EXHIBIT 10.44
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
OF
THE UNITED ILLUMINATING
COMPANY
NON-GRANDFATHERED BENEFIT
PROVISIONS
TABLE OF CONTENTS
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Page
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ARTICLE I
– PURPOSE OF PLAN
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1
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ARTICLE II
– DEFINITIONS
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1
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ARTICLE III
– ELIGIBILITY TO PARTICIPATE
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4
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3.01 Eligibility
Requirements
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4
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3.02 Effective
Date of Participation
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4
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3.03 Termination
of Participation
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4
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ARTICLE IV
– SUPPLEMENTAL PENSION BENEFIT
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5
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4.01 Eligibility
for Supplemental Pension Benefit
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5
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4.02 Calculation
of Non-Grandfathered Supplemental Pension Benefit
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5
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4.03 Methodology
and Assumptions in Calculating Supplemental Pension
Benefit
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6
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ARTICLE V
– PERMISSIBLE PAYMENT EVENTS; ELECTIONS REQUIRED OF
PARTICIPANTS
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6
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5.01 Payment
Events
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6
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5.02 Initial
Elections and Forms of Benefit
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6
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5.03 Subsequent
Elections; Change of Benefit Distribution Elections
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8
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5.04 Cash-outs,
Accelerations or Delays
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9
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ARTICLE VI
– FUNDING
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9
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6.01 Funding
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9
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ARTICLE VII
– CLAIMS PROCEDURES
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10
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7.01 Filing
a Claim
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10
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7.02 Appeal
of Denied Claims
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10
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ARTICLE VIII
– MISCELLANEOUS
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12
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8.01 Non-Guarantee
of Employment or Pension
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12
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8.02 Rights
and Pension Plan
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12
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8.03 Amendment,
Modification, Suspension or Termination
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12
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8.04 Plan
Administration
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12
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8.05 Spendthrift
Provision
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12
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8.06 Administrative
Powers
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12
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8.07 Disclosure
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13
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8.08 Incapacity
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13
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8.09 Unclaimed
Benefit
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13
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8.10 Limitation
on Liability
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13
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8.11 Fiduciary
Responsibility
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13
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8.12 Withholding
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13
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8.13 Successor
Employer
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14
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8.14 Governing
Law
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14
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SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
OF
THE UNITED ILLUMINATING
COMPANY
NON-GRANDFATHERED BENEFIT
PROVISIONS
ARTICLE I
PURPOSE OF
PLAN
Effective as
December 1, 1994, The United Illuminating Company established the
"Supplemental Executive Retirement Plan of The United Illuminating
Company" (the "Plan"). The purpose of the Plan is to
provide, on an unfunded basis, certain benefits that, because of
limitations under the Code, cannot be provided under The United
Illuminating Company Pension Plan. The Plan also is
designed to provide supplemental executive retirement benefits to a
select group of management and highly compensated employees of The
United Illuminating Company (the “UI”), UIL Holdings
Corporation (“UIL” or the “Company”) and
certain of its affiliated employers who may, from time to time, be
designated as a Participating Employer. A list of
Participating Employers shall be attached to this Plan as Exhibit
A.
The Plan is
intended to be an unfunded, non-qualified deferred compensation
plan for a select group of management and highly compensated
employees, as described in Sections 201(2) and 301(a)(3) of the
Employee Retirement Income Security Act
(“ERISA”). This portion of the Plan is also
intended to be a non-qualified deferred compensation plan within
the meaning of Code Section 409A.
The terms of
the Plan as set forth in this Plan document apply solely with
respect to accruals pursuant to the terms of the Plan on and after
January 1, 2005, and with respect to accruals made pursuant to the
terms of the Plan before January 1, 2005, that vest on or after
January 1, 2005 (“Non-Grandfathered
Benefits”). With respect to accruals made pursuant
to the terms of the Plan before January 1, 2005, that vested prior
to January 1, 2005 (“Grandfathered Benefits”), the
terms of the Plan are as described in the separate Plan document
relating to “Grandfathered Benefits.” With
respect to amounts subject to this Plan document, this Plan
document supersedes the prior Plan document (as amended from time
to time).
