Exhibit 10a
ATLANTA GAS LIGHT COMPANY
NONQUALIFIED SAVINGS PLAN
July, 1995
ATLANTA GAS LIGHT COMPANY
NONQUALIFIED SAVINGS PLAN
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Account . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Active Participant. . . . . . . . . . . . . . . . . . . 1
1.3 Administrative Committee. . . . . . . . . . . . . . . . 1
1.4 Affiliate . . . . . . . . . . . . . . . . . . . . . . . 1
1.5 Before Tax Account. . . . . . . . . . . . . . . . . . . 1
1.6 Before Tax Contributions. . . . . . . . . . . . . . . . 1
1.7 Before Tax Deferral Election. . . . . . . . . . . . . . 1
1.8 Beneficiary . . . . . . . . . . . . . . . . . . . . . . 1
1.9 Board . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.10 Break in Service. . . . . . . . . . . . . . . . . . . . 2
1.11 Change in Control . . . . . . . . . . . . . . . . . . . 2
1.12 Code. . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.13 Company Contributions . . . . . . . . . . . . . . . . . 5
1.14 Company Stock . . . . . . . . . . . . . . . . . . . . . 5
1.15 Compensation. . . . . . . . . . . . . . . . . . . . . . 5
1.16 Contributions . . . . . . . . . . . . . . . . . . . . . 5
1.17 Controlling Company . . . . . . . . . . . . . . . . . . 5
1.18 Covered Employee. . . . . . . . . . . . . . . . . . . . 5
1.19 Deferral Election . . . . . . . . . . . . . . . . . . . 5
1.20 Disability or Disabled. . . . . . . . . . . . . . . . . 6
1.21 Effective Date. . . . . . . . . . . . . . . . . . . . . 6
1.22 Eligibility Service . . . . . . . . . . . . . . . . . . 6
1.23 Employee. . . . . . . . . . . . . . . . . . . . . . . . 6
1.24 Entry Date. . . . . . . . . . . . . . . . . . . . . . . 6
1.25 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.26 Forfeiture. . . . . . . . . . . . . . . . . . . . . . . 6
1.27 Hour of Service . . . . . . . . . . . . . . . . . . . . 6
1.28 Leave of Absence. . . . . . . . . . . . . . . . . . . . 7
1.29 Matching Account. . . . . . . . . . . . . . . . . . . . 8
1.30 Matching Contributions. . . . . . . . . . . . . . . . . 8
1.31 Maternity or Paternity Leave. . . . . . . . . . . . . . 8
1.32 Named Fiduciary . . . . . . . . . . . . . . . . . . . . 8
1.33 Normal Retirement Age . . . . . . . . . . . . . . . . . 8
1.34 Participant . . . . . . . . . . . . . . . . . . . . . . 8
1.35 Participating Company . . . . . . . . . . . . . . . . . 8
1.36 Plan. . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.37 Plan Year . . . . . . . . . . . . . . . . . . . . . . . 8
1.38 Qualified Separation. . . . . . . . . . . . . . . . . . 8
1.39 Qualified Spousal Waiver. . . . . . . . . . . . . . . . 8
1.40 Spouse or Surviving Spouse. . . . . . . . . . . . . . . 8
1.41 Retirement Savings Plus Plan or RSP . . . . . . . . . . 9
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1.42 Trust or Trust Agreement. . . . . . . . . . . . . . . . 9
1.43 Trustee . . . . . . . . . . . . . . . . . . . . . . . . 9
1.44 Trust Fund. . . . . . . . . . . . . . . . . . . . . . . 9
1.45 Valuation Date. . . . . . . . . . . . . . . . . . . . . 9
1.46 Year of Vesting Service . . . . . . . . . . . . . . . . 9
ARTICLE II ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . .10
2.1 Initial Eligibility Requirements. . . . . . . . . . . .10
(a) General Rule . . . . . . . . . . . . . . . . . . .10
(b) New Participating Companies. . . . . . . . . . . .10
2.2 Treatment of Interruptions of Service . . . . . . . . .10
(a) Leave of Absence . . . . . . . . . . . . . . . . .10
(b) Reemployment Before Break in Service . . . . . . .10
(c) Reemployment After Break in Service. . . . . . . .10
(d) Reparticipation Upon Reemployment. . . . . . . . .10
2.3 Change in Status. . . . . . . . . . . . . . . . . . . .10
(a) Loss of Covered Employee Status. . . . . . . . . .10
(b) Change to Covered Employee Status. . . . . . . . .11
(c) Change by Participant. . . . . . . . . . . . . . .11
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . .12
3.1 Before Tax Contributions. . . . . . . . . . . . . . . .12
(a) Before Tax Contributions . . . . . . . . . . . . .12
(b) Deferral Elections . . . . . . . . . . . . . . . .12
3.2 Matching Contributions. . . . . . . . . . . . . . . . .13
3.3 Form of Contributions . . . . . . . . . . . . . . . . .13
3.4 Timing of Contributions . . . . . . . . . . . . . . . .13
ARTICLE IV PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS . . .14
4.1 Establishment of Participants' Accounts . . . . . . . .14
4.2 Allocation and Crediting of Before Tax and Matching
Contributions . . . . . . . . . . . . . . . . . . . . .14
4.3 Allocation and Crediting of Investment Experience . . .14
(a) Determination of Earnings or Losses. . . . . . . .14
(b) Formula For Allocation . . . . . . . . . . . . . .14
4.4 Notice to Participants of Account Balances. . . . . . .15
4.5 Good Faith Valuation Binding. . . . . . . . . . . . . .15
4.6 Errors and Omissions in Accounts. . . . . . . . . . . .15
ARTICLE V INVESTMENT OF ACCOUNTS. . . . . . . . . . . . . . . . .16
5.1 Establishment of Trust Fund . . . . . . . . . . . . . .16
(a) No Trust Required. . . . . . . . . . . . . . . . .16
(b) Rabbi Trust Permitted. . . . . . . . . . . . . . .16
(c) Trust Required Upon Change in Control. . . . . . .16
5.2 Investment of Trust Fund. . . . . . . . . . . . . . . .16
5.3 Acquisition of Company Stock. . . . . . . . . . . . . .16
(a) In General . . . . . . . . . . . . . . . . . . . .16
(b) Stock Rights, Warrants or Options. . . . . . . . .16
5.5 Value of Assets . . . . . . . . . . . . . . . . . . . .17
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ARTICLE VI VESTING IN ACCOUNTS . . . . . . . . . . . . . . . . . .18
6.1 General Vesting Rule. . . . . . . . . . . . . . . . . .18
6.2 Vesting Upon Attainment of Normal Retirement Age,
Disability or Death . . . . . . . . . . . . . . . . . .18
6.3 Timing of Forfeitures . . . . . . . . . . . . . . . . .18
ARTICLE VII PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . .19
7.1 Benefit Payments Upon Termination of Service For
Reasons Other Than Death. . . . . . . . . . . . . . . .19
(a) General Rule Concerning Benefits Payable . . . . .19
(b) Timing of Distribution . . . . . . . . . . . . . .19
7.2 Death Benefits. . . . . . . . . . . . . . . . . . . . .19
7.3 Form of Distribution. . . . . . . . . . . . . . . . . .19
7.4 Beneficiary Designation . . . . . . . . . . . . . . . .19
(a) General. . . . . . . . . . . . . . . . . . . . . .19
(b) No Designation or Designee Dead or Missing . . . .20
7.5 Hardship Withdrawals. . . . . . . . . . . . . . . . . .20
(a) Parameters of Hardship Withdrawals . . . . . . . .20
(b) Unforeseeable Emergency. . . . . . . . . . . . . .20
(c) Application for Hardship Withdrawal. . . . . . . .20
(d) Payment of Withdrawal. . . . . . . . . . . . . . .21
7.6 Unclaimed Benefits. . . . . . . . . . . . . . . . . . .21
7.7 Claims. . . . . . . . . . . . . . . . . . . . . . . . .21
(a) Procedure. . . . . . . . . . . . . . . . . . . . .21
(b) Review Procedure . . . . . . . . . . . . . . . . .21
(c) Satisfaction of Claims . . . . . . . . . . . . . .22
ARTICLE VIII ADMINISTRATION. . . . . . . . . . . . . . . . . . . .23
8.1 Administrative Committee; Appointment and Term of
Office. . . . . . . . . . . . . . . . . . . . . . . . .23
8.2 Organization of Administrative Committee. . . . . . . .23
8.3 Powers and Responsibility . . . . . . . . . . . . . . .23
8.4 Records of Administrative Committee . . . . . . . . . .24
8.5 Reporting and Disclosure. . . . . . . . . . . . . . . .24
8.6 Construction of the Plan. . . . . . . . . . . . . . . .25
8.7 Assistants and Advisers . . . . . . . . . . . . . . . .25
8.8 Direction of Trustee. . . . . . . . . . . . . . . . . .25
8.9 Bonding . . . . . . . . . . . . . . . . . . . . . . . .25
8.10 Indemnification . . . . . . . . . . . . . . . . . . . .25
ARTICLE IX ALLOCATION OF AUTHORITY AND RESPONSIBILITIES. . . . . .27
9.1 Controlling Company and Board . . . . . . . . . . . . .27
(a) General Responsibilities . . . . . . . . . . . . .27
(b) Allocation of Authority. . . . . . . . . . . . . .27
(c) Authority of Participating Companies . . . . . . .27
9.2 Administrative Committee. . . . . . . . . . . . . . . .27
9.3 Trustee . . . . . . . . . . . . . . . . . . . . . . . .27
9.4 Limitations on Obligations of Fiduciaries . . . . . . .27
9.5 Delegation. . . . . . . . . . . . . . . . . . . . . . .28
9.6 Multiple Fiduciary Roles. . . . . . . . . . . . . . . .28
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ARTICLE X AMENDMENT, TERMINATION AND ADOPTION . . . . . . . . . .29
10.1 Amendment . . . . . . . . . . . . . . . . . . . . . . .29
10.2 Termination . . . . . . . . . . . . . . . . . . . . . .29
(a) Right to Terminate . . . . . . . . . . . . . . . .29
(b) Dissolution of Trust . . . . . . . . . . . . . . .29
10.3 Adoption of the Plan by a Participating Company . . . .29
(a) Procedures for Participation . . . . . . . . . . .29
(b) Authority under Plan . . . . . . . . . . . . . . .30
(c) Contributions to Plan. . . . . . . . . . . . . . .30
(d) Withdrawal from Plan . . . . . . . . . . . . . . .30
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . .31
11.1 Nonalienation of Benefits and Spendthrift Clause. . . .31
11.2 Headings. . . . . . . . . . . . . . . . . . . . . . . .31
11.3 Construction, Controlling Law . . . . . . . . . . . . .31
11.4 No Contract of Employment . . . . . . . . . . . . . . .31
11.5 Legally Incompetent . . . . . . . . . . . . . . . . . .31
11.6 Heirs, Assigns and Personal Representatives . . . . . .32
11.7 Unsecured Creditor Rights . . . . . . . . . . . . . . .32
11.8 Legal Action. . . . . . . . . . . . . . . . . . . . . .32
11.9 Severability. . . . . . . . . . . . . . . . . . . . . .32
11.10 Exclusive Benefit; Refund of Contributions. . . . . . .32
11.11 Predecessor Service . . . . . . . . . . . . . . . . . .32
11.12 Plan Expenses . . . . . . . . . . . . . . . . . . . . .32
SCHEDULE A EFFECTIVE DATES FOR PARTICIPATING COMPANIES . . . . . .34
SCHEDULE B ITEMS EXCLUDED FROM "COMPENSATION" UNDER 1.15(3)(i). .35
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ATLANTA GAS LIGHT COMPANY
NONQUALIFIED SAVINGS PLAN
Effective as of the 1st day of July, 1995, ATLANTA GAS LIGHT
COMPANY, a corporation duly organized and existing under the laws of the
State of Georgia (the "Controlling Company"), hereby establishes the Atlanta
Gas Light Company Nonqualified Savings Plan (the "Plan").
