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Exhibit
10.9

 


 

AMENDMENT AND RESTATEMENT OF

MEMORANDUM AGREEMENT BETWEEN NORTHEAST UTILITIES AND LEON J.
OLIVIER 




THIS
AMENDMENT AND RESTATEMENT of the Memorandum Agreement by and between
Northeast Utilities System Companies (the “Company”) and Leon J. Olivier (“you”)
dated as of February 12, 2002 (the “Agreement”) shall become effective as of
January 1, 2009.




WHEREAS,
you and the Company entered into the Agreement effective as of February 12, 2002
by which you accepted a “Special Retirement Benefit” in lieu of receiving any
benefit under the terms of the Supplemental Executive Retirement Plan for
Officers of Northeast Utilities System Companies; and




WHEREAS,
you and the Company desire to amend and restate the Agreement in its entirety to
comply with the requirements of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), effective January 1, 2009 and in certain other
respects.




NOW,
THEREFORE, in consideration of the foregoing, you and the Company hereby
agree as follows: 




Supplemental
Retirement Benefit




Upon
your termination of employment you are entitled to a “Supplemental Retirement
Benefit” that is actuarially equivalent to a single lump sum in the amount of
$2,050,000, offset by the value of your benefit under the NUSCO Retirement Plan
determined as provided below (the “Offset”).1 This
Supplemental Retirement Benefit will be paid at the time and in the form
provided below.




Eligibility
for Special SERP Benefit




If
you meet the eligibility requirements described below, you will be entitled to
the “Special SERP Benefit” described below in lieu of the Supplemental
Retirement Benefit if the actuarially equivalent value of the Special SERP
Benefit is greater than the Supplemental Retirement Benefit.  This Special
SERP Benefit will be paid at the time and in the form provided below.  




You
will be eligible for the Special SERP Benefit only under the following
circumstances:




1.
 Your employment is involuntarily terminated for any reason other than
Cause as defined in the Special Severance Program for Officers of Northeast
Utilities System Companies (the “Severance Program”); or








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2.
 Your employment is terminated under a “Termination Upon a Change of
Control” as defined in the Severance Program; or




3.
 You voluntarily terminate your employment on or after having attained age
65; or




4.
 You voluntarily terminate your employment with Company permission before
having attained age 65.




You
will not be eligible for the Special SERP Benefit if your employment is
involuntarily terminated for Cause or if you voluntarily terminate your
employment without Company permission before having attained age 65 except in
the case of a Termination Upon a Change of Control. 




Special
SERP Benefit




The
Special SERP Benefit is the actuarially equivalent value of an annual benefit
determined by multiplying the “Replacement Ratio” by your “Final Average
Compensation,” then reducing for commencement prior to your attainment of age
65, if applicable, and then applying the Offset described below.  The
“Replacement Ratio” is 3% times each of your first fifteen years of service
since September 10, 2001, plus 1% times each of your second fifteen years of
service since September 10, 2001.  Your “Final Average Compensation” is
your highest three-year average base salary and corresponding annual incentive
payments since September 10, 2001.  If you terminate employment before
September 10, 2011, and satisfy eligibility for the Special SERP Benefit, the
Special SERP Benefit will be reduced by 6.5% for each year that your age at
termination is less than 65.  The value thus determined will then be
actuarially reduced to adjust for commencement before age 65.  If you
terminate employment on or after September 10, 2011, the Special SERP Benefit
will be reduced by 2% for each year that your age at termination is less than
65. 




Offset




The
Supplemental Retirement Benefit and the Special SERP Benefit will be reduced by
the value of your benefit under the NUSCO Retirement Plan, which will be
determined as of the earliest date on which such benefit is payable to you under
the terms of the NUSCO Retirement Plan.




Actuarial
Factors




The
following factors will be used for purposes of comparing the value of the
Supplemental Retirement Benefit to the value of the Special SERP Benefit, to
determine the value of your benefit under the NUSCO Retirement Plan for purposes
of calculating the Offset and for purposes of converting the Supplemental
Retirement Benefit and the Special SERP Benefit to the benefit payable to you at
the time and in the form provided below:  the 1983 Group Annuity Mortality
Table (50% male/50% female) and interest at a rate equal to the discount rate
used for the NUSCO Retirement Plan’s FAS 87 accounting for the calendar year
prior to the year of your termination of employment. 





