Exhibit 10(iii)26
CH ENERGY GROUP, INC.
DIRECTORS AND EXECUTIVES
DEFERRED COMPENSATION PLAN
As Amended and Restated,
Effective September 26, 2003
TABLE OF CONTENTS
PAGE
ARTICLE I TITLE AND DEFINITIONS .......................................... 1
1.1. Title ........................................................ 1
1.2. Definitions .................................................. 1
ARTICLE II PARTICIPATION ................................................. 6
ARTICLE III DEFERRAL ELECTIONS ........................................... 7
3.1. Elections to Defer Compensation .............................. 7
3.2. Investment Elections ......................................... 8
ARTICLE IV DEFERRAL ACCOUNTS AND TRUST FUNDING ........................... 8
4.1. Deferral Accounts ............................................ 8
4.2. Company Discretionary Contribution Account ................... 9
4.3. Director Stock Account ....................................... 9
4.4. Trust Funding ................................................ 10
ARTICLE V VESTING ........................................................ 11
ARTICLE VI DISTRIBUTIONS ................................................. 11
6.1. Distribution of Accounts ..................................... 11
6.2. Non-Scheduled In-Service Withdrawals ......................... 13
6.3. Hardship Distribution ........................................ 13
6.4. Inability to Locate Participant .............................. 14
6.5 Form of Distribution ......................................... 14
ARTICLE VII ADMINISTRATION ............................................... 14
7.1. Committee .................................................... 14
7.2. Committee Action ............................................. 14
7.3. Powers and Duties of the Committee ........................... 14
7.4. Construction and Interpretation .............................. 15
7.5. Information .................................................. 15
7.6. Compensation, Expenses and Indemnity ......................... 15
7.7. Quarterly Statements ......................................... 16
7.8. Disputes ..................................................... 16
ARTICLE VIII MISCELLANEOUS ............................................... 17
8.1. Unsecured General Creditor ................................... 17
8.2. Restriction Against Assignment ............................... 17
8.3. Withholding .................................................. 17
8.4. Amendment, Modification, Suspension or Termination ........... 18
8.5. Governing Law ................................................ 18
8.6. Receipt or Release ........................................... 18
8.7. Payments on Behalf of Persons Under Incapacity ............... 18
8.8. Limitation of Rights and Employment Relationship ............. 18
8.9. Headings ..................................................... 18
8.10 Successors ................................................... 18
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CH ENERGY GROUP, INC.
DIRECTORS AND EXECUTIVES
DEFERRED COMPENSATION PLAN
ARTICLE I
TITLE AND DEFINITIONS
1.1. Title.
This Plan shall be known as the CH Energy Group, Inc. Directors and
Executives Deferred Compensation Plan.
1.2. Definitions.
Whenever the following words and phrases are used in this Plan, with the
first letter capitalized, they shall have the meanings specified below.
(a) "Account" or "Accounts" shall mean a Participant's Deferral
Account, the Company Discretionary Contribution Account and/or the Director
Stock Account.
(b) "Base Salary" shall mean a Participant's annual base salary,
excluding bonus, incentive and all other remuneration for services rendered to
the Company and prior to reduction for any salary contributions to a plan
established pursuant to Section 125 of the Code or qualified pursuant to Section
401(k) of the Code.
(c) "Beneficiary" or "Beneficiaries" shall mean the person or
persons, including a trustee, personal representative or other fiduciary, last
designated in writing by a Participant on a form provided by the Company to
receive the benefits specified hereunder in the event of the Participant's
death. No Beneficiary designation shall become effective until it is filed with
the Company. Any designation shall be revocable at any time through a written
instrument filed by the Participant with the Company. If there is no Beneficiary
designation in effect, or there is no surviving designated Beneficiary, the
Participant's surviving spouse shall be the Beneficiary. If there is no
surviving spouse to receive any benefits payable in accordance with the
preceding sentence, the duly appointed and currently acting personal
representative of the Participant's estate (which shall include either the
Participant's probate estate or living trust) shall be the Beneficiary. In any
case where there is no such personal representative of the Participant's estate
duly appointed and acting in that capacity within ninety (90) days after the
Participant's death (or such extended period as the Company determines is
reasonably necessary to allow such personal representative to be appointed, but
not to exceed one hundred eighty (180) days after the Participant's death), then
Beneficiary shall mean the person or persons who can verify by affidavit or
court order to the satisfaction of the Company that they are legally entitled to
receive the benefits specified hereunder. In the event any amount is payable
under the Plan to a minor, payment shall not be made to the minor, but instead
be paid (1) to that person's living parent(s) to act as custodian, (2) if that
person's parents are then divorced, and one parent is the sole custodial parent,
to such custodial parent, or (3) if no parent of that person is then living, to
a custodian selected by the Company to hold the funds for the minor under the
Uniform Transfers
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or Gifts to Minors Act in effect in the jurisdiction in which the minor resides.
If no parent is living and the Company decides not to select another custodian
to hold the funds for the minor, then payment shall be made to the duly
appointed and currently acting guardian of the estate for the minor or, if no
guardian of the estate for the minor is duly appointed and currently acting
within sixty (60) days after the date the amount becomes payable, payment shall
be deposited with the court having jurisdiction over the estate of the minor.
Payment by the Company pursuant to any unrevoked Beneficiary designation, or to
the Participant's estate if no such designation exists, of all benefits owed
hereunder shall terminate any and all liability of the Company.
(d) "Board of Directors" or "Board" shall mean the Board of
Directors of CH Energy Group, Inc.
