Exhibit 10-9
ENERGY EAST CORPORATION
DEFERRED COMPENSATION PLAN
(Effective January 1, 2004)
ENERGY EAST CORPORATION
DEFERRED COMPENSATION PLAN
ENERGY EAST CORPORATION
DEFERRED COMPENSATION PLAN
(Effective January 1,
2004)
ARTICLE
1
INTRODUCTION
1.1.
Name . The name of this Plan is the
Energy East Corporation Deferred Compensation Plan ("Deferred
Compensation Plan").
1.2.
Effective Date . The effective date of
this Deferred Compensation Plan is January 1, 2004.
1.3.
Purpose . This Deferred Compensation
Plan is amended and restated, effective January 1, 2004, by Energy
East Corporation for the purposes of providing retirement benefits
for a select group of management and/or highly compensated
employees of Affiliates of the Company.
This
Deferred Compensation Plan provides a means whereby Eligible
Employees may defer a portion of their annual cash wages and
earnings and certain bonuses they otherwise would receive and
whereby the Employer may make discretionary contributions to the
account of Eligible Employees.
All
deferrals and contributions under this Plan shall be in the form of
unfunded recordkeeping entries that shall be credited with earnings
as specified in the Plan.
1.4.
Merger Clause .
This Deferred Compensation Plan
document merges the following with and into this Deferred
Compensation Plan on the terms and conditions provided herein as of
the Effective Date: the Berkshire Energy Resources Non-Qualified
Retirement Savings Plan, the Central Maine Power Company
Non-Qualified Deferred Compensation Plan, the Connecticut Natural
Gas Corporation Deferred Compensation Plan, the Energy East
Management Corporation Deferred Compensation Plan, the Energy
Network Deferred Compensation Plan, the New York State Electric
& Gas Corporation Deferred Compensation Plan, the Rochester Gas
& Electric Corporation Deferred Compensation Plan, the benefits
provided by Section 3.2 of the Rochester Gas & Electric
Corporation Supplemental Retirement Benefit Plan. Each of the
foregoing plans which were merged with and into this Deferred
Compensation Plan is referred to individually as a "Predecessor
Plan" and collectively as the "Predecessor Plans".
ARTICLE II
DEFINITIONS
Whenever
the following initially capitalized words and phrases are used in
this Deferred Compensation Plan, they shall have the meanings
specified below unless the context clearly indicates to the
contrary:
2.1.
" Administrator " shall mean the
Compensation and Management Succession Committee of the Board of
Directors of the Company, and any successor thereto. In the absence
of such committee, the Board of Directors of the Company shall be
the Administrator.
2.2. "
Affiliate " means any of the
subsidiaries or affiliates of the Company, whether or not such
entities have adopted the Plan, and any other entity which is a
member of a "controlled group of corporations", a "group under
common control" or an "affiliated service group" all as determined
under Section 414(b), (c), (m), or (o) of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder, of
which the Company is the common parent.
2.3. "
Beneficiary " shall mean such person or
legal entity as may be designated by a Participant under Section
6.4 to receive benefits hereunder after such Participant's
death.
2.4.
" Change in Control " shall mean a
change in the control of the Company or the subsidiary of the
Company the Participant is employed by through purchase or exchange
of stock or assets, or by merger, or otherwise.
2.5.
" Company " shall mean Energy East
Corporation ("Energy East").
2.6.
" Compensation " shall mean the taxable
wages, earnings and commissions payable for a Plan Year together
with cash payments under the Energy East Corporation Annual
Executive Incentive Plan (the "AEIP") and any ad hoc cash
performance-based bonuses designated by the Administrator after
reduction for applicable Federal Insurance Contributions Act
("FICA") and Federal Unemployment Tax Act ("FUTA") taxes but before
any reduction to such taxable wages and earnings, bonuses,
incentives and commissions is effected in accordance with the
Deferred Compensation Election Form, and before any reduction is
made for elective deferrals to any cash or deferred arrangement
maintained pursuant to Section 401(k) of the Code or to any
cafeteria plan maintained pursuant to Section 125 of the Code in
which the Eligible Employee participants.
2.7. "
Deferred Compensation " shall mean that
portion of the Participant's Compensation which the Participant
elects to defer pursuant to Section 4.1 of this Deferred
Compensation Plan in accordance with a Deferred Compensation
Election Form.
2.8. "
Deferred Compensation Account " shall
mean the recordkeeping account established by the Administrator for
each Participant to which the portion of a Participant's taxable
wages and earnings that is voluntarily deferred pursuant to Section
4.1 is credited. A Participant shall at all times be fully vested
in the balance of his Deferred Compensation Account.
2.9.
" Deferred Compensation Election Form "
shall mean a document or form as made available from time to time
by the Administrator, whereby an Eligible Employee enrolls as a
Participant and elects to defer Compensation pursuant to Article IV
of this Plan.
2.10. "
Deferred Compensation Investment Election
Form " shall mean a document, form, voice response unit
(VRU) or website as made available from time to time by the
Administrator, whereby an Eligible Employee elects to invest, or
modify a prior election to invest, his or her Deferred Compensation
Account pursuant to Article VII of this Plan.
