Exhibit 10.1.az
AGL RESOURCES INC.
EXCESS BENEFIT
PLAN
Amended and Restated
Effective January 1, 2009
AGL RESOURCES INC.
EXCESS BENEFIT PLAN
Effective as of the 1st day of January 2009, AGL
Resources Inc., a corporation duly organized and existing under the
laws of the State of Georgia (the “Controlling
Company”), hereby amends and restates the AGL Resources Inc.
Excess Benefit Plan (the “Plan”).
PURPOSE
A.
Goal . The Controlling Company desires to provide
its designated key management and highly compensated employees (and
those of its affiliated companies that participate in the Plan)
with retirement benefits in excess of the limits permitted under
the Pension Plan.
B.
History . The Plan was originally adopted
effective as of March 26, 1984, and was amended on January 8, 1996,
and March 17, 1999. Effective January 1, 2009, the Plan,
as set forth in this document, is intended and should be construed
as a restatement and continuation of the Plan as previously in
effect.
C.
Purpose . The purpose of the Plan document is to
set forth the terms and conditions pursuant to which benefits are
accrued and to describe the nature and extent of the
employees’ rights to the accrued benefits.
D.
Type of Plan . The Plan constitutes an unfunded,
nonqualified deferred compensation plan that benefits certain
designated employees who are within a select group of key
management or highly compensated employees. It is
intended that this Plan comply with the provisions of Section 409A
of the Internal Revenue Code of 1986, as amended.
STATEMENT OF
AGREEMENT
To amend and restate the Plan with the purposes
and goals as hereinabove described, the Controlling Company hereby
sets forth the terms and provisions of the Plan as
follows:
TABLE OF
CONTENTS
1.2 Administrative
Committee
1
1.4 Benefit
Payment Date
1
1.8 Life
Annuity with Ten Years Certain
2
1.10 Participating
Company
2
1.12 Pension
Plan Benefit
2
1.15 Separate
from Service or Separation from Service
2
(c) Termination
of Employment
3
1.16 Trust
or Trust Agreement
3
(a) Participation
Upon Effective Date
4
(b) Participation
After Effective Date
4
2.2 Procedures
for Admissions
4
2.3 Cessation
of Eligibility
4
(a) Cessation
of Eligible Status
4
(b) Inactive
Participant Status
4
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ARTICLE III
ACCRUED BENEFITS
6
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3.1 Determination
of Accrued Benefits
6
3.2 Time
of Calculation of Accrued Benefits
6
3.3 Nonduplication
of Benefits
6
(b) Forfeiture
Prior to Vesting
7
4.2 Combined
Vested Benefits Are Nonforfeitable
7
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ARTICLE V
PAYMENT OF VESTED ACCRUED BENEFITS
8
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5.2 Normal
Retirement Benefit
8
5.3 Early
or Delayed Commencement of Benefit
8
5.4 Payment
of Benefits (other than Death Benefits)
8
(a) Timing
of Distribution of Accrued Benefit
8
(c) Cash-Out
Payment of Benefit
9
(e) Calculation
of Benefit
9
5.5 Offset
for Obligations to the Controlling Company
10
(a) Before
Benefits Become Payable
10
(b) After
Benefits Become Payable
10
5.7 Errors
and Omissions in Benefits
10
5.8 Payment
Acceleration
10
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ARTICLE VI
DEATH BENEFITS
12
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6.1 Death
Benefit Prior to Commencement
12
(b) Form
of Death Benefits
12
6.2 Death
Benefit After Commencement
12
6.3 Forfeiture
of Benefits At Death
12
7.4 Satisfaction
of Claims
15
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ARTICLE VIII
SOURCE OF FUNDS
16
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(a) Allocation
Among Participating Companies
16
(c) Status
of the Trust
16
8.3 Funding
Prohibited Under Certain Circumstances
17
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ARTICLE IX
ADMINISTRATION
18
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9.2 Rights
and Duties of the Administrative Committee
18
9.3 Compensation,
Indemnity and Liability
18
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ARTICLE X
AMENDMENT AND TERMINATION
20
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10.2 Termination
or Freezing of Plan
20
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ARTICLE XI
MISCELLANEOUS
21
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11.2 No
Employment Contract
21
11.4 Gender
and Number
21
11.5 Assignment
of Benefits
21
11.6 Legally
Incompetent
21
ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms,
when used with an initial capital letter, shall have the meaning
set forth below unless a different meaning plainly is required by
the context. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Pension Plan.