STATEMENT OF PURPOSE
A. The primary purpose of the Plan is to recognize the
contributions made to the Controlling Company and its participating
affiliates by certain employees and to reward those contributions by
providing eligible employees with an opportunity to accumulate savings for
their future security.
B. The Plan is intended to be an unfunded nonqualified deferred
compensation plan maintained by the Controlling Company primarily for the
purpose of providing deferred compensation for a select group of management
or highly compensated employees (within the meaning of 201(2), 301(a)(3),
401(a)(1) and 4021(b)(6) of the Employee Retirement Income Security Act of
1974, as amended), and shall be construed in all respects in accordance with
such intended purposes.
C. It is anticipated that the Controlling Company may establish a
trust fund to maintain and invest the amounts contributed to the Plan. Any
such trust fund shall be established under a trust agreement which meets the
requirements of a "rabbi trust," pursuant to guidelines issued by the
Internal Revenue Service (the "IRS").
D. Regardless of the establishment of a trust fund, all assets of
the Plan shall remain assets of the Controlling Company and shall be subject
to the general creditors of the Controlling Company. Participants and
Beneficiaries shall have only the rights of unsecured creditors with respect
to any assets of the Plan.
STATEMENT OF AGREEMENT
In order to establish the Plan with the purposes and goals as
hereinabove described, the Controlling Company hereby sets forth the terms
and provisions of the Plan as follows:
ARTICLE I
DEFINITIONS
For purposes of the Plan, the following terms, when used with an initial
capital letter, shall have the meanings set forth below unless a different
meaning plainly is required by the context.
1.1 Account shall mean, with respect to a Participant or Beneficiary,
the amount of money or other property in the Trust Fund, as is evidenced by
the last balance posted in accordance with the terms of the Plan to the
account record established for such Participant or Beneficiary. The
Administrative Committee may establish and maintain separate subaccounts for
each Participant and Beneficiary, provided allocations are made to such
subaccounts in the manner described in Article IV of the Plan. "Account"
shall refer to the aggregate of all separate subaccounts or to individual,
separate subaccounts, as may be appropriate in context.
1.2 Active Participant shall mean, for any Plan Year (or any portion
thereof), any Covered Employee who is eligible to make contributions to the
Plan for that Plan Year.
1.3 Administrative Committee shall mean the committee designated by the
Board which shall act on behalf of the Controlling Company to administer the
Plan; provided, the Controlling Company may act in lieu of the Administrative
Committee as it deems appropriate or desirable.
1.4 Affiliate shall mean, as of any date, (i) a Participating Company,
and (ii) any company, person or organization which, on such date, (A) is a
member of the same controlled group of corporations [within the meaning of
Code 414(b)] as is a Participating Company; (B) is a trade or business
(whether or not incorporated) which controls, is controlled by or is under
common control with [within the meaning of Code 414(c)] a Participating
Company; (C) is a member of an affiliated service group [as defined in Code
414(m)] which includes a Participating Company; or (D) is required to be
aggregated with a Participating Company pursuant to regulations promulgated
under Code 414(o).
1.5 Before Tax Account shall mean the separate subaccount established
and maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to his Before Tax Contributions.
1.6 Before Tax Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund at the election of Participants, all
pursuant to the terms of 3.1(a).
1.7 Before Tax Deferral Election shall mean a written election by an
Active Participant directing the Participating Company of which he is an
Employee to withhold a percentage of his current Compensation from his
paychecks and to contribute such withheld amount to the Plan as a Before Tax
Contribution, all as provided in 3.1(a) and 3.1(d).
1.8 Beneficiary shall mean the person(s) designated in accordance with
7.4 to receive any death benefits that may be payable under the Plan upon the
death of a Participant.
1.9 Board shall mean the board of directors of the Controlling Company.
A reference to the board of directors of any other Participating Company
shall specify it as such.
1.10 Break in Service shall mean, with respect to an Employee, any year
during which such Employee fails to complete more than 500 Hours of Service;
provided, a Break in Service shall not be deemed to have occurred during any
period for which he is granted a Leave of Absence if he returns to the
service of an Affiliate within the time permitted as set forth in the Plan.
A Break in Service shall be deemed to have commenced on the first day of the
year in which it occurs.
For purposes of determining whether or not an Employee has incurred a
Break in Service, an Employee absent from work due to a Maternity or
Paternity Leave shall be credited with (i) the number of Hours of Service
with which he normally would have been credited but for the Maternity or
Paternity Leave, or (ii) if the Administrative Committee is unable to
determine the hours described in (i), 8 Hours of Service for each day of
absence included in the Maternity or Paternity Leave; provided, the maximum
number of Hours of Service credited for purposes of this Section shall not
exceed 501 hours. Hours of Service so credited shall be applied only to the
year in which the Maternity or Paternity Leave begins, unless such Hours of
Service are not required to prevent the Employee from incurring a Break in
Service, in which event such Hours of Service shall be credited to the
Employee in the immediately following year. No Hour of Service shall be
credited due to Maternity or Paternity Leave as described in this Section
unless the Employee furnishes proof satisfactory to the Administrative
Committee (A) that his absence from work was due to a Maternity or Paternity
Leave and (B) of the number of days he was absent due to the Maternity or
Paternity Leave. The Administrative Committee shall prescribe uniform and
nondiscriminatory procedures by which to make the above determinations.
As used in this Section, the term "year" shall mean the same 12-month
period as forms the basis for determining a Year of Vesting Service.
1.11 Change in Control shall mean:
(a) the occurrence of any one of the following events (the terms
used in this Section 1.11 with an initial capital letter shall have the
meanings set forth in Section 1.11(b) unless otherwise defined in the Plan):
(1) The acquisition by a Person, together with Affiliates and
Associates of such Person, whether by purchase, tender offer, exchange,
reclassification, recapitalization, merger or otherwise, of a sufficient
number of shares of Company Stock or Company Stock Equivalents to constitute
the Person an Acquiring Person; or
(2) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board cease for any reason
to constitute at least a majority thereof, unless the election of each
director who was not a director at the beginning of such period has been
approved in advance by a majority of the Continuing Directors then in office;
or
(3) Any merger or consolidation the result of which is that
less than 90 percent of the common stock, Voting Securities or other equity
interests of the surviving or resulting corporation or other Person shall be
owned in the aggregate by the former shareholders of the Controlling Company,
other than Affiliates or Associates of any party to such merger or
consolidation, as the same shall have existed immediately prior to such
merger or consolidation; or
(4) The sale by the Controlling Company, in one transaction
or a series of related transactions, whether in liquidation, dissolution or
otherwise, of assets or earning power aggregating more than 50 percent of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons.
(b) The following definitions shall apply in determining when a
Change in Control has occurred:
(1) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall become the
Beneficial Owner of 10 percent or more of the shares of Company Stock then
outstanding, but shall not include the Company, any Subsidiary of the
Controlling Company, or any Person who or which, together with all Affiliates
and Associates of such Person, is the Beneficial Owner of 10 percent or more
of the shares of Company Stock as of the effective date of the Plan, any
employee benefit plan of the Company or of any Subsidiary of the Company [if
approved by a majority of the Continuing Directors], or any Person or entity
organized, appointed or established by the Company for or pursuant to the
terms of any such plan.
(2) "Affiliate" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended and in effect on the effective date of the
Plan (the "Exchange Act").
(3) "Associate" shall mean:
(A) Any corporation or organization, or parent or
subsidiary of such corporation or organization, of which a Person is an
officer, director or partner or is, directly or indirectly, the Beneficial
Owner of 10 percent or more of any class of equity securities;
(B) Any trust or other estate in which a Person
has a beneficial interest of 10 percent or more or as to which such Person
serves as trustee or in a similar fiduciary capacity; and
(C) Any brother or sister (whether by whole or
half blood), ancestor, lineal descendant or spouse of a Person, or any such
relative of such spouse.
(4) "Beneficial Owner" shall mean, with respect to any
securities, any Person who, together with such Person's Affiliates and
Associates, directly or indirectly:
(A) Has the right to acquire such securities
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding (whether or not
in writing) or upon the exercise of conversion rights, exchange rights,
rights, warrants or options, or otherwise; provided, a Person shall not be
deemed the Beneficial Owner of, or to Beneficially Own:
(i) Securities acquired by participation in good
faith in a firm commitment underwriting by a Person engaged in business as an
underwriter of securities until the expiration of 40 days after the date of
such acquisition; or
(ii) Securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange; or
(iii) Securities issuable upon exercise of rights
issued to all shareholders generally, which rights are only exercisable upon
separation from the Company Stock, or securities issuable upon exercise of
rights that have separated from the Company Stock upon the occurrence of
events specified in a rights agreement between the Company and a rights
agent;
(B) Has the right to vote or dispose of or has Beneficial
Ownership (as determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act) of such securities, including pursuant to
any agreement, arrangement or understanding, whether or not in writing;
provided, a Person shall not be deemed the Beneficial Owner of, or to
Beneficially Own, any security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such security if such
agreement, arrangement or understanding:
(i) Arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act; and
(ii) Is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor report);
or
(C) With respect to any securities which are Beneficially
Owned, directly or indirectly, by any other Person (or any Affiliate or
Associate thereof), has any agreement, arrangement or understanding (whether
or not in writing), for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described herein or disposing of any voting
securities of the Company.
