Exhibit 10-O
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS
OF GPU, INC.
(AS AMENDED AND RESTATED EFFECTIVE AUGUST 8, 2000)
1. Purpose
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1.1 The purpose of this document is to set forth the Deferred
Remuneration Plan for Outside Directors, as amended and restated
effective August 8, 2000. The Plan will be implemented by individual
elections by each Director
2. Plan Summary
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2.1 This Plan provides for deferral by Directors of all or a portion of
current Remuneration 1.2 Funds being deferred will be credited with
the equivalent of interest in accordance with Section 6.
2.3 Each component of the deferred funds will be distributed as
follows: (a) for a Director who elects deferral until a date or
dates following his or her Retirement, to the Director, in
accordance with his or her latest effective election. (b) for a
Director who elects deferral until a date or dates preceding his or
her Retirement, to the Director, in accordance with his or her
initial election; or (c) if a Director dies before the deferred
funds have been fully distributed, to his or her designated
beneficiary, in accordance with the option in effect for the
Director under Section 7.2 for each component except as the Board
may otherwise determine, based on the circumstances at the time the
distribution is to commence.
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3. Definition of Terms
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3.1 Account - refers to both Pre-Retirement and Retirement Accounts
established for Directors unless specifically designated one or the
other in the text of this Plan.
3.2 Board of Directors - refers to the Board of Directors of GPU, Inc.
3.3 Change in Control - A "Change in Control" shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (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 of the Corporation (the
"Voting Securities") by any "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")), immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the 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 of Directors (the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the members of the
Board of Directors; provided, however, that if the election, or
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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 Plan,
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 of directors of the
Corporation (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest;
or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the Corporation are
issued, unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into the Corporation
or in which securities of the Corporation are issued where:
(i) the shareholders 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
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(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 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
(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.
3.4 Committee - refers to the Personnel, Compensation and Nominating
Committee of the Corporation.
3.5 Director - refers to a member of the Board of Directors who is not
an employee of the Corporation or any of its subsidiaries.
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3.6 Plan - refers to this Deferred Remuneration Plan for Outside
Directors as described in this document and as it may be amended in
the future.
3.7 Remuneration - refers to all cash amounts earned during a calendar
year by a Director for services performed as a Director (including
services performed as a member of a committee of the Board of
Directors), but does not include consulting fees, reimbursement for
travel or other expenses or Corporation contributions to other
benefit plans.
3.8 Pre-Retirement Account - refers to the memorandum account which
shall be established and maintained for a Director who elects,
pursuant to Section 5.2, to have payment of any portion of his or
her Remuneration for any Plan Year deferred to a date prior to his
or her Retirement. A separate Pre-Retirement Account shall be
established and maintained for the Remuneration for each Plan Year
which the Director so elects to defer.
3.9 Retirement Account - refers to the memorandum account which shall be
established and maintained for a Director who elects, pursuant to
Section 5.2, to have payment of any portion of his or her
Remuneration for any Plan Year deferred to a date after his or her
Retirement. All amounts deferred pursuant to elections made on or
before December 31, 1985 under the Plan by a Director, together with
all interest equivalents earned by such election and credited to
such amounts prior to December 31, 1986, shall be treated, on or
after such date, as part of the Director's Retirement Account.
3.10 Retirement - refers to the retirement from service on the Board of
Directors, on account of resignation, death, or any other reason,
without becoming an employee of the Corporation or any of its
subsidiaries.
3.11 Plan Year - refers to the period October 1, 1986 through December
31, 1986; and each twelve (12) month period from January 1 through
December 31 thereafter.
4. Administration
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4.1 The Board of Directors has established this Plan. The Board of
Directors may in its sole discretion modify the provisions of the
Plan from time-to-time, or, may terminate the entire Plan at any
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time; provided, however, that Section 3.3, this Section 4.1, Section
4.4, the last sentence in the first paragraph of Section 6 and the
last paragraph in Section 7.2 may not be amended or modified, and
the Plan may not be terminated, (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) within six (6)
months prior to, or otherwise in connection with, or in anticipation
of, a Change in Control which has been threatened or proposed and
which actually occurs, or (iii) following a Change in Control, if
the amendment, modification or termination adversely affects the
rights of any Director under the Plan. No modification or
termination of the Plan shall adversely affect the rights of any
Director with respect to any amounts standing to the Director's
credit in any Account immediately prior to the date of the adoption
of such modification or termination, including without limitation
any rights with respect to the time and method of payment of, or the
crediting of interest equivalents with respect to, any such amounts
4.2 Responsibility for the ongoing administration of this Plan rests
with the Committee.