shall mean a monthly benefit
(i) which a Participant has earned under the Plan as of any
date of reference, and (ii) which is more fully determined
under Article III. To the extent a Participant’s
Accrued Benefit is paid or expressed as an annual benefit, such
annual benefit payment shall be 12 times the Participant’s
monthly benefit.
1.2
Administrative
Committee
shall mean the Administrative Committee of
the AGL Resources Inc. Retirement Plan, or any other committee
comprised of individuals appointed by the Board to administer the
Plan, all as provided in Article IX. Individuals who are
management level Employees and/or Participants may serve as members
of the Administrative Committee.
shall mean the Controlling Company and any
other entity that is required to be aggregated with the Controlling
Company under Code Sections 414(b) or
(c). Notwithstanding the foregoing, for purposes of
determining whether a Separation from Service has occurred, the
term “Affiliate” shall include the Controlling Company
and all entities that would be treated as a single employer with
the Controlling Company under Code Sections 414(b) or (c), but
substituting “at least 50 percent” instead of “at
least 80 percent” each place it appears in applying such
rules.
shall mean, with respect to a Participant,
Beneficiary, Surviving Spouse or Joint Annuitant, (i) the first day
of the first period for which payment of a benefit under the Plan
is scheduled to commence, in the case of a benefit payable in the
form of an annuity or installments, or (ii) the date of payment for
the benefit, in the case of a benefit payable in a single lump
sum.
of this restatement shall mean January 1,
2009. The Plan was originally effective as of March 26,
1984.
shall mean an Employee of a Participating
Company who is a member of a select group of highly compensated or
key management Employees of such Participating Company and who is a
participant in the Pension Plan.
shall mean a Participant who meets the
requirements to be considered a “specified employee” as
defined in Code Section 409A as of: (i) for a Participant who
Separates from Service on or after the first day of a calendar year
and before April 1 of such calendar year, the December 31 of the
second calendar year preceding the calendar year in which such
Participant Separates from Service; or (ii) for any other
Participant, the preceding December 31. For purposes of
identifying Key Employees, the Participant’s compensation
shall mean all of the items listed in Treasury Regulations Section
1.415(c)-2(b), excluding all of the items listed in Treasury
Regulations Section 1.415(c)-2(c).
1.8
Life Annuity with Ten Years
Certain
shall mean a monthly benefit which shall
be payable during the lifetime of the Participant and shall, if the
Participant dies within 10 years of his Benefit Payment Date,
continue to be paid to his Beneficiary for the balance of such
10-year period; provided, in the event of the death of the
Beneficiary prior to the expiration of the 10 year period, any
remaining payments shall be made to the estate of the Participant
or the Beneficiary, whoever is last to survive.
shall mean any person who has been
admitted to, and has not been removed from, participation in the
Plan pursuant to the provisions of Article II.
1.10
Participating
Company
shall mean, as of the Effective Date, the
Controlling Company and all Affiliates that employ or employed an
Employee who is a Participant in the Plan.
shall mean the AGL Resources Inc.
Retirement Plan, a defined benefit plan qualified under Code
Section 401(a), as such plan may be amended from time to
time.
1.12
Pension Plan
Benefit
shall mean a Participant’s accrued
benefit under the Pension Plan (including any benefits already paid
or in pay status).
shall mean the AGL Resources Inc. Excess
Benefit Plan, as contained herein and all amendments
hereto. For tax purposes and purposes of Title I of
ERISA, the Plan is intended to be an unfunded, nonqualified
deferred compensation plan covering certain designated employees
who are within a select group of key management or highly
compensated employees.
shall mean the 12-consecutive-month period
ending on December 31 of each year.