(5) "Company Stock Equivalents" shall mean preferred stock or
other entity securities of the Controlling Company having the right to be
converted by the holders thereof into shares of Company Stock, or having the
right to vote generally for the election of directors and on other matters.
For purposes of determining the total amount of Company Stock and Company
Stock Equivalents owned by any Person, such Company Stock Equivalents shall
be equal to the number of shares into which they may be converted by the
holders thereof, or in the case of securities that are not convertible having
the right to vote, shall be equal to the number of votes they are entitled to
cast in elections for directors.
(6) "Continuing Director" shall mean:
(A) Any member of the Board who is not an Acquiring
Person, or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or Associate,
and was a member of the Board prior to the effective date of the Plan; or
(B) Any Person who subsequently becomes a member of the
Board who is not an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, if such Person's nomination for election or election
to the Board is recommended or approved by a majority of the Continuing
Directors.
(7) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(8) "Subsidiary" shall mean any corporation, partnership,
joint venture, trust or other entity more than 50 percent of the Voting
Securities of which are Beneficially Owned, directly or indirectly, by a
Person.
(9) "Voting Securities" shall mean any class of then
outstanding shares of stock or other beneficial interests entitled to vote in
election of directors or other Persons charged with management of a Person."
1.12 Code shall mean the Internal Revenue Code of 1986, as amended, and
any succeeding federal tax provisions.
1.13 Company Contributions shall mean Before Tax and Matching
Contributions made by the Participating Companies pursuant to the terms of
the Plan.
1.14 Company Stock shall mean the common stock of the Controlling
Company.
1.15 Compensation shall mean, for any Plan Year, the total of the
amounts described in subsections (1) and (2), minus the amount described in
subsection (3):
(1) all such Participant's wages, as defined in Code 3401(a)
for purposes of income tax withholding at the source, that are reportable
for federal income tax purposes on IRS Form W-2, but determined without
regard to any rules that limit the remuneration included in wages based on
the nature or location of the employment or the services performed (such as
the exception for agricultural labor in Code 3401(a)(2); plus
(2) all before-tax, salary deferral or reduction
contributions made to the Plan and other 401(k) and 125 plans (such as the
Controlling Company's Flex Plan) of the Participating Companies on behalf of
a Participant for such Plan Year [including any contributions made under Code
402(a)(8) or 402(h)]; minus
(3) the following: (i) items listed on the attached Schedule
B, (ii) any other nonperiodic compensation otherwise reportable for federal
income tax purposes, and (iii) any amounts paid or made available to a
Participant during the Plan Year while he is not an Active Participant.
1.16 Contributions shall mean, individually or collectively, the Before
Tax and Matching Contributions permitted under the Plan.
1.17 Controlling Company shall mean the Atlanta Gas Light Company, a
Georgia corporation with its principal office in Atlanta, Georgia, and its
successors.
1.18 Covered Employee shall mean any Employee of a Participating Company
who as of the last day of the second calendar month immediately preceding a
respective Entry Date, had annual base salary in an amount equal to or in
excess of the compensation limit designated by the IRS for determining
"highly compensated employee" under Code 414(q)(1)(C) plus $10,000 (for
example, the 1995 IRS limit is $66,000 plus $10,000 = $76,000).
1.19 Deferral Election shall mean a written election by an Active
Participant directing the Participating Company of which he is an Employee to
withhold a percentage of his current Compensation from his paychecks and to
contribute such withheld amount to the Plan as a Before Tax Contribution, all
as provided in 3.1.
1.20 Disability or Disabled shall mean that a Participant is (i) wholly
prevented from engaging in any substantially gainful activity by reason of a
medically-determinable physical or mental impairment which can be expected to
result in death or to be of long-continued and indefinite duration, and (ii)
determined eligible to receive long term disability benefits from a
Participating Company's long term disability plan, or if no such plan exists,
upon the discretionary determination by the Administrative Committee that the
employee meets the definition of "disabled" under the Controlling Company's
long-term disability plan.
1.21 Effective Date shall mean July 1, 1995, the date that this Plan
initially shall be effective. The effective date of participation in the
Plan for each Participating Company shall be the date set forth with respect
to the Participating Company in Schedule A hereto.
1.22 Eligibility Service shall mean a 6-consecutive-month period during
which an Employee completes no less than 500 Hours of Service; for this
purpose, the computation period initially shall be the 6-consecutive-month
period beginning on the date the Employee's employment or reemployment
commences and thereafter shall be each subsequent 6-consecutive-month period,
beginning on the first day of each succeeding month.
1.23 Employee shall mean any individual who is a common law employee of
a Participating Company (including officers, but excluding directors who are
not officers or otherwise employees).
1.24 Entry Date shall mean every January 1, April 1, July 1 and October
1 during the period in which the Plan remains in effect.
1.25 ERISA shall mean the Employee Retirement Income Security Act of
1974, as amended.
1.26 Forfeiture shall mean, for any Plan Year, the nonvested dollar
amount of an Account of a former Participant which is removed from the
Account during such Plan Year. Forfeitures shall be used to reduce Matching
Contributions.
1.27 Hour of Service shall mean the increments of time described in
subsection (a) hereof, as modified by subsections (b), (c) and (d) hereof:
(a) (1) Each hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Affiliate during the applicable
computation period;
(2) Each hour for which an Employee is paid, or entitled to
payment, by an Affiliate on account of a period of time during which no
duties are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or Leave of Absence; provided:
(A) No more than 501 Hours of Service shall be credited
under this subsection (2) to an Employee for any single continuous period
during which he performs no duties as an employee of an Affiliate (whether or
not such period occurs in a single computation period);
(B) An hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a period during which
he performs no duties as an employee of an Affiliate shall not be credited as
an Hour of Service if such payment is made or due under a plan maintained
solely to comply with applicable workers' compensation, unemployment
compensation or disability insurance laws; and
(C) Hours of Service shall not be credited to an
Employee for a payment which solely reimburses such Employee for medical or
medically related expenses incurred by him.
For purposes of this subsection (2), a payment shall be deemed to be made by
or due from an Affiliate regardless of whether such payment is made by or due
from an Affiliate directly, or indirectly through, among others, a trust fund
or insurer, to which the Affiliate contributes or pays premiums and
regardless of whether contributions made or due to the trust fund, insurer or
other entity are for the benefit of particular employees or are on behalf of
a group of employees in the aggregate; and
(3) Each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Affiliate; provided, the
same Hours of Service shall not be credited both under subsection (1) or
subsection (2), as the case may be, and under this subsection (3); and,
provided further, crediting of Hours of Service for back pay awarded or
agreed to with respect to periods described in subsection (2) shall be
subject to the limitations set forth in that subsection.
(b) Each Employee for whom an Affiliate does not keep records of
actual Hours of Service shall be credited, in accordance with this Section
and applicable regulations promulgated by the Department of Labor, with 45
Hours of Service for each week for which such Employee would be required to
be credited with at least 1 Hour of Service.
(c) The rate or manner used for crediting Hours of Service may be
changed at the direction of the Administrative Committee from time to time so
as to facilitate administration and to equitably reflect the purposes of the
Plan; provided, no change shall be effective as to any Plan Year for which
allocations have been made pursuant to Article IV at the time such change is
made; and, provided further, Hours of Service shall be credited and
determined in compliance with Department of Labor Regulation 2530.200b-2(b)
and (c), 29 CFR Part 2530, as may be amended from time to time, or such other
federal regulations as may from time to time be applicable.
(d) For purposes of this Section, a "computation period" shall
mean the 12-month period that forms the basis for determining an Employee's
Years of Eligibility Service or Years of Vesting Service, whichever is
applicable.
1.28 Leave of Absence shall mean an excused leave of absence granted to
an Employee by an Affiliate in accordance with applicable federal or state
law or the Affiliate's personnel policy. Among other things, Leave of
Absence shall be granted to an Employee:
(a) who leaves the service of an Affiliate, voluntarily or
involuntarily, to enter the Armed Forces of the United States; provided, (i)
the Employee is legally entitled to reemployment under the veteran's
reemployment rights provisions as codified at 38 USC 2021, et seq., its
predecessors and successors; and (ii) the Employee applies for and reenters
service with an Affiliate within the time, in the manner and under the
conditions prescribed by law;
(b) for any time such Employee is drawing workers' compensation
benefits or is sick, disabled or incapacitated, if he is thereby precluded
from properly performing his assigned duties for a temporary period of time;
and
(c) under such other circumstances as the Administrative Committee
shall determine are fair, reasonable and equitable as applied uniformly among
Employees under similar circumstances.
1.29 Matching Account shall mean the separate subaccount established and
maintained on behalf of a Participant or his Beneficiary to reflect his
interest in the Trust Fund attributable to Matching Contributions.
1.30 Matching Contributions shall mean the amounts paid by each
Participating Company to the Trust Fund as a match to Participants' Before
Tax Contributions, all as pursuant to the terms of 3.2.
1.31 Maternity or Paternity Leave shall mean any period, during which an
Employee is absent from work as an employee of an Affiliate (i) because of
the pregnancy of such Employee; (ii) because of the birth of a child of such
Employee; (iii) because of the placement of a child with such Employee in
connection with the adoption of such child by such Employee; or (iv) for
purposes of such Employee caring for a child immediately after the birth or
placement of such child.
1.32 Named Fiduciary shall mean the Controlling Company, the Board, the
Trustee, and the Administrative Committee.
1.33 Normal Retirement Age shall mean age 65.
1.34 Participant shall mean any person who has an Account under the Plan.
1.35 Participating Company shall mean all companies which have adopted
or hereafter may adopt the Plan for the benefit of their employees and which
continue to participate in the Plan, all as provided in 10.3.
1.36 Plan shall mean the Atlanta Gas Light Company Nonqualified Savings
Plan as contained herein and all amendments thereto. The Plan is intended to
be an unfunded nonqualified deferred compensation plan for the benefit of a
select group of management or highly compensated employees.
1.37 Plan Year shall mean July 1 through December 31, 1995, and
thereafter, each 12-month period beginning on January 1 and ending on
December 31.
1.38 Qualified Separation shall mean a separation by an employee from
the active employ of an Affiliate (i) on or after his obtaining Normal
Retirement Age, (ii) on account of his becoming Disabled, (iii) due to his
death, or (iv) on account of a Leave of Absence or Maternity or Paternity
Leave.
1.39 Qualified Spousal Waiver shall mean a written election executed by
a Spouse, delivered to the Administrative Committee and witnessed by a notary
public or a representative of the Administrative Committee, which consents to
the payment of all or a specified portion of a Participant's death benefit to
a Beneficiary other than such Spouse and which acknowledges that such Spouse
has waived his right to be the Participant's Beneficiary under the Plan. A
Qualified Spousal Waiver shall be valid only with respect to the Spouse who
signs it and shall apply only to the alternative Beneficiary designated
therein, unless the written election expressly permits other designations
without further consent of the Spouse. A Qualified Spousal Waiver shall be
irrevocable unless revoked by the Participant by way of (i) a written
statement executed by the Participant and delivered to the Administrative
Committee or (ii) a written revocation of the nonspouse Beneficiary
designation to which such Spouse has consented; provided, any such revocation
must be received by the Administrative Committee prior to the Participant's
date of death.
1.40 Spouse or Surviving Spouse shall mean, with respect to a
Participant, the person who is treated as married to such Participant under
the laws of the state in which the Participant resides. The determination of
a Participant's Spouse or Surviving Spouse shall be made as of the earlier of
the date as of which benefit payments from the Plan to such Participant are
made or commence (as applicable) or the date of such Participant's death. In
addition, a Participant's former spouse shall be treated as his Spouse or
Surviving Spouse to the extent provided under a qualified domestic relations
order, as defined in Code 414(p).
1.41 Retirement Savings Plus Plan or RSP shall mean the Atlanta Gas
Light Company Retirement Savings Plus Plan.
1.42 Trust or Trust Agreement shall mean a separate agreement between
the Controlling Company and the Trustee governing the creation of the Trust
Fund, and all amendments thereto.
1.43 Trustee shall mean the party or parties so designated from time to
time pursuant to the Trust Agreement.
1.44 Trust Fund shall mean the total amount of cash and other property
held by the Trustee (or any nominee thereof) at any time under the Trust
Agreement.
1.45 Valuation Date shall mean every March 31, June 30, September 30 and
December 31 during the period in which the Plan remains in effect and each
interim date on which a valuation of the Trust Fund is made.
1.46 Year of Vesting Service shall mean a Plan Year during which an
Employee completes no less than 1,000 Hours of Service; provided:
(a) Years of Vesting Service completed prior to a period in which
the Participant incurred 5 or more consecutive Breaks in Service shall be
disregarded under the Plan if the Participant had no vested interest in his
Account at the time the first such Break in Service commenced and the number
of such consecutive Breaks in Service equals or exceeds the number of his
prior Years of Vesting Service;
(b) Years of Vesting Service completed after a period in which the
Participant had at least 5 consecutive Breaks in Service shall be disregarded
for the purpose of determining his vested interest in that portion of his
Account which accrued before such Breaks in Service; and
(c) For purposes of this Section, employment with an Affiliate
shall be considered employment with the Company, and in the case of a leased
employee (within the meaning of Code 414(n)) of any Affiliate, such leased
employee shall be considered as being a leased employee of the Company.
ARTICLE II
ELIGIBILITY
2.1 Initial Eligibility Requirements.
(a) General Rule. Except as provided in subsection (b) hereof,
every Covered Employee shall become an Active Participant in the Plan on the
Entry Date coinciding with or next following the date on which he first has
completed Eligibility Service and attained age 21, provided he is a Covered
Employee on such date.
(b) New Participating Companies. For employees of companies that
become Participating Companies after the Effective Date, each Covered
Employee employed by a Participating Company on the date such Participating
Company first becomes a Participating Company shall become an Active
Participant as of such Participating Company's effective date under the Plan,
if, as of the Participating Company's effective date, the Covered Employee
has completed Eligibility Service and has attained age 21.
2.2 Treatment of Interruptions of Service.
(a) Leave of Absence. If a Covered Employee satisfies the
eligibility requirements set forth in 2.1 but is on a Leave of Absence on
the Entry Date on which he otherwise would have become an Active Participant,
he shall become an Active Participant as of the date he subsequently resumes
the performance of duties as a Covered Employee in accordance with the terms
of his Leave of Absence.
(b) Reemployment Before Break in Service. If a Covered Employee
satisfies the eligibility requirements set forth in 2.1, separates from
service with a Participating Company (and all other Participating Companies)
before the Entry Date on which he otherwise would become an Active
Participant, and then is reemployed by a Participating Company prior to
completing a Break in Service, he shall become an Active Participant as of
the later of (i) the Entry Date on which he otherwise would have become an
Active Participant if he had not separated from service or (ii) the date he
is reemployed as a Covered Employee.
(c) Reemployment After Break in Service. If a Covered Employee
satisfies the eligibility requirements set forth in 2.1, separates from
service with a Participating Company (and all other Participating Companies)
before the Entry Date on which he otherwise would become an Active
Participant, and then is reemployed as a Covered Employee by a Participating
Company after completing a Break in Service, he shall become an Active
Participant as of the Entry Date coinciding with or next following his
completion of Eligibility Service after his reemployment following the last
such Break in Service.
(d) Reparticipation Upon Reemployment. If an Active Participant
separates from service with a Participating Company (and all other
Participating Companies), his active participation in the Plan shall cease
immediately, and he again shall become an Active Participant as of the day he
is reemployed as a Covered Employee, regardless of whether he has received a
distribution of his Account balance under the Plan at the time of his
reemployment. However, regardless of whether he again becomes an Active
Participant, he shall continue to be a Participant until he no longer has an
Account under the Plan.
2.3 Change in Status.
(a) Loss of Covered Employee Status. If a Covered Employee (i)
satisfies the eligibility requirements set forth in 2.1, (ii) changes his
employment status (but remains employed) so that he ceases to be a
Covered Employee before the Entry Date on which he otherwise would become an
Active Participant, and (iii) then again changes his employment status and
becomes a Covered Employee prior to completing a Break in Service, he shall
become an Active Participant as of the later of (A) the Entry Date on which
he otherwise would have become an Active Participant if he had not ceased to
be a Covered Employee or (B) the date he again becomes a Covered Employee.
If an Employee covered by this Section does complete a Break in Service prior
to again becoming a Covered Employee, his entry to participation in the Plan
will be governed by 2.2(c).
(b) Change to Covered Employee Status. If an Employee who first
satisfies the eligibility requirements of 2.1 while he is not a Covered
Employee subsequently changes his employment status so that he becomes a
Covered Employee, he shall become an Active Participant on the Entry Date
coinciding with or next following his change in status. If, on such date, he
has not satisfied the eligibility requirements of 2.1 or is not a Covered
Employee, he shall become an Active Participant on the Entry Date coinciding
with or next following the date he satisfies the eligibility requirements of
2.1; provided, he is a Covered Employee on such Entry Date.
(c) Change by Participant. If an Active Participant changes his
status of employment (but remains employed) so that he is no longer a Covered
Employee, his active participation in the Plan shall cease immediately, and
he shall again become an Active Participant in the Plan as of the day he
again becomes a Covered Employee. However, regardless of whether he again
becomes an Active Participant, he shall continue to be a Participant until he
no longer has an Account under the Plan.
ARTICLE III
CONTRIBUTIONS
3.1 Before Tax Contributions.
(a) Before Tax Contributions. Each Participating Company shall
contribute to the Plan, on behalf of each Active Participant employed by such
Participating Company and for each payroll period for which such Active
Participant has a Before Tax Deferral Election in effect with such
Participating Company, a Before Tax Contribution in an amount equal to the
amount by which such Active Participant's Compensation has been reduced for
such period pursuant to his Before Tax Deferral Election. The amount of the
Before Tax Contribution shall be determined in percentage increments of such
Active Participant's Compensation for each payroll period. The Active
Participant may elect to reduce his Compensation for any period by a maximum
of 15 percent; provided, that the total of the Active Participant's Before
Tax Contributions to the Plan and to the Retirement Savings Plus Plan shall
not exceed 15 percent of his Compensation.
(b) Deferral Elections. Each Active Participant, who desires that
his Participating Company make a Before Tax Contribution on his behalf, shall
complete and deliver to the Participating Company (or its designee) a Before
Tax Deferral Election. Such Deferral Election shall provide for the
reduction of his Compensation for each payroll period ending or occurring
while he is an Active Participant employed by such Participating Company.
The Administrative Committee, in its sole discretion, shall prescribe the
form of all Deferral Elections and may prescribe such nondiscriminatory terms
and conditions governing the use of the Deferral Elections as it deems
appropriate. Subject to any modifications, additions or exceptions which the
Administrative Committee, in its sole discretion, deems necessary,
appropriate or helpful, the following terms shall apply to Deferral
Elections:
(1) Effective Date. An Active Participant's initial Deferral
Election with a Participating Company shall be effective for the first
payroll period which ends after the Deferral Election is made and after the
effective date of such Deferral Election. If an Active Participant fails to
submit a Deferral Election in a timely manner, he shall be deemed to have
elected a deferral of zero percent. For purposes of this subsection, the
"effective date" of a Deferral Election shall mean: (A) for a Participant
who commences participation in the Plan on an Entry Date, that Entry Date;
and (B) for a Participant who commences or recommences participation in the
Plan on a date other than an Entry Date, the Entry Date next following the
Participant's commencement of participation in the Plan.
(2) Term. Each Active Participant's Deferral Election with a
Participating Company shall remain in effect in accordance with its original
terms until the earlier of (A) the date the Active Participant ceases to be
an Employee of all Participating Companies, (B) the date the Active
Participant revokes such Deferral Election pursuant to the terms of
subsection (b)(3) hereof, or (C) the date the Active Participant or the
Administrative Committee modifies such Deferral Election pursuant to the
terms of subsection (b)(4) or (b)(5) hereof. If a Participant is transferred
from the employment of a Participating Company to the employment of another
Participating Company, his Deferral Election with the first Participating
Company will remain in effect and will apply to his Compensation from the
second Participating Company until the earlier of (A), (B) or (C) of the
preceding sentence.
(3) Revocation. An Active Participant's Deferral Election
with a Participating Company shall terminate upon his ceasing to be an
Employee of such Participating Company. In addition, an Active Participant
may revoke his Before Tax Deferral Election with a Participating Company by
delivering a
written notice of revocation to such Participating Company (or its designee),
and such revocation shall be effective as soon as practicable after the date
on which it is received by such Participating Company. An Active Participant
who revokes a Before Tax Deferral Election may not enter into a new Deferral
Election until the second calendar quarter following the revocation; such new
Deferral Election shall then be effective for the first payroll period which
begins after the new Deferral Election is made and the applicable March 31,
June 30, September 30 and December 31. The Participant shall deliver the new
Deferral Election to his Participating Company (or its designee) at least 30
days (or such lesser period as the Administrative Committee may permit)
before such March 31, June 30, September 30 and December 31.