(e) "Bonuses" shall mean the incentive compensation determined under
the Company's Executive Annual Incentive Plan earned during the Plan Year.
(f) "Change of Control" shall mean:
(1) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (x) the then outstanding shares of common stock of CH Energy
Group, Inc. (the "Outstanding Company Common Stock") or (y) the combined voting
power of the then outstanding voting securities of CH Energy Group, Inc.
entitled to vote generally in the election of directors (the "Outstanding
Company Voting Securities"); provided, however that for purposes of this
subsection (1), the following acquisitions shall not constitute a Change of
Control: (i) any acquisition directly from CH Energy Group, Inc., (ii) any
acquisition by the Company, (iii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by CH Energy Group, Inc. or any
corporation controlled by CH Energy Group, Inc., or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (3) of this Section 1.2(f); or
(2) Individuals who, as of December 1, 1998, constitute the
Board of Directors of CH Energy Group, Inc. (the "Incumbent Board") cease for
any reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by CH Energy Group, Inc.'s shareholders,
was approved by a vote of at least a majority of the directors then compromising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
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(3) Consummation of a reorganization, merger or consolidation
or sale, or other disposition of all or substantially all of the assets of CH
Energy Group, Inc. (a "Business Combination"), in each case, unless, following
such Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
60% of, respectively, the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns CH Energy Group, Inc. or
all or substantially all of CH Energy Group, Inc.'s assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(4) Approval by the shareholders of CH Energy Group, Inc. of a
complete liquidation or dissolution of CH Energy Group, Inc.
(g) "Change of Control Payments" shall mean a payment from the
Company as a result of a Change of Control;
(h) "Change of Control Termination" shall mean any termination of a
Participant's employment that gives rise to severance pay under such
Participant's Change of Control Employment Agreement entered into with the
Company, regardless of whether or not such termination of employment occurs
after such Participant's attainment of age 55.
(i) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(j) "Committee" shall mean the Committee described in Article VII.
(k) "Company" shall mean CH Energy Group, Inc. and any successor
corporations. Company shall include each corporation which is a member of a
controlled group of corporations (within the meaning of Section 414(b) of the
Code) of which CH Energy Group, Inc. is a component member, if the Board
provides that such corporation shall participate in the Plan and such
corporation's governing board of directors adopts this Plan. As of the Effective
Date, the following corporations have adopted the Plan: Central Hudson
Enterprises Corporation and Central Hudson Gas & Electric Corporation.
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(l) "Company Discretionary Contribution Account" shall mean the
bookkeeping account maintained by the Company for each Participant that is
credited with an amount equal to the Company Discretionary Contribution Amount,
if any, and earnings and losses pursuant to Section 4.2.
(m) "Company Discretionary Contribution Amount" shall mean, for each
Participant for a Plan Year, an additional discretionary amount allocated to a
Participant under this Plan as determined by the Company. Such amount may differ
from Participant to Participant both in amount, including no contribution, and
as a percentage of Compensation.
(n) "Company Stock" shall mean shares of the common stock of CH
Energy Group, Inc. or its successor.
(o) "Company Stock Fund" shall mean a Fund consisting solely of
shares of Company Stock. The Company may make or provide for such adjustments in
the number of shares of Company Stock credited to the Company Stock Fund as the
Company, in its sole discretion exercised in good faith, may determine is
equitably required in order to prevent dilution or enlargement of rights that
otherwise would result from (i) any stock dividend, stock split, combination of
shares, recapitalization, or other change in the capital structure of CH Energy
Group, Inc., (ii) any merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, partial or complete liquidation, or other distribution
of assets or issuance of rights or warrants to purchase securities, or (iii) any
other corporate transaction or event having an effect similar to any of the
foregoing. In the event of any such transaction or event, the Company, in its
sole discretion exercised in good faith, may provide, in substitution for the
Company Stock credited to the Company Stock Fund, such alternative consideration
as it may determine to be equitable in the circumstances.
(p) "Compensation" shall mean Base Salary, Bonuses, Supplementary
Retirement Plan Payments, Performance Shares, Change of Control Payments and
Directors Fees that the Participant is entitled to receive for services rendered
to the Company.
(q) "Deferral Account" shall mean the bookkeeping account maintained
by the Company for each Participant that is credited with amounts equal to (1)
the portion of the Participant's Compensation that he or she elects to defer,
including any amounts deferred under the Central Hudson Gas & Electric
Corporation Directors' Deferred Compensation Plan and (2) earnings and losses
pursuant to Section 4.1.
(r) "Director Stock Account" shall mean the bookkeeping account
maintained by the Company for each Eligible Director that is credited with (1)
the amounts, if any, credited to such account pursuant to Section 4.3 and (2)
earnings and losses pursuant to Section 4.3.
(s) "Directors Fees" shall mean the retainers and fees an Eligible
Director is entitled to receive for services rendered in his or her capacity as
an Eligible Director.
(t) "Distributable Amount" shall mean the sum of the amounts
credited to and earnings attributable to a Participant's Deferral Account,
Director Stock Account and the vested amounts in the Company Discretionary
Contribution Account.
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(u) "Effective Date" shall mean September 26, 2003.
(v) "Eligible Director" shall mean a member of the board of
directors of the Company who is not an employee of the Company.
(w) "Eligible Employee" shall mean executive officers and other
executives and key management employees of the Company that meet criteria
approved by the Compensation & Succession Committee of the Board of Directors.
(x) "Eligible Individual" shall mean Eligible Directors and Eligible
Employees.
