Exhibit 10-C
GPU SYSTEM COMPANIES
MASTER EXECUTIVES' BENEFITS PROTECTION TRUST
As Amended and Restated Effective August 1, 1996
TABLE OF CONTENTS
Article Title Page No.
ARTICLE 1 Definitions 3
ARTICLE 2 Establishment of the Trusts 9
ARTICLE 3 Contributions and Accounts 11
ARTICLE 4 Payments to Participants and Beneficiaries 18
ARTICLE 5 Legal Defense Fund 27
ARTICLE 6 Insolvency 31
ARTICLE 7 Payments to Company 32
ARTICLE 8 Investment Authority and Disposition
of Income 33
ARTICLE 9 General Powers and Duties of Trustee 36
ARTICLE 10 Taxes, Expenses, and Compensation of
Trustee 41
ARTICLE 11 Accounting by Trustee 43
ARTICLE 12 Communications 45
ARTICLE 13 Resignation or Removal of Trustee 46
ARTICLE 14 Amendments and Termination 48
ARTICLE 15 Miscellaneous 50
THIS TRUST AGREEMENT, Amended and Restated as of August ___,
1996, by and between GPU, INC., a Pennsylvania corporation (the
"Corporation"), JERSEY CENTRAL POWER & LIGHT COMPANY, a New
Jersey corporation, METROPOLITAN EDISON COMPANY, a Pennsylvania
corporation, PENNSYLVANIA ELECTRIC COMPANY, a Pennsylvania
corporation, GPU SERVICE, INC., a Pennsylvania corporation, GPU
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NUCLEAR, INC., a New Jersey corporation, GPU GENERATION, INC., a
Pennsylvania corporation ("Genco"), and GPU INTERNATIONAL, INC.,
a Delaware Corporation (each such corporation is hereinafter
referred to individually as a "Company", and all such corpora-
tions are hereinafter referred to collectively as the "Com-
panies"), 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 Corporation, each of the Companies
other than Genco, and the Trustee (the "Prior Agreement"), each
of such 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, Genco wishes to establish a Trust hereunder
and to become a party to this Agreement and agrees to be bound by
all of its terms and provisions; and
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WHEREAS, it is the intention of the parties that each
Trust established hereunder or under the Prior Agreement shall
constitute an unfunded arrangement and shall not affect the
status of each of the Plans as unfunded for purposes of those
provisions of Title I of the Employment Retirement Income
Security Act of 1974 that may apply to such Plan; and
WHEREAS, it is the intention of each Company to make
contributions to its Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under its
Plans; and
WHEREAS, 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 permit Genco to become a party hereto and
to make certain other changes in the Prior Agreement;
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 con-
trary 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.
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(c) "Beneficiary", with respect to a Participant,
shall mean the person or entity designated by such
Participant under a Plan, or such other person or
entity with respect to such Participant as may be
designated under the terms of such Plan, to receive the
Benefits, if any, payable from such Plan following such
Participant's death.
(d) "Benefits" shall mean those amounts specified
in Exhibit B that are payable under a Plan to (or with
respect to) a Participant, or, upon his death, to his
Beneficiary.
(e) "Benefit Valuation Date" shall mean the first
day of each calendar year.
(f) "Board" shall mean the board of directors of
the Corporation.
(g) "Change in Control" shall mean the occurrence
of any of the following:
(1) An acquisition (other than directly from
the Corporation) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election
of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
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);
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(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 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
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(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of
more than the permitted amount of the then outstanding
Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the
Corporation which, by reducing the number of shares of
Common Stock or Voting Securities then outstanding,
increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided
that if a Change in Control would occur (but for the
operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
(g) "Code" shall mean the Internal Revenue Code
of 1986 as the same may be amended from time to time.
(h) "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.
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(i) "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 Agree-
ment, as set forth in Exhibit A hereto.
(j) "Permitted Investments" shall mean direct
obligations of the United States of America or agencies
or instrumentalities thereof or obligations uncondition-
ally 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 regis-
tered 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.
(k) "Present Value" shall mean, with respect to
any Benefit, the single sum actuarial present value of
such Benefit, as determined by an enrolled actuary on
the basis of the actuarial assumptions most recently
adopted by the Applicable Company for use in connection
with this Agreement. Notwithstanding the foregoing,
any determination of the Present Value of Benefits to
be made hereunder at any time after a Change in Control
or during a Threatened Change in Control Period shall
be made on the basis of the actuarial assumptions that
were used in determining the Present Value of such
Benefits as of the most recent Benefit Valuation Date
preceding the Change in Control or Threatened Change in
Control Period, unless the Applicable Company has
notified the Trustee in writing prior to the Change in
Control or the Threatened Change in Control Period of
its adoption of different actuarial assumptions for use
hereunder after the Change in Control or during the
Threatened Change in Control Period; provided, however,
that if any Plan specifies (either expressly or by
reference) the actuarial assumptions that are to be
used to calculate the Benefits provided under such
Plan, the actuarial assumptions so specified shall be
used to determine the Present Value of Benefits under
that Plan for purposes of this Agreement.
