CH ENERGY GROUP, INC. LONG-TERM EQUITY INCENTIVE PLAN PERFORMANCE SHARES AGREEMENT
Exhibit 10.1
CH
ENERGY GROUP, INC.
LONG-TERM
EQUITY INCENTIVE PLAN
Summary of Performance
Shares Grant
CH Energy
Group, Inc., a New York corporation (the "Company"), grants to the Grantee named
below, in accordance with the terms of the CH Energy Group, Inc. Long-Term
Equity Incentive Plan (the "LTI Plan") and this Performance Shares Agreement
(the "Agreement"), the following number of Performance Shares, on the Date of
Grant set forth below:
|
|
Name
of Grantee:
|
_______________________________
|
|
|
Number
of Performance Shares:
|
_______________________________
|
|
|
Date
of Grant:
|
____________,
2010
|
|
|
Performance
Period:
|
January
1, 2010 through December 31, 2012
|
1.
Grant of Performance
Shares. Subject to the terms and conditions of this Agreement
and the LTI Plan, the Company hereby grants to the Grantee, as of the Date of
Grant, the total number of Performance Shares (the "Performance Shares") set
forth above. Each Performance Share shall represent one hypothetical Common
Share and shall at all times be equal in value to one Common Share.
2.
Management Objectives. The
Grantee’s right to receive payment of all or any portion of the Performance
Shares shall be contingent upon the achievement of certain management objectives
established by the Board or the Compensation Committee of the Board (the
"Committee"), as the case may be, as set forth below (the "Management
Objectives"). The achievement of the Management Objectives will be
measured during the Performance Period set forth above. The
Management Objectives for the Performance Period shall relate to basic earnings
per share and annual dividend yield on book value and shall apply as
follows:
(a)
Fifty percent (50%) of the total
number of Performance Shares shall be dependent on the Company's percentage
growth (whether positive or negative) in basic earnings per share during the
Performance Period relative to the percentage growth in basic earnings per share
of the companies listed on Exhibit A (the
"Performance Peer Group") during the same period (the "Relative EPS Performance
Shares").
(b)
Fifty percent (50%) of the total number of
Performance Shares shall be dependent on the average of the Company's annual
dividend yield on book value during the Performance Period relative to the
average of the annual dividend yield on book value of the companies in the
Performance Peer Group during the same period (the "Relative Dividend Yield
Performance Shares").
3.
Earning of Performance Shares. Except
as provided in Section 4, the Performance Shares shall be earned as follows,
provided that the Grantee has remained continuously employed by the Company or
any Subsidiary through the end of the Performance Period:
(a)
The Relative EPS Performance
Shares.
(i)
If, upon the conclusion of the Performance Period, the
percentage growth (whether positive or negative) in the Company's basic earnings
per share during the Performance Period falls below the threshold percentile
rank relative to the Performance Peer Group, as set forth in the Performance
Matrix attached as Exhibit B (the
"Performance Matrix"), none of the Relative EPS Performance Shares shall become
earned.
(ii)
If, upon the conclusion of the Performance Period,
the percentage growth (whether positive or negative) in the Company's basic
earnings per share during the Performance Period equals or exceeds the threshold
percentile rank but is less than maximum percentile rank relative to the
Performance Peer Group, as set forth in the Performance Matrix, the percentage
of the Relative EPS Performance Shares shall become earned as set forth on the
Performance Matrix opposite such percentile rank.
(iii) If,
upon the conclusion of the Performance Period, the percentage growth (whether
positive or negative) in the Company's basic earnings per share during the
Performance Period equals or exceeds the maximum percentile rank relative to the
Performance Peer Group, as set forth in the Performance Matrix, 150% of the
Relative EPS Performance Shares shall become earned.
(b)
The Relative Xxxxxxxx Xxxxx
Performance Shares.
(i)
If, upon the conclusion of the Performance
Period, the average of the Company's annual dividend yield on book value during
the Performance Period falls below the threshold percentile rank relative to the
Performance Peer Group, as set forth in the Performance Matrix, none of the
Relative Dividend Yield Performance Shares shall become earned.
(ii)
If, upon the conclusion of the Performance Period,
the average of the Company's annual dividend yield on book value during the
Performance Period equals or exceeds the threshold percentile rank but is less
than maximum percentile rank relative to the Performance Peer Group, as set
forth in the Performance Matrix, the percentage of the Relative Dividend Yield
Performance Shares shall become earned as set forth on the Performance Matrix
opposite such percentile rank.
