Exhibit 10-B
GPU SYSTEM COMPANIES
MASTER DIRECTORS' BENEFITS PROTECTION TRUST
As Amended and Restated Effective November 7, 1996
TABLE OF CONTENTS
Article Title Page No.
ARTICLE 1 Definitions 2
ARTICLE 2 Establishment of the Trusts 7
ARTICLE 3 Contributions and Accounts 9
ARTICLE 4 Payments to Participants and Beneficiaries 16
ARTICLE 5 Legal Defense Fund 25
ARTICLE 6 Insolvency 29
ARTICLE 7 Payments to Company 31
ARTICLE 8 Investment Authority and
Disposition of Income 32
ARTICLE 9 General Powers and Duties of Trustee 34
ARTICLE 10 Taxes, Expenses, and Compensation of Trustee 40
ARTICLE 11 Accounting by Trustee 41
ARTICLE 12 Communications 43
ARTICLE 13 Resignation or Removal of Trustee 45
ARTICLE 14 Amendments and Termination 47
ARTICLE 15 Miscellaneous 48
THIS TRUST AGREEMENT, Amended and Restated as of November 7,
1996, by and between GPU, INC., a Pennsylvania corporation (the
"Corporation"), JERSEY CENTRAL POWER & LIGHT COMPANY, a New
Jersey corporation, and GPU NUCLEAR, INC., 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
SUMMIT BANK (formerly UNITED JERSEY BANK), a New Jersey state
chartered bank (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 between the Companies and the 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 Trust
shall constitute an unfunded arrangement and shall not affect the
status of each of the Plans as unfunded for federal income tax
purposes; and
WHEREAS, it is the intention of each Company to make
contributions to its Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under its
Plans; and
WHEREAS, the Trustee is not a party to any of the Plans and
makes no representations with respect thereto; and
WHEREAS, the parties hereto wish to amend and restate the
Prior Agreement to make certain changes thereto; and
NOW, THEREFORE, the Prior Agreement is hereby amended and
restated to read in its entirety as follows:
ARTICLE 1
Definitions
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 established hereunder, or any Plan, the Company
that established 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.
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(g) "Change in Control" shall mean the occurrence of
any of the following:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the Corporation ("Common
Stock") or other voting securities of the Corporation
entitled to vote generally for the election of directors
(the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated
under the 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 involving the Corporation, unless such
merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a
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merger, consolidation or reorganization of the Corporation
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
(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
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the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(h) "Code" shall mean the Internal Revenue Code of
1986 as the same may be amended from time to time.
(i) "Insolvent"--A Company shall be considered
"Insolvent" for purposes of this Agreement if (i) the
Company is unable to pay its debts as they become due, or
(ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(j) "Participant" shall mean any person who is or may
become entitled to receive Benefits under a Plan and who is
included in the list of persons who are to be treated as
Participants for purposes of this Agreement, as set forth in
Exhibit A hereto.
(k) "Permitted Investments" shall mean direct
obligations of the United States of America or agencies or
instrumentalities thereof or obligations unconditionally and
fully guaranteed as to principal and interest by the United
States of America ("Obligations"), and certificates of
deposit and bankers' acceptances of a bank organized and
existing under the laws of the United States of America or
any State thereof that has a combined capital and surplus of
at least $100,000,000, all having respective maturities of
not more than one year when purchased. The term "Permitted
Investments" shall also mean any fund or portfolio
maintained by any open-end investment company registered
under the Investment Company Act of 1940, the assets of
which are invested exclusively in Obligations, certificates
of deposit and/or bankers' acceptances of the kind described
in the preceding sentence including, without limitation, any
such fund or portfolio for which the Trustee or any
affiliate of the Trustee serves as investment adviser.
(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
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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
(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:
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(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.l(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.l(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.l(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.
ARTICLE 2
Establishment of the Trusts
2.1 Each Company hereby establishes with the Trustee,
and the Trustee hereby accepts, a Trust consisting of such sums
of money and other property acceptable to the Trustee as such
Company shall pay or deliver to the Trustee from time to time.
All such money and other property, all investments and
reinvestments made therewith or proceeds thereof and all earnings
and profits thereon, less all payments therefrom and charges
thereto as authorized herein, are hereinafter referred to as the
"Trust Fund" for such Trust. Each Trust Fund shall be held,
administered and disposed of by the Trustee as provided in this
Agreement.