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Time
and Form of Payment




The
same time and form of payment will apply to the benefit payable to you under
this Agreement (“your Benefit”) regardless of whether a Supplemental Retirement
Benefit or a Special SERP Benefit is payable to you.  You may elect to
receive payment of all or a portion of your Benefit in a lump sum.  Your
election will be irrevocable, and must be filed with the Company on or before
December 31, 2008 on such form as the Company may provide. The election will
only be effective if your Benefit would not otherwise be payable in 2008.
 In the absence of an effective lump sum election, your Benefit will be
paid in the form of an “Annuity.”  “Annuity” means a form of benefit
payment that (1) provides a series of substantially equal periodic
payments, payable not less frequently than annually, for your life (or life
expectancy) or the joint lives (or life expectancies) of you and your spouse;
and (2) is actuarially equivalent to a straight life annuity.  For
purposes of converting your Supplemental Retirement Benefit to a straight life
Annuity, the factors specified above under “Actuarial Factors” shall be used.
 For purposes of converting a straight life Annuity to another form of
Annuity, the actuarial factors specified in the NUSCO Retirement Plan shall be
used. Before the time of your termination of employment, you may select any form
of Annuity payment made available under the NUSCO Retirement Plan.  The
form may be a straight life annuity or any actuarially equivalent form.
  Any lump sum payment of your Special SERP Benefit will be
actuarially equivalent to a straight life annuity, calculated in accordance with
the factors specified above under “Actuarial Factors.”

 

Notwithstanding
anything to the contrary set forth in this Agreement, any such lump sum will be
paid or any such Annuity will commence to be paid within 90 days after your
termination of employment, determined in the sole discretion of the Company,
except as otherwise provided below under “Delayed Payments Under Section 409A.”
 Notwithstanding the foregoing, if calculation of the amounts payable by
the payment date specified herein is not administratively practicable due to
events beyond your control and for reasons that are commercially reasonable,
payment will be made as soon as administratively practicable in compliance with
Section 409A of the Code.




Death
Benefit




In
the event of your death while you are actively employed or after you become
entitled to payment of your Benefit in accordance with the foregoing provisions
of this Agreement but prior to the date payment of your Benefit has been made or
commenced, a death benefit shall be payable to your surviving spouse equal to
the greater of:  (1) the value of the Supplemental Retirement Benefit; or
(2) the value of the survivor annuity under a joint and 100% survivor annuity
form of payment of the Special SERP Benefit calculated as of the day before your
death.  Such death benefit shall be paid or commence to be paid to your
surviving spouse within 90 days after your death in the form that your Benefit
would have been paid to you had you been eligible for your Benefit before your
death. In the event of your death after payment of your Benefit has been made to
you in a lump sum, no death benefit shall be payable under this Agreement.
 In the event of your death after 





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payment
of your Benefit has commenced in the form of an Annuity, the terms of such
Annuity shall govern the benefit, if any, payable following your death.




Special
Retiree Health Benefits




If
the NU System terminates your employment for any reason other than for “Cause”
or if your termination of employment is a “Termination Upon a Change of
Control,” as those terms are defined in the Severance Program, and if you are
not then eligible for benefits under the terms of the Northeast Utilities
Service Company Retiree Health Plan (“Retiree Health Plan”) you and your spouse
will be eligible to participate in the Company’s executive retiree health plan
for your lives, with such executive retiree health plan coverage to be provided
on a subsidized basis so that your net after-tax cost for such executive retiree
health plan coverage will generally not be greater than the cost charged to a
retired employee of the Company (that cost to be determined based on at least
ten years of service) for comparable coverage under the Retiree Health Plan.
Your cost for such executive retiree health plan coverage shall be paid on an
after-tax basis and the Company subsidy for such executive retiree health plan
coverage shall be includible in your income for tax purposes, but the Company
will provide tax gross-up payments with respect to such taxable subsidized
coverage concurrently with the inclusion of such taxable coverage in your income
such that the tax gross-up payments will reimburse you for all Federal and state
income taxes and the Hospital Insurance portion of FICA tax withholding at the
highest marginal rate resulting from the inclusion in your income of such
Company subsidy and from the reimbursement of such taxes.




Miscellaneous




(1)


Delayed
Payments Under Section 409A.  Anything in this Agreement to the
contrary notwithstanding, you will be considered a “specified employee” within
the meaning of Section 409A(a)(2)(B) of the Code for purposes of this Agreement
and payments to be made under this Agreement upon your termination of employment
which are subject to Section 409A of the Code will be delayed for six months
following your termination of employment.  In the event of any such delay
in the payment date, the Company will adjust the payment to reflect the deferred
payment date by multiplying the payment by the product of (a) the interest
discount rate used for financial accounting purposes to compute the present
value liability of the SERP for the plan year immediately preceding the date of
your termination of employment and (b) a fraction, the numerator of which is the
number of days by which such payment was delayed and the denominator of which is
365.  If your Benefit is payable in the form of an Annuity, the adjusted
Annuity payments to which you would otherwise be entitled during such six months
will be accumulated and paid on the first Annuity payment date of the seventh
month following your termination of employment.  If you have elected
payment of all or part of your Benefit in the form of a lump sum, the adjusted
lump sum payment will be made at the beginning of the seventh month following
your termination of employment.  