ARTICLE II
DEFINITIONS
Wherever used
in this Plan, unless the context clearly indicates otherwise, the
following terms shall have the following meanings:
“
Affiliate ” shall mean any corporation, trade or
business that, together with the Company, is treated as a single
employer under Code Section 414(b) or (c).
" Annual
Additions " shall have the same meaning as set forth in Section
415(c)(2) of the Code.
"
Beneficiary " shall mean the person or persons entitled to a
benefit under the Plan upon the Participant's
death. With respect to married Participants, a
Participant’s spouse shall be the Participant’s
Beneficiary unless such spouse has consented to the naming of an
alternate Beneficiary in accordance with the terms of the Pension
Plan.
“
Board of Directors ” means the Board of Directors of
the Company (or any successor thereto).
" Code "
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"
Committee " shall mean the Compensation and Executive
Development Committee of the Company, which shall administer this
Plan as set forth in Sections 8.04 and 8.06.
“
Company ” shall mean UIL Holdings Corporation,
Inc.
"
Compensation " shall have the same meaning as provided in
the Pension Plan, but without the limitation imposed by Section
401(a)(17) of the Code and shall include salary and short term
incentive amounts deferred by the Participant under The UIL
Holdings Corporation Deferred Compensation Plan with respect to
each Plan Year.
“
Disability ” (or “Disabled”) means the
date a Participant becomes disabled within the meaning of Code
Section 409A. Generally, this means that the Participant
is either (a) 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 (b) 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 Participant’s Employer, or (c) is determined
to be totally disabled by the federal Social Security
Administration. The date a Participant is deemed to be
Disabled for purposes of the Plan shall be determined by the
Committee.
"
Employee " shall mean a person in the employ of the
Employer.
"
Employer " shall mean the Company and its
Affiliates.
" ERISA
" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
“
Management Executive ” shall mean a senior management
employee who is not an elected officer .
"
Participant " shall mean any Employee who meets the
eligibility requirements of Section 3.01 and has entered the Plan
in accordance with the provisions of Section 3.02. A
Participant shall remain a Participant even if he or she no longer
is eligible to accrue additional benefits hereunder, until his or
her Accrued Benefit has been completely distributed from the Plan
or forfeited.
"
Participating Employer " shall mean the Company and each
Affiliate that with the permission of the Committee has approved
the Plan for participation by their Employees.
" Pension
Plan " shall mean The United Illuminating Company Pension Plan,
as amended from time to time.
" Plan "
shall mean The Supplemental Executive Retirement Plan of The United
Illuminating Company (also know as The United Illuminating Company
Supplemental Executive Retirement Plan), as amended from time to
time, and as set forth in this document entitled
“Supplemental Executive Retirement Plan of The United
Illuminating Company – Non-Grandfathered Benefit
Provisions” and the document entitled “Supplemental
Executive Retirement Plan of The United Illuminating Company -
Grandfathered Benefit Provisions.”
" Plan
Year " shall mean a period of one year commencing with January
1.
“
Separation from Service ” shall mean a Separation from
Service within the meaning of Code Section 409A and related
regulations. The Committee will determine, in accordance
with Code Section 409A, whether a Separation from Service has
occurred.
(i) An Employee incurs a Separation
from Service upon termination of employment with the
Employer. Except in the case of an Employee on a bona
fide leave of absence as provided below, an Employee is deemed to
have incurred a Separation from Service if the Employer and the
Employee reasonably anticipated that the level of services to be
performed by the Employee after a date certain would be reduced to
20% or less of the average services rendered by the Employee during
the immediately preceding 36-month period (or the total period of
employment, if less than 36 months), disregarding periods during
which the Employee was on a bona fide leave of absence.
(ii) An Employee who is absent from
work due to military leave, sick leave, or other bona fide leave of
absence shall incur a Separation from Service on the first date
immediately following the later of the six-month anniversary of the
commencement of the leave or the expiration of the Employee’s
right, if any, to reemployment under statute or
contract.
(iii) For purposes of determining
whether a Separation from Service has occurred, the Employer means
the Employer as defined in this Article II, except that for
purposes of determining whether another organization is an
Affiliate of the Company, common ownership of at least 50% shall be
determinative.