(y) "Fund" or "Funds" shall mean one or more of the investment funds
(including the Company Stock Fund) or policies selected by the Company pursuant
to Section 3.2(b).
(z) "Hardship Distribution" shall mean a severe financial hardship
to the Participant resulting from a sudden and unexpected illness or accident of
the Participant or of his or her Dependent (as defined in Section 152(a) of the
Code), loss of a Participant's property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of the Participant. The circumstances that would constitute
an unforeseeable emergency will depend upon the facts of each case, but, in any
case, a Hardship Distribution may not be made to the extent that such hardship
is or may be relieved (i) through reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe financial hardship, or
(iii) by cessation of deferrals under this Plan.
(aa) "Initial Election Period" for an Eligible Individual shall mean
the thirty (30) day period following the time an individual becomes an Eligible
Individual.
(bb) "Long Term Disability" shall mean a disability of an Eligible
Employee within the meaning of the Central Hudson Gas & Electric Corporation
Disability Plan.
(cc) "Non-Scheduled In-Service Withdrawal" shall mean an election by
a Participant in accordance with Section 6.2 to receive a withdrawal of amounts
from his or her Deferral Account and Company Discretionary Contribution Account
prior to the time in which such Participant would otherwise be entitled to such
amounts.
(dd) "Participant" shall mean any Eligible Individual who becomes a
Participant in accordance with Article II.
(ee) "Payment Date" for payment of a Distributable Amount shall mean
the time as soon as administratively practicable after (1) the end of the
calendar quarter in which the Participant's employment or service terminates for
any reason, or (2) the Scheduled In-Service Withdrawal Date.
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(ff) "Performance Shares" shall mean performance shares or
performance units awarded under the CH Energy Group, Inc. Long-Term
Performance-Based Incentive Plan or any other plan designated by the Company.
(gg) "Plan" shall mean the CH Energy Group, Inc. Directors and
Executives Deferred Compensation Plan set forth herein, now in effect, or as
amended from time to time.
(hh) "Plan Year" shall mean the twelve (12) consecutive month period
beginning on each January 1 and ending on each December 31.
(ii) "Rate of Return" shall mean for each Fund an amount equal to
the net rate of gain or loss on the assets of such Fund during the period
amounts are invested in the Fund.
(jj) "Retirement" shall mean (i) with respect to any Participant who
is an Eligible Employee, such Participant's termination of employment (other
than in a Change of Control Termination) with the Company on or after age
fifty-five (55), and (ii) with respect to any Participant who is an Eligible
Director, such Participant's cessation of service with the Company for any
reason.
(kk) "Scheduled In-Service Withdrawal Date" shall be the
distribution date elected by the Participant for an in-service withdrawal of all
amounts of Compensation deferred and Company Discretionary Contribution Amounts,
as set forth on the election form last submitted to the Company, and earnings
and losses attributable thereto.
(ll) "Supplementary Retirement Plan" shall mean the Supplementary
Retirement Plan of the Company, now in effect or as amended from time to time.
(mm) "Supplementary Retirement Plan Payments" shall mean benefit
payments payable under the Supplementary Retirement Plan.
(nn) "Trust" shall mean the CH Energy Group, Inc. Directors and
Executives Deferred Compensation Plan Trust.
(oo) "Trustee" shall mean the trustee of the Trust.
ARTICLE II
PARTICIPATION
A Participant in the Plan immediately prior to the Effective Date shall
continue such participation as a Participant in this Plan. Each Eligible
Director who is not otherwise a Participant in this Plan shall automatically
become a Participant on the Effective Date. Any other Eligible Individual shall
become a Participant in this Plan by electing to defer a portion of his or her
Compensation in accordance with Section 3.1.
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ARTICLE III
DEFERRAL ELECTIONS
3.1. Elections to Defer Compensation.
(a) Initial Election Period. Subject to the provisions of Article
II, each Eligible Employee may elect to defer Base Salary, Bonuses,
Supplementary Retirement Plan Payments, Performance Shares and/or Change of
Control Payments by filing with the Company an election that conforms to the
requirements of this Section 3.1 on a form provided by the Company, no later
than the last day of his or her Initial Election Period. An Eligible Director
may, subject to the provisions of Article II elect to defer Directors Fees by
filing with the Company an election that conforms with the requirements of this
Section 3.1, on a form provided by the Company, no later than the last day of
his or her Initial Election Period.
(b) Amount of Deferral. The amount of Compensation which an Eligible
Individual may elect to defer is such Compensation earned on or after the time
at which the Eligible Individual elects to defer Compensation in accordance with
Section 3.1. The amount elected by an Eligible Employee shall be a percentage of
Base Salary, Bonuses, Supplementary Retirement Plan Payments, Performance Shares
and Change of Control Payments. The Eligible Employee's Base Salary deferral
election shall not exceed 50% of the Eligible Employee's Base Salary. The
Eligible Employee's Bonuses, Supplementary Retirement Plan Payments, Performance
Shares and Change of Control Payments can be deferred up to 100%. In addition,
the Company may, in its sole and absolute discretion, further limit deferrals
for tax withholding and employee benefit plan withholding requirements. An
Eligible Director may defer up to 100% of his or her Directors Fees. The minimum
contribution which may be made in any Plan Year by an Eligible Individual shall
not be less than $5,000.
