Exhibit 10-U
GPU COMPANIES
MASTER EXECUTIVES' 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 3
ARTICLE 2 Establishment of the Trusts 9
ARTICLE 3 Contributions and Accounts 10
ARTICLE 4 Payments to Participants and Beneficiaries 14
ARTICLE 5 Legal Defense Fund 20
ARTICLE 6 Insolvency 24
ARTICLE 7 Payments to Company 25
ARTICLE 8 Investment Authority and Disposition of Income 25
ARTICLE 9 General Powers and Duties of Trustee 27
ARTICLE 10 Taxes, Expenses, and Compensation of Trustee 32
ARTICLE 11 Accounting by Trustee 33
ARTICLE 12 Communications 34
ARTICLE 13 Resignation or Removal of Trustee 35
ARTICLE 14 Amendments and Termination 36
ARTICLE 15 Miscellaneous 37
AGREEMENT made as of [June] 1, 1999, by and between GPU, INC., a
Pennsylvania corporation (the "Corporation"), GPU SERVICE, INC., a Pennsylvania
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 the Corporation, 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 purposes of those provisions of Title I of the
Employee Retirement Income Security Act of 1974 that may apply to such Plan; 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 Corporation, the Companies and the Trustee desire to amend
and restate the Prior Agreement to reflect the appointment of U.S. Trust
Company, National Association as
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successor trustee of each Trust and to make certain other changes in the Prior
Agreement;
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,
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as amended (the "Exchange Act")), immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the 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".
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A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the
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.
(B) A complete liquidation or
dissolution of the Corporation; or
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(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 Untied 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 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
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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.
(l) "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
(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
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(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 1.1(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 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.
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ARTICLE 2
Establishment of the Trusts
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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.
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
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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 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.
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(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.
(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
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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 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
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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) 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.
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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:
(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;
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(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 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
15
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 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
16
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 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
17
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 Account shall
be allocated and credited, on a 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
18
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.
19
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 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 applicable statute of limitations would otherwise
expire within 60 days, the Trustee shall advise the Claimant of
20
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 the date on which such revocation and notice is delivered to the
Trustee.
21
(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 expenses in excess of amounts available in
the Applicable
22
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.
23
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 Agreement only after the Trustee has
determined that the Company is not Insolvent, or is no longer
Insolvent.
24
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 acceptable to
the Trustee or, at any time when no such investment guidelines are in effect, in
Permitted Investments.
25
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; provided, however, that the Trust Fund for
each Trust shall be so invested and reinvested only in Permitted Investments.
26
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
------------------------------------
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.
27
(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.
28
(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
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).
29
(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.
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 under 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.
30
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.
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 Each Company has represented to the Trustee that each of its Plans
(i) is an excess benefit plan within the meaning of Section 4(b) of ERISA, or
(ii) is a "top-hat" plan maintained primarily for the purpose of providing
deferred compensation for a select group of management or highly compensated
employees, which is exempt from the provisions of Part 4 of Title I of ERISA, or
(iii) is otherwise not subject to the provisions of Part 4 of Title I of ERISA.
9.7 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, (including
any such liability the Trustee may incur as a result of any action or failure to
act on its part that would constitute a breach of fiduciary duty under ERISA
with respect to any Plan of such Company that is determined to be subject to the
provisions of Part 4 of Title I of ERISA), except to the extent that any such
loss, liability, action, suit, demand, damage, cost or expense is attributable
to any action or
31
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 9.7 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.
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
32
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.
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
33
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 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
34
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.
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.
35
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 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
36
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
Executive Vice President, Corporate Affairs of GPU Service, Inc. or the
Executive Vice President and General Counsel of GPU Service, 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 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.
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,
37
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.
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.
38
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 theday and year first above written.
GPU, INC.
GPU SERVICE, INC.