2.11. "
Disability " shall mean a disability
qualifying for benefits payable under the Employer's long-term
disability plan under which the Participant is covered.
2.12. "
Eligible Employee " shall mean an
individual employed by a Participating Employer who is (a) a member
of a select group of management and/or highly compensated employees
and who is designated by the Administrator to be eligible to
participate hereunder; (b) a participant in a Predecessor Plan on
December 31, 2003 (c) any employee of a Participating Subsidiary
eligible for the Energy East Corporation Annual Executive Incentive
Plan.
2.13. "
Employer Contribution Account " shall
mean the recordkeeping account established by the Administrator for
each Participant to which the portion of a Participant's matching
contributions provided pursuant to Section 5.1 and/or discretionary
contributions provided pursuant to Section 5.2 are credited.
2.14.
" Hardship " shall mean a condition
caused by illness or accident, property loss due to casualty, or a
similar extraordinary and unforeseeable event outside the control
of the Participant.
2.15.
" Participant " shall mean an
individual who has amounts standing to his credit under this Plan,
regardless of whether the individual is currently deferring into
this Plan.
2.16.
" Participating Employer " shall mean
an individual employed by an Affiliate of the Company that is
listed in Appendix A.
2.17.
" Plan Year " shall mean the calendar
year.
2.18.
" Plan " shall mean the Energy East
Corporation Deferred Compensation Plan.
2.19.
" Predecessor Plan " shall have the
meaning set forth in Section 1.4.
ARTICLE III
PARTICIPATION BY ELIGIBLE EMPLOYEES
3.1.
Participation . Participation in this
Plan is limited to Eligible Employees. Employees who were
previously eligible to participate in this Plan or a Predecessor
Plan may continue to maintain account balances of amounts
previously deferred under this Plan. An Eligible Employee shall
participate in the Plan as determined by the Administrator .
A Participant who separates from service with all Participating
Employers will cease participation hereunder.
3.2.
Failure to Designate . In the event
that the Administrator fails to designate the group of Eligible
Employees who shall be eligible to participate for any year, each
Eligible Employee who was designated in the prior year shall be
deemed to have been designated for the next succeeding Plan Year,
provided that any such employee shall participate for purposes of
the next succeeding Plan Year only if he or she is actively
employed by a Participating Employer on the first day of such
succeeding Plan Year and provided he or she is an Eligible Employee
for such year.
3.3.
Immediate Cash-Out of Ineligible Employee . This
Deferred Compensation Plan is intended to be an unfunded "top-hat"
plan, maintained primarily for the purpose of providing benefits
for a select group of management or highly compensated employees.
Accordingly, if the Administrator determines that any Participant
does not qualify as a member of the select group, and his continued
participation jeopardizes the "top-hat" status of the Plan, in the
Administrator's sole discretion, one hundred percent (100%) of such
Participant's Deferred Compensation Account and Employer
Contribution Account shall be paid to the Participant
immediately.
ARTICLE IV
PARTICIPANT DEFERRALS
4.1.
Deferral of Compensation . An Eligible Employee may
elect to defer up to one hundred percent (100%) of his future
compensation in one percent (1%) increments, by completing and
executing a Deferred Compensation Election Form which specifies the
amount of Compensation to be deferred and filing it with the
Administrator. Any election, modification or revocation shall be
effective only for Compensation payable at least thirty (30) days
after the Administrator receives the Deferred Compensation Election
Form. An election to defer compensation may be modified (including
revocation) only as of the first day of a Plan Year. No election,
modification or revocation is permissible with respect to
Compensation paid prior to the execution of a Deferred Compensation
Election Form. Deferrals of Compensation hereunder shall always be
one hundred percent (100%) vested.
4.2.
Period for Which Deferral Election is
Effective . A Participant's election to defer Compensation
shall remain in effect until modified or revoked as provided in
Section 4.1.
4.3.
Newly Eligible Employees . Any Eligible
Employee who becomes eligible to participate in this Plan after
January 1, 2004 must elect to defer Compensation pursuant to
Section 4.1 within thirty (30) days of the date such Eligible
Employee becomes eligible to participate in this plan. If no such
election is made pursuant to this Section 4.3, such Eligible
Employee may only make a deferral of compensation in accordance
with the modification period set forth in Section 4.1.
ARTICLE V
DISTRIBUTIONS
5.1.
Distribution Date . Distribution of a
Participant's Deferred Compensation Account and Employer
Contribution Account shall commence after the earlier of the
Participant's death, Disability, or termination of employment for
any reason, in accordance with the terms of Section 5.2.
5.2.
Method of Payment . Notwithstanding the
provisions of Section5.5, distributions upon the earlier of the
Participant's death, Disability or retirement shall be paid in the
form of either a lump sum or in annual installments for a period of
either five (5) or ten (10) years. Each Participant must elect the
form and time of distribution by completing a Deferred Compensation
Election Form within thirty (30) days of the date on which a
Participant becomes an Eligible Employee or elects to defer
compensation pursuant to Article IV of this Plan, whichever is
later. The Participant may change a prior election to have his or
her benefit distributed in installments by submitting a completed
Deferred Compensation Election Change Form to the Administrator
within the appropriate time period. T