(c) Duration of Compensation Deferral Election. An Eligible
Employee's election to defer Base Salary must be filed on or before December 20
and is to be effective for the first day of the next following Plan Year. An
Eligible Employee may renew, increase, decrease or terminate a deferral election
with respect to Base Salary, Bonuses, Supplementary Retirement Plan Payments
and/or Change of Control Payments for any subsequent Plan Year by filing a new
election on or before December 20, which election shall be effective on the
first day of the next following Plan Year. Any subsequent election with respect
to Bonuses must be filed by December 20 of the year prior to the year in which
the Bonuses are earned. An Eligible Employee's election with respect to Change
of Control Payments must be made on or before December 20 and shall be effective
on the first day of the next following Plan Year. A Participant may elect to
defer Performance Shares by filing with the Company an election that conforms
with the requirements of this Article III, on a form provided by the Company, no
later than one year prior to the end of the applicable award cycle for such
Performance Shares, provided, however, that an election to defer Performance
Shares with respect to the award cycle ending on December 31, 2003 must be made
no later than August 31, 2003. An Eligible Director's election to defer
Directors Fees must be filed on or before December 20 and is to be effective for
the first day of the next following Plan Year. An Eligible Director may renew,
increase, decrease or terminate a deferral election with respect to Directors
Fees for any
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subsequent Plan Year by filing a new election on or before December 20, which
election shall be effective on the first day of the next following Plan Year.
All elections under this Section 3.1 shall continue until changed in writing by
the Eligible Individual, such change to be effective as of the first day of the
next following Plan Year.
(d) Elections other than Elections during the Initial Election
Period. Subject to the limitations of Section 3.1(b) above, any Eligible
Individual who fails to elect to defer Compensation during his or her Initial
Election Period may subsequently become a Participant, and any Eligible
Individual who has terminated a prior Compensation deferral election may elect
to again defer Compensation, by filing an election, on a form provided by the
Company, to defer Compensation as described in Sections 3.1(b) and 3.1(c) above.
3.2. Investment Elections.
(a) At the time of making the deferral elections described in
Section 3.1, the Participant shall designate, on a form provided by the Company,
the types of Funds the Participant's Deferral Account and Company Discretionary
Account will be deemed to be invested in for purposes of determining the amount
of earnings and losses to be credited to such Accounts. In making the
designation pursuant to this Section 3.2, the Participant may specify that all,
or any multiple of, his or her Deferral Account and Company Discretionary
Contribution Account be deemed to be invested in one or more of the Funds
provided under the Plan. A Participant may change the designation made under
this Section 3.2 each day in accordance with procedures established by the
Company. If a Participant fails to elect a Fund under this Section 3.2, he or
she shall be deemed to have elected the Money Market type of Fund.
Notwithstanding the above, any amount credited to a Participant's Director Stock
Account shall be deemed invested at all times in the Company Stock Fund.
(b) The Company shall select from time to time, in its sole
discretion, a commercially available investment fund of each of the types
provided under the Plan to be the Funds. The Rate of Return of each Fund shall
be used to determine the amount of earnings or losses to be credited to
Participant's Account under Article IV. Dividends or other distributions payable
with respect to a Fund shall be deemed reinvested in such Fund.
ARTICLE IV
DEFERRAL ACCOUNTS AND TRUST FUNDING
4.1. Deferral Accounts.
The Company shall establish and maintain a Deferral Account for each
Participant under the Plan. Each Participant's Deferral Account shall be further
divided into separate subaccounts ("investment fund subaccounts"), each of which
corresponds to a Fund elected by the Participant pursuant to Section 3.2(a). A
Participant's Deferral Account shall be credited as follows:
(a) Within five (5) business days after each payroll date, the
Company shall credit the investment fund subaccounts of the Participant's
Deferral Account with an amount equal to the Compensation deferred by the
Participant during each pay period in accordance with the Participant's election
under Section 3.2(a); that is, the portion of the Participant's deferred
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Compensation that the Participant has elected to be deemed to be invested in a
Fund shall be credited to the investment fund subaccount corresponding to that
Fund.
(b) As of each day, each investment fund subaccount of a
Participant's Deferral Account shall be credited with earnings or losses in an
amount equal to that determined by multiplying (i) the balance credited to such
investment fund subaccount as of the preceding day plus contributions credited
to the Participant's Deferral Account since the preceding day by (ii) the Rate
of Return for the Fund elected by the Participant pursuant to Section 3.2(a).
(c) In the event that a Participant elects for a given Plan Year's
deferral of Compensation to have a Scheduled In-Service Withdrawal Date, all
amounts attributed to the deferral of Compensation for such Plan Year shall be
accounted for in a manner which allows separate accounting for the deferral of
Compensation and investment gains and losses associated with such Plan Year's
deferral of Compensation.
4.2. Company Discretionary Contribution Account.
If necessary, the Company shall establish and maintain a Company
Discretionary Contribution Account for each Participant under the Plan. Each
Participant's Company Discretionary Contribution Account shall be further
divided into separate investment fund subaccounts corresponding to the Funds
elected by the Participant pursuant to Section 3.2(a). A Participant's Company
Discretionary Contribution Account shall be credited as follows:
(a) Within five (5) business days after each payroll date, the
Company shall credit the investment fund subaccounts of the Participant's
Company Discretionary Contribution Account with an amount equal to the Company
Discretionary Contribution Amount, if any, applicable to that Participant; that
is, the portion of the Company Discretionary Contribution Amount, if any, which
the Participant elected to be deemed to be invested in a Fund shall be credited
to the corresponding investment fund subaccount.