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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.
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2.4 The principal of each Trust, and any earnings
thereon, shall be held separate and apart from other funds of the
Applicable Company, and shall be used exclusively for the uses
and purposes of Participants under such Company's Plans and
general creditors of such Company, as herein set forth.
Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of
any Trust. Any rights created under the Plans and this Agreement
shall be mere unsecured contractual rights of Participants and
their Beneficiaries against the Applicable Company. Any assets
held by each Trust will be subject to the claims of the
Applicable Company's general creditors under federal and state
law in the event of the Applicable Company's Insolvency, as
defined in Section 1.1(h) herein.
2.5 Each Trust established hereunder shall be
maintained by the Trustee as a separate trust. However, the
assets of any Trust may be commingled with the assets of any
other Trust, solely for investment purposes.
ARTICLE 3
Contributions and Accounts
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.
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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.
(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
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recent Valuation Date preceding such contribution, will equal the
aggregate Present Value of all Benefits accrued for all
Participants under all of such Company's Plans determined as of
such Benefit Valuation Date.
3.2.2 Upon the occurrence of a Threatened Change
in Control, each Company shall be required to make contributions
to its Trust as follows:
(a) Upon a Threatened Change in Control, the
Company shall, as soon as practicable but in no event later than
30 days following the Threatened Change in Control, make a
contribution to its Trust in an amount that, when added to the
value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust
Fund) determined as of the most recent Valuation Date preceding
such contribution, will equal the sum of (i) the aggregate
Present Value of all Benefits accrued for all Participants under
all of such Company's Plans, determined as of the most recent
Benefit Valuation Date preceding the date on which the Threatened
Change in Control occurred; and (ii) the aggregate Present Value,
determined as of the first day of the month coincident with or
immediately following the date on which the Threatened Change in
Control occurred, of all other Benefits for all Participants
under all of such Company's Plans that would have accrued as a
result of a Change in Control if such Change in Control had
occurred on the date on which the Threatened Change in Control
occurs.
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(b) Within 60 days after each Benefit
Valuation Date during a Threatened Change in Control Period, each
Company shall make a contribution to its Trust in an amount that,
when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any,
maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
sum of (i) the aggregate Present Value of all Benefits accrued
for all Participants under all of such Company's Plans,
determined as of such Benefit Valuation Date and (ii) the
aggregate Present Value, determined as of such Benefit Valuation
Date, of all other Benefits for all Participants under all of
such Company's Plans that would have accrued as a result of a
Change in Control, if such Change in Control had occurred on such
Benefit Valuation Date.
3.3 Within the Trust Fund for each Trust, the Trustee
shall establish and maintain a separate account (hereinafter
referred to as a "Plan Account") for each of the Applicable
Company's Plans. The Trustee also shall establish within each
Plan Account a separate sub-account (hereinafter referred to as a
"Participant Account") for each Participant of such Plan. 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 With respect to each contribution that is made to
a Trust prior to a Change in Control but not during any
Threatened Change in Control Period, the amount, or property, so
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contributed to such Trust 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. The net investment
gains and losses of each 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,
in such manner as the Applicable 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 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, based on the
value of such Accounts as of the immediately preceding Valuation
Date. 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.
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3.6 Notwithstanding the provisions of Sections 3.4 and
3.5, as of each Benefit Valuation Date occurring prior to a
Change in Control, but not during any Threatened Change in
Control Period, the Trustee shall, in accordance with such
written instructions as it has received from the Applicable
Companies, record adjustments to the balance of each Participant
Account maintained within a Plan Account to the extent necessary
for such balance to equal the amount determined by multiplying
(a) the balance of such Plan Account determined as of the most
recent Valuation Date preceding such Benefit Valuation Date, by
(b) a fraction the numerator of which is the Present Value of the
Benefits accrued for the applicable Participant under the Plan in
question, determined as of such Benefit Valuation Date, and the
denominator of which is the aggregate Present Value of all of the
Benefits accrued for all Participants under such Plan, determined
as of such Benefit Valuation Date.
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
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preceding 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 such contribution.
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
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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 gains and losses pursuant to the second sentence
of Section 3.5, and in recording any adjustments to the balance
of any 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 Companies.