By:-----------------------------------
F.D. Hafer, Chairman, President 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:
39
EXHIBIT A
LIST OF PARTICIPANTS
Company Participants
------- ------------
Jersey Central Power & Light Company James R. Leva (Retired)
GPU Service, Inc. Robert C. Arnold (Retired)
Dennis P. Baldassari
Verner M. Condon (Retired)
Herman Dieckamp (Retired)
F. Allen Donofrio (Retired)
John G. Graham (Retired)
Fred D. Hafer
Terrence G. Howson
Ira H. Jolles
William G. Kuhns (Retired)
James R. Leva (Retired)
Bruce L. Levy
James B. Liberman (Retired)
Peter E. Maricondo
Philip C. Mezey (Retired)
Mary A. Nalewako
Hazel R. O'Leary (Retired)
Carole B. Snyder
Robert L. Wise
GPU Nuclear, Inc. Philip R. Clark (Retired)
Thomas G. Broughton
1
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.
Jersey Central Power & Light Company
------------------------------------
1. The excess pension benefit payable to James R. Leva pursuant to the
amended Agreement dated August 1, 1996, between Jersey Central Power & Light
Company and Mr. Leva.
GPU Service, Inc.
-----------------
1. The severance payment benefit provided under the GPU Service, Inc.
Severance Procedure.
2. The additional retirement pension and the supplemental pension
payable to Ira H. Jolles pursuant to Sections 3 and 4 of the Agreement among
GPU, Inc., GPU Service, Inc. and Mr. Jolles.
3. The additional retirement pension payable to Philip C. Mezey
pursuant to the Agreement among GPU, Inc., GPU Service, Inc. and Mr. Mezey.
4. The pension payable to Hazel R. O'Leary pursuant to the Agreement
among GPU, Inc., GPU Service, Inc. and Mrs. O'Leary.
5. All benefit amounts payable under the GPU Service, Inc.
Supplemental and Excess Benefits Plan.
6. All benefit amounts payable under the GPU Companies Supplemental
Executive Retirement Plan.
7. All benefit amounts payable under the GPU Companies Deferred
Compensation Plan.
8. Awards for Performance Periods preceding and including Change in
Control payable under the Incentive Compensation Plan for Elected Officers of
GPU Service, Inc.
9. Cash payments for deferred Restricted Units, Performance Units,
and stock options, payable under the 1990 Stock Plan for Employees of GPU, Inc.
and Subsidiaries.
1
10. Premiums on life insurance policies issued under Senior Executive
Life Insurance Program, payable by GPU Service, Inc. pursuant to Split Dollar
Agreements with Robert C. Arnold, Dennis P. Baldassari, Fred D. Hafer, Ira H.
Jolles, James R. Leva, Bruce L. Levy, Philip C. Mezey, Carole B. Snyder and
Robert L. Wise.
11. Supplemental pension payable to William G. Kuhns pursuant to the
Agreement among GPU, Inc., GPU Service, Inc. and Mr. Kuhns.
12. The retirement annuity payable to James B. Liberman pursuant to
the Agreement between GPU Service, Inc. and Mr. Liberman.
13. The supplemental pension payable to Herman Dieckamp pursuant to
the Agreement among GPU, Inc., GPU Service, Inc. and Mr. Dieckamp.
14. Annuities payable to William G. Kuhns, Herman Dieckamp and to
Verner M. Condon under the Deferred Compensation Plan for Senior Officers of
GPU Service, Inc.
15. The supplemental pensions payable to Robert C. Arnold and
Robert L. Wise pursuant to Agreements between GPU Service, Inc. and
Messrs. Arnold and Wise, and the supplemental pension payable to James R. Leva
pursuant to an Agreement between GPU, Inc. and Mr. Leva.
16. The severance payment benefit payable to Dennis P. Baldassari,
Fred D. Hafer, Ira H. Jolles, Bruce L. Levy, Robert L. Wise and Carole B. Snyder
under the Severance Protection Agreements between GPU, Inc., GPU Service, Inc.
and each of Messrs. Baldassari, Hafer, Jolles, Levy, Wise and Ms. Snyder.
GPU Nuclear, Inc.
-----------------
1. All benefit amounts payable under the GPU Nuclear, Inc.
Supplemental and Excess Benefits Plan.
2. All benefit amounts payable under the GPU Companies Deferred
Compensation Plan.
3. Awards for Performance Periods preceding and including Change in
Control payable under the Incentive Compensation Plan for Elected Officers of
GPU Nuclear, Inc.