(iii) If,
upon the conclusion of the Performance Period, the average of the Company's
annual dividend yield on book value during the Performance Period equals or
exceeds the maximum percentile rank relative to the Performance Peer Group, as
set forth in the Performance Matrix, 150% of the Relative Dividend Yield
Performance Shares shall become earned.
4.
Retirement, Death or Change in
Control. Notwithstanding any provision of Section 3 to the
contrary:
2
(a)
If the Grantee’s employment with the Company or a
Subsidiary terminates following completion of the first full fiscal quarter of
the Performance Period but prior to the end of the Performance Period due to the
Grantee’s Retirement or death, the Company shall pay to the Grantee or his or
her executor or administrator, as the case may be, a number of Performance
Shares equal to (i) the number of Performance Shares to which the Grantee would
have been entitled under Section 3 above based on the performance of the Company
during the full fiscal quarters completed during the Performance Period until
the date of termination (except that if the Grantee's Retirement occurs during
the first calendar year of the Performance Period, then the performance of the
Company shall be based on the entire first year of the Performance Period),
multiplied by (ii) a fraction, the numerator of which is the number of days that
the Grantee was employed during the Performance Period and the denominator of
which is the number of days in the Performance Period. For purposes
of this Agreement, "Retirement" means termination of employment with the Company
or a Subsidiary either (i) on or after age 65 or (ii) pursuant to the early
retirement provisions of the Retirement Income Plan of Central Xxxxxx Gas &
Electric Corporation.
(b)
If a Change in Control occurs following the
completion of the first full fiscal quarter of the Performance Period but prior
to the end of the Performance Period, and the Grantee was employed by the
Company or any Subsidiary immediately prior to the Change in Control, the
Company shall pay to the Grantee a number of Performance Shares equal to the
number to which the Grantee would have been entitled under Section 3 above based
on the performance of the Company during the full fiscal quarters completed
during the Performance Period until the date of the Change in
Control.
5.
Determinations; Adjustments.
(a)
Prior to the payment of any Performance Shares as
provided herein, the Committee shall determine in writing the extent, if any,
that the Management Objectives have been satisfied and shall determine the
number, if any, of Performance Shares that shall have become earned
hereunder. The determinations shall occur prior to the applicable
payment date set forth in Section 7 hereof. In all circumstances, the
Committee shall have the ability and authority to reduce, but not increase, the
amount of Performance Shares that become earned hereunder.
(b)
All determinations involving the Management
Objectives shall be based on Generally Accepted Accounting
Principles.
(c)
If the Committee determines that a change in
the business, operations, corporate structure or capital structure of the
Company, the manner in which it conducts business or other events or
circumstances render the Management Objectives to be unsuitable, the Committee
may modify such Management Objectives or the related levels of achievement, in
whole or in part, as the Committee deems appropriate; provided, however, that no such
action may result in the loss of the otherwise available exemption of the award
under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code").
6.
Forfeiture of Performance Shares. The
Performance Shares will be forfeited automatically and without further notice if
(a) they are not earned at the end of the Performance Period (or such shorter
period as provided in Section 4, if applicable) or (b) if the Grantee’s
employment with the Company or a Subsidiary terminates before the end of the
Performance Period for any reason other than as set forth in Section
4.
3
7.
Payment of Performance Shares. Payment of
any Performance Shares that become earned as set forth in Section 3 or 4 will be
made in the form of Common Shares as follows:
(a)
The Common Shares underlying the Performance Shares that
are earned pursuant to Section 3 shall be delivered to the Grantee in the
calendar year next following the end of the Performance Period, but in no event
later than August 1 of that year.
(b)
The Common Shares underlying the Performance Shares that
are earned pursuant to Section 4 shall be delivered to the Grantee within ninety
(90) days following the earlier of (i) the Grantee's "separation from
service" within the meaning of Section 409A of the Code (provided that in the
event of the Grantee's "separation from service", for any reason other than
death, during the first calendar year of the Performance Period, then the payout
shall occur within ninety (90) days following the end of the first calendar year
of the Performance Period); (ii) the occurrence of a "change in the ownership,"
a "change in the effective control" or a "change in the ownership of a
substantial portion of the assets" of the Company within the meaning of Section
409A of the Code; or (iii) the commencement of the calendar year next following
the end of the Performance Period. Notwithstanding the preceding
sentence, if the Performance Shares become payable as a result of a "separation
from service" within the meaning of Section 409A of the Code (other than as a
result of death), and the Grantee is a "specified employee," as determined under
the Company's policy for identifying specified employees on the date of
separation from service, then to the extent required to comply with Section 409A
of the Code the Common Shares shall be delivered to the Grantee within ninety
(90) days after the first business day that is more than six months after the
date of his or her separation from service (or, if the Grantee dies during such
six-month period, within ninety (90) days after the Grantee's
death).
