Exhibit 4
SECOND AMENDMENT TO SEVERANCE AGREEMENT
THIS SECOND AMENDMENT TO SEVERANCE AGREEMENT ("Second Amendment")
dated as of the __ day of ________, 1997, is made and entered into by and
between New York State Electric & Gas Corporation, a New York corporation (the
"Company") and ______________________ ("Executive") amending certain provisions
of the Severance Agreement, dated as of , as amended ("Severance Agreement") by
and between the Company and Executive.
WHEREAS, the Company has, effective January 1, 1997, amended its
Annual Executive Incentive Plan and the parties hereto wish to amend the
Severance Agreement to reflect the amended Annual Executive Incentive Plan and
any successor executive incentive compensation plans adopted by the Company; and
WHEREAS, the Company and Executive have entered into an Employee
Invention and Confidentiality Agreement dated ____________, 1997 and the parties
hereto wish to amend the Severance Agreement to reflect and incorporate certain
terms of that agreement into the Severance Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Section 4 of the Severance Agreement is hereby amended by
denominating the existing paragraph as Section 4.1 and by adding a
new Section 4.2 which reads in its entirety as follows:
4.2 The Executive agrees to comply with the provisions of
Sections 2, 3, 4, 5, 6, 7, 8, and 9 of the Employee Invention
and Confidentiality Agreement in consideration for the rights
and benefits set forth in this Agreement; these Sections of
the Employee Invention and Confidentiality Agreement, along
with definitions of defined terms used in such Sections, are
incorporated into this Agreement by reference.
2. Section 6.1 (A)(ii) of the Severance Agreement is hereby
amended to read in its entirety as
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follows:
(ii) the higher of (x) the amount paid to the Executive
pursuant to the Company's Annual Executive Incentive
Compensation Plan, Annual Executive Incentive Plan, or any
successor annual executive incentive compensation plan, as the
case may be, in the fiscal year preceding that in which the
Date of Termination occurs, or (y) the average amount so paid
in the three fiscal years preceding that in which the Change
in Control occurs.
3. Section 6.1 (B) of the Severance Agreement is hereby
amended to read in its entirety as follows:
(B) Notwithstanding any provision of the Company's Annual
Executive Incentive Plan or successor annual executive
incentive compensation plan (but provided that there shall be
no duplication of the benefits under such plans), the Company
shall pay to the Executive a lump sum amount, in cash, equal
to the sum of (i) any incentive compensation which has been
allocated or awarded to the Executive for a completed fiscal
year preceding the Date of Termination under the Annual
Executive Incentive Plan, or any successor annual executive
incentive compensation plan, as the case may be, but has not
yet been either (x) paid (pursuant to Section 5.2 hereof or
otherwise) or (y) deferred pursuant to the Deferred
Compensation Plan for Salaried Employees, and (ii) a pro rata
portion to the Date of Termination of the aggregate value of
any contingent incentive compensation award to the Executive
for any uncompleted fiscal year under the Annual Executive
Incentive Plan, or any successor annual executive incentive
compensation plan, calculated as to
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each such award in accordance with Article XI (A) (iii) of the
Annual Executive Incentive Plan or any comparable provision in
any successor annual executive incentive compensation plan;
4. Section 14 of the Severance Agreement is hereby amended by
A) denominating the existing paragraph as Section 14.1; B) amending
the first two sentences of the existing paragraph to read as
follows: "Subject to Section 14.2, all claims by the Executive for
benefits under this Agreement shall be directed to and determined by
the Board and shall be in writing. Subject to Section 14.2, any
denial by the Board of a claim for benefits under this Agreement
shall be delivered to the Executive in writing and shall set forth
the specific reasons for the denial and the specific provisions of
this Agreement relied upon."; and C) adding a new Section 14.2 which
reads in its entirety as follows:
14.2 Section 14.1 and anything herein to the contrary
notwithstanding, the Executive agrees that any breach or
violation of Sections 2, 3, 4, 5, 6, 7, 8, and/or 9 of the
Employee Invention and Confidentiality Agreement will result
in immediate and irreparable injury to the Company in amounts
difficult to ascertain. Therefore, upon any breach of any of
these Sections by the Executive, the Company shall be entitled
to proceed directly to court to obtain the remedies of
specific performance and injunctive relief (including but not
limited to temporary restraining orders, preliminary
injunctions and permanent injunctions) without the necessity
of posting a bond or other undertaking, or otherwise first
using the dispute resolution and/or arbitration procedures set
forth in Section 14.1 above.
5. Section 15 of the Severance Agreement is hereby amended by
adding a new paragraph (U) which reads in its entirety as follows:
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(U) "Employee Invention and Confidentiality Agreement"
means the Employee Invention and Confidentiality Agreement
between the Company and the Executive attached hereto as
"Appendix A."
6. Except as expressly modified hereby, the terms and
provisions of the Severance Agreement remain in full force and
effect.
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
be duly executed and delivered as of the date first above written.
NEW YORK STATE ELECTRIC
& GAS CORPORATION
By:
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Name: [Name of Executive]
Title:
