Exhibit 10-T
GPU COMPANIES
MASTER DIRECTORS' BENEFITS PROTECTION TRUST
As Amended and Restated Effective [June] 1, 1999
TABLE OF CONTENTS
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Article Title Page No.
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ARTICLE 1 Definitions 2
ARTICLE 2 Establishment of the Trusts 8
ARTICLE 3 Contributions and Accounts 9
ARTICLE 4 Payments to Participants and Beneficiaries 13
ARTICLE 5 Legal Defense Fund 19
ARTICLE 6 Insolvency 23
ARTICLE 7 Payments to Company 24
ARTICLE 8 Investment Authority and Disposition of Income 24
ARTICLE 9 General Powers and Duties of Trustee 26
ARTICLE 10 Taxes, Expenses, and Compensation of Trustee 31
ARTICLE 11 Accounting by Trustee 32
ARTICLE 12 Communications 33
ARTICLE 13 Resignation or Removal of Trustee 34
ARTICLE 14 Amendments and Termination 35
ARTICLE 15 Miscellaneous 36
AGREEMENT made as of [June] 1, 1999, by and between GPU, INC., a
Pennsylvania corporation (the "Corporation"), GPU NUCLEAR, INC., a New Jersey
corporation, and JERSEY CENTRAL POWER & LIGHT COMPANY, a New Jersey corporation
(each such corporation is hereinafter referred to individually as a "Company",
and all such corporations are hereinafter referred to collectively as the
"Companies"), and U.S. TRUST COMPANY, NATIONAL ASSOCIATION, a New York
corporation (hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS, each Company has adopted one or more Plans (as hereinafter
defined) under which it has incurred or expects to incur liability under the
terms of such Plans with respect to Benefits (as hereinafter defined) payable to
individuals participating in such Plans; and
WHEREAS, pursuant to a Trust Agreement dated as of September 1, 1995
and most recently amended as of November 6, 1997 between each of the Companies
and Summit Bank as trustee (the "Prior Agreement"), each of the Companies has
established a trust (hereinafter called the "Trust") and has contributed to the
Trust assets that shall be held therein, subject to the claims of the Company's
creditors in the event of the Company's Insolvency (as hereinafter defined)
until paid to Plan participants and their beneficiaries in such manner and at
such times as specified in the Plans; and
WHEREAS, it is the intention of the parties that each Company's Trust
shall constitute an unfunded arrangement and shall not affect the status of each
Company's Plans as unfunded for federal income tax purposes; and
WHEREAS, it is the intention of each Company to make contributions to
its Trust to provide itself with a source of funds to assist it in the meeting
of its liabilities under its Plans; and
WHEREAS, each of the Companies wishes to appoint U.S. Trust Company,
National Association to succeed Summit Bank as the trustee of its Trust
effective as of [June] 1, 1999, and U.S. Trust Company, National Association
wishes to accept such appointment, upon the terms and conditions set forth
herein; and
WHEREAS, the parties hereto wish to amend and restate the Prior
Agreement to reflect the appointment of U.S. Trust Company, National Association
as successor trustee of each Trust and to make certain other changes in the
Prior Agreement;
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NOW, THEREFORE, the Prior Agreement is hereby amended and restated
effective [June] 1, 1999 to read in its entirety as follows:
ARTICLE 1
Definitions
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1.1 As used herein, the following terms shall have the following
meanings, unless the context clearly indicates a contrary meaning:
(a) "Agreement" shall mean this instrument, as the same may be
amended from time to time as permitted herein.
(b) "Applicable Company" shall mean, with respect to any Trust
maintained hereunder, or any Plan, the Company that maintains such
Trust, or that has adopted or maintains such Plan.
(c) "Beneficiary", with respect to a Participant, shall mean
the person or entity designated by such Participant under a Plan, or
such other person or entity with respect to such Participant as may be
designated under the terms of such Plan, to receive the Benefits, if
any, payable from such Plan following such Participant's death.
(d) "Benefits" shall mean those amounts specified in Exhibit B
that are payable under a Plan to (or with respect to) a Participant,
or, upon his death, to his Beneficiary.
(e) "Benefit Valuation Date" shall mean the first day of each
calendar year.
(f) "Board" shall mean the board of directors of the
Corporation.
(g) "Change in Control" shall mean the occurrence of any of
the following:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the Corporation ("Common
Stock") or other voting securities of the Corporation entitled
to vote generally for the election of directors (the "Voting
Securities") by any "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), immediately
after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the
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Exchange Act) of twenty percent (20%) or more of the then
outstanding shares of Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee benefit plan (or a
trust forming a part thereof) maintained by (i) the Corporation or (ii) any
corporation or other Person of which a majority of its voting power or its
voting equity securities or equity interest is owned, directly or indirectly, by
the Corporation (for purposes of this definition, a "Subsidiary"), (B) the
Corporation or its Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the Board (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the
members of the Board; provided, however, that if the election,
or nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall,
for purposes of this Trust, be considered as a member of the
Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board (a "Proxy Contest") including
by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in
which securities of the Corporation are issued,
unless such merger, consolidation or reorganization
is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger, consolidation or
reorganization with or into the
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Corporation or in which securities of the Corporation
are issued where:
(i) the stockholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own
directly or indirectly immediately following
such merger, consolidation or
reorganization, at least sixty percent (60%)
of the combined voting power of the
outstanding voting securities of the
corporation resulting from such merger or
consolidation or reorganization (the
"Surviving Corporation") in substantially
the same proportion as their ownership of
the Voting Securities immediately before
such merger, consolidation or
reorganization,
(ii) the individuals who were members
of the Incumbent Board immediately prior to
the execution of the agreement providing for
such merger, consolidation or reorganization
constitute at least seventy percent (70%) of
the members of the board of directors of the
Surviving Corporation, or a corporation,
directly or indirectly, beneficially owning
a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any
employee benefit plan (or any trust forming
a part thereof) that, immediately prior to
such merger, consolidation or
reorganization, was maintained by the
Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such
merger, consolidation or reorganization had
Beneficial Ownership of twenty percent (20%)
or more of the then outstanding Voting
Securities or common stock of the
Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined
voting power of the Surviving Corporation's
then outstanding voting securities or its
common stock.
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(B) A complete liquidation or dissolution
of the Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to
any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner of any
additional shares of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common Stock or Voting
Securities Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(h) "Code" shall mean the Internal Revenue Code of 1986 as the
same may be amended from time to time.
(i) "Insolvent"-A Company shall be considered "Insolvent" for
purposes of this Agreement if (i) the Company is unable to pay its
debts as they become due, or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(j) "Participant" shall mean any person who is or may become
entitled to receive Benefits under a Plan and who is included in the
list of persons who are to be treated as Participants for purposes of
this Agreement, as set forth in Exhibit A hereto.
(k) "Permitted Investments" shall mean direct obligations of
the United States of America or agencies or instrumentalities thereof
or obligations unconditionally and fully guaranteed as to principal and
interest by the United States of America ("Obligations"), and
certificates of deposit and bankers' acceptances of a bank organized
and existing under the laws of the United States of America or
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any State thereof that has a combined capital and surplus of at least
$100,000,000, all having respective maturities of not more than one
year when purchased. The term "Permitted Investments" shall also mean
any fund or portfolio maintained by any open-end investment company
registered under the Investment Company Act of 1940, the assets of
which are invested exclusively in Obligations, certificates of deposit
and/or bankers' acceptances of the kind described in the preceding
sentence including, without limitation, any such fund or portfolio for
which the Trustee or any affiliate of the Trustee serves as investment
adviser.
(1) "Plan" or "Plans" shall mean, with respect to any Company,
any (or if the context requires, all) of the plans, programs or
policies maintained by such Company, and agreements entered into by
such Company, that are included in the list set forth in Exhibit B
hereto.
(m) "Present Value" shall mean, with respect to any Benefit,
the single sum actuarial present value of such Benefit, as determined
by an enrolled actuary on the basis of the actuarial assumptions most
recently adopted by the Applicable Company for use in connection with
this Agreement. Notwithstanding the foregoing, any determination of the
Present Value of Benefits to be made hereunder at any time after a
Change in Control or during a Threatened Change in Control Period shall
be made on the basis of the actuarial assumptions that were used in
determining the Present Value of such Benefits as of the most recent
Benefit Valuation Date preceding the Change in Control or Threatened
Change in Control Period, unless the Applicable Company has notified
the Trustee in writing prior to the Change in Control or the Threatened
Change in Control Period of its adoption of different actuarial
assumptions for use hereunder after the Change in Control or during the
Threatened Change in Control Period; provided, however, that if any
Plan specifies (either expressly or by reference) the actuarial
assumptions that are to be used to calculate the Benefits provided
under such Plan, the actuarial assumptions so specified shall be used
to determine the Present Value of Benefits under that Plan for purposes
of this Agreement.
(n) "Threatened Change in Control" shall mean the occurrence
of any of the following events (but no event other than the following
events), except as otherwise provided below: Any Person
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(1) becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing
fifteen percent (15 %) or more of the then-outstanding Common
Stock or of the combined voting power of the Corporation's
then-outstanding voting securities, or
(2) initiates a tender offer or exchange offer to
acquire securities of the Corporation representing twenty
percent (20%) or more of the then-outstanding Common Stock or
of the combined voting power of the Corporation's
then-outstanding voting securities, or
(3) solicits proxies for the election within any
single twelve (12)-month period of three or more directors,
whose election or nomination is not approved by a majority of
the Incumbent Board then serving as members of the Board, to
serve on the Board.