2
4. Cash payments for deferred Restricted Units, Performance Units
Awards, and stock options, payable under the 1990 Stock Plan for Employees of
GPU, Inc. and Subsidiaries.
5. Premiums on life insurance policies issued under Senior Executive
Life Insurance Program, payable by GPU Nuclear, Inc. pursuant to Split Dollar
Agreements with Philip R. Clark and Thomas G. Broughton.
6. The supplemental pension payable to Philip R. Clark pursuant to the
Agreement between GPU Nuclear, Inc. and Mr. Clark.
7. The severance payment benefit payable to Thomas G. Broughton under
the Severance Protection Agreement between Mr. Broughton, GPU Nuclear, Inc. and
GPU, Inc.
3
EXHIBIT C-1
GPU RABBI TRUST
PARTICIPANT INFORMATION
Name Address Social
Security Number
Arnold 7 Fernwood Trail, PO Box 151 ###-##-####
Mountain Lakes, New Jersey 07046
Baldassari 9 Willow Spring Drive ###-##-####
Morristown, New Jersey 07960
Broughton 7 Knoll Top Court ###-##-####
Denville, New Jersey 07834
Clark 297 Morris Avenue ###-##-####
Mountain Lakes, New Jersey 07046
Condon Box 116 Young's Road ###-##-####
Basking Ridge, New Jersey 07920
Dieckamp 29 Crystal Road ###-##-####
Mountain Lakes, New Jersey 07046
Donofrio 40 Longview Avenue ###-##-####
Randolph, New Jersey 07869
Graham 21 Candace Lane ###-##-####
Chatham Township, New Jersey 07928
Hafer 1730 Meadowlark Road ###-##-####
Wyomissing, Pennsylvania 19610
Jolles 610 West End Avenue ###-##-####
New York, New York 10024
Kuhns 49 Creston Avenue ###-##-####
Tenafly, New Jersey 07670
Leva 2 Ryan Court ###-##-####
Chester, New Jersey 07930
Levy 5 Oak Ridge Court ###-##-####
Pomona, New York 10970
1
Name Address Social
Security Number
Liberman 205 East 69th Street ###-##-####
New York, New York 10021
Mezey 46 Gatehouse Road ###-##-####
Bedminster, New Jersey 07921
O'Leary 5610 Wisconsin Avenue PH20C ###-##-####
Chevy Chase Maryland 20815
Wise 701 Tioga Street ###-##-####
Johnstown, Pennsylvania 15905
2
EXHIBIT C-2
GPU RABBI TRUST
SEVERANCE PLAN - --------
TERMS OF PAYMENT:
- ----------------
AMOUNT OF PAYMENT:
- -----------------
Weeks Base Pay Payment
----- -------- -------
FORM/TIMING OF PAYMENT: Lump sum.
- ----------------------
3
EXHIBIT C-3
GPU RABBI TRUST
INCENTIVE COMPENSATION PLAN
TERMS OF PAYMENT:
- ----------------
AMOUNT OF PAYMENT:
- -----------------
Payment
-------
FORM/TIMING OF PAYMENT: Lump sum.
- ----------------------
4
EXHIBIT C-4
GPU RABBI TRUST
SENIOR EXECUTIVE LIFE INSURANCE PLAN
TERMS OF PAYMENT:
- ----------------
AMOUNT OF PAYMENT:
- -----------------
FORM/TIMING OF PAYMENT: Lump sum payment on or before ---------- of indicated
- -----------------------
year to the Life Insurance Company of Virginia.
5
EXHIBIT C-5
GPU RABBI TRUST
DEFERRED COMPENSATION PLAN
TERMS OF PAYMENT:
- ----------------
PAYMENT SCHEDULE:
- ----------------
Balance
-------
FORM/TIMING OF PAYMENT: Lump sum amount on or before ---------- of indicated
- ----------------------
year.
6
EXHIBIT C-6
GPU RABBI TRUST
EMPLOYEE STOCK PLAN
TERMS OF PAYMENT:
- ----------------
AMOUNT OF PAYMENT:
- -----------------
Gross-up
Balance Percentage Payment
------- ---------- -------
FORM/TIMING OF PAYMENT: Lump sum amount on or before ------------.