ARTICLE 4
Payments to Participants and Beneficiaries
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
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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 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.
18
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 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
19
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
20
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
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 established within such
21
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.
22
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
recent Valuation Date.
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
23
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.
24
ARTICLE 5
Legal Defense Fund
5.1. On the written direction of a Company, the Trustee
shall establish within the Trust Fund for such Company's Trust a
separate fund, hereinafter referred to as a "Legal Defense Fund".
A Company's Legal Defense Fund shall consist of such portions of
its contributions to its Trust as the Company shall specify in
writing at the time of contribution, together with all income,
gains and losses and proceeds from the investment, reinvestment
and sale thereof, less all payments therefrom and expenses
charged thereto in accordance with the provisions of this Article
5. Subject to Article 6, a Company's Legal Defense Fund shall be
held and administered by the Trustee exclusively for the purpose
of defraying the costs and expenses incurred by the Trustee in
performing its duties under Sections 5.3 and 5.4.
5.2. A Company's Legal Defense Fund shall be maintained
and administered as a separate segregated account, provided,
however, that the assets of any Legal Defense Fund may be
commingled with all other assets of the same Trust, and with the
assets of any other Trust, solely for investment purposes.
5.3. If, at any time after a Change in Control, a
Participant or Beneficiary notifies the Trustee in writing that a
Company has refused to pay a claim asserted by such Participant
or Beneficiary under any of such Company's Plans, the Trustee
shall promptly review such claim and determine whether it has any
basis in law and fact. If the Trustee determines that the claim
has no basis in law and fact, the Trustee shall notify the
Participant or Beneficiary of such determination, and thereafter
25
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
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
26
discretion, to take such action as it deems appropriate in
the Litigation, including settlement or discontinuance of
the Litigation; provided, however, that the Trustee
shallafford 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.
(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.
27
(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
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,
28
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.
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.
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:
29
(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.
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
30
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.
31
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.
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
32
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.
33
8.4 In no event may the assets of any Trust be
invested in securities (including stock or rights to acquire
stock) or obligations issued by any Company, other than a de
minimis amount held in common investment vehicles in which the
Trustee invests. All rights associated with assets of each Trust
shall be exercised by the Trustee or an Investment Manager
appointed under Section 8.2, and shall in no event be exercisable
by or rest with Participants.
8.5 During the term of each Trust, all income received
by the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
ARTICLE 9
General Powers and Duties of Trustee
9.1 In addition to the other powers granted to it
under this Agreement, the Trustee shall have the following
administrative powers and authority with respect to the property
comprising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant
options for the purchase or exchange thereof, including call
options for property held in the Trust Fund and put options
for the purchase of such property, including, without
limitation, at any time to sell any asset other than cash
held in the Trust Fund to pay Benefits if there is not
sufficient cash in the Trust Fund to pay Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other
similar plan relating to any such property, and to consent
to or oppose any such plan or any action thereunder, or any
contract, lease, mortgage, purchase, sale or other action by
any corporation or other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate
discretionary power to any such committee; and to pay part
of the expenses and compensation of any such committee and
34
any assessments levied with respect to any property so
deposited.
(d) To exercise any conversion privilege or
subscription right available in connection with any such
property; to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any
corporation, company or association of any of the securities
of which may at any time be held in the Trust Fund and to do
any act with reference thereto, including the exercise of
options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may
be deemed necessary or advisable in connection therewith,
and to hold and retain any securities or other property
which it may so acquire.
(e) To commence or defend suits or legal proceedings
and to represent the Trust in all suits or legal
proceedings; to settle, compromise or submit to arbitration,
any claims, debts or damages, due or owing to or from the
Trust.
(f) To exercise, personally or by general or limited
power of attorney, any right, including the right to vote,
appurtenant to any securities or other such property.
(g) To borrow money from any lender in such amounts
and upon such terms and conditions as shall be deemed
advisable or proper to carry out the purposes of the Trust
and to pledge any securities or other property for the
repayment of any such loan.
(h) To engage any legal counsel, including (except
after the occurrence of a Change in Control) counsel to any
Company, any enrolled actuary, any accountant or any other
suitable agents, to consult with such counsel, enrolled
actuary, accountant or agents with respect to the
construction hereof, the duties of the Trustee hereunder,
the transactions contemplated by this Agreement or any act
which the Trustee proposes to take or omit, to rely upon the
advice of such counsel, enrolled actuary, accountant or
agents, and to pay its reasonable fees, expenses and
compensation from the Trust Fund.