Notwithstanding the foregoing, a Threatened Change in Control shall not
be deemed to occur pursuant to this Section 1.1 (n) solely because of
an acquisition or tender offer made or effected in connection with a
Non-Control Acquisition.
(o) "Threatened Change in Control Period" shall mean the
period commencing on the date on which a Threatened Change in Control
has occurred and ending (i) on the date on which a Change in Control
has occurred, or (ii), if earlier, on whichever of the following dates
is applicable:
(1) in the case of a Threatened Change in Control
described in Section 1.l(n)(1), the date as of which any
Person described in Section 1.1(n)(1) ceases to be the
Beneficial Owner, directly or indirectly, of securities of the
Corporation representing fifteen percent (15%) or more of the
Common Stock or of the combined voting power of the
Corporation's then-outstanding voting securities, or
(2) in the case of a Threatened Change in Control
described in Section 1.1(n)(2), the date as of which the
tender offer or exchange offer described in Section 1.1(n)(2)
is terminated without any securities described therein of the
Corporation being purchased thereunder, or
(3) in the case of a Threatened Change in Control
described in Section 1.1(n)(3), the date as of which any
Person described in Section 1.1(n)(3) fails to
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effect the election within any single twelve (12)-month period
of three or more directors, whose election or nomination is
not approved by a majority of the Incumbent Board then serving
as members of the Board, to serve on the Board.
(p) "Valuation Date" shall mean the last business day of each
calendar quarter.
ARTICLE 2
Establishment of the Trusts
2.1 Each Company hereby establishes with the Trustee, and the Trustee
hereby accepts, a Trust consisting of such sums of money and other property
acceptable to the Trustee as such Company shall pay or deliver to the Trustee
from time to time. All such money and other property, all investments and
reinvestments made therewith or proceeds thereof and all earnings and profits
thereon, less all payments therefrom and charges thereto as authorized herein,
are hereinafter referred to as the "Trust Fund" for such Trust. Each Trust Fund
shall be held, administered and disposed of by the Trustee as provided in this
Agreement.
2.2 Prior to a Change in Control, each Trust established hereunder may
be revoked, in whole or in part, by the Applicable Company giving to the Trustee
written notice of such revocation; provided, however, that no Trust established
hereunder may be revoked (i) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who effectuates a
Change in Control, (ii) in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed and which actually occurs or (iii)
during a Threatened Change in Control Period, any such attempted revocation
being null and void. If a Trust is so revoked in its entirety, all of the assets
of the Trust (after payment of any unpaid fees and expenses of the Trustee
properly chargeable to such Trust) shall be transferred by the Trustee to the
Applicable Company or to such other person or entity as the Applicable Company
may direct in writing. If a Trust is so revoked in part, the Trustee shall
transfer to the Applicable Company such of the assets of the Trust as the
Applicable Company shall have specified in its written notice to the Trustee of
the partial revocation of such Trust. Upon a Change in Control, each Trust shall
become irrevocable.
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2.3 Each Trust established hereunder is intended to constitute a
"grantor trust", of which the Company is the grantor, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Code, and shall be
construed accordingly.
2.4 The principal of each Trust, and any earnings thereon, shall be
held separate and apart from other funds of the Applicable Company, and shall be
used exclusively for the uses and purposes of Participants under such Company's
Plans and general creditors of such Company, as herein set forth. Participants
and their Beneficiaries shall have no preferred claim on, or any beneficial
ownership interest in, any assets of any Trust. Any rights created under the
Plans and this Agreement shall be mere unsecured contractual rights of
Participants and their Beneficiaries against the Applicable Company. Any assets
held by each Trust will be subject to the claims of the Applicable Company's
general creditors under federal and state law in the event of the Applicable
Company's Insolvency, as defined in Section 1.1(h) herein.
2.5 Each Trust established hereunder shall be maintained by the Trustee
as a separate trust. However, the assets of any Trust may be commingled with the
assets of any other Trust, solely for investment purposes.
ARTICLE 3
Contributions and Accounts
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3.1 Prior to a Change in Control, each Company may make contributions
to its Trust in such amounts, and at such times, as such Company may determine
in its sole discretion. Such contributions may be in the form of cash, or such
other property as may be determined by the Company and as may be acceptable to
the Trustee.
3.2 Required Contributions.
3.2.1 Upon the occurrence of a Change in Control, each Company
shall be required to make contributions to its Trust as follows:
(a) Upon a Change in Control, the Company shall, as soon as
possible but in no event later than 30 days following the Change in
Control, make an irrevocable contribution to its Trust in an amount
that, when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any, maintained
within such Trust Fund) determined as of the most recent Valuation
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Date preceding such contribution, will equal the sum of (i) the
aggregate Present Value of all Benefits accrued for all Participants
under all of such Company's Plans determined as of the most recent
Benefit Valuation Date preceding the date on which the Change in
Control occurred; and (ii) the aggregate Present Value of all other
Benefits for all Participants under all of such Company's Plans that
accrue as a result of the occurrence of the Change in Control,
determined as of the first day of the month coincident with or
immediately following the date on which the Change in Control occurred.
(b) Within 60 days after each Benefit Valuation Date following
the occurrence of a Change in Control, each Company shall make an
irrevocable contribution to its Trust in an amount that, when added to
the value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust Fund)
determined as of the most recent Valuation Date preceding such
contribution, will equal the aggregate Present Value of all Benefits
accrued for all Participants under all of such Company's Plans
determined as of such Benefit Valuation Date.
3.2.2 Upon the occurrence of a Threatened Change in Control,
each Company shall be required to make contributions to its Trust as follows:
(a) Upon a Threatened Change in Control, the Company shall, as
soon as practicable but in no event later than 30 days following the
Threatened Change in Control, make a contribution to its Trust in an
amount that, when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any, maintained
within such Trust Fund) determined as of the most recent Valuation Date
preceding such contribution, will equal the sum of (i) the aggregate
Present Value of all Benefits accrued for all Participants under all of
such Company's Plans, determined as of the most recent Benefit
Valuation Date preceding the date on which the Threatened Change in
Control occurred; and (ii) the aggregate Present Value, determined as
of the first day of the month coincident with or immediately following
the date on which the Threatened Change in Control occurred, of all
other Benefits for all Participants under all of such Company's Plans
that would have accrued as a result of a Change in Control if such
Change in Control had occurred on the date on which the Threatened
Change in Control occurs.
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(b) Within 60 days after each Benefit Valuation Date during a
Threatened Change in Control Period, each Company shall make a
contribution to its Trust in an amount that, when added to the value of
the Trust Fund for such Trust (exclusive of the value of the Legal
Defense Fund, if any, maintained within such Trust Fund) determined as
of the most recent Valuation Date preceding such contribution, will
equal the sum of (i) the aggregate Present Value of all Benefits
accrued for all Participants under all of such Company's Plans,
determined as of such Benefit Valuation Date and (ii) the aggregate
Present Value, determined as of such Benefit Valuation Date, of all
other Benefits for all Participants under all of such Company's Plans
that would have accrued as a result of a Change in Control, if such
Change in Control had occurred on such Benefit Valuation Date.
3.3 Upon, or at any time prior to, the occurrence of a Change in
Control or a Threatened Change in Control, each Company shall direct the Trustee
in writing to establish and maintain, within the Trust Fund for such Company's
Trust, a separate account (hereinafter referred to as a "Plan Account") for each
of the Company's Plans, and to establish and maintain within each such Plan
Account a separate sub-account (hereinafter referred to as a "Participant
Account") for each Participant of such Plan. Each such Plan Account and
Participant Account shall have as its initial balance the amount specified as
the initial balance for such Account in the written direction furnished by the
Applicable Company to the Trustee to establish such Account. The Trustee shall
hold all Plan Accounts and Participant Accounts maintained within the Trust Fund
for any Trust as a single consolidated fund.
3.4 After Plan Accounts and Participant Accounts have been established
within the Trust Fund of any Company's Trust, each contribution that is made to
such Trust prior to a Change in Control but not during any Threatened Change in
Control Period shall be allocated by the Trustee to the Plan Accounts, and to
the Participant Accounts, maintained within such Trust in such manner as the
Applicable Company directs in written instructions delivered by the Applicable
Company to the Trustee at the time of the contribution.
