Exhibit 10.33
TRUST UNDER SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
This Agreement made this 2nd day of May, 1994, by and
between Northeast Utilities Service Company, a corporation
organized and existing under the laws of the State of Connecticut
(Company) and Fleet Bank, N.A., a national banking association
organized and existing under the laws of the United States
(Trustee);
WHEREAS, Company has adopted the Supplemental Executive
Retirement Plan for Officers of Northeast Utilities System
Companies (the Plan);
WHEREAS, Company has incurred or expects to incur liability
under the terms of the Plan with respect to the individuals
participating in such Plan;
WHEREAS, Company wishes to establish a trust (hereinafter
called "Trust") and to contribute to the Trust assets that shall
be held therein, subject to the claims of Company's creditors in
the event of Company's Insolvency, as herein defined, until paid
to Plan participants and their beneficiaries in such manner and
at such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust
shall constitute an unfunded arrangement and shall not affect the
status of the Plan as an unfunded plan maintained for the purpose
of providing deferred compensation for a select group of
management or highly compensated employees for purposes of Title
I of the Employee Retirement Income Security Act of 1974;
WHEREAS, it is the intention of Company to make
contributions to the Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under the
Plan;
NOW, THEREFORE, the parties do hereby establish the Trust
and agree that the Trust shall be comprised, held and disposed of
as follows:
SECTION 1. Establishment of Trust.
(a) Company hereby deposits with Trustee in trust the cash
and other property described in Appendix A hereto, which shall
become the principal of the Trust to be held, administered and
disposed of by Trustee as provided in this Trust Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which
Company is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon
shall be held separate and apart from other funds of Company and
shall be used exclusively for the uses and purposes of Plan
participants and general creditors as herein set forth. Plan
participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of
the Trust. Any rights created under the Plan and this Trust
Agreement shall be mere unsecured contractual rights of Plan
participants and their beneficiaries against Company. Any assets
held by the Trust will be subject to the claims of Company's
general creditors under federal and state law in the event of
Insolvency, as defined in Section 3(a) herein.
(e) Company, in its sole discretion, may at any time, or
from time to time, make additional deposits of cash or other
property in trust with Trustee to augment the principal to be
held, administered and disposed of by Trustee as provided in this
Trust Agreement. Neither Trustee nor any Plan participant or
beneficiary shall have any right to compel such additional
deposits.
SECTION 2. Payments to Plan Participants and Their
Beneficiaries.
(a) Company shall deliver to Trustee a schedule (the
"Payment Schedule") that indicates the amounts payable in respect
of each Plan participant (and his or her beneficiaries),
or that provides a formula or other instructions acceptable to
Trustee for determining the amounts so payable, the form in which
such amount is to be paid (as provided for or available under the
Plan), and the time of commencement for payment of such amounts.
Except as otherwise provided herein, Trustee shall make payments
to the Plan participants and their beneficiaries in accordance
with such Payment Schedule. The Trustee shall make provision for
the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the
payment of benefits pursuant to the terms of the Plan and shall
pay amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid
by Company.
(b) The entitlement of a Plan participant or his or her
beneficiaries to benefits under the Plan shall be determined by
Company or such party as it shall designate under the Plan, and
any claim for such benefits shall be considered and reviewed
under the procedures set out in the Plan.
(c) Company may make payment of benefits directly to Plan
participants or their beneficiaries as they become due under the
terms of the Plan. Company shall notify Trustee of its decision
to make payment of benefits directly prior to the time amounts
are payable to participants or their beneficiaries. In addition,
if the principal of the Trust, and any earnings thereon, are not
sufficient to make payments of benefits in accordance with the
terms of the Plan, Company shall make the balance of each such
payment as it falls due. Trustee shall notify Company where
principal and earnings are not sufficient.
SECTION 3. Trustee Responsibility Regarding Payments to
Trust Beneficiary When Company Is Insolvent.
(a) Trustee shall cease payment of benefits to Plan
participants and their beneficiaries if the Company is Insolvent.
Company shall be considered "Insolvent" for purposes of this
Trust Agreement if (i) Company is unable to pay its debts as they
become due, or (ii) Company is subject to a pending proceeding as
a debtor under the United States Bankruptcy Code.