(4) Modification by Participant. Effective for the first
payroll period which begins after a new Deferral Election is made and after
any March 31, June 30, September 30 and December 31, an Active Participant
may modify any of his existing Deferral Elections to increase or decrease the
percentage of his Before Tax Contributions by delivering the new Deferral
Election to his Participating Company (or its designee) at least 30 days (or
such lesser period as the Administrative Committee may permit) before such
March 31, June 30, September 30 and December 31.
(5) Compliance with SEC Rule 16b-3. Notwithstanding any
other provision of the Plan, the Administrative Committee shall take any and
all actions as may be necessary with regard to Deferral Elections made by
Participants who are deemed to be "insiders" of the Company under the terms
of the Securities Exchange Act of 1934, as amended (the "1934 Act"), in order
to meet the requirements of Rule 16b-3 and regulations promulgated
thereunder.
3.2 Matching Contributions.
For each Active Participant on whose behalf a Participating Company
has made, with respect to a payroll period, any Before Tax Contributions,
such Participating Company shall make, with respect to such payroll period, a
Matching Contribution equal to 65 percent of the aggregate amount of such
Before Tax Contributions up to the first 6 percent of the Participant's
Compensation (or the difference between the amount of Before Tax
Contributions made by the Participant and matched by the Company under the
Retirement Savings Plus Plan so that only a total of 6 percent of the
Participant's Compensation is matched under both the RSP and the Plan).
Matching Contributions for a Plan Year shall be reduced by the amount of any
Forfeitures available for reallocation during that Plan Year.
3.3 Form of Contributions.
All Contributions shall be paid to the Trustee in the form of cash
or Company Stock or a combination thereof, as the Controlling Company or
Administrative Committee may determine from time to time.
3.4 Timing of Contributions.
Each Participating Company which withholds Before Tax Contributions
from an Active Participant's paychecks pursuant to a Deferral Election shall
pay such Before Tax Contributions to the Trustee as of the earliest date (not
to exceed 90 days from the date on which such amounts otherwise would have
been payable to such Active Participants in cash) on which such Contributions
can reasonably be transmitted.
ARTICLE IV
PARTICIPANTS' ACCOUNTS; CREDITING AND ALLOCATIONS
4.1 Establishment of Participants' Accounts.
To the extent appropriate, the Administrative Committee shall
establish and maintain, on behalf of each Participant and Beneficiary, an
Account which shall be divided into segregated subaccounts. The subaccounts
shall include Before Tax and Matching Accounts and such other subaccounts as
the Administrative Committee shall deem appropriate or helpful. Each Account
shall be credited with Contributions allocated to such Account and generally
shall be credited with income on investments derived from the assets of such
Accounts. Each Account of a Participant or Beneficiary shall be maintained
until the value thereof has been distributed to or on behalf of such
Participant or Beneficiary.
4.2 Allocation and Crediting of Before Tax and Matching Contributions.
As of each Valuation Date coinciding with or immediately following
the date on which Before Tax and Matching Contributions are received on
behalf of an Active Participant, such Contributions shall be allocated and
credited directly to the appropriate Before Tax and Matching Accounts,
respectively, of such Active Participant. Matching Contributions shall be
allocated to a Participant's Account in the same proportion that his Before
Tax Contributions bears to the total Before Tax Contributions of all
Participants.
4.3 Allocation and Crediting of Investment Experience.
As of each Valuation Date, the Trustee shall determine the fair
market value of the Trust Fund which shall be the sum of the fair market
values of the Investment Funds. The Administrative Committee shall determine
the amount of the Accounts as follows:
(a) Determination of Earnings or Losses. As of each Valuation
Date, the investment earnings (or losses) of each Investment Fund shall be
the amount by which the sum determined in (1) exceeds (or is less than) the
sum determined in (2), where (1) and (2) are as follows:
(1) The sum of (A) the fair market value of such Investment
Fund as of such Valuation Date, plus (B) the amount of any distributions,
withdrawals and transfers to other Investment Funds made since the
immediately preceding Valuation Date from amounts invested in the Investment
Fund; and
(2) The sum of (A) the fair market value of the Investment
Fund as of the immediately preceding Valuation Date, plus (B) Contributions
deposited in and amounts transferred to such Investment Fund since the
immediately preceding Valuation Date.
(b) Formula For Allocation. As of each Valuation Date and prior
to the allocations described in 4.2, and 4.3, each Participant's Account
shall be allocated and shall be credited with a portion of such earnings or
debited with a portion of such losses of each Investment Fund, as determined
in accordance with subsection (a) hereof, in the proportion that (i)(A) the
amount credited to such Account that was invested in such Investment Fund as
of the immediately preceding Valuation Date, minus (B) any distributions,
withdrawals or transfers to other Investment Funds which were made from such
Account since such preceding Valuation Date and on or before such current
Valuation Date, plus (C) any Contributions deposited in and amounts
transferred to such Investment Fund
from such Account since the preceding Valuation Date; bears to (ii)(A) the
total amount invested in such Investment Fund by all Participants as of the
immediately preceding Valuation Date, minus (B) any distributions,
withdrawals or transfers to other Investment Funds which were made from such
Accounts since such preceding Valuation Date and on or before such current
Valuation Date, plus (C) any Contributions deposited in and amounts
transferred to such Investment Fund since the preceding Valuation Date.
4.4 Notice to Participants of Account Balances.
At least once for each Plan Year, the Administrative Committee
shall cause a written statement of a Participant's Account balance to be
distributed to the Participant.
4.5 Good Faith Valuation Binding.
In determining the value of the Trust Fund and the Accounts, the
Trustee and the Administrative Committee shall exercise their best judgment,
and all such determinations of value (in the absence of bad faith) shall be
binding upon all Participants and Beneficiaries.
4.6 Errors and Omissions in Accounts.
If an error or omission is discovered in the Account of a
Participant or Beneficiary, the Administrative Committee shall cause
appropriate, equitable adjustments to be made as of the Valuation Date
coinciding with or immediately following the discovery of such error or
omission.
ARTICLE V
INVESTMENT OF ACCOUNTS
5.1 Establishment of Trust Fund.
(a) No Trust Required. The Controlling Company may, but is not
required to, establish a trust fund to hold the assets of the Plan. If no
trust fund is established, benefits shall be payable from the general assets
of the Controlling Company.
(b) Rabbi Trust Permitted. If the Controlling Company desires to
establish a trust fund, all Contributions are to be paid over to the Trustee
to be held in the Trust Fund and invested in accordance with the terms of the
Plan and the Trust Agreement. If a Trust Fund is established, it shall exist
under an agreement constituting a "rabbi trust" agreement, under which all
assets of the Trust Fund shall be considered to be subject to the general
creditors of the Controlling Company, and all Plan participants shall be
unsecured creditors under such Trust Agreement.
(c) Trust Required Upon Change in Control. Upon a Change in
Control of the Controlling Company, the Controlling Company must within ten
(10) business days after such Change in Control, establish and fully fund a
rabbi trust (if and to the extent such a fully funded rabbi trust does not
already exist) to pay all benefits accrued by Participants through that date
under the Plan. Further, upon a Change of Control, an entity other than the
Controlling Company, a Participating Company, any Affiliate or any employee,
officer or director of such companies shall be named by the Board as Trustee
of the rabbi trust. This subsection 5.1(c) of the Plan shall be irrevocable
and may not be amended by the Controlling Company or any other company after
the effective date of the Plan (unless required by law).
5.2 Investment of Trust Fund.
To the extent a trust fund is established, all Contributions to the
Plan shall be invested in Company Stock.
5.3 Acquisition of Company Stock.
(a) In General. To the extent that Contributions and investment
earnings on Company Stock are paid in cash, the Trustee, as directed by the
Administrative Committee, shall effect purchases of Company Stock in
compliance with all applicable securities laws, and in its sole discretion,
may purchase Company Stock in the open market and/or in privately negotiated
transactions with holders of Company Stock and/or the Controlling Company.
All purchases of Company Stock by the Trust will be made at a price or prices
which, in the judgment of the Trustee, do not exceed the fair market value of
such Company Stock as of the date of the purchase.
(b) Stock Rights, Warrants or Options. In the event any rights,
warrants or options are issued on Company Stock, the Trustee may exercise
them for the acquisition of additional Company Stock, to the extent that cash
is then available and allocable to the Company Stock Fund. Any Company Stock
acquired in this fashion will be treated as Company Stock bought by the
Trustee for the net price paid. Any rights, warrants or options on Company
Stock which cannot be exercised for lack of available cash may be sold by the
Trustee (provided the sale
thereof is reasonably practicable), and the proceeds of such a sale shall be
treated as a current cash dividend received on Company Stock.
5.5 Value of Assets.
For purposes under the Plan for which the value of assets must be
determined, the value of such assets shall be the fair market value. For
purposes of purchasing or selling Company Stock through an exchange on any
day, the fair market value per share of such stock on such day shall be the
price of the stock on the New York Stock Exchange at the time of the purchase
or sale. For all other purposes under the Plan, the fair market value per
share of the Company Stock on any particular day shall be the closing price
of such Company Stock as reported on the New York Stock Exchange Composite
Transaction listing on the day preceding the particular day in question. If,
for any reason, the fair market value per share of Company Stock cannot be
ascertained or is unavailable for a particular day, the fair market value of
such stock shall be determined as of the nearest preceding day on which such
fair market value can be ascertained pursuant to the terms hereof.
ARTICLE VI
VESTING IN ACCOUNTS
6.1 General Vesting Rule.
All Participants shall at all times be fully vested in their Before
Tax Account. Except as provided in 6.2, the Matching Account of a
Participant shall vest in accordance with the following vesting schedule,
based on the total of the Participant's Years of Vesting Service:
Years of Vesting Service Vested Percentage of
Completed by Participant Participant's Matching Account
Less than 3 Years None
3 Years, but less than 4 50%
4 Years, but less than 5 75%
5 Years or more 100%
6.2 Vesting Upon Attainment of Normal Retirement Age, Disability or
Death.
Notwithstanding 6.1, a Participant's Matching Account shall become
100 percent vested and nonforfeitable upon the occurrence of any of the
following events:
(a) The Participant's attainment of Normal Retirement Age while
still employed as an employee of any Affiliate;
(b) The Participant's death while still employed as an employee of
any Affiliate; or
(c) The Participant's becoming Disabled while still employed as an
employee of any Affiliate.