3.5 As of each Valuation Date, the Trust Fund for each Trust shall be
revalued by the Trustee at its then current fair market value, as determined by
the Trustee. After Plan Accounts and Participant Accounts have been established
within the Trust Fund of any Company's Trust, the net investment income, gains
and losses of such Trust Fund for each calendar year that ends prior to a Change
in Control but not during a Threatened Change in
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Control shall be allocated by the Trustee, as of the last Valuation Date
occurring in such year, among the Plan Accounts and Participant Accounts
maintained within such Trust Fund, in such manner as such Company shall specify
in written instructions furnished by it to the Trustee. As of each Valuation
Date following the occurrence of a Change in Control, or that falls within a
Threatened Change in Control Period, the net investment income, gains and losses
of each Trust Fund for the calendar year ending on such Valuation Date shall be
allocated by the Trustee proportionately among the Plan Accounts and Participant
Accounts maintained within such Trust Fund, based on the value of such Accounts
as of the immediately preceding Valuation Date or, if such Accounts were
established after such Valuation Date, based on the amount of the initial
balances of such Accounts as determined under Section 3.3. In making the
foregoing allocation, the value of Plan Accounts and Participant Accounts in
existence on the immediately preceding Valuation Date but not in existence on
the current Valuation Date shall be disregarded. The net investment income,
gains and losses of any Trust Fund for any year to be allocated among Plan
Accounts and Participant Accounts pursuant to this Section 3.5 shall not include
such portions of the total net investment income, gains and losses of such Trust
Fund for such year as are attributable to the Legal Defense Fund maintained
within such Trust Fund pursuant to Article 5.
3.6 Notwithstanding the provisions of Sections 3.4 and 3.5, the Trustee
shall adjust the balances of the Plan Accounts and/or the Participant Accounts
maintained within the Trust Fund of any Company's Trust at such times and in
such manner as such Company specifies in written instructions delivered to the
Trustee, but only if such instructions are delivered to the Trustee prior to the
occurrence of a Change in Control and not during any Threatened Change in
Control Period.
3.7 Any contribution made by a Company to its Trust pursuant to
Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b) shall be allocated to the Plan
Accounts maintained under such Trust in proportion to the respective amounts by
which the aggregate Present Value of all Benefits accrued (or, in the case of
contributions made under clause (ii) of Section 3.2.2(a) or 3.2.2(b), deemed to
have accrued) for all Participants under each of the Plans in question,
determined as of the dates specified in Sections 3.2.1 (a), 3.2.1 (b), 3.2.2(a)
or 3.2.2(b), exceeds the balance of the Plan Account maintained hereunder with
respect to each such Plan, determined as of the Valuation Date immediately
preceding the date of such contribution. The amount so allocated to any Plan
Account shall be further allocated to the Participant Accounts maintained within
such Plan Account in proportion to the respective amounts by which the Present
Value of the Benefits accrued (or, in the case of contributions made under
clause (ii)
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of Section 3.2.2(a) or 3.2.2(b), deemed to have accrued) for each Participant
under the Plan in question, determined as of the dates specified in Sections
3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b), exceeds the balance of the Participant
Account maintained for such Participant, determined as of the Valuation Date
immediately preceding the date of such contribution. For purposes of the
foregoing, if a Plan Account or a Participant Account was not in existence on
the Valuation Date immediately preceding the date of a contribution made by a
Company to its Trust pursuant to Section 3.2.1(a), 3.2.1(b), 3.2.2(a) or
3.2.2(b), the balance of such Account shall be the initial balance of such
Account as determined under Section 3.3.
3.8 The determinations of the Present Value of Benefits required to be
made hereunder as of any Benefit Valuation Date, or other date, occurring prior
to a Change in Control shall be made by an enrolled actuary selected by the
Applicable Companies. As soon as practicable after each such determination has
been made, each Company shall furnish the Trustee with a schedule setting forth
the Present Value so determined of the Benefits accrued (or, if applicable,
deemed to have accrued) for each Participant under each of the Company's Plans.
The determinations of the Present Value of Benefits required to be made
hereunder as of any Benefit Valuation Date, or other date, occurring after a
Change in Control shall be made by an enrolled actuary selected by the Trustee.
In making any allocation of contributions the Trustee is required to make under
Section 3.7, the Trustee shall be entitled to rely, and shall be fully protected
in relying, on any written determination of the Present Value of any Benefit
furnished to it in accordance with the provisions of this Section 3.8. In making
any allocation of net investment income, gains and losses pursuant to the second
sentence of Section 3.5, and in making any adjustments to the balance of any
Plan Account or Participant Account pursuant to Section 3.6, the Trustee shall
be entitled to rely, and shall be fully protected in relying, on any written
instructions furnished to it by the Applicable Company.
ARTICLE 4
Payments to Participants and Beneficiaries
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4.1 Prior to a Change in Control, the Trustee shall make payments from
the Trust Fund for any Trust to such Participants and Beneficiaries, in such
manner, at such times, and in such amounts, as the Applicable Company shall
direct in written instructions delivered to the Trustee.
4.2 After a Change in Control, the Trustee shall make payments from the
Trust Fund of any Trust to Participants and Beneficiaries in accordance with the
following provisions:
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(a) Prior to a Change in Control, each Company shall deliver to the
Trustee a schedule ("Payment Schedule") substantially in the form annexed hereto
as Exhibit C for each Participant of each Plan whose Benefits under such Plan
may be paid from such Company's Trust after a Change in Control. The Payment
Schedule shall
(i) describe the events that must occur in order for the
Participant's Benefits to become payable under the terms of the Plan;
(ii) specify the amount of the Participant's Benefits accrued
under the Plan, as of the date on which the Payment Schedule is
furnished to the Trustee, and provide a formula or such other
instructions as will enable the Trustee to determine the amount of the
Participant's Benefits as of the time they become payable under the
terms of the Plan;
(iii) specify the form in which the Participant's Benefits
are to be paid, as provided for or available under the Plan;
(iv) specify the time of commencement for payment of the
Participant's Benefits under the Plan; and
(v) specify the address and social security number of the
Participant as well as the name, address, social security number and
relation to the Participant of the Participant's Beneficiary.
Prior to a Change in Control the Applicable Company may from time to
time substitute a new Payment Schedule for, or amend, an existing Payment
Schedule by delivering a new or amended Payment Schedule to the Trustee. Upon
receipt of such new or amended Payment Schedule, the previous Payment Schedule
shall be deemed revoked. Prior to a Change in Control, any Payment Schedule
previously filed with the Trustee may be revoked by the Applicable Company by
filing written notice of such revocation with the Trustee without delivering a
new or amended Payment Schedule to the Trustee. Notwithstanding the foregoing,
no Payment Schedule may be amended or revoked after a Change in Control or
during a Threatened Change in Control Period; provided, however, that during a
Threatened Change in Control Period, a Payment Schedule with respect to a
Participant's Benefits under any Plan may be amended so as to reflect any
amendment to the Plan made during such Threatened Change in Control Period that
has the effect of increasing the amount of the Benefits payable under the Plan
with respect to the Participant, or that permits payment of such Benefits to be
made in a form, or to commence at a time, more favorable to the Participant or
his or her Beneficiary than as provided under the Plan prior to such amendment.
Except as otherwise provided
14
herein, after a Change in Control the Trustee shall make payments with respect
to a Participant's Benefits under any Plan only in accordance with the Payment
Schedule with respect to such Participant's Benefits under such Plan that is on
file with the Trustee, and that has not been revoked, at the time such payments
are to be made.
(b) Any Participant or Beneficiary seeking to obtain payments from the
Trust Fund for any Trust after a Change in Control shall first file with the
Trustee a written request for payment in substantially the form annexed hereto
as Exhibit D ("Payment Request Form"). In the Payment Request Form so filed, the
Participant or Beneficiary shall
(i) identify the Plan or Plans under which the
Participant or Beneficiary has become entitled to payment of Benefits;
(ii) describe the events that entitle the Participant or
Beneficiary to receive payment of Benefits under the terms of the Plan
or Plans, and affirm under oath that such events have occurred;
(iii) affirm under oath that no amount of the Benefits with
respect to which payment from the Trust Fund is sought was previously
paid by the Applicable Company; and
(iv) provide such information (including, without limitation,
information as to the Participant's period of service, compensation and
conditions of employment after a Change in Control) as will enable the
Trustee to determine the amount of the Benefits that the Participant or
Beneficiary is entitled to receive in accordance with the Payment
Schedules furnished to the Trustee with respect to the Participant's
Benefits under the Plan or Plans.
In the case of any Beneficiary seeking payments from a Trust Fund, the
Beneficiary shall furnish to the Trustee, along with the Payment Request Form, a
certified copy of the death certificate of the Participant, an inheritance tax
waiver and such other documents as the Trustee may reasonably require,
including, without limitation, certified copies of letters testamentary. For all
purposes under this Agreement, the Trustee may rely, and shall be fully
protected in relying, on the information contained in any Payment Request Form
(and in any documents accompanying such form) filed with it by any Participant
or Beneficiary.
(c) As soon as practicable after a Payment Request Form has been filed
with it by a Participant or Beneficiary, the Trustee, solely out of the
applicable Trust Fund and with no obligation otherwise to make any payments,
shall make payments to such
15
Participant or Beneficiary in such manner, and at such times, and in such
amounts, as the Trustee shall determine to be payable to such Participant or
Beneficiary under the relevant Plan or Plans based on the most recent Payment
Schedules applicable to the Participant or Beneficiary that were furnished to
the Trustee by the Applicable Company prior to a Change in Control, and on the
information contained in the Payment Request Form (and in any documents
accompanying such Form) filed by the Participant or Beneficiary. The Trustee is
authorized to retain an enrolled actuary to assist it in determining the amount
of any Benefits payable to any Participant or Beneficiary pursuant to any
Payment Request Form or Payment Schedules filed by or for such Participant or
Beneficiary and, in any case in which a Participant or Beneficiary has filed a
Payment Request Form with respect to Benefits under any Plan for which an
unrevoked Payment Schedule is not on file with the Trustee, to assist it in
determining such Participant's or Beneficiary's entitlement to Benefits under
such Plan. For all purposes under this Agreement, the Trustee may rely, and
shall be fully protected in relying, on any advice given to it by such actuary
as to the amount of Benefits payable hereunder to any Participant or
Beneficiary.