(i) To register any securities held by it in its own
name or in the name of any custodian of such property or of
its nominee, including the nominee of any system for the
central handling of securities, with or without the addition
of words indicating that such securities are held in a
fiduciary capacity, to deposit or arrange for the deposit of
any such securities with such a system and to hold any
securities in bearer form; provided, however, that no such
35
holding shall relieve the Trustee of its responsibility for
the safe custody and disposition of the Trust Fund in
accordance with the provisions of this Agreement, the
Trustee's books and records shall at all times show that
such property is part of the Trust Fund, and the Trustee
shall be absolutely liable for any loss occasioned by the
acts of its nominee or nominees with respect to securities
registered in the name of the nominee or nominees.
(j) To make, execute and deliver, as Trustee, any and
all deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
accomplishment of any of the powers granted herein.
(k) To transfer assets of the Trust Fund to a
successor trustee as provided in Section 13.4 hereof.
(l) To exercise, generally, any of the powers which an
individual owner might exercise in connection with property
either real, personal or mixed held in the Trust Fund, and
to do all other acts that the Trustee may deem necessary or
proper to carry out any of the powers granted to it
hereunder or that otherwise may be in the best interests of
the Trust Fund.
(m) To hold any portion of the Trust Fund in cash
pending investment, or for the payment of expenses and
Benefits, without liability for interest.
(n) To vote personally or by proxy and to delegate
power and discretion over such proxy on account of
securities held in the Trust Fund.
(o) To hold assets in time or demand deposits
(including deposits with the Trustee in its individual
capacity that pay a reasonable rate of interest).
(p) To invest and reinvest all or any specified
portion of any Trust Fund through the medium of any common,
collective, or commingled trust fund that has been or may
hereafter be established and maintained by the Trustee.
(q) To invest in mutual funds registered with the
Securities Exchange Commission under the Investment Company
Act of 1940.
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
36
insurance policy is held as an asset of any Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor
trustee, or to loan to any person the proceeds of any borrowing
against such policy.
Prior to a Change in Control, the Trustee shall
exercise the powers referred to in Section 9.1(h) only as
directed by the Applicable Company; and, with respect to the
portion of any Trust Fund for which an investment manager has
been appointed under Section 8.2, the Trustee shall exercise any
power referred to in this Section 9.1, as it relates to the
investment management of such portion of the Trust Fund, only as
directed by such investment manager. After a Change in Control,
the Trustee may exercise such powers in its sole and absolute
discretion, except as otherwise provided in Article 8.
Notwithstanding any powers granted to the Trustee
pursuant to this Agreement or to applicable law, the Trustee
shall not have any power that could give any Trust the objective
of carrying on a business and dividing the gains therefrom,
within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall,
subject to Article 6 hereof, discharge its duties under this
Agreement solely in the interest of the beneficiaries of each
Trust and (i) for the exclusive purpose of providing Benefits to
such beneficiaries and defraying reasonable expenses of
37
administering such Trust; (ii) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims; and (iii) by diversifying the investments of the
Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not
to do so.
9.3 The Trustee shall not be required to give any bond
or any other security for the faithful performance of its duties
under this Agreement, except as required by law.
9.4 Except as otherwise expressly provided herein, the
Trustee shall not be responsible in any respect for administering
any Plan; nor shall the Trustee be responsible for the adequacy
of the Trust Fund for any Trust to meet and discharge all
payments and liabilities under any Plan.
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
38
obligations under any Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall
protect, indemnify and save harmless the Trustee and its
officers, directors or trustees, employees and agents from and
against any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages,
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any nature arising
from or relating to any action or failure to act by the Trustee,
its officers, directors or trustees, employees and agents with
respect to any Trust, or arising from or relating to the
transactions contemplated by this Agreement that pertain to or
affect such Trust, except to the extent that any such loss,
liability, action, suit, demand, damage, cost or expense is the
result of the negligence or willful misconduct of the Trustee,
its officers, directors or trustees, employees or agents.