6.3 Timing of Forfeitures.
If a Participant who is not yet 100 percent vested in his Matching
Account separates from service with all Affiliates, the nonvested amount in
his Matching Account shall be immediately forfeited and shall become
available as a Forfeiture as of the Valuation Date coincident with or
immediately following the date on which such termination occurs; provided, if
a Participant has no vested interest in his Account at the time he separates
from service, he shall be deemed to have received a cash-out distribution at
the time he separates from service, and the forfeiture provisions of this
Section shall apply. If such a Participant resumes employment with an
Affiliate, such forfeited amount shall not be restored.
ARTICLE VII
PAYMENT OF BENEFITS
7.1 Benefit Payments Upon Termination of Service For Reasons Other Than
Death.
(a) General Rule Concerning Benefits Payable. In accordance with
the terms of subsection (b) hereof, if a Participant separates from service
with all Affiliates for any reason other than death, or if a Participant
becomes Disabled but remains an employee of an Affiliate, he (or his
Beneficiary, if he dies after such separation from service) shall be
entitled to receive a distribution of the total of (i) the entire vested
amount credited to his Account, determined as of the Valuation Date
coincident with or immediately preceding the date payment of such
distribution is to be made, plus (ii) the vested amount of any Contributions
made on his behalf since such Valuation Date. For purposes of this
subsection, the "date payment of such distribution is to be made" refers to
the date established for such purpose by administrative practice, even if
actual payment is made at a later date due to delays in the valuation,
administrative or any other procedure.
(b) Timing of Distribution. Benefits payable to a Participant
under this Section shall be distributed as soon as administratively feasible
after such Participant becomes Disabled or separates from service with all
Affiliates for any reason other than death.
7.2 Death Benefits.
If a Participant dies before payment of his benefits from the Plan
is made, the Beneficiary or Beneficiaries designated by such Participant in
his latest beneficiary designation form filed with the Administrative
Committee in accordance with the terms of 7.4 shall be entitled to receive a
distribution of the total of (i) the entire vested amount credited to such
Participant's Account, determined as of the Valuation Date coincident with or
immediately preceding the date payment of such distribution is to be made,
plus (ii) any Contributions made on such Participant's behalf since such
Valuation Date. For purposes of this subsection, the "date payment of such
distribution is to be made" refers to the date established for such purpose
by administrative practice, even if actual payment is made at a later date
due to delays in the valuation, administrative or any other procedure.
Benefits shall be distributed to such Beneficiary or Beneficiaries within 90
days after the date of the Participant's death if it is administratively
feasible to make such distribution within such 90-day period; if not, as soon
as administratively feasible thereafter within any reasonable period. The
Administrative Committee may direct the Trustee to distribute a Participant's
Account to a Beneficiary without the written consent of such Beneficiary.
7.3 Form of Distribution.
Any distribution to a Participant or his Beneficiary or
Beneficiaries shall be made in the form of a single sum payment. The payment
shall be made in whole shares of Company Stock and cash representing any
fractional shares of stock. Such single sum payment may be divided among
multiple Beneficiaries, as applicable.
7.4 Beneficiary Designation.
(a) General. Participants shall designate and from time to time
may redesignate their Beneficiary or Beneficiaries in such form and manner as
the Administrative Committee may determine. A Participant shall be deemed to
have named his Spouse, if any, as his sole Beneficiary unless his Spouse
consents to the payment of all or a specified portion of the Participant's
death benefit to a Beneficiary other than or in addition to the Spouse in a
manner satisfying the requirements of a Qualified Spousal Waiver and such
other procedures as the Administrative Committee may establish.
Notwithstanding the foregoing, a married Participant may designate a
nonspouse Beneficiary without a Qualified Spousal Waiver if the Participant
establishes to the satisfaction of the Administrative Committee that a
Qualified Spousal Waiver may not be obtained because his Spouse cannot be
located or such other permissible circumstances exist as the Secretary of the
Treasury may prescribe by regulation. If any Participant dies prior to
receiving his benefits under the Plan, his Account shall be changed to the
name of such deceased Participant's named or deemed Beneficiary or
Beneficiaries.
(b) No Designation or Designee Dead or Missing. In the event that:
(1) a Participant dies without designating a Beneficiary;
(2) the Beneficiary designated by a Participant is not
surviving when a payment is to be made to such person under the Plan, and no
contingent Beneficiary was designated by the Participant; or
(3) the Beneficiary designated by a Participant cannot be
located by the Administrative Committee within 1 year from the date benefits
are to commence to such person; then, in any of such events, the Beneficiary
of such Participant with respect to any benefits that remain payable under
the Plan shall be the Participant's Surviving Spouse, if any, and if not,
then the estate of the Participant.
7.5 Hardship Withdrawals.
(a) Parameters of Hardship Withdrawals. A Participant may make a
withdrawal on account of hardship from his vested Account. For purposes of
this subsection, a withdrawal will be on account of "hardship" only if it is
necessary to respond to an "unforeseeable emergency" resulting in a severe
financial need of the Participant. A withdrawal based on financial hardship
cannot exceed the amount necessary to meet the severe financial need created
by the hardship and not reasonably available from other resources of the
Participant. The Administrative Committee shall make its determination, as
to whether a Participant has suffered a severe financial need as a result of
an unforeseeable emergency and whether it is necessary to use a hardship
withdrawal from the Plan to satisfy that need on the basis of all relevant
facts and circumstances.
(b) Unforeseeable Emergency. For purposes of the Plan, an
unforeseeable emergency shall be a sudden and unexpected illness or accident
of the Participant or of a dependent (as defined in Code Section 152(a)) of
the Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. The circumstances that will
constitute an unforeseeable emergency will depend upon the facts of each
case, but, in any case, payment may not be made to the extent that such
hardship is or may be relieved -
(i) through reimbursement or compensation by insurance or
otherwise;
(ii) by liquidation of the Participant's assets, to the extent
the liquidation of such assets would not itself cause severe financial
hardship; or
(iii) by cessation of deferrals under the Plan.
Examples of events not considered to be unforeseeable emergencies include the
need to send a participant's child to college or the desire to purchase a
home.
(c) Application for Hardship Withdrawal. All applications for
hardship withdrawals shall be in writing on a form provided by the
Administrative Committee and shall contain such information as the
Administrative Committee may reasonably request.
(d) Payment of Withdrawal. The amount of a hardship withdrawal
shall be paid to a Participant in a single sum in cash as soon as practicable
after the Administrative Committee approves the withdrawal application.
7.6 Unclaimed Benefits.
In the event a Participant becomes entitled to benefits under the
Plan other than death benefits and the Administrative Committee is unable to
locate such Participant (after sending a letter, return receipt requested, to
the Participant's last known address, and after such further diligent efforts
as the Administrative Committee in its sole discretion deems appropriate)
within 1 year from the date upon which he becomes so entitled, the
Administrative Committee shall direct that such benefits be paid to the
Beneficiary of such Participant; provided, if the distribution is payable
upon the termination of the Plan, the Administrative Committee shall not be
required to wait until the end of such 1-year period. If the Participant and
the Beneficiary cannot be located and fail to claim such benefits by the end
of the 5th Plan Year following the Plan Year in which such Participant
becomes entitled to such benefits, then the full Account of the Participant
shall be deemed abandoned and shall be used to reduce the Matching
Contributions of the Participating Company or Companies which employed such
Participant; provided, in the event such Participant or Beneficiary is
located or makes a claim subsequent to the allocation of the abandoned
Account but prior to the expiration of the time within which any such
person's claim to the Account would expire under appropriate state law, then
the amount of the abandoned Account (unadjusted for any investment gains or
losses from the time of abandonment) shall be restored (from abandoned
Accounts, Trust earnings or Contributions made by the Participating Company
or Companies with whom the Participant formerly was employed) and paid to
such Participant or Beneficiary, as appropriate; and, provided, further, the
Administrative Committee, in its sole discretion, may delay the deemed date
of abandonment of any such Account for a period longer than the prescribed 5
Plan Years if it believes that it is in the best interest of the Plan to do
so.
7.7 Claims.
(a) Procedure. Claims for benefits under the Plan may be filed
with the Administrative Committee on forms supplied by the Administrative
Committee. The Administrative Committee shall furnish to the claimant
written notice of the disposition of a claim within 90 days after the
application therefor is filed; provided, if special circumstances require an
extension of time for processing the claim, the Administrative Committee
shall furnish written notice of the extension to the claimant prior to the
termination of the initial 90-day period, and such extension shall not exceed
one additional, consecutive 90-day period. In the event the claim is denied,
the notice of the disposition of the claim shall provide the specific reasons
for the denial, cites of the pertinent provisions of the Plan, and, where
appropriate, an explanation as to how the claimant can perfect the claim
and/or submit the claim for review.
(b) Review Procedure. Any Participant or Beneficiary who has been
denied a benefit, or his duly authorized representative, shall be entitled,
upon request to the Administrative Committee, to appeal the denial of his
claim. To do so, the claimant must make a written request to the
Administrative Committee for further consideration of his position. The
claimant, or his duly authorized representative, may review pertinent
documents related to the Plan and in the Administrative Committee's
possession in order to prepare the appeal. The form containing the request
for review, together with a written statement of the claimant's position,
must be filed with the Administrative Committee no later than 60 days after
receipt of the written notification of denial of a claim provided for in
subsection (a). The Administrative Committee's decision shall be made within
120 days following the filing of the request for review and shall be
communicated in writing to the claimant. If unfavorable, the notice of
decision shall explain the reason or reasons for denial and indicate the
provisions of the Plan or other documents used to arrive at the decision.
(c) Satisfaction of Claims. Any payment to a Participant or
Beneficiary or to their legal representative or heirs at law, all in
accordance with the provisions of the Plan, shall to the extent thereof be in
full satisfaction of all claims hereunder against the Trustee, the
Administrative Committee and the Controlling Company, any of whom may require
such Participant, Beneficiary, legal representative or heirs at law, as a
condition to such payment, to execute a receipt and release therefor in such
form as shall be determined by the Trustee, the Administrative Committee or
the Controlling Company, as the case may be. If receipt and release shall be
required but execution by such Participant, Beneficiary, legal representative
or heirs at law shall not be accomplished so that the terms of 7.1 and 7.2
may be fulfilled, such benefits may be distributed or paid into any
appropriate court or to such other place as such court shall direct, for
disposition in accordance with the order of such court, and such distribution
shall be deemed to comply with the requirements of 7.1 and 7.2.
ARTICLE VIII
ADMINISTRATION
8.1 Administrative Committee; Appointment and Term of Office.
(a) The Administrative Committee shall consist of not less than
one member who shall be appointed by and serve at the pleasure of the Board.
(b) The Board shall have the right to remove any member of the
Administrative Committee at any time. A member may resign at any time by
written resignation to the Board. If a vacancy in the Administrative
Committee should occur, a successor may be appointed by the Board.