4.3 The Committee may delegate the daily administration of this Plan,
including the maintenance of appropriate records, receiving
notifications, making filings, and maintaining related
documentation, to the Vice President - Human Resources of GPU
Service, Inc. and to the Vice President's staff or to any one or
more other officers or employees of GPU Service, Inc. or any other
subsidiary of GPU, Inc.
4.4 All questions concerning the Plan, as well as any dispute over
accounting or administrative procedures or interpretation of the
Plan, will be resolved at the sole discretion of the Committee,
except that no member of the Committee shall vote on any matter
which affects that member but not all other members of the
Committee. Notwithstanding the foregoing, any determination made by
the Committee after the occurrence of a Change in Control that
denies in whole or in part any claim made by any individual for
benefits under the Plan shall be subject to judicial review, under a
"de novo", rather than a deferential, standard.
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4.5 All provisions of this Plan, its administration and interpretation,
are intended to be in compliance with appropriate Internal Revenue
Service Rulings and judicial decisions regarding the construction
and operation of a deferred compensation program, so that deferred
Remuneration and interest equivalents thereon will not constitute
income constructively received prior to being distributed under the
terms of this Plan.
4.6 A Director's election to voluntarily defer Remuneration, selection
of a distribution commencement date and distribution option, and
designation of a beneficiary and contingent beneficiary, made
pursuant to this Plan shall be made in writing, on a form furnished
to the Director by the Corporation for such purposes, signed and
delivered personally or by first class mail to:
Corporate Secretary
GPU, Inc.
300 Madison Avenue
Morristown, New Jersey 07962
Any such election, selection, designation, or change therein, shall
not become effective unless and until received by the Corporate
Secretary. Subject to Section 7.2 and 9(a), a change in a
distribution election made by a Director after April 30, 1987 will
not be effective unless made at least twenty-four (24) months prior
to the Director's Retirement or Disability.
5. Deferral Election
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5.1 A Director may elect to defer all or any portion of his or her
Remuneration for any Plan Year, providing such portion is three
thousand dollars ($3,000) or more. A separate deferral election
shall be made with respect to a Director's Remuneration for each
Plan Year. An election to defer Remuneration for the 1986 amended
Plan Year shall be made on or prior to September 30. In subsequent
years, the election shall be made on or before December 31 of the
year preceding the Plan Year. Notwithstanding, the foregoing, (a)
Directors who are initially elected prior to December 1st of any
Plan Year may, within 30 days of such initial election, make a
deferral election for the then current Plan Year, and (b) Directors
who are initially elected after December 1st of any Plan Year may
immediately make a deferral election for both the then current Plan
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Year and for the immediately succeeding Plan Year; provided,
however, that any deferral election made pursuant to clause (a) or
(b) hereof shall be effective only with respect to Remuneration
earned after such election has become effective. All elections under
this Section 5.1 shall be irrevocable.
5.2 In his or her election to defer Remuneration for any Plan Year, a
Director shall specify the amount or portion of the Remuneration to
be deferred, and shall indicate whether the Remuneration so deferred
is to be credited to a Pre-Retirement Account, or to a Retirement
Account.
5.3 With respect to Remuneration deferred hereunder for a Plan Year
which a Director elects to have credited to his or her
Pre-Retirement Account, the Director shall specify in the election
form the date on which distribution of the Pre-Retirement Account
shall be made or commence. The date so selected shall be no earlier
than 24 months from the close of the Plan Year. In the election form
for the Plan Year, the Director shall also select an option under
Section 7.2 for the distribution of the Pre-Retirement Account.
Except as provided in Section 7.2 or 9(a), the date so specified,
and the option so selected, may not thereafter be changed by the
Director.
5.4 With respect to any Remuneration deferred hereunder which a Director
elects to have credited to his or her Retirement Account, the
Director shall, at the time he or she first elects to have an amount
credited to that account, also elect a distribution commencement
date and a distribution option under Section 7.2 for the
distribution of the Retirement Account. A Director may, subject to
the provisions of Section 4.6, change any election as to the
distribution commencement date and distribution option for the
Retirement Account previously made by the Director. The distribution
commencement date so elected shall be either January 15 of the
calendar year following the Director's Retirement, or January 15 of
any subsequent calendar year.
5.5 In the case of a Director who, prior to January 1, 1986, made a
deferral election under the Plan with respect to his or her
Remuneration for the calendar year 1986, any deferral election made
by the Director hereunder with respect to the period commencing
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October 1, 1986 and ending December 31, 1986 shall be effective, for
that period, only with respect to the excess, if any, of the amount
he or she so elects to defer for said period over the amount of
Remuneration for said period deferred pursuant to the Director's
prior election.