(d) Following the occurrence of a Change in Control, the Trustee shall
make provision for the reporting and withholding of any federal, state or local
taxes that may be required to be withheld with respect to the payment of
Benefits to be made from any Trust pursuant to the terms of this Agreement, and
shall pay amounts withheld by it to the appropriate taxing authorities or
determine that the amounts required to be withheld with respect to such payments
have been reported, withheld and paid by the Applicable Company. Prior to a
Change in Control, the Trustee shall report and withhold any federal, state or
local taxes that may be required to be withheld with respect to any payment of
Benefits to be made from any Trust pursuant to Section 4.1, but only to the
extent that the Applicable Company has furnished to the Trustee, in the written
instructions delivered to the Trustee pursuant to Section 4.1 directing it to
make such payment, the amount of the federal, state or local taxes required to
be withheld with respect to such payment. The Trustee shall be entitled to rely,
and shall be fully protected in relying, upon the information so furnished to it
as to the amount of taxes to be withheld.
4.3 The entitlement of a Participant or Beneficiary to Benefits under
any Plan shall be determined by the Applicable Company or such other party as
may have been designated under the Plan, and any claim for such Benefits shall
be considered and reviewed under the procedures set out in the Plan.
Notwithstanding the foregoing, after a Change in Control, any Participant or
Beneficiary for whom any unrevoked Payment Schedule is on file with the Trustee
at the time of the Change in
16
Control shall be presumed conclusively, for all purposes of this Agreement, to
be entitled to any Benefit that the Trustee determines to be payable to such
Participant or Beneficiary on the basis of the information contained in such
Payment Schedule and in any Payment Request Form filed by the Participant or
Beneficiary; and in such case, the provisions set forth in the immediately
preceding sentence shall apply only with respect to any claim by the Participant
or Beneficiary for Benefits that are in addition to, or in excess of, the
Benefits that the Trustee has so determined to be payable to the Participant or
Beneficiary.
4.4 Each payment made from the Trust Fund for any Trust with respect to
a Participant's Benefits under any Plan shall be payable only from, and shall be
charged against, the Plan Account maintained within such Trust Fund with respect
to such Plan and the Participant Account maintained within such Plan Account for
the applicable Participant. Notwithstanding any other provision herein to the
contrary, the Trustee shall not make a payment with respect to a Participant's
Benefits under any Plan to the extent that the amount of the payment otherwise
required to be made exceeds the amount then held in the Plan Account for such
Plan or the amount then held in the Participant Account established within such
Plan Account for the applicable Participant.
If, because of the provisions of this Section 4.4, any amount otherwise
required to be paid by the Trustee to a Participant or Beneficiary with respect
to a Participant's Benefits under any Plan cannot be paid by the Trustee, such
amount shall be paid to the Participant or Beneficiary by the Applicable
Company.
4.5 At such time after a Change in Control as the aggregate amount of
the payments made hereunder from the Participant Account maintained within any
Plan Account for any Participant shall equal the maximum amount that may be paid
from such Participant Account pursuant to the most recent Payment Schedule filed
with respect to such Participant's Benefits under the Plan in question, the
balance then remaining in such Participant Account shall be allocated and
credited, on a pro rata basis, to all other Participant Accounts maintained
within such Plan Account, based on the respective values of such other
Participant Accounts determined as of the most recent Valuation Date preceding
the date as of which such allocation is made.
At such time after a Change in Control as the aggregate amount of the
payments made from any Plan Account shall equal the maximum amount that may be
paid from such Plan Account pursuant to the most recent Payment Schedules filed
with respect to Participants' Benefits under the Plan for which such Plan
Account was established, the balance then remaining in such Plan, on a
17
Account shall be allocated and credited pro rata basis, to all other Plan
Accounts and Participant Accounts maintained within the same Trust Fund, based
on the respective values of such other Plan Accounts and Participant Accounts
determined as of the most recent Valuation Date preceding the date as of which
such allocation is made.
4.6 Notwithstanding any other provision of this Agreement to the
contrary, if at any time any Trust is finally determined by the Internal Revenue
Service (the "IRS") not to be a "grantor trust," with the result that the income
of such Trust is not treated as income of the Applicable Company pursuant to
Sections 671 through 679 of the Code, such Trust shall immediately terminate and
the amounts allocated to each Plan Account and Participant Account within such
Trust shall be paid in a cash lump sum as soon as practicable by the Trustee to
the Participants for whom such Accounts were maintained. If any Company should
receive notice of such final determination from the IRS, such Company shall
promptly furnish written notice of such final determination to the Trustee.
4.7 Notwithstanding any other provision of this Agreement to the
contrary, if the IRS should finally determine that any amounts held in any Trust
are includible in the gross income of any Participant or Beneficiary prior to
payment of such amounts from the Trust, the Trustee shall, as soon as
practicable, pay such amounts to such Participant or Beneficiary from such
Trust. For purposes of this Section 4.7, the Trustee shall be entitled to rely
on an affidavit by a Participant or Beneficiary to the effect that such a
determination has occurred.
4.8 Each Company may make payment of Benefits directly to Participants
or their Beneficiaries as they become due under the terms of the Applicable
Plans. After a Change in Control, a Company that decides to make payment of
Benefits directly shall notify the Trustee in writing of its decision prior to
the time amounts are payable to the Participants or their Beneficiaries. In
addition, each Company shall remain primarily liable to pay all of the Benefits
provided for under its Plans, to the extent such Benefits are not payable from
such Company's Trust pursuant to this Agreement. Accordingly, if the principal
of the Applicable Company's Trust, and any earnings thereon, are not sufficient
to make payments of Benefits in accordance with the terms of such Company's
Plans, the Company shall make the balance of each such payment as it falls due.
The Trustee shall notify the Applicable Company in writing where principal and
earnings of the Company's Trust are not sufficient.
18
ARTICLE 5
Legal Defense Fund
------------------
5. 1 On the written direction of a Company, the Trustee shall establish
within the Trust Fund for such Company's Trust a separate fund, hereinafter
referred to as a "Legal Defense Fund".
A Company's Legal Defense Fund shall consist of such portions of its
contributions to its Trust as the Company shall specify in writing at the time
of contribution, together with all income, gains and losses and proceeds from
the investment, reinvestment and sale thereof, less all payments therefrom and
expenses charged thereto in accordance with the provisions of this Article 5.
Subject to Article 6, a Company's Legal Defense Fund shall be held and
administered by the Trustee exclusively for the purpose of defraying the costs
and expenses incurred by the Trustee in performing its duties under Sections 5.3
and 5.4.
5.2 A Company's Legal Defense Fund shall be maintained and administered
as a separate segregated account, provided, however, that the assets of any
Legal Defense Fund may be commingled with all other assets of the same Trust,
and with the assets of any other Trust, solely for investment purposes.
5.3. If, at any time after a Change in Control, a Participant or
Beneficiary notifies the Trustee in writing that a Company has refused to pay a
claim asserted by such Participant or Beneficiary under any of such Company's
Plans, the Trustee shall promptly review such claim and determine whether it has
any basis in law and fact. If the Trustee determines that the claim has no basis
in law and fact, the Trustee shall notify the Participant or Beneficiary of such
determination, and thereafter shall take no further action with respect to the
claim. If the Trustee determines that there is a basis in law and fact for the
Participant's or Beneficiary's claim, the Trustee shall take the following
actions to assist the Participant or Beneficiary (hereafter referred to as the
"Claimant") to recover on such claim:
(a) The Trustee shall promptly attempt to negotiate with the
Applicable Company to obtain payment, settlement or other disposition
of the claim, subject to the Claimant's consent.
(b) If (i) negotiations fail after 60 days of their
commencement to result in a payment, settlement or other disposition
acceptable to the Claimant, (ii) the Trustee at any time reasonably
believes that further negotiations would not be in the Claimant's best
interest or (iii) any
19
applicable statute of limitations would otherwise expire within 60
days, the Trustee shall advise the Claimant of such fact. Thereupon,
the Claimant may, by filing with the Trustee a written authorization in
substantially the form attached hereto as Exhibit E, direct the Trustee
to institute and maintain legal proceedings (the "Litigation") against
the Applicable Company to recover on the claim on behalf of the
Claimant.
(c) The Trustee shall direct the course of any Litigation and
shall keep the Claimant informed of the progress thereof at such
intervals as the Trustee deems appropriate, but no less frequently than
quarterly. The Trustee shall have the discretion to determine the form
and nature that any Litigation shall take, and the procedural rules and
laws applicable to such Litigation shall supersede any inconsistent
provision of this Agreement.
