SUPPLEMENTAL PENSION AGREEMENT With Kenneth J. Neises
Exhibit
10.4
With
Xxxxxxx X. Xxxxxx
This
Agreement is entered into by and between Laclede Gas Company (the “Company”) and
Xxxxxxx X. Xxxxxx (“Xxxxxx”).
RECITALS
WHEREAS,
Xxxxxx is a key employee of the Company and was to retire on his mandatory
retirement date of November 1, 2005; and
WHEREAS,
in recognition of the value of Xxxxxx’ services to the Company the Board adopted
resolutions on November 18, 2004 and October 26, 2007 allowing him to work
beyond his mandatory retirement date under the Retirement Plan up to December 1,
2009;
NOW,
THEREFORE, in consideration of the mutual promises contained in this Agreement,
the parties agree as follows:
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Article
I – Definitions
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1.1
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“Code”
means the Internal Revenue Code of 1986, as amended.
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1.2
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“Disability”
means if Xxxxxx (i) is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than 12 months,
or (ii) is, by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or can be expected to last for a continuous period of not less
than 12 months, receiving income replacement benefits for a period of not
less than 3 months under an accident and health plan covering employees of
the Company.
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1.3
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“Moody’s
Corporate Bond Average Rate” means the “Published Monthly Average
Composite Yield on Seasoned Corporate Bonds” published by Moody’s
Investor’s Service, Inc. available at
xxxx://xxx.xxxx.xxx/xxxxxxxx_xxxxx.xxx or a successor
site.
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1.4
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“Plans”
means the Retirement Plan and the SERP.
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1.5
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“Retirement
Plan” means the Employees’ Retirement Plan of Laclede Gas Company
as amended from time to time and any other qualified defined benefit
pension plan of the Company.
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1.6
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“SERP”
means the Laclede Gas Company Supplemental Retirement Benefit Plan as
amended from time to time and any successor
plan.
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Article
II – Nature of the Agreement
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2.1
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Overview of
Benefits Provided by this Agreement. This Agreement
provides for a deferred compensation benefit to Xxxxxx as described in
more detail in Article III (“Supplemental Pension
Benefit”). The Agreement does not modify Xxxxxx’ benefits under
the Plans.
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2.2
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Nature of
Contract. Xxxxxx’ employment with the Company has been
and will continue to be at will. Nothing contained in this
Agreement shall be construed to be a contract of employment for any term,
nor as conferring upon Xxxxxx the right to continue in the employ of the
Company in his present capacity or any other capacity. Nothing
contained in this Agreement shall be construed to preclude termination of
his employment at any time. It is expressly understood by the
parties that this Agreement relates exclusively to compensation for
Xxxxxx’ services and is not an employment
contract.
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Article
III – Calculation of Pension Benefit
Amount
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3.1
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Supplemental
Pension
Benefit Formula. Upon the earliest to occur of Xxxxxx’
death, Disability, or retirement, such date being known as the Calculation
Date, the Supplemental Pension Benefit under this Agreement shall be
calculated and shall be in an amount equivalent to:
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(A+B+C)
– D
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where
A, B, C, and D are as follows:
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A.
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=
Xxxxxx’ monthly accrued benefit under the Plans calculated as if he had
retired on November 1, 2005 converted to a lump amount calculated using
the PBGC rate in effect on November 1, 2005 of 2.5% and other factors and
formulas effective under the Plans for retirements on November 1,
2005;
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B.
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=
The difference between (i) the monthly accrued benefit calculated in A.
above, and (ii) the monthly accrued benefit calculated as if he had
retired on November 1, 2007; with the difference between (i) and (ii) then
converted to a lump sum amount calculated using the lower of the PBGC rate
in effect on November 1, 2007 of 3.25% or the PBGC rate in effect for
retirements on the Calculation Date, and other factors and formulas
effective under the Plans for retirements on November 1,
2007;
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C.
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=
The difference between (I) the monthly accrued benefit calculated in
B.(ii), and (II) the monthly accrued benefit calculated on the Calculation
Date; with the difference between (I) and (II) then converted to a lump
sum amount calculated using the factors and formulas effective under the
Plans for retirements on the Calculation Date; and
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D.
