plan, or
other plan that may be established by the Company, for that portion
of the award which is otherwise payable in Common Shares. Such credit
shall occur as of the date such shares would otherwise have been
distributed to the Participant.
(e) Notwithstanding the foregoing, the Company Credits for the period
from July I to December 31, 1998 under this Section will be based
only on compensation and contributions during that period.
Sec. 4.3 Investment Credits and Valuation of Accounts. The Accounts of each
Participant will be adjusted as of each Valuation Date to reflect Investment
Credits, deferrals allocated to the Account under Sec. 4. 1, Company Credits
allocated under Sec. 4.2, credits to Stock Accounts under Sec. 4.4, adjustments
of Stock Accounts under Sec. 4.5, and distributions from Accounts under Article
V, since the previous Valuation Date, subject to the following:
(a) Investment Credits on each Cash Account will be based on the
investment index or indexes selected by the Participant to measure
the deemed rate of investment return on his or her Account The
investment indexes will be the same as the investment options under
the Savings Plan (except the NCE Stock Fund), and such other
investment options as the Committee makes available under this Plan
from time to time.
(b) A Participant may file separate investment elections for the existing
Cash Account balance and for future amounts to be credited to the
Participant's Cash Account and/or Directable Stock Account. The
Participant may also elect to have amounts transferred between his or
her Cash Account and Directable Stock Account. The amount of Common
Shares to be credited upon a transfer into a Directable Stock Account
shall be determined as provided in Sec. 4. 1 (c).
(c) All investment elections shall be in accordance with such rules and
regulations as the Committee may establish from time to time. The
Committee may also establish such procedures for the valuation of
Accounts as the Committee determines in its sole discretion will
reasonably reflect the period of time amounts were credited to each
Account.
(d) Notwithstanding the foregoing, the Committee may modify or disregard
an investment election filed by a Participant to the extent the
Committee determines that such action is necessary to comply with the
terms of this Plan or to avoid adverse tax consequences to the
Participant or the Participating Employers.
(e) Notwithstanding anything in the Plan to the contrary, the
Participating Employers shall be under no obligation to purchase any
investments used for determining Investment Credits or to purchase
Common Shares. The investment indexes and Common Shares are used
solely for the recordkeeping purpose of measuring gains and losses on
each Participant's Accounts, and the Participant's Accounts are not
actually being invested in the indexes or in Common Shares.
Sec. 4.4 Dividends on Common Shares. Each Participant's Stock Accounts
shall be credited as of each dividend payment date for Common Shares with that
number of shares obtained by dividing:
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(a) the amount of any dividends that would be payable on the number of
shares (including fractional shares, carried out to four decimal
places) credited to each Stock Account of such Participant as of the
record date for payment of such dividend, by
(b) the average of the high and low sale price of a Common Share on the
New York Stock Exchange on the day preceding the date of such
dividend payment.
Sec. 4.5 Adjustment of Stock Accounts for Splits, Dividends, Etc In the
event of any change in the outstanding Common Shares of the Company by reason of
any share dividend or split, recapitalization, merger, consolidation, spin-off,
reorganization, combination or exchange of Common Shares or other similar
corporate change, the Committee shall make appropriate adjustment in the number
of the Common Shares in the Participants' Stock Accounts.
ARTICLE V
DISTRIBUTION OF ACCOUNTS
Sec. 5.1 Time for Distribution. Except as provided in Sec. 5.5 and the last
paragraph of this Section, all Account balances shall be distributed to the
Participant or Beneficiary within 30 days after the earliest to occur of
(a) The Participant's Retirement,
(b) The date the Participant is determined by the Committee to have
incurred a Disability.
(c) The date of the Participant's death.
(d) Any other termination of the Participant's employment with the
Participating Employers.
However, any Company Credit for the final partial Plan Year of participation
shall be distributed at the time it it credited to the Participant's
Nondirectable Stock Account.
Sec. 5.2 Manner of Payment. The balance in a Participant's Cash Account and
the value of whole and fractional shares in the Participant's Stock Accounts
shall be paid in cash in a single lump sum payment.
Sec. 5.3 Amount of Payment. The amount of cash to be distributed to a
Participant with respect to the Participant's Cash Account shall be the balance
of such account as of the end of the month prior to the distribution. The amount
of cash to be distributed to a Participant with respect to the Participant's
Stock Accounts shall be the number of shares credited to such Accounts as of the
end of the month prior to the distribution multiplied by the average of the high
and low sales price of a Common Share on the New York Stock Exchange on the last
trading day of the month prior to the distribution.