1.15
Separate from
Service or
Separation from Service
shall mean that a Participant Separates
from Service as defined in Code Section 409A and guidance issued
thereunder with the Company and its
Affiliates. Generally, a Participant Separates from
Service if the Participant dies, retires, or otherwise has a
termination of employment with all Affiliates, determined in
accordance with the following:
. The employment relationship is
treated as continuing intact while the Participant is on military
leave, sick leave, or other bona fide leave of absence if the
period of such leave does not exceed six (6) months, or, if longer,
so long as the Participant retains a right to reemployment with an
Affiliate under an applicable statute or by contract. A
leave of absence constitutes a bona fide leave of absence only if
there is a reasonable expectation that the Participant will return
to perform services for an Affiliate. If the period of
leave exceeds six (6) months and the Participant does not retain a
right to reemployment under an applicable statute or by contract,
the employment relationship is deemed to terminate on the first
date immediately following such six-month
period. Notwithstanding the foregoing, where a leave of
absence is due to any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than six (6)
months, where such impairment causes the Participant to be unable
to perform the duties of his or her position of employment or any
substantially similar position of employment, a 29-month period of
absence shall be substituted for such six-month period.
. Generally, if a Participant
performs services both as an employee and an independent
contractor, such Participant must Separate from Service both as an
employee, and as an independent contractor pursuant to standards
set forth in Treasury Regulations, to be treated as having a
Separation from Service. However, if a Participant
provides services to Affiliates as an employee and as a member of a
Board of Directors, the services provided as a director are not
taken into account in determining whether the Participant has a
Separation from Service as an employee for purposes of this
Plan.
(c)
Termination of
Employment
. Whether a termination of employment
has occurred is determined based on whether the facts and
circumstances indicate that the Affiliates and the Participant
reasonably anticipated that no further services would be performed
after a certain date or that the level of bona fide services the
Participant would perform after such date (whether as an employee
or as an independent contractor) would permanently decrease to no
more than 30 percent of the average level of bona fide services
performed (whether as an employee or an independent contractor)
over the immediately preceding 36-month period (or the full period
of services to all Affiliates if the Participant has been providing
services to all Affiliates less than 36 months). Facts
and circumstances to be considered in making this determination
include, but are not limited to, whether the Participant continues
to be treated as an employee for other purposes (such as
continuation of salary and participation in employee benefit
programs), whether similarly situated service providers have been
treated consistently, and whether the Participant is permitted, and
realistically available, to perform services for other service
recipients in the same line of business. For periods
during which a Participant is on a paid bona fide leave of absence
and has not otherwise terminated employment as described in
paragraph (a) above, for purposes of this paragraph the Participant
is treated as providing bona fide services at a level equal to the
level of services that the Participant would have been required to
perform to receive the compensation paid with respect to such leave
of absence. Periods during which a Participant is on an
unpaid bona fide leave of absence and has not otherwise terminated
employment are disregarded for purposes of this paragraph
(including for purposes of determining the applicable 36-month (or
shorter) period).
1.16
Trust
or Trust
Agreement
shall mean the separate agreement or
agreements between the Controlling Company and the Trustee
governing the creation of the Trust Fund, and all amendments
thereto, if any.
shall mean the party or parties so
designated from time to time pursuant to the terms of the Trust
Agreement.
shall mean the total amount of cash and
other property held by the Trustee (or any nominee thereof) at any
time under the Trust Agreement.
ARTICLE II
ELIGIBILITY
(a)
Participation Upon Effective
Date
. Each individual who is a
Participant on the day immediately preceding the Effective Date
shall continue as a Participant in the Plan in accordance with the
terms of the Plan.
(b)
Participation After Effective
Date
. An Eligible Employee shall become a
Participant in the Plan, if and when:
(1) his compensation
exceeds the limitations under Code Section 401(a)(17) on
compensation that may be taken into account under the Pension Plan,
and/or
(2) his Pension Plan
Benefit exceeds the maximum limitations set forth under Code
Section 415 under the Pension Plan.
2.2
Procedures for
Admissions
The Administrative Committee may require a
Participant to complete such forms and provide such data in a
timely manner, as the Administrative Committee may determine it is
sole discretion. Such forms and data may include,
without limitation, the Eligible Employee’s acceptance of the
terms and conditions of the Plan.