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=
Xxxxxx’ monthly accrued benefit under the Plans converted to a lump sum
amount calculated using the factors and formulas effective under the Plans
for retirements on the Calculation
Date.
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| No Supplemental Pension Benefit shall accrue under this Agreement on and after the Calculation Date. | |||
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3.2
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Payment of
Supplemental Pension Benefit The Supplemental Pension
Benefit shall be payable:
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•
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If
payable due to Xxxxxx’ Disability or death, in a lump sum to Xxxxxx or his
beneficiary, as applicable, 30 days after the date of his Disability or
death; or
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•
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If
payable due to Xxxxxx’ retirement, on the date that is six months after
the date of his retirement, or such earlier date as may be allowed by
law. From the date of his retirement to the date of actual
payment, the Supplemental Pension Benefit shall earn simple interest at
rate equal to the Moody’s Corporate Bond Average Rate as in effect on the
date of his retirement.
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Article
IV – General Provisions
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4.1
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General
Creditor Status. Xxxxxx’ claim against the Company under
this Agreement shall be that of an unsecured general creditor of the
Company. Any benefit payable under the Agreement shall
represent an unfunded and unsecured promise to pay by the
Company. The Company shall not be obligated to set aside,
earmark, or escrow any funds or other assets to satisfy its obligations
under this Agreement.
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4.2
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Anti-assignation. The
interests of Xxxxxx and his beneficiaries under this Agreement are not
subject to the claims of their creditors and may not be voluntarily or
involuntarily sold, transferred, alienated, assigned, pledged,
anticipated, or encumbered. Any attempt by Xxxxxx to transfer,
alienate, assign, pledge, anticipate, encumber, charge or otherwise
dispose of any right to benefits payable hereunder shall be
void. The Company may cancel and refuse to pay any portion of a
benefit that is sold, transferred, alienated, assigned, pledged,
anticipated or encumbered.
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Distribution
pursuant to a domestic relations order of all or any portion of the
Supplemental Pension Benefit may be paid to an Alternate Payee (as defined
in Section 414(p) of the Code) who is a former spouse in an amount
specified in such domestic relations order in a lump-sum cash payment as
soon as administratively feasible after it is determined that the order is
a domestic relations order (as defined in Section 414(p)(1)(B) of the
Code).
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4.4
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Amendment. The
provisions of this Agreement may be amended or waived only with the prior
written consent of each of Xxxxxx and the Company.
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4.5
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Controlling
State Law. The laws of the State of Missouri shall be
controlling in all matters relating to this Agreement.
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4.6
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Severability. In
case any provision of this Agreement shall be held illegal or invalid for
any reason, such illegality or invalidity shall not affect the remaining
provisions of the
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Agreement,
and the Agreement shall be construed and enforced as if such illegal and
invalid provisions had never been set forth.
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4.7
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Full
Discharge of Obligation. Payment of the Supplemental
Pension Benefit shall constitute (i) payment in full of the benefits due
Xxxxxx and his beneficiaries under this Agreement and (ii) fulfillment of
all of the Company’s obligations under this Agreement.
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4.8
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Tax
Withholding. All distributions under this Agreement, to
the extent required by law, shall be subject to withholding of federal,
state and local taxes.
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4.9
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Code
Section 409A. Notwithstanding any other provision
hereof, this Agreement is intended to comply with Section 409A and shall
at all times be interpreted in accordance with such intent. To
the extent that any provision of the Agreement violates Code Section 409A
such that amounts would be taxable to Xxxxxx prior to payment or otherwise
subject to penalties under Code Section 409A, such provision shall be
automatically reformed or stricken to preserve the intent
hereof.
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| IN WITNESS WHEREOF, the Company and Xxxxxx have executed this Agreement this 7th day of March, 2008. | |||
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LACLEDE
GAS COMPANY.
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By /s/ X. X. Xxxxxx
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Title:
Chief Executive Officer
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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