(b) As of each day, each investment fund subaccount of a
Participant's Company Discretionary Contribution Account shall be credited with
earnings or losses in an amount equal to that determined by multiplying (i) the
balance credited to such investment fund subaccount as of the prior day plus
contributions credited to the Participant's Company Discretionary Contribution
Account since the preceding day by (ii) the Rate of Return for the Fund elected
by the Participant pursuant to Section 3.2(a).
(c) In the event a Participant elects that the Company Discretionary
Contribution Amount for a given Plan Year have a Scheduled In-Service Withdrawal
Date, all amounts attributed to the Company Discretionary Contribution Amount
for such Plan Year shall be accounted for in a manner which allows separate
accounting for the Company Discretionary Contribution Amount and investment
gains and losses associated with such Plan Year's Company Discretionary
Contribution Amount.
4.3. Director Stock Account.
The Company shall establish and maintain a Director Stock Account for each
Eligible Director. An Eligible Director's Director Stock Account shall be
credited as follows:
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(a) Each Eligible Director who earned benefits under the CH Energy
Group, Inc. Amended and Restated Stock Plan for Outside Directors and who elects
in accordance with procedures established by the Company to receive an amount
under the Plan in lieu of such benefits shall have an amount credited to his or
her Director Stock Account equal to a fixed number of shares of Company Stock
determined by the Company in its sole discretion in accordance with reasonable
assumptions applied in a consistent manner for all affected Eligible Directors.
(b) As soon as administratively practicable after the beginning of
each Plan Year commencing on or after January 1, 2004, the Company shall credit
each Eligible Director's Director Stock Account with 600 shares of Company
Stock, or such other number of shares of Common Stock as determined from time to
time by the Company. This amount will be pro-rated for a Plan Year if service as
an Eligible Director commences after the beginning of such Plan Year.
Notwithstanding the foregoing, (i) each Eligible Director of CH Energy Group,
Inc. as of the Effective Date shall receive a credit to his or her Director
Stock Account for the 2003 Plan Year of 372 shares of Company Stock as soon as
administratively practicable following the Effective Date, (ii) each Eligible
Director of Central Hudson Gas & Electric Corporation as of the Effective Date
shall receive a credit to his or her Director Stock Account for the 2003 Plan
Year of 424 shares of Company Stock as soon as administratively practicable
following the Effective Date and (iii) each Eligible Director of Central Hudson
Enterprises Corporation as of the Effective Date shall receive a credit to his
or her Director Stock Account for the 2003 Plan Year of 461 shares of Company
Stock as soon as administratively practicable following the Effective Date.
(c) All amounts credited to an Eligible Director's Director Stock
Account, plus earnings and losses thereon, shall be deemed to be invested at all
times in the Company Stock Fund. As of each day, each Eligible Director's
Director Stock Account shall be credited with earnings or losses in an amount
equal to that determined by multiplying the balance credited to such account as
of the prior day plus contributions credited to the Eligible Director's Director
Stock Account since the preceding day by the Rate of Return for the Company
Stock Fund.
(d) An Eligible Director may not elect to have a Scheduled
In-Service Withdrawal Date or a Non-Scheduled In-Service Withdrawal with respect
to any amount credited to his or her Director Stock Account.
4.4. Trust Funding.
The Company has created a Trust with First American Trust Company serving
as initial Trustee. Each year the Company shall contribute to the Trust the
following amounts (i) an amount equal to the Compensation deferred by each
Participant for the Plan Year, (ii) an amount equal to the Company Discretionary
Contribution Amount, if any, for the Plan Year and (iii) the amount credited to
the Director Stock Accounts pursuant to Section 4.3 for the Plan Year.
Although the principal of the Trust and any earnings thereon shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of Plan Participants and Beneficiaries as set forth
therein, neither the Participants nor their Beneficiaries shall have any
preferred claim on, or any beneficial ownership in, any assets of the
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Trust prior to the time such assets are paid to the Participants or
Beneficiaries as benefits and all rights created under this Plan shall be
unsecured contractual rights of Plan Participants and Beneficiaries against the
Company. Any assets held in the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
insolvency as defined in Section 4.2(a) of the Trust.
The assets of the Plan and Trust shall never inure to the benefit of the
Company and the same shall be held for the exclusive purpose of providing
benefits to Participants and their Beneficiaries. The sole exception to the
foregoing shall be that amounts remaining after payment to a Participant or
Beneficiary of his or her Account balance, if any, shall be transferred by the
Trustee to the Company.
ARTICLE V
VESTING
A Participant's Deferral Account and Director Stock Account shall be 100%
vested at all times. A Participant's Company Discretionary Contribution Account,
if any, shall be 100% vested in the event of a Change of Control or as provided
in Section 6.1(c) and, otherwise, shall vest as determined by the Company, in
its sole and absolute discretion.
ARTICLE VI
DISTRIBUTIONS
6.1. Distribution of Accounts.
(a) Distribution Without Scheduled In-Service Withdrawal Date. In
the case of a Participant who terminates employment due to a Change of Control
Termination or Long Term Disability, or who terminates employment or service due
to Retirement, the Distributable Amount shall be paid to the Participant (and
after his or her death to his or her Beneficiary) in the form of substantially
equal quarterly installments over fifteen (15) years beginning on his or her
Payment Date. Notwithstanding the foregoing, a Participant described in the
preceding sentence may elect from among the following optional forms of benefit
in accordance with the procedures set forth below:
(1) A lump sum payment on the Participant's Payment Date;
(2) Substantially equal quarterly installments over five (5)
years beginning on the Participant's Payment Date; and
(3) Substantially equal quarterly installments over ten (10)
years beginning on the Participant's Payment Date;
Elections regarding the form of distributions to be made following
Retirement or Long Term Disability shall be made on an election form provided by
the Company together with deferral elections, if any, made under the provisions
of Article III (3.1) hereof, and may be changed or revoked at any time or from
time to time, but in no event less than six months prior to
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the Participant's Retirement or Long Term Disability. The Company may determine,
from time to time, whether or not and on what terms and conditions elections
regarding the form of distributions to be made following a Change of Control
Termination may be made, and shall establish such forms and procedures for, and
rules regarding changes and revocations of, such elections as the Company shall
from time to time determine to be appropriate.