If the Trustee shall become entitled to indemnification
by any Company pursuant to this Section 9.6 and such Company
fails to provide such indemnification to the Trustee within 30
days of the Company's receipt of a written request from the
Trustee for such indemnification, the Trustee may apply assets of
such Company's Trust in full satisfaction of the Company's
obligation to make such indemnification. Promptly after any
assets of any Trust are so applied, the Trustee shall institute
legal proceedings on behalf of the Trust to recover from the
Applicable Company an amount equal to the amount of any Trust
assets so applied.
39
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
40
compensation or expenses shall be allocated to the Companies in
proportion to the respective values of the Trust Funds for the
Companies' Trusts as of the Valuation Date immediately preceding
the date as of which the Trustee bills the Companies for such
compensation or expenses. Each Company's allocable share of such
compensation and expenses shall be charged against and paid from
the Trust Fund for such Company's Trust, to the extent not paid
by such Company within 45 days after the date on which the
Trustee bills the Company for such compensation and expenses.
Any amount so charged against and paid from the Trust Fund for
any Company's Trust shall be further allocated to and charged
against the Plan Accounts and Participant Accounts maintained
within such Trust (a) in such manner as the Applicable Company
directs in written instructions delivered by it to the Trustee,
in the case of any amount so charged and paid prior to a Change
in Control; and (b) in proportion to the respective balances of
such Accounts as determined as of the most recent Valuation Date,
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.
41
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
shallbe deemed to have approved such statement and account; and
in such case or upon the written approval by such Company of any
such statement and account, the Trustee shall be forever released
and discharged with respect to all matters and things embraced in
such statement and account as though it had been settled by
decree of a court of competent jurisdiction in an action or
proceeding to which the Company and all persons having any
beneficial interest in its Trust were parties.
11.4 Nothing contained in this Agreement or in any Plan
shall deprive the Trustee of the right to have a judicial
settlement of its accounts with respect to any Trust. In any
proceeding for a judicial settlement of the Trustee's accounts or
for instructions in connection with any Trust, the only other
42
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
43
certified to the Trustee by the Secretary or an Assistant
Secretary of the Company under its corporate seal, and the
Trustee shall be fully protected in relying upon any resolution
so certified to it. Unless other evidence with respect thereto
has been specifically prescribed in this Agreement, any other
action of a Company under any provision of this Agreement,
including any approval of or exceptions to the Trustee's
accounts, shall be evidenced by a certificate signed by an
officer of the Company, and the Trustee shall be fully protected
in relying upon such certificate. The Trustee may accept a
certificate signed by an authorized officer of a Company as proof
of any fact or matter that it deems necessary or desirable to
have established in the administration of such Company's Trust
(unless other evidence of such fact or matter is expressly
prescribed herein) and the Trustee shall be fully protected in
relying upon the statements in the certificate.
12.3 The Trustee shall be entitled conclusively to rely
upon any written notice, instruction, direction, certificate or
other communication believed by it to be genuine and to be signed
by the proper person or persons, and the Trustee shall be under
no duty to make investigation or inquiry as to the truth or
accuracy of any statement contained therein.
12.4 Until notice be given to the contrary,
communications to the Trustee shall be sent to it at its office
at 210 Main Street, Hackensack, New Jersey 07601, Attention:
Corporate Agency Administration, Investment Management Division;
and communications to any Company shall be sent to it c/o GPU
44
Service, Inc., 100 Interpace Parkway, Parsippany, New Jersey
07054-1149, Attention: Treasurer.
ARTICLE 13
Resignation or Removal of Trustee
13.1 The Trustee may resign as trustee of any Trust at
any time by written notice to the Applicable Company, which
resignation shall be effective 60 days after the Company's
receipt of such notice unless the Company and the Trustee agree
otherwise. The Trustee may be removed as trustee of any Trust by
action of the board of directors of the Applicable Company, at
any time upon 60 days' written notice to the Trustee, or upon
shorter notice if acceptable to the Trustee. In the event it
resigns or is removed, the Trustee shall have a right to have its
accounts settled as provided in Article 11 hereof.
13.2 Notwithstanding the provisions of Section 13.1,
the Trustee may not be removed as trustee of any Trust after a
Change in Control or during a Threatened Change in Control Period
without the written consent of at least two-thirds in number of
the Participants who are, or who may become, entitled to receive
payments from such Trust. The Applicable Company shall furnish
the Trustee with evidence to establish that such majority in
number of such Participants has granted written consent to such
removal.