(b) At all times during the continuance of this Trust, as
provided in Section 1(d) hereof, the principal and income of the
Trust shall be subject to claims of general creditors of Company
under federal and state law as set forth below.
(1) The Board of Directors and the Chief Executive
Officer of Company shall have the duty to inform Trustee in
writing of Company's Insolvency. If a person claiming to be a
creditor of Company alleges in writing to Trustee that Company
has become Insolvent, Trustee shall determine whether Company is
Insolvent and, pending such determination, Trustee shall
discontinue payment of benefits to Plan participants or their
beneficiaries.
(2) Unless Trustee has actual knowledge of Company's
Insolvency, or has received notice from Company or a person
claiming to be a creditor alleging that Company is Insolvent,
Trustee shall have no duty to inquire whether Company is
Insolvent. Trustee may in all events rely on such evidence
concerning Company's solvency as may be furnished to Trustee and
that provides Trustee with a reasonable basis for making a
determination concerning Company's solvency.
(3) If at any time Trustee has determined that Company
is Insolvent, Trustee shall discontinue payments to Plan
participants or their beneficiaries and shall hold the assets of
the Trust for the benefit of Company's general creditors. Nothing
in this Trust Agreement shall in any way diminish any rights, of
Plan participants and their beneficiaries to pursue their rights
as general creditors of Company with respect to benefits due
under the Plan or otherwise.
(4) Trustee shall resume the payment of benefits to
Plan participants or their beneficiaries in accordance with
Section 2 of this Trust Agreement only after Trustee has
determined that Company is not Insolvent (or is no longer
Insolvent).
(c) Provided that there are sufficient assets, if Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to Plan participants or
their beneficiaries under the terms of the Plan for the period of
such discontinuance, less the aggregate amount of any payments
made to Plan participants or their beneficiaries by Company in
lieu of the payments provided for hereunder during any such
period of discontinuance.
SECTION 4. Payments to Company.
(a) Except as provided in Section 3 hereof, Company shall
have no right or power to direct Trustee to return to Company or
to direct to others any of the Trust assets before all payment of
benefits have been made to Plan participants and their
beneficiaries pursuant to the terms of the Plan.
SECTION 5. Investment Authority.
(a) In no event may Trustee invest in securities (including
stock or rights to acquire stock) or obligations issued by
Company, other than a de minimis amount held in common investment
vehicles in which Trustee invests. All rights associated with
assets of the Trust shall be exercised by Trustee or the person
designated by Trustee, and shall in no event be exercisable by or
rest with Plan participants.
(b) Except as provided in Section 5(c) hereof, the Trustee
shall have the power of investing and reinvesting the Trust
assets and in its sole discretion:
1) To invest and reinvest in any personal property,
wherever situated and whether or not productive of
income or consisting of wasting assets, including
without limitation, common and preferred stocks,
bonds, notes, debentures (including convertible
stocks and securities but not including any stock
or security of the Trustee or any affiliate
thereof), leaseholds, mortgages, certificates of
deposit or demand or time deposits (including any
such deposits with the Trustee or any of its
affiliates), shares of investment companies and
mutual funds, interests in partnerships and
trusts, insurance policies and annuity contracts,
without being limited to the classes of property
in which trustees are authorized to invest by any
law or any rule of court of any state and without
regard to the proportion any such property may bear to
the entire amount of the Trust; provided however, that
the Trust shall be diversified so as to minimize
the risk of large losses unless under the
circumstances it is clearly prudent not to do so,
in the sole discretion of the Trustee;
2) As directed by the Treasurer of the Company, to
invest and reinvest in insurance contracts or
policies, and, if so directed by the Treasurer of
the Company, to hold such contracts and policies
in the name of the Trustee or otherwise, and to
pay all premiums and other costs in connection
therewith from the Trust;
3) To invest and reinvest all or any portion of the
Trust assets collectively with funds of other
trusts in units of or through the medium of any
common, collective, or commingled trust fund or
mutual fund that may be established and
maintained by the Trustee or any of its
affiliates, the instrument or instruments
establishing such trust or funds, as amended,
being made part of this Trust Agreement so long as
any portion of the Trust shall be invested through
the medium thereof;
4) To retain any property at any time received by the
Trustee;
5) To sell or exchange any property held by it at
public or private sale, for cash or on credit, to
grant and exercise options for the purchase or