(c) A written certification shall be given to the Trustee by the
Board of all members of the Administrative Committee together with a specimen
signature of each member. For all purposes hereunder, the Trustee shall be
conclusively entitled to rely upon such certification until the Trustee is
otherwise notified in writing.
8.2 Organization of Administrative Committee.
The Administrative Committee may elect a Chairman and a Secretary
from among its members. In addition to those powers set forth elsewhere in
the Plan, the Administrative Committee may appoint such agents, who need not
be members of such Administrative Committee, as it may deem necessary for the
effective performance of its duties and may delegate to such agents such
powers and duties, whether ministerial or discretionary, as the
Administrative Committee may deem expedient or appropriate. The compensation
of such agents who are not full-time Employees of a Participating Company
shall be fixed by the Administrative Committee within limits set by the Board
and shall be paid by the Controlling Company (to be divided equitably among
the Participating Companies) or from the Trust Fund as determined by the
Administrative Committee. The Administrative Committee shall act by majority
vote. Its members shall serve as such without compensation.
8.3 Powers and Responsibility.
The Administrative Committee shall fulfill the duties of
"administrator" as set forth in 3(16) of ERISA and shall have complete
control of the administration of the Plan hereunder, with all powers
necessary to enable it properly to carry out its duties as set forth in the
Plan and the Trust Agreement. The Administrative Committee shall have the
following duties and responsibilities:
(a) to construe the Plan and to determine all questions that
shall arise thereunder;
(b) to have all powers elsewhere herein conferred upon it;
(c) to decide all questions relating to the eligibility of
Employees to participate in the benefits of the Plan;
(d) to determine the benefits of the Plan to which any Participant
or Beneficiary may be entitled;
(e) to maintain and retain records relating to Participants and
Beneficiaries;
(f) to prepare and furnish to Participants all information
required under federal law or provisions of the Plan to be furnished to them;
(g) to prepare and furnish to the Trustee sufficient employee
data and the amount of Contributions received from all sources so that the
Trustee may maintain separate accounts for Participants and Beneficiaries and
make required payments of benefits;
(h) to prepare and file or publish with the Secretary of Labor,
the Secretary of the Treasury, their delegates and all other appropriate
government officials all reports and other information required under law to
be so filed or published;
(i) to provide directions to the Trustee with respect to methods
of benefit payment, valuations at dates other than the quarterly Valuation
Date and all other matters where called for in the Plan or requested by the
Trustee;
(j) to engage assistants and professional advisers;
(k) to arrange for fiduciary bonding; and
(l) to provide procedures for determination of claims for
benefits; all as further set forth herein.
8.4 Records of Administrative Committee.
(a) Any notice, direction, order, request, certification or
instruction of the Administrative Committee to the Trustee shall be in
writing and shall be signed by a member of the Administrative Committee. The
Trustee and every other person shall be entitled to rely conclusively upon
any and all such notices, directions, orders, requests, certifications and
instructions received from the Administrative Committee and reasonably
believed to be properly executed, and shall act and be fully protected in
acting in accordance therewith.
(b) All acts and determinations of the Administrative Committee
shall be duly recorded by its Secretary or under his supervision, and all
such records, together with such other documents as may be necessary for the
administration of the Plan, shall be preserved in the custody of such
Secretary.
8.5 Reporting and Disclosure.
The Administrative Committee shall keep all individual and group
records relating to Participants and Beneficiaries and all other records
necessary for the proper operation of the Plan. Such records shall be made
available to the Participating Companies and to each Participant and
Beneficiary for examination during normal business hours except that a
Participant or Beneficiary shall examine only such records as pertain
exclusively to the examining Participant or Beneficiary and the Plan and
Trust Agreement. The Administrative Committee shall prepare and shall file
as required by law or regulation all reports, forms, documents and other
items required by ERISA and every other relevant statute, each as amended,
and all regulations thereunder. This provision shall not be construed as
imposing upon the Administrative Committee the responsibility or authority
for the preparation, preservation, publication or filing of any document
required to be prepared, preserved or filed by the Trustee or by any other
Named Fiduciary to whom such responsibilities are delegated by law or by the
Plan.
8.6 Construction of the Plan.
The Administrative Committee shall take such steps as are
considered necessary and appropriate to remedy any inequity that results from
incorrect information received or communicated in good faith or as the
consequence of an administrative error. The Administrative Committee shall
interpret the Plan and shall determine the questions arising in the
administration, interpretation and application of the Plan. The
Administrative Committee shall endeavor to act, whether by general rules or
by particular decisions, so as not to discriminate in favor of or against any
person and so as to treat all persons in similar circumstances uniformly.
The Administrative Committee shall correct any defect, reconcile any
inconsistency or supply any omission with respect to the Plan.
8.7 Assistants and Advisers.
(a) The Administrative Committee shall have the right to hire, at
the expense of the Controlling Company (to be divided equitably among the
Participating Companies), such professional assistants and consultants as it,
in its sole discretion, deems necessary or advisable. To the extent that the
costs for such assistants and advisers are not so paid by the Controlling
Company, they shall be paid at the direction of the Administrative Committee
from the Trust Fund as an expense of the Trust Fund.
(b) The Administrative Committee and the Participating Companies
shall be entitled to rely upon all certificates and reports made by an
actuary, accountant or attorney selected pursuant to this 8.7; the
Administrative Committee, the Participating Companies, and the Trustee shall
be fully protected in respect to any action taken or suffered by them in good
faith in reliance upon the advice or opinion of any such actuary, accountant
or attorney; and any action so taken or suffered shall be conclusive upon
each of them and upon all other persons interested in the Plan.
8.8 Direction of Trustee.
The Administrative Committee shall have the power to provide the
Trustee with general investment policy guidelines and directions to assist
the Trustee respecting investments made in compliance with, and pursuant to,
the terms of the Plan.
8.9 Bonding.
The Administrative Committee shall arrange for fiduciary bonding
as is required by law, but no bonding in excess of the amount required by law
shall be required by the Plan.
8.10 Indemnification.
The Administrative Committee and each member of that Committee
shall be indemnified by the Participating Companies against judgment amounts,
settlement amounts (other than amounts paid in settlement to which the
Participating Companies do not consent) and expenses reasonably incurred by
the Committee or each member of the Committee in connection with any action
to which the Committee or any member thereof may be a party (by reason of his
service as a member of the Committee) except in relation to matters as to
which the Committee or any member thereof shall be adjudged in such action to
be personally guilty of gross negligence or willful misconduct in the
performance of its or any member's duties. The foregoing right to
indemnification shall be in addition to such other rights as such Committee
or each Committee member may enjoy as a matter of law or by reason of
insurance coverage of any kind. Rights granted hereunder shall be in
addition to and not in lieu of any rights to indemnification to which such
Committee or each Committee member may be entitled pursuant to the by-laws of
the Controlling Company. Service on the Administrative Committee shall be
deemed in partial fulfillment of
a Committee member's function as an Employee, officer and/or director of the
Controlling Company or any Participating Company, if he serves in such other
capacity as well.
ARTICLE IX
ALLOCATION OF AUTHORITY AND RESPONSIBILITIES
9.1 Controlling Company and Board.
(a) General Responsibilities. The Controlling Company, as Plan
sponsor, and the Board each shall serve as a Named Fiduciary having the
following (and only the following) authority and responsibilities:
(1) To appoint the Trustee and the Administrative Committee
and to monitor each of their performances;
(2) To communicate such information to the Trustee and the
Administrative Committee as each needs for the proper performance of its
duties; and
(3) To provide channels and mechanisms through which the
Administrative Committee and/or the Trustee can communicate with Participants
and Beneficiaries.
In addition, the Controlling Company shall perform such duties as are
imposed by law or by regulation and shall serve as Plan Administrator in the
absence of an appointed Administrative Committee.
(b) Allocation of Authority. In the event any of the areas of
authority and responsibilities of the Controlling Company and the Board
overlap with that of any other Plan fiduciary, the Controlling Company and
the Board shall coordinate with such other fiduciaries the execution of such
authority and responsibilities; provided, the decision of the Controlling
Company and the Board with respect to such authority and responsibilities
ultimately shall be controlling.
(c) Authority of Participating Companies. Notwithstanding
anything herein to the contrary, and in addition to the authority and
responsibilities specifically given to the Participating Companies in the
Plan, the Controlling Company, in its sole discretion, may grant the
Participating Companies such authority and charge them with such
responsibilities as the Controlling Company deems appropriate.
9.2 Administrative Committee.
The Administrative Committee shall have the authority and
responsibilities imposed by Article VIII hereof. With respect to said
authority and responsibilities, the Administrative Committee shall be a Named
Fiduciary, and as such, shall have no authority or responsibilities other
than as granted in the Plan or as imposed as a matter of law.
9.3 Trustee.
The Trustee shall be a Named Fiduciary with respect to investment
of Trust Fund assets and shall have the powers and duties set forth in the
Trust Agreement.
9.4 Limitations on Obligations of Fiduciaries.
No fiduciary shall have authority or responsibility to deal with
matters other than as delegated to it under the Plan, under the Trust
Agreement or by operation of law. A fiduciary shall not in any event be
liable for
breach of fiduciary responsibility or obligation by another fiduciary
(including Named Fiduciaries) if the responsibility or authority for the act
or omission deemed to be a breach was not within the scope of such
fiduciary's authority or delegated responsibility.
9.5 Delegation.
Named Fiduciaries shall have the power to delegate specific
fiduciary responsibilities (other than Trustee responsibilities). Such
delegations may be to officers or Employees of a Participating Company or to
other persons, all of whom shall serve at the pleasure of the Named Fiduciary
making such delegation and, if full-time Employees of a Participating
Company, without compensation. Any such person may resign by delivering a
written resignation to the delegating Named Fiduciary. Vacancies created by
any reason may be filled by the appropriate Named Fiduciary or the assigned
responsibilities may be reabsorbed or redelegated by the Named Fiduciary.
9.6 Multiple Fiduciary Roles.
Any person may hold more than one position of fiduciary
responsibility and shall be liable for each such responsibility separately.
ARTICLE X
AMENDMENT, TERMINATION AND ADOPTION
10.1 Amendment.
The provisions of the Plan may be amended at any time and from
time to time by the Board; provided:
(a) No amendment shall increase the duties or liabilities of the
Trustee without the consent of such party;
(b) No amendment shall decrease the balance or vested percentage
of an Account or eliminate an optional form of benefit;
(c) No amendment shall be made which would divert any of the
assets of the Trust Fund to any purpose other than the exclusive benefit of
Participants and Beneficiaries, except that the Plan and Trust Agreement may
be amended retroactively and to affect the Accounts of Participants and
Beneficiaries if necessary to cause the Plan and Trust to be qualified and
exempt from taxation under the Code;
(d) Each amendment shall be approved by the Board by resolution;
and
(e) No amendment shall be made to Section 5.1(c) of the Plan
(unless required by law).