13.3 If the Trustee resigns or is removed as trustee of
any Trust, a successor shall be appointed by the Applicable
Company, by action of its board of directors, by the effective
date of such resignation or removal. Any successor trustee so
45
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
46
recover the amount of any deficiency from either the Applicable
Company or the successor trustee, or both. When the Trust Fund
for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust
have been settled as provided in Article 11 hereof, the Trustee
shall be released and discharged from all further accountability
or liability for the Trust Fund for such Trust and shall not be
responsible in any way for the further disposition of such Trust
Fund or any part thereof.
ARTICLE 14
Amendments and Termination
14.1 Subject to Section 14.2, any or all of the
provisions of this Agreement and any Exhibits annexed hereto, as
they relate to any Company's Trust, may be amended at any time,
without the consent of any Participant or Beneficiary, by a
written instrument of amendment, duly executed by the Applicable
Company and 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
47
effectuates a Change in Control or (iv) otherwise in connection
with, or in anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs unless in any
such case the written consent of at least two-thirds in number of
the Participants who are or may become entitled to payments from
each Trust affected by such amendment is obtained, in which case
such amendment may be made. The Trustee may request that the
Applicable Company or Companies furnish evidence to establish
that at least two-thirds of the Participants have granted written
consent to such an amendment.
14.3 Unless sooner revoked in accordance with Section
2.2 hereof, each Trust shall terminate on the date on which
Participants and their Beneficiaries are no longer entitled to
receive Benefits pursuant to the terms of the Applicable
Company's Plans. Upon termination of any Trust, any assets
remaining in the Trust Fund for such Trust shall be paid by the
Trustee to the Applicable Company.
ARTICLE 15
Miscellaneous
15.1 Any provision of this Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
15.2 Benefits payable to Participants and their
Beneficiaries under this Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
48
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly
authorized officers under their corporate seals as of the day and
year first above written.
49
GPU INC.
By:___________________________________
J. R. Leva, Chairman and
Chief Executive Officer
ATTEST:
_____________________________
JERSEY CENTRAL POWER & LIGHT COMPANY
By:__________________________________
J. R. Leva, Chairman of the
Board and Chief Executive Officer
ATTEST:
____________________________
GPU NUCLEAR, INC.
By:__________________________________
T.G. Broughton, President and
Chief Executive Officer
ATTEST:
____________________________
SUMMIT BANK, Trustee
By:__________________________________
ATTEST:
___________________________
50
EXHIBIT A
List of Participants
Set forth below is a list, for each Company, of the persons who
are to be treated as Participants for purposes of the annexed
Agreement.
Company Participants
GPU Inc. L. J. Appell, Jr.
D. J. Bainton
T. H. Black
J. F. Burditt
D. L. Grove
T. B. Hagen
H. F. Henderson, Jr.
H. R. O'Leary
J. W. Oswald
J. M. Pietruski
C. A. Rein
P. R. Roedel
C. A. Trost
P. K. Woolf
Jersey Central Power &
Light Company G. E. Persson
S. C. Van Ness
S. B. Wiley
GPU Nuclear,
Inc. L. L. Humphreys
R. V. Laney
J. D. Townsend
C. A. Trost
W. A. Wilson
W. F. Witzig
51
EXHIBIT B
Covered Plans and Benefits
Set forth below is a list, for each Company, of the plans,
programs, policies or agreements that are to be treated as
"Plans", and the amounts payable under the Plans that are to be
treated as "Benefits", for purposes of the annexed Agreement.
GPU, Inc.
1. All benefit amounts payable under the Deferred
Remuneration Plan for Outside Directors of GPU, Inc.
2. All benefit amounts payable under the Retirement Plan
for Outside Directors of GPU Inc.
Jersey Central Power & Light Company
1. All benefit amounts payable under the Deferred
Remuneration Plan for Outside Directors of Jersey Central Power &
Light Company.
GPU Nuclear, Inc.
1. All benefit amounts payable under the Deferred
Remuneration Plan for Outside Directors of GPU Nuclear, Inc.
EXHIBIT C
Payment Schedule
[Material To Be Added.]