(iv) The Committee specifically
reserves the right to determine whether a sale or other disposition
of substantial assets to an unrelated party constitutes a
Separation from Service with respect to a Participant providing
services to the seller immediately prior to the transaction and
providing services to the buyer after the
transaction. Such determination shall be made in
accordance with the requirements of Code Section 409A.
“
Specified Employee ” means a Specified Employee as
defined for purposes of Code Section 409A and related
regulations. Specified Employee means an Employee who,
as of the date of his or her Separation from Service, is a
“key employee” of the Company or any Affiliate, any
stock of which is actively traded on an established securities
market or otherwise. An Employee is a key employee if he
or she meets the requirements of Code Section 416(i)(1)(A)(i),
(ii), or (iii) (applied in accordance with applicable regulations
thereunder and without regard to Code Section 416(i)(5)) at any
time during the 12-month period ending on the Specified Employee
Identification Date. Such Employee shall be treated as a
key employee for the entire 12-month period beginning on the
Specified Employee Effective Date. In the event of
corporate transactions described in Treasury Regulation Section
1.409A-1(i)(6), the identification of Specified Employees shall be
determined in accordance with the default rules described therein,
unless the Committee elects to utilize the available alternative
methodology through designations made within the timeframes
specified therein. For purposes of this definition,
Specified Employee Effective Date means the first day of the fourth
month following the Specified Employee Identification Date, or such
earlier date as is selected by the Committee; and Specified
Employee Identification Date means December 31, unless the
Committee has elected a different date through action that is
legally binding with respect to all nonqualified deferred
compensation plans maintained by the Company.
"
Supplemental Pension Benefit " shall mean the benefit
determined in accordance with the provisions of Article
IV.
ARTICLE III
ELIGIBILITY TO
PARTICIPATE
3.01
Eligibility Requirements .
(a) An Employee shall be eligible to
participate in this portion of the Plan with respect to the
benefits provided under Article IV if he or she is:
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(1) an elected officer or a
Management Executive of an Employer; and
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(2) is a participant in the Pension
Plan; and
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has annual
Compensation in excess of the limit that can be recognized under
Section 401(a)(17) of the Code for purposes of the Pension Plan;
or
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has an accrued
benefit under the Pension Plan that has been limited under Section
415 of the Code; or
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has made salary
or short-term incentive deferrals under the UIL Deferred
Compensation Plan, which amounts cannot be taken into account as
‘compensation’ for the Pension Plan; or
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is entitled to
a supplemental, non-qualified pension benefit which is calculated
by reference to the Pension Plan pursuant to the terms of his or
her employment agreement, severance agreement or early retirement
incentive package, as applicable (a “contract
adjustment”), that constitutes deferred compensation within
the meaning of Code Section 409A and which is not actually paid, or
by its terms to be paid, from other than this Plan, in which case
the terms of said contract adjustment are incorporated herein by
reference.
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Notwithstanding
the foregoing, on and after the date hereof, no eligible Employee
shall become a Participant unless and until the Committee has
affirmatively designated the Employee as a Participant in the Plan
and has designated the effective date of participation.
(b) Unless otherwise expressly
provided by the Committee, in the event that a Participant ceases
benefit accruals or is otherwise no longer an active participant in
the qualified Pension Plan, the Participant shall cease future
benefit accruals under this Plan as well.
3.02
Effective Date of Participation . Each
Participant in the Plan as of December 31, 2004 shall continue
as a Participant in this portion of the Plan as of January 1,
2005. Each other eligible Employee shall become a
Participant in this portion of the Plan as of the date on which he
or she meets the eligibility requirements specified in Section
3.01(a) and has been designated as a Participant by the
Committee.
3.03
Termination of Participation . A Participant
shall cease to accrue benefits hereunder as of the date he or she
ceases to meet the above eligibility requirements; provided,
however, that accrued benefits as of such date shall not be reduced
and shall be paid as provided herein.
ARTICLE IV
SUPPLEMENTAL PENSION
BENEFIT
4.01
Eligibility for Supplemental Pension Benefit . No
Participant shall be entitled to Supplemental Pension Benefits
under this Plan unless that individual is a participant in the
Pension Plan and has been credited with at least five (5) years of
Vesting Service with the Company or another Participating Employer
(as determined under the Pension Plan).