5.6 The amounts which are deferred, including interest equivalents, will
be credited to a Director's Account. Prior to distribution, all
amounts deferred including interest equivalents, will constitute
general assets of the Corporation for use as it deems necessary, and
will be subject to the claims of the Corporation's creditors. A
Director shall have the status of a mere unsecured creditor of the
Corporation with respect to his or her right to receive any payment
under the Plan. The Plan shall constitute a mere promise by the
Corporation to make payments in the future of the benefits provided
for herein. It is intended that the arrangements reflected in this
Plan be treated as unfunded for tax purposes.
6. Interest
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Interest equivalents, compounded monthly on deposits treated as monthly
transactions, will be credited at the end of each quarter in the calendar
year. Such credit will be made to the balance of each account maintained
for a Director hereunder, including the undistributed balance of any such
account from which payments are being made in installments. The rate used
in calculation of interest equivalents will be no less than the rate equal
to the simple average of Citibank N.A. of New York Prime Rates for the
last business day of each of the three months in the calendar quarter or,
if greater, such other rate as established from time to time by the
Committee.
The Corporation may, but shall not be required to, purchase a life
insurance policy, or policies, to assist it in funding its payment
obligations under the Plan. Any policy, or policies, so purchased, shall
at all times remain the exclusive property of the Corporation and subject
to the claims of its creditors. Neither the Director nor any beneficiary
or contingent beneficiary designated by the Director shall have any
interest in, or rights with respect to such policy.
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7. Distribution of Deferred Funds
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7.1 A Director's Pre-Retirement Account shall be distributed to the
Director, or distributions from such Pre-Retirement Accounts shall
commence, on the date or dates specified in the elections made by
the Director with respect to such accounts. A Director's Retirement
Account shall be distributed to the Director, or distributions from
such Retirement Account shall commence, on the date specified in the
Director's latest effective election.
7.2 The options for distribution are:
(a) A single lump sum payment.
(b) Annual Installments over any fixed number of years selected by
the Director, with a minimum of five annual installments required
for the Retirement Account.
(c) Other option, in equal or unequal payments, as specifically
approved by the Committee. If distribution of a Director's Account
is to be made in annual installments under Option (b) of Section
7.2, the amount of each installment will equal the total amount in
said Account on the date the installment is payable, divided by the
number of installments remaining to be paid. In addition, if the
distributions are made in installments under Option (b) of Section
7.2, the interest equivalent accrued on each Account each year after
the date the first installment is payable will be distributed on
each anniversary of such date.
Notwithstanding any other optional form of distribution or date for
the payment (or commencement of payment) of benefits otherwise
elected or provided for hereunder, each Director shall be permitted
to make either one or both of the following special distribution
elections: (x) to have the entire balance of his or her Accounts
distributed in the form of a single lump sum payment in the event of
the Director's Retirement upon the occurrence of a Change in
Control, or (y) if a Change in Control occurs after the Director's
Retirement but before all payments with respect to the balances of
his or her Accounts have been made in accordance with the Director's
elections under Sections 5.3 and 5.4, to have the entire
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balance of each of his Accounts that remains unpaid at the time of
such Change in Control distributed in the form of a single lump sum
payment. Subject to Section 9(a), any such election shall be
effective only if it is made at least twelve (12) months prior to
such Change in Control and prior to the Director's Retirement. Any
special election made under clause (x) or (y) above may be revoked,
and a new special election may be made thereunder at any time;
provided, however, that any such revocation or new election shall be
effective only if it is made within the period specified in the
preceding sentence, or within such other period as may be applicable
under Section 9(a). Any special election, or revocation of a special
election, that may be made hereunder shall be made in the manner set
forth in Section 4.6. The lump sum payment to be made pursuant to a
Director's special election hereunder shall be made {by} no later
than thirty (30) days following the date of the Director's
Retirement or, in the case of a special election under clause (y)
above, the date of the Change in Control.
7.3 Except as the Committee may otherwise determine based on the
circumstances at the time the distribution to the beneficiary is to
commence
(a) If a Director should die after distribution of his / her
Account maintained for the Director has commenced, but before the
entire balance has been fully distributed, distributions will
continue to be made to the Director's designated beneficiary or
contingent beneficiary, in accordance with the distribution option
in effect for such Account at the time of the Director's death.
(b) If a Director should die before any distribution from an
Account maintained for the Director hereunder has been made to him
or her, distribution to the Director's designated beneficiary or
contingent beneficiary shall be made, or shall commence, as soon as
practicable after the Director's death, in accordance with the
distribution option in effect for such Account at the time of the
Director's death.