Sec. 5.4 Beneficiary Designation. Each Participant shall have the right, at
any time, to designate any person or persons as Beneficiary or Beneficiaries to
whom payments under this Plan shall be made in the event of the Participant's
death prior to complete distribution of the amount credited to the Participant's
Accounts. Each Participant shall have the right to change his or her Beneficiary
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designation at any time. Each Beneficiary designation shall become effective
only when filed in writing with the Committee during the Participant's life on a
form prescribed by the Committee. The rights of each Beneficiary shall be
subject to the terms and conditions specified on the designation form to the
extent consistent with the terms of the Plan. If a Participant fails to
designate a Beneficiary as provided above, or if all designated Beneficiaries
predecease the Participant, then the Beneficiary shall be the Participant's
estate.
Sec. 5.5 Distributions for Severe Financial Hardship. Notwithstanding the
foregoing sections of this Article V, the Committee in its sole discretion may
approve a request by a Participant for a withdrawal from the Participant's
deferred amounts due to an unforeseeable emergency. An "unforeseeable emergency"
is severe financial hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as defined
in Code Sec. 152(a) of the Participant, loss of the Participant's property due
to casualty, or other similar extraordinary and unforeseeable circumstances
caused by an event beyond the control of the Participant. Unforeseeable
emergencies specifically do not include- the need to pay for education of a
Participant's child or the desire to purchase a home. Any such early withdrawal
approved by the Committee may not exceed the amount reasonably necessary to meet
the emergency. Payment may not be made to the ixtent that such hardship is or
may be relieved by any of the following means:
(a) Through reimbursement or compensation by insurance or otherwise.
(b) By liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship.
(c) By cessation of deferrals under the Plan.
Sec. 5.6 Modification of Elections for Tax Considerations. Notwithstanding
anything to the contrary in the foregoing sections of this Article V or in any
election filed by a Participant:
(a) If the Committee determines, based on advice of legal counsel or a
final determination by the Internal Revenue Service or a court of
competent jurisdiction, that a Participant or Beneficiary may be held
to be in constructive receipt of benefits under this Plan and
required to recognize such, benefit immediately or retroactively for
income tax purposes, the Committee may in its sole discretion take
either of the following actions:
(1) Distribute the entire affected benefit in a single lump sum as
soon as administratively feasible.
(2) Take written action modifying the Participant's election and/or
the terms of the Plan (retroactively, if necessary) in a manner
that will eliminate the allegation of constructive receipt while
at the same time carrying out the Participant's original intent
to the extent possible.
(b) The Committee may postpone any payment to be made to a Participant or
Beneficiary until a subsequent fiscal year of the Participating
Employers to the extent the Committee determines to be necessary in
order to avoid the loss of an income tax deduction under Code Section
162(m).
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Sec. 5.7 Withholding and Taxes. The benefits payable under this Plan shall
be subject to the deduction of any federal, state, or local income taxes or
other taxes which are required to be withheld from such payments by applicable
laws and regulations. Any Social Security (FICA) taxes which must be withheld
prior to the distribution of benefits to the Participant shall be withheld from
the amounts deferred, or from the Participant's other compensation, as
determined by the Committee. The Participating Employers provide no assurances
or guarantees regarding the tax treatment of amounts deferred or payments made
under this Plan. Each Participant is solely responsible for any applicable
income, excise and other taxes, penalties or interest (including any excise tax
under Code Section 4999)
ARTICLE VI
ADMINISTRATION
Sec. 6.1 Administration by the Committee. The Committee shall administer
the Plan, shall establish, adopt, or revise such rules and regulations as it may
deem necessary or advisable for the administration of the Plan, and shall have
discretionary authority to interpret the provision of the Plan. The
interpretations of the Committee shall be conclusive on all parties.
Sec. 6.2 Claims Procedure. A Participant or Beneficiary may make a claim
for Plan benefits by filing a written request with the Committee. The claim
shall be determined by the Committee within 90 days after the receipt of the
written claim (unless the Committee extends the period for up to an additional
90 days).
(a) Notice of the Committee's decision shall be communicated to the
claimant in writing. If the claim is denied, the notice shall include
the specific reasons for the denial (including reference to pertinent
Plan provisions), a description of any additional material or
information necessary for the Committee to reconsider the claim, the
reasons for any of such additional material or information, and an
explanation of the review procedure.
(b) The claimant or duly authorized representative may, within 60 days
after receiving such written notice, request in writing that the
Committee review its decision. The Committee may afford the claimant a
hearing and shall afford the claimant the opportunity to review all
pertinent documents and submit issues and comments orally or in
writing. The Committee shall render a review decision in writing
within 60 days after receipt of request for review (unless the
Committee extends the review period for up to an additional 60 days).