(d) If the Claimant directs in writing that the Litigation be
settled or discontinued, the Trustee shall take all appropriate action
to follow such direction, provided that such written direction
specifies the terms and conditions of the settlement or discontinuance
and provided further that the Claimant, if requested to do so by the
Trustee, executes and delivers to the Trustee a document in a form
acceptable to the Trustee releasing the Trustee and holding it harmless
from any liability resulting from its following such direction. If the
Claimant refuses to consent to a settlement or other disposition of the
Litigation on terms recommended in writing by the Trustee, the Trustee
may proceed, in its sole and absolute discretion, to take such action
as it deems appropriate in the Litigation, including settlement or
discontinuance of the Litigation; provided, however, that the Trustee
shall afford the Claimant at least 14 days' advance notice in writing
of any decision by the Trustee to settle or otherwise discontinue the
Litigation.
(e) A Claimant may at any time revoke the authorization of the
Trustee to continue any Litigation on his behalf by delivering to the
Trustee a written revocation in substantially the form attached as
Exhibit F hereto, and notifying the Trustee in writing that the
Claimant has appointed his own counsel (whose fees and expenses shall
not be paid from any Legal Defense Fund) to represent the Claimant in
the Litigation in lieu of counsel retained by the Trustee. Upon the
Trustee's receipt of such revocation and notice, the Trustee shall have
no obligation to proceed further on behalf of the Claimant in the
Litigation, or to pay any costs or expenses incurred in the Litigation
after
20
the date on which such revocation and notice is delivered to the
Trustee.
(f) The Trustee shall be empowered to retain counsel and other
appropriate experts, including actuaries and accountants, to assist it
in making any determination under this Section 5.3, in determining
whether to pursue, settle or discontinue any Litigation, and to
prosecute and maintain any such Litigation on behalf of any Claimant.
Notwithstanding the foregoing, each Company, prior to a Change in
Control, may designate in writing the counsel to be retained by the
Trustee after a Change in Control to assist in enforcing the rights of
Claimants under such Company's Plans in accordance with the provisions
of this Section 5.3. If the counsel so designated declines to provide
representation, or if such counsel's representation would involve a
conflict of interest with the Trustee, or if the Trustee is not
satisfied with the quality of representation provided, the Trustee may
dismiss such counsel and engage another qualified law firm for this
purpose; provided, however, that any law firm so engaged may not be the
same law firm that represents any Company after a Change in Control. No
Company may dismiss or engage such counsel, or cause the Trustee to
engage or dismiss such counsel, after a Change in Control.
(g) All costs and expenses incurred by the Trustee in
connection with the performance of its duties under this Section 5.3,
including, without limitation, the payment of reasonable fees, costs
and disbursements of any counsel, actuaries, accountants or other
experts retained by the Trustee pursuant to Section 5.3(f), shall be
charged to and paid from the Applicable Company's Legal Defense Fund.
(h) Notwithstanding any provision herein to the contrary, the
Trustee shall be required to act under this Section 5.3, including,
without limitation, instituting or continuing any Litigation, only to
the extent there are sufficient amounts available in the Applicable
Company's Legal Defense Fund to defray the costs and expenses the
Trustee reasonably anticipates will be incurred in connection with such
action. If, at any time after a Claimant has filed a written notice
with the Trustee under Section 5.3(a) the Trustee determines that there
will not be sufficient amounts in the Applicable Company's Legal
Defense Fund to defray such costs and expenses, the Trustee shall
promptly advise the Claimant of such fact. Unless within 30 days after
it has given such notice to the Claimant the Trustee receives from the
Claimant assurances, in such form as may be satisfactory to the
Trustee, that any costs and
21
expenses Company's Legal Defense Fund will be paid by the Claimant, the
Trustee shall have no obligation to take any further action on behalf
of the Claimant pursuant to this Section 5.3; and, if a Litigation on
behalf of the Claimant is then pending, the Trustee may discontinue
such Litigation on such terms and conditions as it deems appropriate in
its sole discretion.
5.4 If, at any time after a Change in Control or during a Threatened
Change in Control Period, legal proceedings are brought against the Trustee by a
Company or other party seeking to invalidate any of the provisions of this
Agreement as they relate to a Company's Trust, or seeking to enjoin the Trustee
from paying any amounts from any Trust or from taking any other action otherwise
required or permitted to be taken by the Trustee under this Agreement with
respect to any Trust, the Trustee shall take all steps that may be necessary in
such proceeding to uphold the validity and enforceability of the provisions of
this Agreement as they relate to such Trust. All costs and expenses incurred by
the Trustee in connection with any such proceeding (including, without
limitation, the payment of reasonable fees, costs and disbursements of any
counsel, actuaries, accountants or other experts retained by the Trustee in
connection with such proceeding) shall be charged to and paid from the
Applicable Company's Legal Defense Fund. Any costs and expenses so incurred by
the Trustee in excess of amounts available in the Applicable Company's Legal
Defense Fund shall be charged to and paid from the other assets of such
Company's Trust. Any such excess costs and expenses so charged shall be
allocated to the Plan Accounts maintained within such Trust, and to the
Participant Accounts maintained within such Plan Accounts, on a pro rata basis.
Notwithstanding any provision herein to the contrary, the Trustee shall be
required to act under this Section 5.4 only to the extent there are sufficient
amounts available in the Applicable Company's Trust to defray the costs and
expenses the Trustee reasonably anticipates will be incurred in connection with
such action.
5.5 Each Company's Legal Defense Fund shall continue to be held and
administered by the Trustee for the purposes described in Section 5.1 until such
time as all Benefits to which all Participants are entitled under all of such
Company's Plans shall have been paid in full to such Participants or their
Beneficiaries. Any balance then remaining in a Company's Legal Defense Fund
shall be distributed to such Company.
22
ARTICLE 6
Insolvency
----------
6.1 The Trustee shall cease making payment hereunder of Benefits payable to
Participants and their Beneficiaries pursuant to a Company's Plans if the
Company is Insolvent.
6.2 At all times during the continuance of each Trust, as provided in
Section 2.4 hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Applicable Company under federal and state
law as set forth below:
(a) The Board of Directors and Chief Executive
Officer of each Company shall have the duty to inform the Trustee in
writing of such Company's Insolvency. If a person claiming to be a
creditor of a Company alleges in writing to the Trustee that such
Company has become Insolvent, the Trustee shall determine whether the
Company is Insolvent and, pending such determination, the Trustee shall
discontinue making payment from such Company's Trust to Participants
and Beneficiaries.
(b) Unless the Trustee has actual knowledge of a Company's
Insolvency, or has received notice from a Company or a person claiming
to be a creditor of such Company alleging that the Company is
Insolvent, the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events rely on such
evidence concerning a Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
(c) If at any time the Trustee has determined that a Company
is Insolvent, the Trustee shall discontinue making payments from such
Company's Trust to Participants and their Beneficiaries and shall hold
the assets of such Trust for the benefit of the Company's general
creditors. Nothing in this Agreement shall in any way diminish any
rights of Participants or their Beneficiaries to pursue their rights as
general creditors of the Applicable Company with respect to Benefits
due under the Company's Plans or otherwise.
(d) The Trustee shall resume making payment from a Company's
Trust of Benefits to Participants or their Beneficiaries in accordance
with Article 4 of this Trust
23
Agreement only after the Trustee has determined that the Company is not
Insolvent, or is no longer Insolvent.
6.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of Benefits from any Trust pursuant to Section 6.2
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Applicable Company's
Plan for the period of such discontinuance, less the aggregate amount of any
payments made to Participants or their Beneficiaries by the Company in lieu of
the payments provided for hereunder during any such period of discontinuance.
ARTICLE 7
Payments to Company
-------------------
7.1 Prior to a Change in Control (but not during a Threatened Change in
Control Period), a Company may, by written notice to the Trustee, direct the
Trustee to pay to such Company, out of the Trust Fund for such Company's Trust,
such amount as is specified in the notice. Any such notice shall specify the
Plan Accounts and the Participant Accounts, if any, which shall be debited with
respect to such payment. If the amount that would remain in the Trust Fund after
any such payment would be less than the unpaid fees and expenses of the Trustee
properly chargeable to such Trust Fund, the Trustee may deduct such fees and
expenses from the payment that otherwise would be made to the Company.
7.2 Except as provided in Article 6 hereof, during such time as the
Trust is irrevocable, the Applicable Company shall have no right or power to
direct the Trustee to return to the Company or to divert to others any of the
Trust assets before all payment of Benefits have been made to Participants and
their Beneficiaries pursuant to the terms of the Company's Plans.
ARTICLE 8
Investment Authority and Disposition of Income
----------------------------------------------
8.1 Except as otherwise provided in Sections 8.2, 8.4, and 8.5, the
Trustee, prior to a Change in Control, shall invest and reinvest the assets of
each Trust, in its sole discretion, in such investments as may be permitted in
accordance with any written investment guidelines that may be delivered to the
Trustee from time to time by the Applicable Company and that are
24
acceptable to the Trustee or, at any time when no such investment guidelines are
in effect, in Permitted Investments.
