Exhibit 10-M
PENNSYLVANIA ELECTRIC COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective August 1, 1996
TABLE OF CONTENTS
Page
Foreword 3
Section 1 - Definitions 4
Section 2 - Application and Basis of the Plan 7
Section 3 - Payment of Benefits 8
Section 4 - Administration 14
Section 5 - Amendment and Termination 14
PENNSYLVANIA ELECTRIC COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective August 1, 1996)
Foreword
Effective as of January l, 1988, Pennsylvania Electric Company
(referred to in this document as the "Company") established a
supplemental pension plan for the benefit of certain of its
employees. This Pennsylvania Electric Company Supplemental and
Excess Benefits Plan (the "Plan") is a continuation of that plan
as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after August 1, 1996.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to August 1,
1996 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the
Pennsylvania Electric Company Employee Pension Plan ("Pension
Plan") and the Pennsylvania Electric Company Plan For Retirement
Annuities ("PRA") and their surviving spouses with the amount of
company-provided benefits that would have been provided to them
under the Pension Plan or the PRA but for the limitation on
benefits imposed under Section 415 of the Internal Revenue Code,
as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term 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 (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 of the Corporation (the
"Incumbent Board"), cease for any reason to constitute at
least seventy percent (70%) of the members of the board of
directors of the Corporation; 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 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
involving the Corporation, unless such merger, consolidation
or reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization of the Corporation 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
(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
(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 Persons,
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.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU System Companies Deferred
Compensation Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any
amount of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental
Benefit payable hereunder to an Employee or the
Employee's surviving spouse shall commence to be paid:
(i) on the first of the month following
the Employee's retirement, if the Employee retires
in accordance with Section 3.1, 3.2, 3.3 or 3.4 of
the Pension Plan,
(ii) on Normal Retirement Date, if the
Employee becomes entitled to benefits in
accordance with Section 3.5 of the Pension Plan,
or
(iii) in the case of a Benefit which
becomes payable hereunder to an Employee's
surviving spouse on account of the Employee's
death before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension under
the applicable provisions of Section 9 of the
Pension Plan could commence, without regard to any
election by such spouse to defer the commencement
of payment of such Basic Pension.
(b) The Excess and/or Supplemental Benefit
payable hereunder to the Employee shall be paid in the
form of a single life annuity, unless the Employee is
married on the date on which payment of such Benefit is
to commence under Section 3.2(a) above, in which event
it shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of
this Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a
form furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental
Benefits commences earlier or later than payment of
Pension Plan benefits, the amount of the Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined as though payment of Pension Plan benefits
commenced on the same date as payment of such Benefits
commences, except that no increase in the dollar
limitation of section 415(b)(1)(A) of the Code
occurring after payment of Pension Plan benefits
commences shall be taken into account.
(e) If Excess and/or Supplemental Benefits
commence to be paid on or after the date Pension Plan
benefits commence to be paid, the amount of Excess
and/or Supplemental Benefits to be paid hereunder shall
be determined in accordance with the following
additional rules:
(i) determine the Employee's Excess
and/or Supplemental Benefits as though such
Benefits were payable in the same form, and with
the same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in marital
status occurring subsequent to the date on which
payment of Pension Plan benefits commence,
(ii) if the Employee's Pension Plan
benefits are payable in accordance with Option 1
or 2, as described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by the
complement of the reduction percentage applied to
Pension Plan benefits in accordance with such
Section 10.1, to convert such amount into a
benefit payable in the form of a single life
annuity, and
(iii) if payment of the Employee's Excess
and/or Supplemental Benefits is to be made in a
form other than as a single life annuity, reduce
the amount determined in (ii) by the reduction
percentage that would be applicable under Section
10.1 of the Pension Plan to an annuity payable
thereunder to the Employee in the same form as the
form in which payment of the Employee's Excess
and/or Supplemental Benefits is to be made
hereunder and with the same beneficiary.
If Excess and/or Supplemental Benefits
commence to be paid before Pension Plan benefits
commence to be paid, the amount of such Benefits
to be paid hereunder shall be determined as though
Pension Plan benefits were being paid at the same
time and in the same form as Excess and/or
Supplemental Benefits, until such time as Pension
Plan benefits commence to be paid, at which time
the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted,
in a manner consistent with the foregoing
paragraph, to the extent necessary to reflect any
difference in the form of payment for the
Employee's Pension Plan benefits and the form of
payment for his or her Excess and/or Supplemental
Benefits.