All elections under this Section 6.1 shall continue in effect unless and
until a change or revocation thereof becomes effective in accordance with the
foregoing.
Notwithstanding any provision to the contrary, in the event a
Participant's Distributable Amount is less than $25,000 on his or her Payment
Date, such Distributable Amount shall be distributed to the Participant or his
or her Beneficiary in a lump sum.
In the event of termination of employment or service for any other reason,
distribution to the Participant shall be made in a lump sum on his or her
Payment Date.
The Participant's Accounts shall continue to be credited with earnings
pursuant to Section 3.2 of the Plan until all amounts credited to his or her
Accounts under the Plan have been distributed.
(b) Distribution With Scheduled In-Service Withdrawal Date. In the
case of a Participant who has elected a Scheduled In-Service Withdrawal Date for
a distribution while still in the employ or service of the Company, such
Participant shall receive his or her Deferral Account and/or vested Company
Discretionary Contribution Account, but only with respect to those amounts as
shall have been elected by the Participant to be subject to the Scheduled
In-Service Withdrawal Date in accordance with Section 1.2(kk) of the Plan. A
Participant's Scheduled In-Service Withdrawal Date with respect to all or a
portion of his or her Deferral Account and/or vested Company Discretionary
Contribution Account attributable to a given Plan Year must be at least two (2)
years from the last day of the Plan Year for which the deferrals and
contributions are made. A Participant may extend the Scheduled In-Service
Withdrawal Date for his or her Deferral Account and/or vested Company
Discretionary Contribution Account for any Plan Year, provided each extension
occurs at least one (1) year before the Scheduled In-Service Withdrawal Date and
is for a period of not less than two (2) years from the Scheduled In-Service
Withdrawal Date. The Participant shall have the right to twice modify any Plan
Year's Scheduled In-Service Withdrawal Date. In the event a Participant
terminates employment or service with the Company prior to a Scheduled
In-Service Withdrawal Date, Section 6.1(a) will govern distributions under this
Plan.
(c) Death Benefit. In the event a Participant dies after he or she
has retired from the Company and still has a balance in his or her Account, the
balance shall continue to be paid to the Participant's Beneficiary in quarterly
installments for the remainder of the period as elected by the Participant. In
the event a Participant dies while in the active employment or service of the
Company, the Participant's Account balance, whether or not vested, will be paid
in a lump sum to the Participant's Beneficiary.
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6.2. Non-Scheduled In-Service Withdrawals.
A Participant shall be permitted to elect a Non-Scheduled In-Service
Withdrawal from his or her Deferral Account and vested Company Discretionary
Contribution Account prior to the Payment Date, subject to the following
restrictions:
(a) The election to take a Non-Scheduled In-Service Withdrawal shall
be made by filing a form provided by and filed with the Company prior to the end
of any calendar month.
(b) The amount of the Non-Scheduled In-Service Withdrawal shall be
paid in a single lump sum as soon as practicable after the end of the calendar
month in which the Non-Scheduled In-Service Withdrawal election is made.
(c) If a Participant requests a Non-Scheduled In-Service Withdrawal
of his or her entire Deferral Account and vested Company Discretionary
Contribution Account, 10% of the Deferral Account and vested Company
Discretionary Contribution Account shall be permanently forfeited and the
Company shall have no obligation to the Participant or his or her Beneficiary
with respect to such forfeited amount. If a Participant requests a Non-Scheduled
In-Service Withdrawal of less than the entire Deferral Account and vested
Company Discretionary Contribution Account, such Participant shall forfeit 10%
of the gross amount to be distributed from the Participant's Deferral Account
and vested Company Discretionary Contribution Account.
(d) If a Participant receives a Non-Scheduled In-Service Withdrawal
of either all or a part of his or her Deferral Account and Company Discretionary
Contribution Account, the Participant will be ineligible to participate in the
Plan for the balance of the Plan Year and for the following Plan Year.
6.3. Hardship Distribution.
A Participant shall be permitted to elect a Hardship Distribution in
accordance with Section 1.2(z) of the Plan from his or her Deferral Account,
vested Company Discretionary Contribution Account and Director Stock Account
prior to the Payment Date, subject to the following restrictions:
(a) The election to take a Hardship Distribution shall be made by
filing a form provided by and filed with Company prior to the end of any
calendar month.
(b) The Company shall have made a determination that the requested
distribution constitutes a Hardship Distribution in accordance with Section
1.2(z) of the Plan.
(c) The amount determined by the Company as a Hardship Distribution
shall be paid in a single lump sum as soon as practicable after the end of the
calendar month in which the Hardship Distribution election is made and approved
by the Company.
(d) If a Participant receives a Hardship Distribution, the
Participant will be ineligible to participate in the Plan for the balance of the
Plan Year and the following Plan Year.