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(2)


Reimbursements.




 

 (a)

Any
reimbursements made or in-kind benefits provided under this Agreement for health
coverage during the period of time that you would be entitled (or would, but for
such reimbursement or in-kind benefit, be entitled) to continuation coverage
under the Company’s group health plan pursuant to COBRA if you had elected such
coverage and paid the applicable premiums will be exempt from Section 409A of
the Code and the six-month delay in payment described in (1) above.




(b)

Any
reimbursements made or in-kind benefits provided under this Agreement (other
than those described in (a) above) will be subject to the following
limitations:




(i)

the
amount of expenses eligible for reimbursement or in-kind benefits provided
during any one taxable year shall not affect the amount of expenses eligible for
reimbursement or in-kind benefits provided in any other taxable year; 




(ii)

the
reimbursement of any expense shall be made not later than the last day of the
taxable year following the taxable year in which the expense is incurred;
however, with respect to any tax gross-up payments, such payments shall be made
not later than the last day of the taxable year next following the taxable year
in which you remit the applicable taxes;




(iii)

the
right to reimbursement of an expense or payment of an in-kind benefit shall not
be subject to liquidation or exchange for another benefit.




(3)


Governing
Law. This Agreement shall be governed by and interpreted under the laws of
the State of Connecticut without giving effect to any conflict of laws
provisions.  Anything in this Agreement to the
contrary notwithstanding, the terms hereof shall be interpreted and applied in a
manner consistent with the requirements of Section 409A of the Code and the
Treasury Regulations thereunder so as not to subject you to the payment of any
tax penalty or interest which may be imposed by Section 409A of the Code and the
Company shall have no right to make or accelerate any payment hereunder except
to the extent such action would not subject you to the payment of any tax
penalty or interest under Section 409A of the Code. The Company shall have no
obligation, however, to reimburse you for any tax penalty or interest payable or
provide a gross-up payment in connection with any tax liability you may incur
under Section 409A of the Code except that this provision shall not apply in the
event of the Company’s negligence or willful disregard in interpreting the
application of  Section 409A of the Code to the terms of this Agreement
which negligence or willful disregard causes you to become subject to a tax
penalty or interest payable under Section 409A of the Code, in which case the
Company will reimburse you on an after-tax basis for any such tax penalty or
interest not later than the last day of the taxable year next following the
taxable year in which you remit the applicable taxes and interest.  





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(4)

Funding.  Benefits payable under this Agreement shall be
“unfunded,” as that term is used in Sections 201(2), 301(a)(3), 401(a)(1) and
4021(b)(6) of ERISA.  The Company shall not be required to segregate or
earmark any of its assets for the benefit of Executive or his estate, and each
of Executive and his estate shall have only a contractual right against the
Company for benefits payable under this Agreement.  The rights and
interests of Executive and his estate shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge or encumbrance by
Executive, his estate or any person claiming under or through Executive or his
estate, nor shall they be subject to the debts, contracts, liabilities or torts
of Executive or his estate or anyone else prior to payment.  




 

(5)

Integration.
 This Agreement cancels and supersedes any and all prior agreements and
understandings between you and the Company with respect to the subject matter
hereof  except for contracts, plans or arrangements relating to
compensation, equity or benefits under executive compensation, equity or benefit
plans of the Company.  Notwithstanding the foregoing, you will not be
eligible to participate in the Supplemental Executive Retirement Plan for
Officers of Northeast Utilities Service Company and you will not be entitled to
any payment or benefit under this Agreement which duplicates a payment or
benefit received or receivable by you under any compensation, equity or benefit
plan or arrangement of the Company. This Agreement does not affect any
non-competition and/or non-solicitation agreement you have signed under the
Severance Program upon a Termination Upon a Change of Control.




(6)

Successors;
Transferability. The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.

 

Neither
this Agreement nor the rights or obligations hereunder of the parties hereto
shall be transferable or assignable by you except as specified above under
“Death Benefit,” or by the Company except to a successor as defined above.




(7)

 Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.





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IN
WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this First Amendment this 18 day of  December, 2008.





NORTHEAST
UTILITIES

SERVICE
COMPANY 







By:
/s/ Gregory B.
Butler                                       

Its
Senior Vice President and General Counsel










/s/
Leon J.
Olivier                                                   

Leon
J. Olivier

Footnotes

1
You vested in this benefit on November 23, 2008.




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