2.3
Cessation of
Eligibility
(a)
Cessation of Eligible
Status
. Except as provided in Section 2.4
or unless the Controlling Company specifies otherwise, an Employee
shall cease active participation in the Plan if, as of any day
during a Plan Year, he ceases to satisfy the criteria which
qualified him as an Eligible Employee, in which case he shall not
accrue any additional benefit under the Plan.
(b)
Inactive Participant
Status
. Even if his active participation in
the Plan ends:
(1) An Employee who
has a vested benefit shall remain an inactive Participant in the
Plan until the earlier of (A) the date the Participant
receives the full amount of his vested Accrued Benefit from the
Plan (or forfeits such amount), or (B) the date he again
becomes an Eligible Employee and recommences active participation
in the Plan.
(2) A Participant who
has no vested benefit under the Plan but who remains employed by an
Affiliate shall remain an inactive Participant in the Plan until
the date he ceases to be employed by all Affiliates at a time when
he has no vested benefit under the Plan. If he remains
employed by an Affiliate until his benefit under the Plan vests,
the status of his inactive participation shall be determined under
subsection (1) hereof.
(3) An Employee who
has no vested benefit under the Plan and who ceases to be employed
by all Affiliates shall cease to be a Participant upon such
cessation of employment.
If a Participant becomes Disabled and he is
eligible to continue to receive benefit accruals under the terms of
the Pension Plan, he shall continue to be treated as an active
Participant under the Plan to the limited extent provided in
Section 3.2.
ARTICLE III
ACCRUED
BENEFITS
3.1
Determination of Accrued
Benefits
A Participant’s Accrued Benefit as of any
date of determination shall be a monthly benefit expressed as a
Life Annuity that is equal to:
(a) The
monthly benefit that would have been payable to the Participant
under the Pension Plan in the form of a Life Annuity if his benefit
under the Pension Plan were calculated without regard to the
applicable limits under Code Sections 415 and 401(a)(17);
minus
(b) The
Pension Plan Benefit expressed in the form of a Life
Annuity.
3.2
Time of Calculation of Accrued
Benefits
The amounts under subsection 3.1 and any
adjustments under Section 5.3 shall be calculated at the time the
Participant commences payment of benefits under this Plan, and
shall not be recalculated therafter. A Participant who
becomes Disabled shall be eligible to accrue a Disability Benefit
under the Plan during the period that he is Disabled and is deemed
to remain an active participant in the Pension Plan, but only
through the date of calculation of benefits hereunder.
3.3
Nonduplication of
Benefits
If a Participant becomes reemployed as an
employee of an Affiliate after his Benefit Payment Date, he shall
continue to receive payment of his Accrued Benefits from the Plan,
but, at least until he again Separates from Service, the amount of
such payments shall not be increased by any benefits accrued
following his Benefit Payment Date. In calculating a
Participant’s Accrued Benefit at any time after the
Participant’s reemployment, his prior service and earnings
shall be taken into account regardless of whether a prior payment
of benefits to the Participant has been made under the
Plan. However, the Participant’s Accrued Benefit
after returning to service shall be reduced by the Actuarial
Equivalent of any Accrued Benefit that already became payable, so
that the Participant shall not receive a duplication of benefits
under the Plan. Any additional benefits that accrue
hereunder after the Participant’s original Benefit Payment
Date shall be treated as a separate benefit under the Plan and
shall be distributed in accordance with the terms of Article
V.
ARTICLE IV
VESTING
. Subject to Section 4.2 below, a
Participant’s Accrued Benefit under the Plan shall become
vested and nonforfeitable on the date the Participant becomes
entitled to a vested benefit under the Pension Plan.
(b)
Forfeiture Prior to
Vesting
. For all periods prior to the date a
Participant becomes vested as provided in Section 4.1, his benefit
shall remain forfeitable. Thus, if a Participant
terminates employment with all Affiliates for any reason prior to
becoming vested under the Plan, his benefit under the Plan shall be
immediately forfeited; provided, if su