10.2 Termination.
(a) Right to Terminate. The Controlling Company expects the Plan
to be continued indefinitely, but it reserves the right to terminate the Plan
or to completely discontinue Contributions to the Plan at any time by action
of the Board. In either event, the Administrative Committee, each
Participating Company and the Trustee shall be promptly advised of such
decision in writing.
(b) Dissolution of Trust. In the event that the Administrative
Committee decides to dissolve the Trust, as soon as practicable following the
termination of the Plan or the Administrative Committee's decision, whichever
is later, the assets under the Plan shall be converted to cash or other
distributable assets, to the extent necessary to effect a complete
distribution of the Trust assets to the Controlling Company.
10.3 Adoption of the Plan by a Participating Company.
(a) Procedures for Participation. The Controlling Company shall
become a Participating Company in the Plan as of July 1, 1995. Georgia Gas
Company, Georgia Gas Service Company and Chattanooga Gas Company also shall
become Participating Companies as of July 1, 1995. Any other company may
become a Participating Company and commence participation in the Plan subject
to the provisions of this subsection. In order for a company to become a
Participating Company, the Administrative Committee must designate such
company as a Participating Company and specify the effective date of such
designation. The name of any company which shall commence participation in
the Plan, along with the effective date of its participation, shall be
recorded on Schedule A hereto which shall be appropriately modified each time
a Participating Company is added or deleted. To adopt the Plan as a
Participating Company, the board of directors of the company must approve a
resolution expressly adopting
the Plan for the benefit of its eligible employees and accepting designation
as a Participating Company, subject to all of the provisions of this Plan and
of the Trust. The resolution shall specify the date as of which the
designation as a Participating Company shall be effective. A copy of the
resolution (certified if requested) of the board of directors of the adopting
Participating Company shall be provided to the Administrative Committee.
Upon adoption of the Plan by a Participating Company as herein provided, the
Employees of such company shall be eligible to participate in the Plan
subject to the terms hereof and of the resolution of the Administrative
Committee designating the adopting company as such.
(b) Authority under Plan. As long as a Participating Company's
designation as such remains in effect, such Participating Company shall be
bound by, and subject to, all provisions of the Plan and the Trust. The
exclusive authority to amend the Plan and the Trust shall be vested in the
Administrative Committee, and no Participating Company other than the
Controlling Company shall have any right to amend the Plan or the Trust. Any
amendment to the Plan or the Trust adopted by the Administrative Committee
shall be binding upon every Participating Company without further action by
such Participating Company.
(c) Contributions to Plan. As long as each Participating Company
shall be so designated, such Participating Company shall be required to make
Contributions to the Plan at such times and in such amounts as specified in
Article III. The Contributions made (or to be made) to the Plan by the
Participating Companies shall be allocated between and among such companies
in whatever equitable manner or amounts as the Administrative Committee shall
determine.
(d) Withdrawal from Plan. No Participating Company other than
the Controlling Company shall have the right to terminate the Plan. However,
any Participating Company may withdraw from the Plan, with the approval of
the Administrative Committee, by action of its board of directors, provided
such action is communicated in writing to the Administrative Committee. The
withdrawal of a Participating Company shall be effective as of the last day
of the Plan Year which follows receipt of the notice of withdrawal (unless
the Controlling Company consents to a different effective date). In
addition, the Administrative Committee may terminate the designation of a
Participating Company to be effective on such date as the Administrative
Committee specifies. Any such Participating Company which ceases to be a
Participating Company shall be liable for all costs accrued through the
effective date of its withdrawal or termination. In the event of the
withdrawal or termination of a Participating Company as provided in this
Section, such Participating Company shall have no right to direct that assets
of the Plan be transferred to a successor plan for its employees, unless such
transfer is approved by the Controlling Company or Administrative Committee
in its sole discretion.
ARTICLE XI
MISCELLANEOUS
11.1 Nonalienation of Benefits and Spendthrift Clause.
None of the Accounts, benefits, payments, proceeds or
distributions under the Plan shall be subject to the claim of any creditor of
a Participant or Beneficiary or to any legal process by any creditor of such
Participant or of such Beneficiary; and neither such Participant nor any such
Beneficiary shall have any right to alienate, commute, anticipate or assign
any of the Accounts, benefits, payments, proceeds or distributions under the
Plan except to the extent expressly provided herein. If any Participant
shall attempt to dispose of his Account or the benefits provided for him
hereunder or to dispose of the right to receive such benefits, or, in the
event there should be an effort to seize such Account or benefits by
attachment, execution or other legal or equitable process, such right may
pass and be transferred, at the discretion of the Administrative Committee,
to such person or persons as may be selected by the Administrative Committee
from among the Beneficiaries, if any, theretofore designated by the
Participant, or from the Spouse, children or other dependents of the
Participant, in such shares as the Administrative Committee may appoint. Any
appointments so made by the Administrative Committee may be revoked by it at
any time, and further appointments made by it may include the Participant.
11.2 Headings.
The headings and subheadings in the Plan have been inserted for
convenience of reference only and are to be ignored in any construction of
the provisions hereof.
11.3 Construction, Controlling Law.
In the construction of the Plan, the masculine shall include the
feminine and the feminine the masculine, and the singular shall include the
plural and the plural the singular, in all cases where such meanings would be
appropriate. Unless otherwise specified, any reference to a section shall be
interpreted as a reference to a section of the Plan. The Plan shall be
construed in accordance with the laws of the State of Georgia and applicable
federal laws.
11.4 No Contract of Employment.
Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the payment of
any benefits shall be construed as giving any Participant, Employee or any
person whomsoever the right to be retained in the service of any Affiliate,
and all Participants and other Employees shall remain subject to discharge to
the same extent as if the Plan had never been adopted.
11.5 Legally Incompetent.
The Administrative Committee may in its discretion direct that
payment be made and the Trustee shall make payment on such direction,
directly to an incompetent or disabled person, whether incompetent or
disabled because of minority or mental or physical disability, or to the
guardian of such person or to the person having legal custody of such person,
without further liability with respect to or in the amount of such payment
either on the part of any Participating Company, the Administrative Committee
or the Trustee.
11.6 Heirs, Assigns and Personal Representatives.
The Plan shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties, including each
Participant and Beneficiary, present and future.
11.7 Unsecured Creditor Rights.
No Participant or Beneficiary shall have any right to, or interest
in, any assets of the Trust Fund other than that of a general unsecured
creditor of the Controlling Company.
11.8 Legal Action.
In any action or proceeding involving the assets held with respect
to the Plan or Trust Fund or the administration thereof, the Participating
Companies, the Administrative Committee and the Trustee shall be the only
necessary parties and no Participants, Employees, or former Employees of the
Company, their Beneficiaries or any other person having or claiming to have
an interest in the Plan shall be entitled to any notice of process; provided,
that such notice as is required by the IRS and the Department of Labor to be
given in connection with Plan amendments, termination, curtailment or other
activity shall be given in the manner and form and at the time so required.
Any final judgment which is not appealed or appealable that may be entered in
any such action or proceeding shall be binding and conclusive on the parties
hereto, the Administrative Committee and all persons having or claiming to
have an interest in the Plan.
11.9 Severability.
If any provisions of the Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and the Plan shall be construed and enforced as if such
provisions had not been included.
11.10 Exclusive Benefit; Refund of Contributions.
No part of the Trust Fund shall be used for or diverted to
purposes other than the exclusive benefit of the Participants and their
Beneficiaries, subject, however, to the payment of all costs of maintaining
and administering the Plan and Trust.
11.11 Predecessor Service.
In the event a Participating Company maintains the Plan as
successor to a predecessor employer who maintained the Plan, service for the
predecessor employer shall be treated as service for the Participating
Company.
11.12 Plan Expenses.
Expenses incurred with respect to administering the Plan and Trust
shall be paid by the Trustee from the Trust Fund only to the extent such
costs are not paid by the Participating Companies or to the extent the
Controlling Company requests that the Trustee reimburse it for its payment of
such expenses.
IN WITNESS WHEREOF, the Controlling Company has caused this Plan
to be executed by its duly authorized officers and its corporate seal to be
affixed hereto, all as of the date first above written.
ATLANTA GAS LIGHT COMPANY
By: /s/ Robert L. Goocher
Title: Executive Vice President
Attest: /s/ Melanie M. Platt
Title: Corporate Secretary
[CORPORATE SEAL]
SCHEDULE A
EFFECTIVE DATES FOR PARTICIPATING COMPANIES
Name of Effective Date
Participating Company of Participation
Atlanta Gas Light Company July 1, 1995
Georgia Gas Company (Draketown) July 1, 1995
Chattanooga Gas Company July 1, 1995
Georgia Gas Service Company July 1, 1995
SCHEDULE B
ITEMS EXCLUDED FROM "COMPENSATION" UNDER 1.15(3)(i)
PAYROLL CODE DESCRIPTION
IMP LIFE Imputed income attributable to employer provided life
insurance over $50,000
AWARDS Pay attributable to Y.E.S. Suggestions, Company awards
BONUS Christmas bonus
BOND PAY N/A
INTEREST Mortgage rate interest differential payments
CAR ALLO End of year allowance for persons with company cars
MOV EXPS Moving expenses
PRO CERT Professional certification bonus for attainment of the
Professional Engineer, Attorney or Certified Public
Accountant designation
3RD PRTY Long term disability benefits paid during the year by 3rd
party administrator and included in gross wages
E B P Employee bonus plan
TUITION Taxable tuition reimbursement
GRIP Group replacement insurance plan premium gross-up
NTUITION Nontaxable tuition reimbursement
MERIT Lump sum merit payments in lieu of salary increases
EXEC PAY Executive allowance fund end of year adjustment
SETTLEMT
(NONPERIODIC) Settlement as a result of arbitration or legal proceedings
RS/NQSTK Restricted non-qualified stock
PROSPECT For employees who have turned in prospects and merchandise has
been sold to them
QSTK OPT Qualified stock option
3PRTY TX Tax paid on behalf of employee by 3rd party administrator on
long term disability
NMOV EXP Nontaxable moving expenses
FLEX $$$ FlexBenefits Plan benefit credits
FLEX IMP Imputed income attributable to employer provided life
insurance over $50,000 under FlexBenefits Plan
SEVERANCE PAY Severance Pay