(c)
The Company's obligations with respect to the
Performance Shares shall be satisfied in full upon the delivery of the Common
Shares (and the cash in lieu of any fractional Shares) underlying the earned
Performance Shares as provided in this Section 7.
8.
Transferability. The Performance Shares subject to this
Agreement are personal to the Grantee and may not be sold, exchanged, assigned,
transferred, pledged, encumbered or otherwise disposed of by the Grantee until
they become earned as provided in this Agreement; provided, however, that the
Grantee’s rights with respect to such Performance Shares may be transferred by
will or pursuant to the laws of descent and distribution. Any purported transfer
or encumbrance in violation of the provisions of this Section 8, shall be void,
and the other party to any such purported transaction shall not obtain any
rights to or interest in such Performance Shares.
9.
Continuous Employment. For purposes of
this Agreement, the continuous employment of the Grantee with the Company and
its Subsidiaries shall not be deemed to have been interrupted, and the Grantee
shall not be deemed to have ceased to be an employee of the Company and its
Subsidiaries by reason of the transfer of his employment among the Company and
its Subsidiaries or a leave of absence approved by the
Committee.
4
10. Dividend,
Voting and Other Rights. The Grantee shall have no rights of
ownership in the Performance Shares or in the Common Shares related thereto and
shall have no right to dividends and no right to vote Performance Shares or the
Common Shares related thereto until the date on which the Common Shares
underlying the Performance Shares are delivered to the Grantee pursuant to this
Agreement. The obligations of the Company under this Agreement will
be merely that of an unfunded and unsecured promise of the Company to deliver
Common Shares in the future, and the rights of the Grantee will be no greater
than that of an unsecured general creditor. No assets of the Company will be
held or set aside as security for the obligations of the Company under this
Agreement.
11. No
Employment Contract. Nothing contained in this Agreement shall confer
upon the Grantee any right with respect to continuance of employment by the
Company and its Subsidiaries, nor limit or affect in any manner the right of the
Company and its Subsidiaries to terminate the employment or adjust the
compensation of the Grantee. Any economic or other benefit to the
Grantee under this Agreement will not be taken into account in determining any
benefits to which the Grantee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company and
its Subsidiaries, unless provided otherwise in any such plan.
12. Withholding. To the
extent that the Company or any Subsidiary is required to withhold any federal,
state, local, foreign or other tax in connection with the payment of earned
Performance Shares pursuant to this Agreement, it shall be a condition to the
receipt of such Performance Shares that the Grantee make arrangements
satisfactory to the Company or such Subsidiary for payment of such taxes
required to be withheld. To the extent that either the Performance
Shares are deferred pursuant to Section 20 hereof or tax withholding is required
at any time other than upon delivery of the Common Shares pursuant to this
Agreement, then Company or Subsidiary shall have the right in its sole
discretion to (i) require the Grantee to pay or provide for payment of the
required tax withholding, or (ii) deduct the required tax withholding from any
amount of salary, bonus, incentive compensation or other payment otherwise
payable in cash to the Grantee. Otherwise, the Grantee shall satisfy
such required withholding obligation by surrendering to the Company a portion of
the Common Shares that are otherwise deliverable under this Agreement, and the
Common Shares so surrendered by the Grantee shall be credited against any such
required withholding obligation at the Market Value per Share of such Common
Shares on the date of such surrender.
13. Compliance
with Law. The Corporation shall make reasonable efforts to comply with
all applicable federal and state securities laws and listing requirements of the
New York Stock Exchange or any national securities exchange with respect to the
Performance Shares; provided, however,
notwithstanding any other provision of this Agreement, no Common Shares shall be
delivered if the delivery thereof would result in a violation of any such law or
listing requirement.
14. Compliance
with Section 409A of the Code. It is intended that this
Agreement shall or comply with the requirements of Section 409A of the
Code. This Agreement shall be construed, administered, and governed
in a manner that effects such intent, and the Committee shall not take any
action that would be inconsistent with such intent. Without limiting
the foregoing, the Performance Shares shall not be deferred, accelerated,
extended, paid out, settled, adjusted, substituted, exchanged or modified in a
manner that would cause the award to fail to satisfy the conditions of an
applicable exception from the requirements of Section 409A of the Code or
otherwise would subject the Grantee to the additional tax imposed under Section
409A of the Code.