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6.4. Inability to Locate Participant.
In the event that the Company is unable to locate a Participant or
Beneficiary within two (2) years following the required Payment Date, the amount
allocated to the Participant's Account shall be forfeited. If, after such
forfeiture, the Participant or Beneficiary later claims such benefit, such
benefit shall be reinstated without interest or earnings.
6.5 Form of Distribution.
All distributions under the Plan shall be made in the form of cash.
ARTICLE VII
ADMINISTRATION
7.1. Committee.
A Committee shall be appointed by, and serve at the pleasure of, the Board
of Directors. The number of members comprising the Committee shall be determined
by the Board which may from time to time vary the number of members. A member of
the Committee may resign by delivering a written notice of resignation to the
Chief Executive Officer of CH Energy Group, Inc.
7.2. Committee Action.
The Committee shall act at meetings by affirmative vote of a majority of
the members of the Committee. Any action permitted to be taken at a meeting may
be taken without a meeting if, prior to such action, a written consent to the
action is signed by all members of the Committee and such written consent is
filed with the minutes of the proceedings of the Committee. A member of the
Committee shall not vote or act upon any matter which relates solely to him or
herself as a Participant. The Chairman or any other member or members of the
Committee designated by the Chairman may execute any certificate or other
written direction on behalf of the Committee.
7.3. Powers and Duties of the Committee.
The Committee, on behalf of the Participants and their Beneficiaries,
shall enforce the Plan in accordance with its terms, shall be charged with the
general administration of the Plan, and shall have all powers necessary to
accomplish its purposes, including, but not by way of limitation, the following:
(1) To select the Funds in accordance with Section 3.2(b) hereof;
(2) To construe and interpret the terms and provisions of this Plan;
(3) To compute and certify to the amount and kind of benefits payable to
Participants and their Beneficiaries;
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(4) To maintain all records that may be necessary for the administration
of the Plan;
(5) To provide for the disclosure of all information and the filing or
provision of all reports and statements to Participants, Beneficiaries or
governmental agencies as shall be required by law;
(6) To make and publish such rules for the regulation of the Plan and
procedures for the administration of the Plan as are not inconsistent with the
terms hereof;
(7) To appoint a plan administrator or any other agent, and to delegate to
them such powers and duties in connection with the administration of the Plan as
the Committee may from time to time prescribe; and
(8) To take all actions necessary for the administration of the Plan,
including determining the underlying funding instruments for benefits under the
Plan.
7.4. Construction and Interpretation.
The Committee shall have full discretion to construe and interpret the
terms and provisions of this Plan, which interpretations or construction shall
be final and binding on all parties, including but not limited to the Company
and any Participant or Beneficiary. The Committee shall administer such terms
and provisions in a uniform and nondiscriminatory manner and in full accordance
with any and all laws applicable to the Plan.
7.5. Information.
To enable the Committee to perform its functions, the Company shall supply
full and timely information to the Committee on all matters relating to the
Compensation of all Participants, their death or other events which cause
termination of their participation in this Plan, and such other pertinent facts
as the Committee may require.
7.6. Compensation, Expenses and Indemnity.
(a) The members of the Committee shall serve without compensation
for their services hereunder.
(b) The Committee is authorized, at the expense of the Company, to
employ such legal counsel as it may deem advisable to assist in the performance
of its duties hereunder. Expenses and fees in connection with the administration
of the Plan shall be paid by the Company.
(c) To the extent permitted by applicable state law, the Company
shall indemnify and save harmless the Committee and each member thereof, the
Board of Directors and any delegate of the Committee who is an employee of the
Company against any and all expenses, liabilities and claims, including legal
fees, and to defend against such liabilities and claims arising out of their
discharge, in good faith, of responsibilities under or incident to the Plan,
other than expenses and liabilities arising out of willful misconduct. This
indemnity shall not preclude such further indemnities as may be available under
insurance purchased by the
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Company or provided by the Company under any bylaw, agreement or otherwise, as
such indemnities are permitted under state law.
7.7. Quarterly Statements.
Each Participant shall receive a quarterly statement with respect to such
Participant's Accounts.
7.8. Disputes.
(a) Claim.
A person who believes that he or she is being denied a benefit to which he
or she is entitled under the Plan (hereinafter referred to as "Claimant") may
file a written request for such benefit with the Company, setting forth his or
her claim. The request must be addressed to the President of CH Energy Group,
Inc. at its then principal place of business.
(b) Claim Decision.
Upon receipt of a claim, the Committee on behalf of the Company shall
advise the Claimant that a reply will be forthcoming within ninety (90) days and
shall, in fact, deliver such reply within such period. The Company may, however,
extend the reply period for an additional ninety (90) days for special
circumstances.
If the claim is denied in whole or in part, the Company shall inform the
Claimant in writing, using language calculated to be understood by the Claimant,
setting forth: (A) the specified reason or reasons for such denial; (B) the
specific reference to pertinent provisions of the Plan on which such denial is
based; (C) a description of any additional material or information necessary for
the Claimant to perfect his or her claim and an explanation of why such material
or such information is necessary; (D) appropriate information as to the steps to
be taken if the Claimant wishes to submit the claim for review; and (E) the time
limits for requesting a review under subsection (c).
(c) Request for Review.
Within sixty (60) days after the receipt by the Claimant of the written
opinion described above, the Claimant may request in writing that the Committee
review the determination of the Company. Such request must be addressed to the
Secretary of CH Energy Group, Inc., at its then principal place of business. The
Claimant or his or her duly authorized representative may, but need not, review
the pertinent documents and submit issues and comments in writing for
consideration by the Committee. If the Claimant does not request a review within
such sixty (60) day period, he or she shall be barred and estopped from
challenging the Company's determination.