(f) In determining the amount of the Excess
and/or Supplemental Benefit payable hereunder to an
Employee or the Employee's surviving spouse, there
shall be taken into account any increase in the amount
of the pension benefit that is payable, pursuant to
Section 6 or Section 9 of the Pension Plan, to the
Employee or his or her surviving spouse for the first
12 months during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above,
an Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
(h) Notwithstanding any other provision of the
Plan to the contrary or any other optional form of
distribution otherwise elected, each Employee shall be
permitted to make a special distribution election to
have his or her Excess and/or Supplemental Benefit
distributed in the form of a single lump sum payment in
the event of the Employee's termination of employment
(1) by the Company (A) within six (6) months prior to a
Change in Control or (B) prior to a Change in Control
but which the Employee reasonably demonstrates (i) was
at the request of a third party who has indicated an
intention or taken steps reasonably calculated to
effect a Change in Control or (ii) otherwise arose in
connection with, or in anticipation of a Change in
Control which has been threatened or proposed and which
actually occurs, or (2) for any reason within the two
(2) year period following a Change in Control;
provided, however, that such election shall be
effective only if it is made either (I) at least
twenty-four (24) months prior to such termination of
the Employee's employment, or (II) if such termination
of employment constitutes an "Involuntary Termination"
as defined below, at least one year prior to such
Change in Control. Any special election made hereunder
may be revoked, and a new special election may be made
at any time; provided, however, that any such
revocation or new election shall be effective only if
it is made within the election period specified in
clause (I) or (II) of the preceding sentence. Any
special election, or revocation of a special election,
that may be made hereunder shall be made in writing, on
a form furnished to the Employee for such purpose by
the Administrative Committee. The lump sum payment to
be made hereunder to an Employee shall be in an amount
that is Actuarially Equivalent (as defined in the
Pension Plan and determined as of the date of the
Employee's termination of employment) to the Excess
and/or Supplemental Benefit that otherwise would be
payable hereunder to the Employee if (x) payment of the
Employee's Excess and/or Supplemental Benefit and the
benefits payable to the Employee under the Pension Plan
were to commence on the Employee's Normal Retirement
Date (as defined in the Pension Plan) or, if earlier,
on the earliest date as of which the Employee could
elect to have payment of his or her benefits under the
Pension Plan commence, (y) the Employee's Excess and/or
Supplemental Benefit were payable in the form of a
single life annuity, and (z) the Employee's benefits
under the Pension Plan were payable either (1) in the
same form as Option 2 as described in Section 10.1 of
the Pension Plan with the Employee's spouse as the
beneficiary thereunder, if the Employee is married on
the date of his or her termination of employment, or
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death. The lump sum payment to be made
hereunder with respect to any Employee shall be made by
no later than 30 days following the date of the
Employee's termination of employment.
For purposes of this Section 3.2(h), an
"Involuntary Termination" shall mean the termination of
an Employee's employment (A) as a result of the
Employee's death, (B) by the Company, for any reason,
or (C) by the Employee, for "Good Reason" as defined
below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status,
title, position or responsibilities (including
reporting responsibilities) which, in the
Employee's reasonable judgement, represents an
adverse change from his or her status, title,
position or responsibilities as in effect
immediately prior thereto; the assignment to the
Employee of any duties or responsibilities which,
in the Employee's reasonable judgement, are
inconsistent with his or her status, title,
position or responsibilities; or any removal of
the Employee from or failure to reappoint or
reelect him or her to any of such offices or
positions, other than in connection with the
termination of his or her employment for
disability, for cause, or by the Employee other
than for Good Reason;
(B) a reduction in the Employee's annual
base salary below the rate of the Employee's
annual base salary in effect as of the date of the
Change in Control or, if greater, at any time
thereafter, determined without regard to any
salary reduction or deferred compensation
elections made by the Employee;
(C) the relocation of the offices of the
Company at which the Employee is principally
employed to a location more than twenty-five (25)
miles from the location of such offices
immediately prior to the Change in Control, or the
Company's requiring the Employee to be based
anywhere other than such offices, except to the
extent the Employee was not previously assigned to
a principal location and except for required
travel on the Company's business to an extent
substantially consistent with the Employee's
business travel obligations at the time of the
Change in Control;
(D) the failure by the Company to pay to the
Employee any amount of the Employee's current
compensation, or any amount payable under any
deferred compensation program of the Company in
which the Employee participated, within seven (7)
days of the date on which payment of such amount
is due; or
(E) the failure by the Company to (1)
continue in effect (without reduction in benefit
level, and/or reward opportunities) any material
compensation or employee benefit plan in which the
Employee was participating immediately prior to
the Change in Control unless a substitute or
replacement plan has been implemented which
provides substantially identical compensation or
benefits to the Employee or (2) provide the
Employee with compensation and benefits, in the
aggregate, at least equal (in terms of benefit
levels and/or reward opportunities) to those
provided for under all other compensation or
employee benefit plans, programs and practices in
which the Employee was participating immediately
prior to the Change in Control.
Any event or condition described in
subparagraph (A) through (E) above which occurs (1) within
six (6) months prior to a Change in Control or (2) prior to
a Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who
effectuates a Change in Control, or (y) otherwise arose in
connection with, or in anticipation of, a Change in Control
which has been threatened or proposed and which actually
occurs, shall constitute Good Reason for purposes of this
Section 3.2(h) notwithstanding that it occurred prior to a
Change in Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company 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 and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company
either by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (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, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.