5
15. Amendments. Subject to the
terms of the LTI Plan, the Committee may modify this Agreement upon written
notice to the Grantee. Any amendment to the LTI Plan shall be deemed
to be an amendment to this Agreement to the extent that the amendment is
applicable hereto. Notwithstanding the foregoing, no amendment of the
LTI Plan or this Agreement shall adversely affect the rights of the Grantee
under this Agreement without the Grantee's consent, unless that amendment is
required to comply with the payment restrictions of Section 409A of the
Code.
16. Severability. In
the event that one or more of the provisions of this Agreement shall be
invalidated for any reason by a court of competent jurisdiction, any provision
so invalidated shall be deemed to be separable from the other provisions hereof,
and the remaining provisions hereof shall continue to be valid and fully
enforceable.
17. Relation
to LTI Plan. This Agreement is subject to the terms and
conditions of the LTI Plan. This Agreement and the LTI Plan contain
the entire agreement and understanding of the parties with respect to the
subject matter contained in this Agreement, and supersede all prior
communications, representations and negotiations in respect
thereto. In the event of any inconsistency between the provisions of
this Agreement and the LTI Plan, the LTI Plan shall
govern. Capitalized terms used herein without definition shall have
the meanings assigned to them in the LTI Plan. The Committee acting
pursuant to the LTI Plan, as constituted from time to time, shall, except as
expressly provided otherwise herein, have the right to determine any questions
which arise in connection with the grant of Performance Shares.
18. Successors
and Assigns. Without limiting Section 8 hereof, the provisions
of this Agreement shall inure to the benefit of, and be binding upon, the
successors, administrators, heirs, legal representatives and assigns of the
Grantee, and the successors and assigns of the Company.
19. Governing
Law. The interpretation, performance, and enforcement of this Agreement
shall be governed by the laws of the State of New York, without giving effect to
the principles of conflict of laws thereof.
20. Deferral
of Performance Shares. Notwithstanding anything contained herein to the
contrary, the Grantee may elect to defer receipt of the Performance Shares in
accordance with the terms and subject to the conditions of the Directors and
Executives Deferred Compensation Plan (or any successor plan).
6
21. Electronic
Delivery. The Grantee hereby consents and agrees to electronic
delivery of any documents that the Company may elect to deliver (including, but
not limited to, prospectuses, prospectus supplements, grant or award
notifications and agreements, account statements, annual and quarterly reports,
and all other forms of communications) in connection with this and any other
award made or offered under the LTI Plan. The Grantee understands that, unless
earlier revoked by the Grantee by giving written notice to the Secretary of the
Company, this consent shall be effective for the duration of the
Agreement. The Grantee also understands that he or she shall have the
right at any time to request that the Company deliver written copies of any and
all materials referred to above at no charge.
(Signatures
are on the following page)
7
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed on its
behalf by its duly authorized officer and the Grantee has also executed this
Agreement, as of the Date of Grant.
|
CH
ENERGY GROUP, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
The
undersigned hereby acknowledges receipt of a copy of the LTI Plan, Plan Summary
and Prospectus, and the Company's most recent Annual Report and Proxy Statement
(the "Prospectus Information"). The Grantee represents that he or she is
familiar with the terms and provisions of the Prospectus Information and hereby
accepts the award of Performance Shares on the terms and conditions set forth
herein and in the LTI Plan.
|
Grantee
|
|||
|
Date:
|
|||
8
EXHIBIT
A
PERFORMANCE
PEER GROUP
|
|
1.
|
ALLETE,
Inc.
|
|
|
2.
|
Ameren
Corporation
|
|
|
3.
|
American
Electric Power Company, Inc.
|
|
|
4.
|
Avista
Corporation
|
|
|
5.
|
Central
Vermont Public Service Corporation
|
|
|
6.
|
Cleco
Corporation
|
|
|
7.
|
CMS
Energy Corporation
|
|
|
8.
|
Consolidated
Edison, Inc.
|
|
|
9.
|
DPL,
Inc.
|
|
|
10.
|
DTE
Energy Company
|
|
|
11.
|
El
Paso Electric Company
|
|
|
12.
|
Empire
District Electric Company
|
|
|
13.
|
Entergy
Corporation
|
|
|
14.
|
EQT
Corporation
|
|
|
15.
|
Great
Plains Energy Incorporated
|
|
|
16.
|
IDACORP,
Inc.
|
|
|
17.
|
Laclede
Group, Inc.
|
|
|
18.
|
Maine
& Maritimes Corporation
|
|
|
19.