exchange thereof, to exercise all conversion or
subscription rights pertaining to any such
property and to enter into any covenant or
agreement to purchase any property in the future;
6) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or
other similar plan relating to property held by it
and to consent to or oppose any such plan or any
action thereunder or any contract, lease,
mortgage, purchase, sale, or other action by any
person;
7) To deposit any property held by it with any
protective, reorganization, or similar committee,
to delegate discretionary power thereto, and to
pay part of the expenses and compensation thereof
and any assessments levied with respect to any
such property so deposited;
8) To extend the time of payment of any obligation
held by it;
9) To hold uninvested any moneys received by it,
without liability for interest thereon, until such
moneys shall be invested, reinvested, or disbursed;
10) To exercise all voting or other rights with
respect to any property held by it and to grant
proxies, discretionary or otherwise;
11) To cause any property held by it to be registered
and held in the name of one or more nominees, with
or without the addition of words indicating that
such securities are held in a fiduciary
capacity, and to hold securities in bearer form;
12) To settle, compromise, or submit to arbitration
any claims, debts, or damages due or owing to or
from the Trust, respectively, to commence or
defend suits or legal proceedings to protect any
interest of the Trust, and to represent the Trust
in all suits or legal proceedings in any court or
before any other body or tribunal; provided,
however, that the Trustee shall not be required to
take any such action unless it shall have been
indemnified by the Company to its reasonable
satisfaction against liability or expenses it
might incur therefrom; and
13) Generally, to do all acts, whether or not
expressly authorized, that the Trustee may deem
necessary or desirable for the protection of the
Trust.
c) If (i) a registered investment adviser under the
Investment Advisers Act of 1940, (ii) a bank, as defined in that
Act, or (iii) an insurance company qualified to perform
investment management services under the laws of more than one
state is duly appointed an "Investment Manager" with respect to
the Plan, as that term is defined in Section 3 (38) of the
Employee Retirement Income Security Act of 1974 (the "Act"), with
the power to direct the investment and reinvestment of all or
part of the Trust assets, the Investment Manager shall, unless
its appointment provides otherwise, have the power to direct the
Trustee in the exercise of the powers described in Paragraphs (1)
through (10) inclusive of Section 5(b) hereof with respect to all
or part of the Trust assets, as the case may be, and the Trustee
shall, upon receipt of a copy of the Investment Manager's
appointment and written acknowledgment of such appointment,
satisfactory in form to the Trustee, exercise such powers as
directed in writing by the Investment Manager, unless it knows
that such direction is a breach of the Investment Manager's duty
to act with care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct
of an enterprise of a like character and with like aims. The
Trustee shall not be liable for any diminution in the value of
the Trust as a result of following any such direction or as a
result of not exercising any such powers in the absence of any
such direction.
If no such bank, insurance company, or registered investment
adviser has been so appointed, the Trustee shall have full
authority to invest and reinvest the Trust assets in accordance
with the terms of this Trust Agreement and any investment
guidelines promulgated by the Treasurer of the Company and the
Trustee shall not be liable for any diminution in the value of
the Trust as a result of the limitations of such guidelines.
(d) No person dealing with the Trustee shall be under any
obligation to see to the proper application of any money paid or
property delivered to the Trustee or to inquire into the
Trustee's authority as to any transaction.
SECTION 6. Disposition of Income.
(a) During the term of this Trust, all income received by
the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
SECTION 7. Accounting by Trustee.
Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements, and all other transactions
required to be made, including such specific records as shall be
agreed upon in writing between Company and Trustee. Within forty-
five (45) days following the close of each calendar year and
within thirty (30) days after the removal or resignation of
Trustee, Trustee shall deliver to Company a written account of
its administration of the Trust during such year or during the
period from the close of the last preceding year to the date of
such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it,
including a description of all securities and investments
purchased and sold with the cost or net proceeds of such
purchases or sales (accrued interest paid or receivable being
shown separately), and showing all cash, securities and other
property held in the Trust at the end of such year or as of the
date of such removal or resignation, as the case may be.