Amounts remaining to be paid, after the death of the Director, to
the designated beneficiary and the contingent beneficiary, will be
paid in a lump sum to the estate of the last of such persons to die.
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7.4 Notwithstanding anything herein to the contrary, any Account
maintained for a Director hereunder may be distributed, in whole or
in part, to such Director on any date earlier than the date on which
distribution is to be made, or commence, pursuant to the Director's
election if: (a) the Director requests early distribution, and (b)
the Committee, in its sole discretion, determines that early
distribution is necessary to help the Director meet some severe
financial need arising from circumstances which were beyond the
Director's control and which were not foreseen by the Director at
the time he or she made the election as to the date or dates for
distribution. A request by a Director for an early distribution
shall be made in writing, shall set forth sufficient information as
to the Director's needs for such distribution to enable the
Committee to take action on his or her request, and shall be mailed
or delivered to the Corporation's Corporate Secretary.
8. Non-Assignment of Deferred Remuneration
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8.1 A Director's rights to payments under this Plan shall not be subject
to any manner to anticipation, alienation, sale, transfer (other
than transfer by will or by the laws of descent and distribution, in
the absence of a beneficiary designation), assignment, pledge,
encumbrance, attachment or garnishment by creditors of the Director
or his or her spouse or other beneficiary.
8.2 All amounts paid under the Plan, including the interest equivalents
credited to a Director's Account, are considered to be Remuneration.
The crediting of interest equivalents is intended to preserve the
value of the Remuneration so deferred for the Director.
9. Additional Change in Control Provisions
In the event of a Change in Control, the provisions set forth below shall
apply, notwithstanding any other provisions of the Plan to the contrary.
(a) The regular distribution elections provided for under Section 5.4 with
respect to a Director's Retirement Account and any special distribution
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election provided for under Section 7.2 with respect to a Director's
Pre-Retirement and Retirement Accounts may be made by a Director, and any
such election previously made by a Director may be revoked and a new
election made by the Director under such Sections, at any time during the
period beginning on the date of any agreement entered into by the
Corporation which provides for the occurrence of one or more transactions
which, if consummated, would constitute a Change in Control, and ending on
the 45th day after such date (the "Window Period"). Any election, or
revocation of an election, that may be made pursuant to this Section 9(a)
shall be made in the manner set forth in Section 4.6. Any election, or
revocation of an election under Section 5.4 that is made pursuant to this
Section 9(a) shall be effective only if the transactions provided for in
the agreement referred to in the preceding sentence are consummated.
(b) In the case of any Director whose Retirement has not otherwise
occurred prior to a Change in Control, such Director's Retirement shall be
treated, for purposes of this Plan, as occurring on the date on which such
Change in Control occurs, unless an election under (c) below is in effect
for the Director at the time of such Change in Control.
(c) During the Window Period or on any date thereafter that is at least
one year prior to the date on which a Change in Control occurs, a Director
may make an election under this Section 9(c) pursuant to which, if he or
she is designated to serve as a member of the Successor Board (as
hereinafter defined) immediately following the occurrence of a Change in
Control, the Director's Retirement under this Plan will not be treated as
occurring on the date of the Change in Control but instead, will be
treated as occurring on the date on which his or her service as a member
of the Successor Board terminates for any reason. For purposes of this
Section 9, the term "Successor Board" shall mean the board of directors of
the corporation described in Section 9(e)(i). An election under this
Section 9(c) shall be made in the manner set forth in Section 4.6.
(d) In the case of any Director for whom an election under Section 9(c) is
in effect at the time of a Change in Control, the Director's Retirement
Account shall become payable upon his or her Retirement subsequent to the
Change in Control. Payment of such benefits shall be made at the time or
times, and in the form, specified in the election in effect for the
Director under Section 5.3 at the time of his or her retirement.
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(e) With respect to all periods subsequent to the occurrence of a Change
in Control, the following terms shall have the following meanings:
(i) the term "Corporation" shall refer to the corporation
whose acquisition of the Common Stock of the
Corporation or substantially all of its assets, or
whose merger with the Corporation, results in the
occurrence of the Change in Control;
(ii) the term "Board of Directors" shall refer to the
Successor Board;
(iii) the term "Committee" shall refer to the committee of
the Successor Board that has responsibility for the
administration of the Plan after the occurrence of
the Change in Control; and
(iv) the term "Remuneration" shall not include any amounts
earned by a Director for services performed as a
member of the Successor Board, unless the Successor
Board otherwise determines.
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