|
NorthWestern
Corporation
|
|
|
20.
|
NV
Energy Inc.
|
|
|
21.
|
Pinnacle
West Capital Corporation
|
|
|
22.
|
PNM
Resources, Inc.
|
|
|
23.
|
Portland
General Electric Company
|
|
|
24.
|
Puget
Energy, Inc.
|
|
|
25.
|
Southwest
Gas Corp.
|
|
|
26.
|
UniSource
Energy Corporation
|
|
|
27.
|
Unitil
Corporation
|
|
|
28.
|
Westar
Energy, Inc.
|
|
|
29.
|
Xcel
Energy, Inc.
|
Certain
events affecting peer group performance data will result in changes to the
Performance Peer Group, as follows:
|
|
·
|
Peers
that do not publicly report financial results in conformity with United
States Generally Accepted Accounting Principles ("GAAP") for the entire
Performance Period for any reason (including, without limitation, as a
result of going private, acquisition, publicly announced need to restate
financial statements or any similar transaction or event) will be removed
from the Performance Peer Group for all comparisons. For
purposes of clarification, peers that publish financial statements for any
portion of the Performance Period under International Financial Reporting
Standards without reconciliation to GAAP will be removed from the
Performance Peer Group for all
comparisons.
|
9
|
|
·
|
Peers
that engage in a merger, consolidation, spin-off, split-off, spin-out,
split-up, reorganization, or liquidation during the Performance Period
will be removed from the Performance Peer Group for all comparisons.
|
|
|
·
|
Peers
that have publicly announced the need to restate financial statements for
any portion of the Performance Period, but have not yet published such
restatement at the time that performance results are certified, will be
removed from the Performance Peer Group for all
comparisons.
|
|
|
·
|
If
there is any change in the capital structure of a peer company during the
Performance Period by means of a stock dividend, stock split, or
combination of shares, then the performance results for that
peer shall be calculated as if the change in capital structure applied
during the entire Performance
Period.
|
10
EXHIBIT
B
PERFORMANCE
MATRIX
|
Percentile
Rank for
Management
Objective
Relative
to Performance Peer Group
|
Percentage
of
Performance
Shares Earned
|
|
Maximum: 80%
or more
|
150.0%
|
|
79%
|
148.3%
|
|
78%
|
146.6%
|
|
77%
|
145.0%
|
|
76%
|
143.3%
|
|
75%
|
141.6%
|
|
74%
|
140.0%
|
|
73%
|
138.3%
|
|
72%
|
136.6%
|
|
71%
|
135.0%
|
|
70%
|
133.3%
|
|
69%
|
131.6%
|
|
68%
|
130.0%
|
|
67%
|
128.3%
|
|
66%
|
126.6%
|
|
65%
|
125.0%
|
|
64%
|
123.3%
|
|
63%
|
121.6%
|
|
62%
|
120.0%
|
|
61%
|
118.3%
|
|
60%
|
116.6%
|
|
59%
|
115.0%
|
|
58%
|
113.3%
|
|
57%
|
111.6%
|
|
56%
|
110.0%
|
|
55%
|
108.3%
|
|
54%
|
106.6%
|
|
53%
|
105.0%
|
|
52%
|
103.3%
|
|
51%
|
101.6%
|
|
50%
|
100.0%
|
|
49%
|
96.7%
|
|
48%
|
93.3%
|
|
47%
|
90.0%
|
|
46%
|
86.7%
|
|
45%
|
83.3%
|
|
44%
|
80.0%
|
11
|
Percentile
Rank for
Management
Objective
Relative
to Performance Peer Group
|
Percentage
of
Performance
Shares Earned
|
|
43%
|
76.7%
|
|
42%
|
73.3%
|
|
41%
|
70.0%
|
|
40%
|
66.7%
|
|
39%
|
63.3%
|
|
38%
|
60.0%
|
|
37%
|
56.7%
|
|
36%
|
53.3%
|
|
35%
|
50.0%
|
|
34%
|
46.7%
|
|
33%
|
43.3%
|
|
32%
|
40.0%
|
|
31%
|
36.7%
|
|
30%
|
33.3%
|
|
29%
|
30.0%
|
|
28%
|
26.7%
|
|
27%
|
23.3%
|
|
26%
|
20.0%
|
|
25%
|
16.7%
|
|
24%
|
13.3%
|
|
23%
|
10.0%
|
|
22%
|
6.7%
|
|
Threshold: 21%
|
3.3%
|
|
20%
or below
|
0.0%
|
12