If a
Participant’s employment with the Company or any
Participating Employer shall terminate in such manner (whether by
death, Disability, retirement or otherwise) as to render the
Participant or the Participant’s Beneficiary eligible to
receive benefits under the Pension Plan, as of the date of the
Participant’s Separation from Service date, the Participant
or the Participant’s Beneficiary shall be eligible to receive
a Supplemental Pension Benefit.
Notwithstanding
anything to the contrary herein, in the event a Participant’s
employment with the Company (or any other Participating Employer)
is terminated by the Company (or other Participating Employer) for
Cause or voluntarily by the Participant without timely notice (as
determined by the Committee and in accordance with the terms of the
Participant’s employment agreement, if applicable), the
Participant’s Supplemental Pension Benefit hereunder shall be
forfeited and no benefits hereunder shall be paid to such
Participant or such Participant’s Beneficiary.
4.02
Calculation of Non-Grandfathered Supplemental Pension
Benefit . A Participant's Supplemental Pension
Benefit under this portion of the Plan (“Non-Grandfathered
Benefit”) shall equal the excess, if any, of (a) minus (b)
where:
(a) is the annual benefit, expressed
as a life annuity commencing at the Participant Normal Retirement
Date (as defined for purposes of the Pension Plan) to which the
Participant (or a Participant's Beneficiary) would be entitled
under the Pension Plan as of the date of such Participant's
Separation from Service, determined:
(i) without the limitation on annual
compensation imposed by Section 401(a)(17) of the Code;
(ii) without the limitation on annual
benefits imposed by Section 415 of the Code;
(iii) based on Compensation as
defined for purposes of this portion of the Plan; and
(iv) with any enhanced formula (e.g.,
a 2% benefit multiplier instead of 1.6%), enhanced compensation
and/or imputed years of service included for benefit accrual
purposes as provided in the Participant’s contract adjustment
(as provided in Section 3.01(a)(iv)), the terms of which are
incorporated herein by reference;
(b) is the annual benefit, if any,
expressed as a life annuity commencing at the Participant’s
Normal Retirement Date, which is derived from Employer
contributions and which is payable to a Participant (or a
Participant's Beneficiary) under the Pension Plan as of the date of
the Participant's Separation from Service. Such benefit
shall be calculated:
(i) with the limitation on annual
compensation imposed by Section 401(a)(17) of the Code;
(ii) with the limitation on annual
benefits imposed by Section 415(b) and Section 415(e) of the Code;
and
(iii) based on compensation as
defined for purposes of the Pension Plan.
Notwithstanding
the foregoing, if a Participant has a Grandfathered Benefit, as
provided under the Plan document entitled “Supplemental
Executive Retirement Plan of The United Illuminating Company -
Grandfathered Benefit Provisions,” such Participant’s
Non-Grandfathered Benefit under this portion of the Plan shall be
the benefit calculated as above, but further reduced by the value
of the Participant’s Grandfathered Benefit, determined as of
the date of such Participant’s Separation from
Service.
4.03
Methodology and Assumptions in Calculating Supplemental Pension
Benefit . The calculation of a Supplemental Pension
Benefit shall be performed by the consulting actuary for the
Pension Plan, and the interpretations of such actuary shall be
final and binding on the Employer, the Participant and the
Participant's Beneficiary. Except as otherwise expressly
provided in a Participant’s contract adjustment, (a) the
early retirement reduction factors and factors to be used in
converting one form of benefit to another will be determined by the
consulting actuary for the Pension Plan on the basis of the
actuarial assumptions provided in the Pension Plan for such
purpose; and (b) all lump sum distributions shall be
calculated as the actuarial equivalent of an annuity payable at
Normal Retirement Date.
ARTICLE V
PERMISSIBLE PAYMENT EVENTS;
ELECTIONS REQUIRED OF PARTICIPANTS
5.01
Payment Events . Non-Grandfathered Supplemental
Pension Benefits shall become payable, if at all, upon the
Participant’s Separation from Service (whether on account of
death, Disability, retirement or otherwise). &n