8.2 Prior to a Change in Control, the Applicable Company may in its
sole discretion appoint an investment manager to manage the investment of any
part or all of the Trust Fund for any Trust. The Applicable Company shall
promptly inform the Trustee in writing of any such appointment, shall furnish
the Trustee with a copy of the instrument pursuant to which any investment
manager is so appointed, and shall inform the Trustee in writing as to the
specific portions of the Trust Fund for its Trust that will be subject to the
management of such investment manager. During the term of any such appointment,
the investment manager shall have the sole responsibility for the investment and
reinvestment of that portion of any Trust Fund subject to its investment
management, and the Trustee shall have no responsibility for, or liability with
respect to, the investment of such portion of such Trust Fund.
In exercising the powers granted to it hereunder, the Trustee shall
follow the directions of any investment manager with respect to the portion of
any Trust Fund subject to management by such investment manager. All directions
given by an investment manager to the Trustee shall be in writing, signed by an
officer (or a partner) of the investment manager, or by such other person or
persons as may be designated by an officer (or a partner) of the investment
manager. The investment manager may directly place orders for the purchase or
sale of securities, subject to such conditions as may be approved by the
Applicable Company in authorizing the investment manager to effect transactions
directly with respect to the portion of the Trust Fund for any Trust subject to
its management, provided that the Trustee shall nevertheless retain custody of
the assets comprising such portion of the Trust Fund.
The Applicable Company, by written notice to the Trustee, may at any
time terminate its appointment of any investment manager. In such event, the
Applicable Company shall either appoint a successor investment manager for the
portion of the Trust Fund in question, or direct that such portion of the Trust
Fund thereafter be invested and reinvested by the Trustee in accordance with the
provisions of Section 8.1. Until receipt of such written notice, the Trustee
shall be fully protected in relying upon the most recent prior written notice of
appointment of an investment manager.
8.3 After a Change in Control, the Trustee shall have exclusive
authority and discretion to manage and control the investment and reinvestment
of the Trust Fund for each Trust;
25
provided, however, that the Trust Fund for each Trust shall be so invested and
reinvested only in Permitted Investments.
8.4 In no event may the assets of any Trust be invested in securities
(including stock or rights to acquire stock) or obligations issued by any
Company, other than a de minimis amount held in common investment vehicles in
which the Trustee invests. All rights associated with assets of each Trust shall
be exercised by the Trustee or an Investment Manager appointed under Section
8.2, and shall in no event be exercisable by or rest with Participants.
8.5 During the term of each Trust, all income received by the Trust,
net of expenses and taxes, shall be accumulated and reinvested.
ARTICLE 9
General Powers and Duties of Trustee
------------------------------------
9.1 In addition to the other powers granted to it under this Agreement,
the Trustee shall have the following administrative powers and authority with
respect to the property comprising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at public
or private sale for cash or on credit and grant options for the
purchase or exchange thereof, including call options for property held
in the Trust Fund and put options for the purchase of such property,
including, without limitation, at any time to sell any asset other than
cash held in the Trust Fund to pay Benefits if there is not sufficient
cash in the Trust Fund to pay Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan
relating to any such property, and to consent to or oppose any such
plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale or other action by any corporation or other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary power to
any such committee; and to pay part of the expenses and compensation of
any such committee and any assessments levied with respect to any
property so deposited.
26
(d) To exercise any conversion privilege or subscription right
available in connection with any such property; to oppose or to consent
to the reorganization, consolidation, merger or readjustment of the
finances of any corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any corporation, company
or association of any of the securities of which may at any time be
held in the Trust Fund and to do any act with reference thereto,
including the exercise of options, the making of agreements or
subscriptions and the payment of expenses, assessments or
subscriptions, which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property
which it may so acquire.
(e) To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to settle,
compromise or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust.
(f) To exercise, personally or by general or limited power of
attorney, any right, including the right to vote, appurtenant to any
securities or other such property.
(g) To borrow money from any lender in such amounts and upon
such terms and conditions as shall be deemed advisable or proper to
carry out the purposes of the Trust and to pledge any securities or
other property for the repayment of any such loan.
(h) To engage any legal counsel, including (except after the
occurrence of a Change in Control) counsel to any Company, any enrolled
actuary, any accountant or any other suitable agents, to consult with
such counsel, enrolled actuary, accountant or agents with respect to
the construction hereof, the duties of the Trustee hereunder, the
transactions contemplated by this Agreement or any act which the
Trustee proposes to take or omit, to rely upon the advice of such
counsel, enrolled actuary, accountant or agents, and to pay its
reasonable fees, expenses and compensation from the Trust Fund.
(i) To register any securities held by it in its own name or
in the name of any custodian of such property or of its nominee,
including the nominee of any system for the central handling of
securities, with or without the addition of words indicating that such
securities are held in a fiduciary capacity, to deposit or arrange for
the deposit of any such securities with such a system and to hold any
27
securities in bearer form; provided, however, that no such holding
shall relieve the Trustee of its responsibility for the safe custody
and disposition of the Trust Fund in accordance with the provisions of
this Agreement, the Trustee's books and records shall at all times show
that such property is part of the Trust Fund, and the Trustee shall be
absolutely liable for any loss occasioned by the acts of its nominee or
nominees with respect to securities registered in the name of the
nominee or nominees.
(j) To make, execute and deliver, as Trustee, any and all
deeds, leases, notes, bonds, guarantees, mortgages, conveyances,
contracts, waivers, releases or other instruments in writing necessary
or proper for the accomplishment of any of the powers granted herein.
(k) To transfer assets of the Trust Fund to a successor
trustee as provided in Section 13.4 hereof.
(l) To exercise, generally, any of the powers which an
individual owner might exercise in connection with property either
real, personal or mixed held in the Trust Fund, and to do all other
acts that the Trustee may deem necessary or proper to carry out any of
the powers granted to it hereunder or that otherwise may be in the best
interests of the Trust Fund.
(m) To hold any portion of the Trust Fund in cash pending
investment, or for the payment of expenses and Benefits, without
liability for interest.
(n) To vote personally or by proxy and to delegate power and
discretion over such proxy on account of securities held in the Trust
Fund.
(o) To hold assets in time or demand deposits (including
deposits with the Trustee in its individual capacity that pay a
reasonable rate of interest).
(p) To invest and reinvest all or any specified portion of any
Trust Fund through the medium of any common, collective, or commingled
trust fund that has been or may hereafter be established and maintained
by the Trustee.
(q) To invest in mutual funds registered with the Securities
Exchange Commission under the Investment Company Act of 1940.
28
The Trustee also shall have, without exclusion, all powers conferred on
Trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that if an insurance policy is held as an asset of any Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor trustee, or to loan to any person the
proceeds of any borrowing against such policy.
Prior to a Change in Control, the Trustee shall exercise the powers
referred to in Section 9.1(h) only as directed by the Applicable Company; and,
with respect to the portion of any Trust Fund for which an investment manager
has been appointed under Section 8.2, the Trustee shall exercise any power
referred to in this Section 9.1, as it relates to the investment management of
such portion of the Trust Fund, only as directed by such investment manager.
After a Change in Control, the Trustee may exercise such powers in its sole and
absolute discretion, except as otherwise provided in Article 8.
Notwithstanding any powers granted to the Trustee pursuant to this
Agreement or to applicable law, the Trustee shall not have any power that could
give any Trust the objective of carrying on a business and dividing the gains
therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall, subject to Article 6
hereof, discharge its duties under this Agreement solely in the interest of the
beneficiaries of each Trust and (i) for the exclusive purpose of providing
Benefits to such beneficiaries and defraying reasonable expenses of
administering such Trust; (ii) with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; and (iii) by diversifying the
investments of the Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not to do so.
9.3 The Trustee shall not be required to give any bond or any other
security for the faithful performance of its duties under this Agreement, except
as required by law.
9.4 Except as otherwise expressly provided herein, the Trustee shall
not be responsible in any respect for administering any Plan; nor shall the
Trustee be responsible for the adequacy of the Trust Fund for any Trust to meet
and discharge all payments and liabilities under any Plan.
29
9.5 The Trustee shall be under no duties whatsoever except such duties
as are specifically set forth as such in this Agreement, and no implied covenant
or obligation shall be read into this Agreement against the Trustee. Except as
otherwise provided in Article 5, the Trustee shall not be required to take any
action toward the execution or performance of any Trust created hereunder or to
prosecute or defend any suit or claim in respect thereof, unless indemnified to
its satisfaction against loss, liability, and reasonable costs and expenses. The
Trustee shall be under no liability or obligation to anyone with respect to any
failure on the part of any Company to perform any of its obligations under any
Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall protect, indemnify and
save harmless the Trustee and its officers, directors or trustees, employees and
agents from and against any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages, reasonable costs
and expenses (including, without limitation, reasonable attorneys' fees and
expenses) of any nature arising from or relating to any action or failure to act
by the Trustee, its officers, directors or trustees, employees and agents with
respect to such Company's Trust, or arising from or relating to the transactions
contemplated by this Agreement that pertain to or affect such Trust except to
the extent that any such loss, liability, action, suit, demand, damage, cost or
expense is attributable to any action or failure to act on the Trustee's part
(i) that occurs prior to a Change in Control and that constitutes negligence or
willful misconduct on the part of the Trustee, its officers, directors or
trustees, employees or agents, or (ii) that occurs after a Change in Control and
that constitutes a failure on the part of the Trustee to discharge its duties
under this Agreement in accordance with the standards set forth in Section 9.2.