- ----------------------
7
EXHIBIT C-7
GPU RABBI TRUST
DEFERRED COMPENSATION PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a monthly payment
for his/her life with continuing payments to his/her beneficiary if he/she has
elected a joint and survivor option.
AMOUNT OF PAYMENT:
- -----------------
Amounts
In Payment
Status
----------
Monthly Option
Payment Elected Beneficiary
------- ------- -----------
FORM/TIMING OF PAYMENT: On or before ---------- of each month the amount
- ----------------------
indicated above shall be paid to the participant or his beneficiary.
8
EXHIBIT C-8
GPU RABBI TRUST
SPECIAL PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a monthly payment
for his/her life with continuing payments to his/her beneficiary if he/she has
elected a joint and survivor option.
AMOUNT OF PAYMENT:
- -----------------
Amounts
In Payment
Status
----------
Monthly Option
Payment Elected Beneficiary
------- ------- -----------
FORM/TIMING OF PAYMENT: On or before ---------- of each month the amount
- ----------------------
indicated above shall be paid to the participant or his beneficiary.
9
EXHIBIT C-9
GPU RABBI TRUST
SUPPLEMENTAL AND EXCESS PENSIONS
TERMS OF PAYMENT: Each participant listed below is entitled to a monthly payment
for his/her life with continuing payments to his/her beneficiary if he/she has
elected a joint and survivor option. The determination of amount payable is made
in accordance with the Company's Excess and Supplemental Benefits Plan for
Elected Officers.
AMOUNT OF PAYMENT:
- -----------------
In Payment
Status
----------
Monthly Option
Payment Elected Beneficiary
OTHER AMOUNTS
-------------
FORM/TIMING OF PAYMENT: On or before ---------- of each month the amount
- ----------------------
indicated above shall be paid to the participant or his beneficiary.
10
EXHIBIT C-10
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - MEZEY
TERMS OF PAYMENT: Mr. Philip Mezey shall be entitled to a supplemental pension
- ----------------
benefit in accordance with the retirement provisions contained in his employment
agreement with GPU, Inc. (attached, amended 4/20/95, signed 4/20/95).
AMOUNT OF PAYMENT:
- -----------------
FORM/TIMING OF PAYMENT: On or before ---------- of each month the amount
- ----------------------
indicated above shall be paid to the participant or his beneficiary.
11
EXHIBIT C-11
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - JOLLES
TERMS OF PAYMENT: Mr. Ira Jolles shall be entitled to a supplemental pension
- ----------------
benefit in accordance with the retirement provisions contained in his employment
agreement with GPU, Inc. and GPU Service, Inc. (attached, amended 11/1/96).
AMOUNT OF PAYMENT:
- -----------------
FORM/TIMING OF PAYMENT: On or before ---------- of each month the amount
- ----------------------
indicated above shall be paid to the participant or his beneficiary.
12
EXHIBIT C-12
GPU RABBI TRUST
SEVERANCE AGREEMENT PAYMENT
TERMS OF PAYMENT: Mr. [Name of Officer] shall be entitled to a severance
- ----------------
payment benefit in accordance with the provisions contained in his severance
agreement with [Company Name] and GPU, Inc.
AMOUNT OF PAYMENT:
- -----------------
FORM/TIMING OF PAYMENT: On or before ---------- the amount indicated above
- ----------------------
shall be paid to the participant or his beneficiary.
13
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
I, -----------------------------------------------------------------,
a Participant [or Beneficiary] in the GPU Companies Master Executives' 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 ad 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.]
14
EXHIBIT E
REQUEST AND AUTHORIZATION FOR LITIGATION
I, -----------------------------------------------------------------,
a Participant in the GPU Companies Master Executives' 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 hereunder, 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.]
15
EXHIBIT F
REVOCATION OF AUTHORITY TO CONTINUE LITIGATION
I,-------------------------------------------------------------------,
a Participant in the GPU Companies Master Executives' Benefits Protection Trust
(the "Trust"), adopted September 1, 1995 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 retain [Name of
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.]
16
EXHIBIT G
TRUSTEE'S FEE SCHEDULE
[MATERIAL TO BE ADDED]
17