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
I, _______________________________________________, a
Participant [or Beneficiary] in the GPU System Companies Master
Directors' Benefits Protection Trust (the "Trust"), adopted
September 1, 1995 and amended November 7, 1996, pursuant to
Section 4.3 thereof, hereby request that [Name of Bank], as
Trustee thereunder, make payment to me of the Benefits to which I
am entitled as [Participant or Beneficiary] in accordance with
the terms of the Trust Agreement and the following [Company Name]
Plans:
_______________________________
_______________________________
_______________________________
52
_______________________________
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.]
EXHIBIT E
AUTHORIZATION TO TRUSTEE
TO COMMENCE LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Directors'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended November 7, 1996, pursuant to Section 5.3(b)
thereof, hereby request and authorize [Name of Bank], as Trustee
thereunder, to institute and prosecute legal proceedings (the
"Litigation"), on my behalf, against [Name of GPU System Company]
to recover upon my claim against said company for unpaid benefits
under [Name of Plan under which claim is asserted].
53
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.]
54
EXHIBIT F
REVOCATION OF TRUSTEE'S AUTHORITY
TO MAINTAIN LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Directors'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended November 7, 1996, 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 System Company] for unpaid Benefits under
[Name of Plan under which claim is asserted].
I hereby notify the Trustee that I have appointed and
retained [Name Attorney______________] of [Address________
___________________________________________________________
______] to represent me and my interests in such Litigation. I
understand that the fees and expenses of my attorney in
connection with the Litigation or otherwise shall be my sole
responsibility and that neither me nor my attorney will be
entitled to direct payment for any such fees or expenses out of
the Trust fund or any portion thereof.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
___________________________
[Address & Telephone No.]
55
EXHIBIT G
Trustee's Fee Schedule
[Material to be added, including provision for automatic
annual COLA adjustments after a Change in Control.]
GPU RABBI TRUST
PARTICIPANT INFORMATION
NAME ADDRESS SOCIAL SECURITY NUMBER
Appell, L. J., 1700 Power Mill Road ###-##-####
Jr. York, PA 17403
Bainton, D. J. 39 West Brother Drive ###-##-####
Greenwich, CT 06830
Black, T. H. 543 Carter Street ###-##-####
New Canaan, CT 06840
Burditt, J. F. P. O. Box 1327 ###-##-####
Manchester Center, VT 05255
Grove, D. L. 5 The Knoll ###-##-####
Armonk, NY 10504
Hagen, T. B. 5727 Grubb Road ###-##-####
Erie, PA 16505
Henderson, 315 Rifle Camp Road ###-##-####
H. F., Jr. West Paterson, NJ 07424
Humphreys, 217 Lasiandra Court ###-##-####
L. L. Richland, WA 99352
Laney, R. V. 24 Trout Farm Road ###-##-####
Duxburn, MD 02332
O'Leary, H. R. 5610 Wisconsin Avenue PH20C ###-##-####
O'Leary, J. Chevy Chase, MD 20815
(deceased)
Oswald, R. O. 600 E. Cathedral Road ###-##-####
Oswald, J. W. Apt. J-304
(deceased) Philadelphia, PA 19128
Persson, G. E. 27 Greenfields Drive ###-##-####
Lakewood, NJ 08701
Pietruski, 27 Paddock Lane ###-##-####
J. M. Colts Neck, NJ 07722
56
GPU RABBI TRUST
PARTICIPANT INFORMATION
NAME ADDRESS SOCIAL SECURITY NUMBER
Rein, C. A. 21 East 22nd St. ###-##-####
Apt. 8-B
New York, NY 10010
Roedel, P. R. 416 Wheatland Ave. ###-##-####
Shillington, PA 19607
Townsend, J. D. 190 Red Rock Cove Dr. ###-##-####
Sedona, AZ 86351
Trost, C. A. H. 10405 Windsor View Dr. ###-##-####
Potomac, MD 20854
Van Ness, S. C. 503 South Street ###-##-####
Brielle, NJ 08730
Wiley, S. B. Canfield Road ###-##-####
Covenant Sta., NJ 07961
Wilson, W. A. 115 Wilton Woods Ln ###-##-####
Media, PA 19063
Witzig, W. F. 1330 Park Hills Avenue ###-##-####
East
State College, PA 16801
Woolf, P. K. 506 Quaker Road ###-##-####
Princeton, NJ 08540
57