If the Trustee shall become entitled to indemnification by any Company
pursuant to this Section 9.6 and such Company fails to provide such
indemnification to the Trustee within 30 days of the Company's receipt of a
written request from the Trustee for such indemnification, the Trustee may apply
assets of such Company's Trust in full satisfaction of the Company's obligation
to make such indemnification. Promptly after any assets of any Trust are so
applied, the Trustee shall institute legal proceedings on behalf of the Trust to
recover from the Applicable Company an amount equal to the amount of any Trust
assets so applied.
30
ARTICLE 10
Taxes, Expenses, and Compensation of Trustee
--------------------------------------------
10.1 Each Company shall pay any federal, state, local or other taxes
imposed or levied with respect to the corpus and/or income of its Trust or any
part thereof under existing or future laws and such Company in its discretion,
or the Trustee in its discretion, may contest the validity or amount of any tax,
assessment, claim or demand respecting such Trust or any part thereof.
10.2 Each Company shall pay to the Trustee its allocable share of the
compensation that is payable to the Trustee for its services hereunder pursuant
to the schedule of fees annexed hereto as Exhibit G. Each Company shall also pay
its allocable share of the reasonable and necessary expenses incurred by the
Trustee in the performance of its duties under this Agreement, including
reasonable fees of any counsel, actuary, accountant or other agent engaged by
the Trustee pursuant to this Agreement. Any such compensation or expenses shall
be allocated among the Companies as follows: in the case of any such
compensation that is specifically chargeable to, or any such expenses that were
specifically incurred with respect to, a particular Trust, the amount of such
compensation or expenses shall be allocated solely to the Applicable Company; in
the case of any such compensation that is not specifically chargeable to, or any
such expenses that were not specifically incurred with respect to, a particular
Trust, the amount of such compensation or expenses shall be allocated to the
Companies in proportion to the respective values of the Trust Funds for the
Companies' Trusts as of the Valuation Date immediately preceding the date as of
which the Trustee bills the Companies for such compensation or expenses. Each
Company's allocable share of such compensation and expenses shall be charged
against and paid from the Trust Fund for such Company's Trust, to the extent not
paid by such Company within 45 days after the date on which the Trustee bills
the Company for such compensation and expenses. Any amount so charged against
and paid from the Trust Fund for any Company's Trust shall be further allocated
to and charged against the Plan Accounts and Participant Accounts maintained
within such Trust (a) in such manner as the Applicable Company directs in
written instructions delivered by it to the Trustee, in the case of any amount
so charged and paid prior to a Change in Control; and (b) in proportion to the
respective balances of such Accounts as determined as of the most recent
Valuation Date preceding the date of payment, in the case of any amount so
charged and paid after a Change in Control.
31
ARTICLE 11
Accounting by Trustee
---------------------
11.1 For each Trust the Trustee shall keep accurate and detailed
accounts of all its investments, receipts, and disbursements under this
Agreement. Such person or persons as the Applicable Company shall designate
shall be allowed to inspect the books of account relating to such Company's
Trust upon request at any reasonable time during the business hours of the
Trustee.
11.2 Within 90 days after the close of each calendar year, the Trustee
shall transmit to each Company, and certify the accuracy of, a written statement
of the assets and liabilities of the Trust Fund for such Company's Trust at the
close of that year, showing the current value of each asset at that date, and a
written account of all the Trustee's transactions relating to such Trust Fund
during the period from the last previous accounting to the close of that year.
For the purposes of this Section 11.2, the date of the Trustee's resignation or
removal as provided in Article 13 hereof shall be deemed to be the close of a
calendar year.
11.3 Unless a Company shall have filed with the Trustee written
exceptions or objections to any such statement and account within 90 days after
receipt thereof such Company shall be deemed to have approved such statement and
account; and in such case or upon the written approval by such Company of any
such statement and account, the Trustee shall be forever released and discharged
with respect to all matters and things embraced in such statement and account as
though it had been settled by decree of a court of competent jurisdiction in an
action or proceeding to which the Company and all persons having any beneficial
interest in its Trust were parties.
11.4 Nothing contained in this Agreement or in any Plan shall deprive
the Trustee of the right to have a judicial settlement of its accounts with
respect to any Trust. In any proceeding for a judicial settlement of the
Trustee's accounts or for instructions in connection with any Trust, the only
other necessary party thereto in addition to the Trustee shall be the Applicable
Company. If the Trustee so elects, it may bring in as a party or parties
defendant any other person or persons. No person interested in any Trust, other
than the Applicable Company, shall have a right to compel an accounting,
judicial or otherwise, by the Trustee, and each such person shall be bound by
all accounting by the Trustee to such Company, as herein provided, as if the
account had been settled by decree of a court
32
of competent jurisdiction in an action or proceeding to which such person was a
party.
ARTICLE 12
Communications
--------------
12.1 With respect to any Trust, the Trustee shall be fully protected in
relying upon any written notice, instruction, direction or other communication
signed by an officer of the Applicable Company. Each Company from time to time
shall furnish the Trustee with the names and specimen signatures of the officers
of the Company authorized to act or give directions hereunder and shall promptly
notify the Trustee of the termination of office of any such officer of the
Company and the appointment of a successor thereto. Until notified in writing to
the contrary, the Trustee shall be fully protected in relying upon the most
recent list of the officers of the Company furnished to it by the Company.
12.2 Any action required by any provision of this Agreement to be taken
by the board of directors of a Company shall be evidenced by a resolution of
such board of directors certified to the Trustee by the Secretary or an
Assistant Secretary of the Company under its corporate seal, and the Trustee
shall be fully protected in relying upon any resolution so certified to it.
Unless other evidence with respect thereto has been specifically prescribed in
this Agreement any other action of a Company under any provision of this
Agreement, including any approval of or exceptions to the Trustee's accounts,
shall be evidenced by a certificate signed by an officer of the Company, and the
Trustee shall be fully protected in relying upon such certificate. The Trustee
may accept a certificate signed by an authorized officer of a Company as proof
of any fact or matter that it deems necessary or desirable to have established
in the administration of such Company's Trust (unless other evidence of such
fact or matter is expressly prescribed herein) and the Trustee shall be fully
protected in relying upon the statements in the certificate.
12.3 The Trustee shall be entitled conclusively to rely upon any
written notice, instruction, direction, certificate or other communication
believed by it to be genuine and to be signed by the proper person or persons,
and the Trustee shall be under no duty to make investigation or inquiry as to
the truth or accuracy of any statement contained therein.
33
12.4 Until notice be given to the contrary, communications to the
Trustee shall be sent to it at its office at 114 West 47th Street, New York, New
York 10056-1532, Attention: Otis A. Sinnott, Jr.; and communications to any
Company shall be sent to it c/o GPU Service, Inc., 310 Madison Avenue,
Morristown, New Jersey 07962-1957, Attention: Treasurer.
ARTICLE 13
Resignation or Removal of Trustee
---------------------------------
13.1 The Trustee may resign as trustee of any Trust at any time by
written notice to the Applicable Company, which resignation shall be effective
60 days after the Company's receipt of such notice unless the Company and the
Trustee agree otherwise. The Trustee may be removed as trustee of any Trust by
action of the board of directors of the Applicable Company, at any time upon 60
days' written notice to the Trustee, or upon shorter notice if acceptable to the
Trustee. In the event it resigns or is removed, the Trustee shall have a right
to have its accounts settled as provided in Article 11 hereof.
13.2 Notwithstanding the provisions of Section 13.1, the Trustee may
not be removed as trustee of any Trust after a Change in Control or during a
Threatened Change in Control Period without the written consent of at least
two-thirds in number of the Participants who are, or who may become, entitled to
receive payments from such Trust. The Applicable Company shall furnish the
Trustee with evidence to establish that such majority in number of such
Participants has granted written consent to such removal.
13.3 If the Trustee resigns or is removed as trustee of any Trust, a
successor shall be appointed by the Applicable Company, by action of its board
of directors, by the effective date of such resignation or removal. Any
successor trustee so appointed shall be a bank as defined under the Investment
Advisers Act of 1940, having a net worth in excess of $100,000,000 or having
assets in excess of $2,000,000,000. After a Change in Control or during a
Threatened Change in Control Period, such appointment of a successor trustee
shall be approved in writing by at least two-thirds in number of the
Participants who are or may become entitled to receive payments from such Trust.
Notwithstanding the foregoing, if no such appointment of a successor trustee has
been made by the effective date of such resignation or removal, the Trustee may
apply to a court of competent jurisdiction for appointment of a successor
trustee or for instructions. All expenses of the Trustee in connection with such
proceeding shall
34
be allowed as administrative expenses of the Trust and shall be paid by the
Applicable Company.