(d) Review of Decision.
Within sixty (60) days after the Committee's receipt of a request for
review, after considering all materials presented by the Claimant, the Committee
will inform the Claimant in
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writing, in a manner calculated to be understood by the Claimant, the decision
setting forth the specific reasons for the decision containing specific
references to the pertinent provisions of the Plan on which the decision is
based. If special circumstances require that the sixty (60) day time period be
extended, the Committee will so notify the Claimant and will render the decision
as soon as possible, but no later than one hundred twenty (120) days after
receipt of the request for review.
ARTICLE VIII
MISCELLANEOUS
8.1. Unsecured General Creditor.
Participants and their Beneficiaries, heirs, successors, and assigns shall
have no legal or equitable rights, claims, or interest in any specific property
or assets of the Company. No assets of the Company shall be held in any way as
collateral security for the fulfilling of the obligations of the Company under
this Plan. Any and all of the Company's assets shall be, and remain, the general
unpledged, unrestricted assets of the Company. The Company's obligation under
the Plan shall be merely that of an unfunded and unsecured promise of the
Company to pay money in the future, and the rights of the Participants and
Beneficiaries shall be no greater than those of unsecured general creditors. It
is the intention of the Company that this Plan be unfunded for purposes of the
Code and for purposes of Title I of the Employee Retirement Income Security Act
of 1974.
8.2. Restriction Against Assignment.
The Company shall pay all amounts payable hereunder only to the person or
persons designated by the Plan and not to any other person or corporation. No
part of a Participant's Accounts shall be liable for the debts, contracts, or
engagements or any Participant, his or her Beneficiary, or successors in
interest, nor shall a Participant's Accounts be subject to execution by levy,
attachment, or garnishment or by any other legal or equitable proceeding, nor
shall any such person have any right to alienate, anticipate, sell, transfer,
commute, pledge, encumber, or assign any benefits or payments hereunder in any
manner whatsoever. If any Participant, Beneficiary or successor in interest is
adjudicated bankrupt or purports to anticipate, alienate, sell, transfer,
commute, assign, pledge, encumber or charge any distribution or payment from the
Plan, voluntarily or involuntarily, the Company, in its discretion, may cancel
such distribution or payment (or any part thereof) to or for the benefit of such
Participant, Beneficiary or successor in interest in such manner as the Company
shall direct.
8.3. Withholding.
There shall be deducted from each payment made under the Plan or any other
Compensation payable to the Participant (or Beneficiary) all taxes which are
required to be withheld by the Company in respect to such payment or this Plan.
The Company shall have the right to reduce any payment (or Compensation) by the
amount of cash sufficient to provide the amount of said taxes.
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8.4. Amendment, Modification, Suspension or Termination.
The Chief Executive Officer of CH Energy Group, Inc. may amend, modify,
suspend or terminate the Plan in whole or in part, except that no amendment,
modification, suspension or termination shall have any retroactive effect to
reduce any amounts allocated to a Participant's Accounts. In the event that this
Plan is terminated, the amounts allocated to a Participant's Accounts shall be
distributed to the Participant or, in the event of his or her death, his or her
Beneficiary in a lump sum within thirty (30) days following the date of
termination.
8.5. Governing Law.
This Plan shall be construed, governed and administered in accordance with
the laws of the State of New York.
8.6. Receipt or Release.
Any payment to a Participant or the Participant's Beneficiary in
accordance with the provisions of the Plan shall, to the extent thereof, be in
full satisfaction of all claims against the Committee and the Company. The
Company may require such Participant or Beneficiary, as a condition precedent to
such payment, to execute a receipt and release to such effect.
8.7. Payments on Behalf of Persons Under Incapacity.
In the event that any amount becomes payable under the Plan to a person
who, in the sole judgment of the Company, is considered by reason of physical or
mental condition to be unable to give a valid receipt therefor, the Company may
direct that such payment be made to any person found by the Company, in its sole
judgment, to have assumed the care of such person. Any payment made pursuant to
such determination shall constitute a full release and discharge of the
Committee and the Company.
8.8. Limitation of Rights and Employment Relationship.
Neither the establishment of the Plan and Trust nor any modification
thereof, nor the creating of any fund or account, nor the payment of any
benefits shall be construed as giving to any Participant or other person any
legal or equitable right against the Company or the Trustee of the Trust except
as provided in the Plan and Trust; and in no event shall the terms of employment
or service of any Employee or Participant be modified or in any way be affected
by the provisions of the Plan and Trust.
8.9. Headings.
Headings and subheadings in this Plan are inserted for convenience of
reference only and are not to be considered in the construction of the
provisions hereof.
8.10 Successors.
Notwithstanding any other provision of the Plan, CH Energy Group, Inc.
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all
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or substantially all of the business and/or assets of CH Energy Group, Inc. to
assume expressly and agree to perform this Plan in the same manner and to the
same extent that would be required to perform it if no such succession had taken
place, and "CH Energy Group, Inc." as used herein shall mean CH Energy Group,
Inc. and any such successor.
IN WITNESS WHEREOF, CH Energy Group, Inc. has caused this document to be
executed by its duly authorized officer on this ___ day of _________, 2003.
CH ENERGY GROUP, INC.
________________________________________
Steven V. Lant
President & Chief Executive Officer
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