The review proceeding shall be conducted in accordance with the rules
and regulations adopted from time to time by the Committee.
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ARTICLE VII
AMENDMENT AND TERMINATION
Sec. 7.1 Amendment. The Plan may be amended in whole or in part at any
time for any reason by action of the Board, or by action of any person to whom
that authority has been delegated by the Board. No amendment shall decrease the
benefits under the Plan which have accrued prior to the date such amendment is
adopted, but may modify future Investment Credits to Accounts or the deemed
investments of Accounts in periods following the amendment.
Sec. 7.2 'Termination of Plan. The Company, by action of the Board, may
terminate the Plan at any time. After such termination, no employee shall become
a Participant, and no further amounts shall be credited pursuant to Sec. 4.1 or
Sec. 4.2 to Accounts of Participants. At the discretion of the Company, the
amounts credited to the Accounts of Participants may be either (i) distributed
to Participants as of a date determined by die Company which is after the date
of termination based on values determined as of the last day of the month
preceding- the distribution, or (ii) distributed in accordance with Article V.
ARTICLE VIII
MISCELLANEOUS
Sec. 8.1 Unsecured Obligations. A Participant's credits in his or her
Accounts shall be an unsecured obligation of the Participating Employers to pay
the Participant (or the Participant's Beneficiary, in the event of the
Participant's death) the actual amount of the credits at the time designated in
Article V. Each Participant or Beneficiary is only a general creditor of the
Participating Employers with respect to his or her Accounts. Accounts are
maintained for recordkeeping purposes only. Notwithstanding the foregoing,
obligations to pay benefits under this Plan may be satisfied by distributions
from a grantor trust created by the Company in its sole discretion for such
purpose. Each Participant shall cooperate with the Committee and shall execute
any documents or submit to any physical examination reasonably required by the
Committee in connection with the administration of the Plan.
Sec. 8.2 Benefits May Not Be Assigned or Alienated. Neither a Participant
nor any Beneficiary shall have the right to sell, assign, transfer, encumber or
otherwise convey any right to receive any payment hereunder. No part of the
amounts payable hereunder shall be subject to seizure or sequestration for the
payment of any debts or judgments owed by a Participant or any other person.
However, the Committee may offset the obligations to the Participant or the
Participant's Beneficiary hereunder by any amounts the Participant owes to the
Participating Employers, provided that such amounts owed by the Participant are
not related in any way to the benefits payable under this Plan and were not
incurred in anticipation of the benefits to which the Participant may become
entitled hereunder.
Sec. 8.3 Incompetency Every person receiving or claiming benefits under
this Plan shall be conclusively presumed to be mentally competent until the date
on which the Committee receives a written notice in a form and manner acceptable
to the Committee that such person is incompetent and that a guardian,
conservator or other person legally vested with the care of his or her estate
has been appointed. In such event, the Committee may direct payments of benefits
to such guardian,
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conservator or other person legally vested with the care of the person's estate
and any such payments so made shall be a complete discharge of the Participating
Employers to the extent so made.
Sec. 8.4 Notices. Notices required by this Plan to be given to the
Committee or a Participant shall be in writing and shall be considered to have
been duly given or served if personally delivered, or sent by first class,
certified or registered mail.
Sec. 8.5 Severability. The invalidity or partial invalidity of any portion
of this Plan shall not invalidate the remainder thereof, and said remainder
shall remain in full force and effect.
Sec. 8.6 Headings. Headings at the beginning of articles and sections
hereof are for convenience of reference, shall not be considered a part of the
text of the Plan, and shall not influence its construction.
Sec. 8.7 Capitalized Definitions. Capitalized terms used in the Plan shall
have their meaning as defined in the Plan unless the context clearly indicates
to the contrary.
Sec. 8.8 Gender. Any references to the masculine gender include the
feminine and vice versa.
Sec. 8.9 Use of Compounds of Word "Here". Use of the words "hereof,
"herein", "hereunder", or similar compounds of the word "here" shall mean and
refer to the entire Plan unless the context clearly indicates to the contrary.
Sec. 8.10 Construed as a Whole. The provision's of the Plan shall be
construed as a whole in such manner as to carry out the provisions hereof and
shall not be construed separately without relation to the context.
IN WITNESS VVHEREOF, the Company has caused this Plan to be executed by
its duly authorized officer this 3rd day of August, 1998.
NEW CENTURY ENERGIES, INC.
By: /s/ Bill D. Helton
-----------------------
Its Chief Executive Officer
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