SECTION 8. Responsibility of Trustee.
(a) Trustee shall act with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims, provided, however, that Trustee shall incur no
liability to any person for any action taken pursuant to a
direction, request or approval given by company which is
contemplated by, and in conformity with, the terms of the Plan or
this Trust and is given in writing by Company. In the event of a
dispute between Company and a party, Trustee may apply to a court
of competent jurisdiction to resolve the dispute.
(b) If Trustee undertakes or defends any litigation arising
in connection with this Trust, Company agrees to indemnify
Trustee against Trustee's costs, expenses and liabilities
(including, without limitation, attorneys' fees and expenses)
relating thereto and to be primarily liable for such payments.
If Company does not pay such costs, expenses and liabilities in a
reasonably timely manner, Trustee may obtain payment from the
Trust.
(c) Trustee may consult with legal counsel (who may also be
counsel for Company generally) with respect to any of its duties
or obligations hereunder.
(d) Trustee may hire agents, accountants, actuaries,
investment advisors, financial consultants or other professionals
to assist it in performing any of its duties or obligations
hereunder.
(e) Trustee shall have, without exclusion, all powers
conferred on Trustees by applicable law, unless expressly
provided otherwise herein, provided, however, that if an
insurance policy is held as an asset of the Trust, Trustee shall
have no power to name a beneficiary of the policy other than the
Trust, to assign the policy (as distinct from conversion of the
policy to a different form) other than to a successor Trustee, or
to loan to any person the proceeds of any borrowing against such
policy.
(f) Notwithstanding any powers granted to Trustee pursuant
to this Trust Agreement or to applicable law, Trustee shall not
have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within
the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
SECTION 9. Compensation and Expenses of Trustee.
All Plan administrative and Trustee's fees and expenses
shall be paid from the Trust unless paid by Company.
SECTION 10. Resignation and Removal of Trustee.
(a) Trustee may resign at any time by written notice to
Company, which shall be effective thirty (30) days after receipt
of such notice unless Company and Trustee agree otherwise.
(b) Trustee may be removed by Company on written notice to
the Trustee.
(c) Upon resignation or removal of Trustee and appointment
of a successor Trustee, all assets shall subsequently be
transferred to the successor trustee. The transfer shall be
completed within thirty (30) days after receipt of notice of
resignation, removal or transfer, unless Company extends the time
limit.
(d) If Trustee resigns or is removed, a successor shall be
appointed, in accordance with Section 11 hereof, by the effective
date of resignation or removal under paragraphs (a) or (b) of
this section. If no such appointment has been made, Trustee may
apply to a court of competent jurisdiction for appointment of a
successor or for instructions. All expenses of Trustee in connection
with the proceeding shall be allowed as administrative expenses of
the Trust.
SECTION 11. Appointment of Successor.
(a) If Trustee resigns or is removed in accordance with
Section 10(a) or (b) hereof, Company may appoint any third party,
such as a bank trust department or other party that may be
granted corporate trustee powers under state law, as a successor
to replace Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee,
who shall have all of the rights and powers of the former
Trustee, including ownership rights in the Trust assets. The
former Trustee shall execute any instrument necessary or
reasonably requested by Company or the successor Trustee to
evidence the transfer.
SECTION 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written
instrument executed by Trustee and Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the
Plan or shall make the Trust revocable.
(b) The Trust shall not terminate until the date on which
Plan participants and their beneficiaries are no longer entitled
to benefits pursuant to the terms of the Plan. Upon termination
of the Trust any assets remaining in the Trust shall be returned
to Company.
(c) Upon written approval of all participants or
beneficiaries entitled to payment of benefits pursuant to the
terms of the Plan, Company may terminate this Trust prior to the
time all benefit payments under the Plan have been made. All
assets in the Trust at termination shall be returned to Company.
SECTION 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
(b) Benefits payable to Plan participants and their
beneficiaries under this Trust Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
(c) This Trust Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut and the
United States of America.
SECTION 14. Effective Date.
The effective date of this Trust Agreement shall be January
1, 1994.
Company: NORTHEAST UTILITIES SERVICE COMPANY
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title
Trustee: FLEET BANK, N.A.
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President