13.4 Each successor trustee shall have the powers and duties conferred
upon the Trustee in this Agreement and the term "Trustee" as used in this
Agreement, except where the context otherwise requires, shall be deemed to
include any successor trustee. Upon designation or appointment of a successor
trustee for any Trust, the Trustee shall transfer and deliver the Trust Fund for
such Trust to the successor trustee, reserving such sums as the Trustee shall
deem necessary to defray its expenses in settling its accounts with respect to
such Trust, to pay any of its compensation with respect to such Trust that is
due and unpaid, and to discharge any obligation of such Trust for which the
Trustee may be liable. If the sums so reserved are not sufficient for these
purposes, the Trustee shall be entitled to recover the amount of any deficiency
from either the Applicable Company or the successor trustee, or both. When the
Trust Fund for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust have been
settled as provided in Article 11 hereof, the Trustee shall be released and
discharged from all further accountability or liability for the Trust Fund for
such Trust and shall not be responsible in any way for the further disposition
of such Trust Fund or any part thereof.
ARTICLE 14
Amendments and Termination
--------------------------
14.1 Subject to Section 14.2, any or all of the provisions of this
Agreement and any Exhibits annexed hereto, as they relate to any Company's
Trust, may be amended at any time, without the consent of any Participant or
Beneficiary, by a written instrument of amendment, duly executed by the
Applicable Company (or, in the case of an amendment to any Exhibit attached
hereto, as it relates to any Company's Trust, by either the Senior Vice
President, Corporate Affairs of GPU, Inc. or the Senior Vice President and
General Counsel of GPU, Inc.) and by the Trustee. Notwithstanding the foregoing,
no such amendment shall conflict with the terms of the Applicable Company's
Plans or shall make the Applicable Company's Trust revocable after it has become
irrevocable in accordance with Section 2.2 hereof.
14.2 No amendment may be made to delete a Participant from Exhibit A or
to delete a Plan from Exhibit B and no other provision of this Agreement may be
amended (i) during a Threatened Change in Control Period, (ii) after a Change in
Control, (iii) at the request of a third party who has indicated
35
an intention or taken steps to effect a Change in Control and who effectuates a
Change in Control or (iv) otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed and which actually
occurs unless in any such case the written consent of at least two-thirds in
number of the Participants who are or may become entitled to payments from each
Trust affected by such amendment is obtained, in which case such amendment may
be made. The Trustee may request that the Applicable Company or Companies
furnish evidence to establish that at least two-thirds of the Participants have
granted written consent to such an amendment.
14.3 Unless sooner revoked in accordance with Section 2.2 hereof, each
Trust shall terminate on the date on which Participants and their Beneficiaries
are no longer entitled to receive Benefits pursuant to the terms of the
Applicable Company's Plans. Upon termination of any Trust, any assets remaining
in the Trust Fund for such Trust shall be paid by the Trustee to the Applicable
Company.
ARTICLE 15
Miscellaneous
-------------
15.1 Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
15.2 Benefits payable to Participants and their Beneficiaries under
this Agreement may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
15.3 This Agreement shall be governed by, and shall be construed in
accordance with, and each Trust hereby created shall be administered in
accordance with, the laws of the State of New Jersey.
15.4 The titles to Articles of this Agreement are placed herein for
convenience of reference only, and this Agreement is not to be construed by
reference thereto.
15.5 This Agreement shall bind and inure to the benefit of the
successors and assigns of each Company and the Trustee, respectively, and all
Participants and Beneficiaries under the Companies' Plans.
36
15.6 This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute but one instrument, which may be sufficiently evidenced by any
counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names by their duly authorized officers under their
corporate seals as of the day and year first above written.
GPU INC.
By:
-------------------------
F. D. Hafer, Chairman and
Chief Executive Officer
ATTEST:
GPU NUCLEAR, INC.
By:
-------------------------
T.G. Broughton, President and
Chief Executive Officer
ATTEST:
JERSEY CENTRAL POWER & LIGHT
COMPANY
By:
--------------------------
F. D. Hafer, Chairman of the
Board and Chief Executive
Officer
ATTEST:
U.S. TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
By:
--------------------------
[Add Name and Title]
ATTEST:
37
EXHIBIT A
List of Participants
--------------------
Set forth below is a list, for each Company, of the persons who are to
be treated as Participants for purposes of the
annexed Agreement.
Company Participants
- ----------------------------------------------------------------------
GPU Inc. L. J. Appell, Jr.
D. J. Bainton
T. H. Black
J. F. Burditt
D. L. Grove
T. B. Hagen
H. F. Henderson, Jr.
H. R. O'Leary
J. R. Leva
J. W. Oswald
J. M. Pietruski
C. A. Rein
P. R. Roedel
C. A. Trost
P. K. Woolf
GPU Nuclear, Inc. L. L. Humphreys
R. V. Laney
J. D. Townsend
C. A. Trost
W. A. Wilson
W. F. Witzig
Jersey Central Power & Light Company G. E. Persson
S. C. Van Ness
S. B. Wiley
38
EXHIBIT B
Covered Plans and Benefits
--------------------------
Set forth below is a list, for each Company, of the plans, programs,
policies or agreements that are to be treated as "Plans", and the amounts
payable under the Plans that are to be treated as "Benefits", for purposes of
the annexed Agreement.
GPU, Inc.
---------
1. All benefit amounts payable under the Deferred Remuneration Plan
for Outside Directors of GPU, Inc.
2. All benefit amounts payable under the Retirement Plan for Outside
Directors of GPU Inc.
3. All benefit amounts payable under the Deferred Stock Unit Plan for
Outside Directors of GPU, Inc.
Jersey Central Power & Light Company
------------------------------------
1. All benefit amounts payable under the Deferred Remuneration Plan
for Outside Directors of Jersey Central Power & Light
Company.
GPU Nuclear, Inc.
-----------------
1. All benefit amounts payable under the Deferred Remuneration Plan for
Outside Directors of GPU Nuclear, Inc.
39
EXHIBIT C
Payment Schedule
----------------
[Material To Be Added.]
40
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
----------------------------------
I, , a Participant [or Beneficiary] in the GPU Companies Master
Directors' Benefits Protection Trust (the "Trust"), adopted September 1, 1995
and most recently amended as of [June] 1, 1999, pursuant to Section 4.3 thereof,
hereby request that [Name of Bank], as Trustee thereunder, make payment to me of
the Benefits to which I am entitled as [Participant or Beneficiary] in
accordance with the terms of the Trust Agreement and the following [Company
Name] Plans:
- -----------------------------------
- -----------------------------------
- -----------------------------------
- -----------------------------------
I hereby attest, certify and affirm that to the best of my knowledge
and belief the following events, upon which entitlement to and payment of
Benefits under said Plans is conditioned, have occurred:
[Insert Description of events that have occurred]
-----------------------------------------------
I further attest, certify and affirm that [Name of Company] has not
paid any of the Benefits claimed herein under said plans.
I am [or The Participant was] years of age, having been born on [Date
of Birth]. I have been/was [or the Participant was] employed by [Name of
Company] from [Date] to [Date], The [Name of Company] records detailing my
[his/her] compensation and the terms and conditions of employment, if any, are
attached hereto and made a part hereof.
Dated:
-------------------------------------
[Name of Participant]
- -------------------------------------------
- -------------------------------------------
[Address & Telephone No.]
41
EXHIBIT E
AUTHORIZATION TO TRUSTEE
------------------------
TO COMMENCE LITIGATION
----------------------
I, ------------------------------------------------------------------------ , a
Participant in the GPU Companies Master Directors' Benefits Protection Trust
(the "Trust"), adopted September 1, 1995 and most recently amended as of [June]
1, 1999, pursuant to Section 5.3(b) thereof, hereby request and authorize [Name
of Bank], as Trustee thereunder, to institute and prosecute legal proceedings
(the "Litigation"), on my behalf, against [Name of GPU Company] to recover upon
my claim against said company for unpaid benefits under [Name of Plan under
which claim is asserted].
It is understood that, pursuant to Section 5.3(e) of the Trust
Agreement, I may revoke this authorization to prosecute or continue to prosecute
such Litigation, at any time, upon written notification to the Trustee in the
appropriate form.
Dated:--------------------------------------
[Name of Participant]
- --------------------------------------------
- --------------------------------------------
- --------------------------------------------
[Address & Telephone No.]
42
EXHIBIT F
REVOCATION OF TRUSTEE'S AUTHORITY
---------------------------------
TO MAINTAIN LITIGATION
----------------------
I, , a Participant in the GPU Companies Master Directors' Benefits
Protection Trust (the "Trust"), adopted September 1, 1995 and most recently
amended as of [June] 1, 1999, pursuant to Section 5.3(e) thereof, hereby revoke
the authorization previously granted by me to [Name of Bank], as Trustee
thereunder, to institute and prosecute legal proceedings (the "Litigation"), on
my behalf, against [Name of GPU Company] for unpaid Benefits under [Name of Plan
under which claim is asserted].
I hereby notify the Trustee that I have appointed and retained
[Name Attorney ] of [Address ] to represent me and my interests
------------------------------
in such Litigation. I understand that the fees and expenses of my attorney in
connection with the Litigation or otherwise shall be my sole responsibility and
that neither me nor my attorney will be entitled to direct payment for any such
fees or expenses out of the Trust Fund or any portion thereof.
Dated:----------------------------------------
[Name of Participant]
- ----------------------------------------------
- ----------------------------------------------
- ----------------------------------------------
[Address & Telephone No.]
43
EXHIBIT G
Trustee's Fee Schedule
[Material To Be Added]
44