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(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 Com-
pany, and agreements entered into by such Company, that
are included in the list set forth in Exhibit B hereto.
(m) "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(m) solely because of an acquisition
or tender offer made or effected in connection with a
Non-Control Acquisition.
(n) "Threatened Change in Control Period" shall
mean the period commencing on the date on which a
Threatened Change in Control has occurred and ending
(i) on the date on which a Change in Control has
occurred, or (ii), if earlier, on whichever of the
following dates is applicable:
(1) in the case of a Threatened Change in
Control described in Section 1.1(m)(1), the date as of
which any Person described in Section 1.l(m)(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
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(2) in the case of a Threatened Change in
Control described in Section 1.l(m)(2), the date as of
which the tender offer or exchange offer described in
Section 1.1(m)(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(m)(3), the date as of
which any Person described in Section 1.1(m)(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.
(o) "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 reinvest-
ments 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, adminis-
tered and disposed of by the Trustee as provided in this
Agreement.
2.2 Prior to a Change in Control, each Trust estab-
lished hereunder may be revoked, in whole or in part, by the
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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 accord-
ingly.
2.4 The principal of each Trust, and any earnings
thereon, shall be held separate and apart from other funds of the
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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. Partici-
pants 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 main-
tained 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
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any, maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
aggregate Present Value of all Benefits accrued for all
Participants under all of such Company's Plans determined as of
such Benefit Valuation Date.
3.2.2 Upon the occurrence of a Threatened Change in
Control, each Company shall be required to make contributions to
its Trust as follows:
(a) Upon a Threatened Change in Control, the
Company shall, as soon as practicable but in no event later than
30 days following the Threatened Change in Control, make a
contribution to its Trust in an amount that, when added to the
value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust
Fund) determined as of the most recent Valuation Date preceding
such contribution, will equal the sum of (i) the aggregate
Present Value of all Benefits accrued for all Participants under
all of such Company's Plans, determined as of the most recent
Benefit Valuation Date preceding the date on which the Threatened
Change in Control occurred; and (ii) the aggregate Present Value,
determined as of the first day of the month coincident with or
immediately following the date on which the Threatened Change in
Control occurred, of all other Benefits for all Participants
under all of such Company's Plans that would have accrued as a
result of a Change in Control if such Change in Control had
occurred on the date on which the Threatened Change in Control
occurs.
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(b) Within 60 days after each Benefit
Valuation Date during a Threatened Change in Control Period, each
Company shall make a contribution to its Trust in an amount that,
when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any,
maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
sum of (i) the aggregate Present Value of all Benefits accrued
for all Participants under all of such Company's Plans,
determined as of such Benefit Valuation Date and (ii) the
aggregate Present Value, determined as of such Benefit Valuation
Date, of all other Benefits for all Participants under all of
such Company's Plans that would have accrued as a result of a
Change in Control, if such Change in Control had occurred on such
Benefit Valuation Date.
3.3 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
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Threatened Change in Control Period, the amount, or property, so
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 Par-
ticipant 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
preceding such contribution. The amount so allocated to any Plan
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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
17
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 Par-
ticipants 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") substan-
tially in the form annexed hereto as Exhibit C for each Par-
ticipant 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 secu-
rity 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, a
Payment Schedule with respect to a Participant's Benefits under
any Plan may be amended so as to reflect any amendment to the
Plan made during such Threatened Change in Control period that
has the effect of increasing the amount of the Benefits payable
19
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 Par-
ticipant 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 Bene-
ficiary 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.
20
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 certifi-
cate of the Participant, an inheritance tax waiver and such other
documents as the Trustee may reasonably require, including, with-
out 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 Schedules filed by or for
such Participant or Beneficiary and, in any case in which a
21
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 Beneficiaries' 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 with-
holding 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 fur-
nished to the Trustee, in the written instructions delivered to
the Trustee pursuant to Section 4.1 directing it to make such
payment, the amount of the federal, state or local taxes required
to be withheld with respect to such payment. The Trustee shall
be entitled to rely, and shall be fully protected in relying,
22
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. Notwith-
standing 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 deter-
mines 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
23
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 Par-
ticipant 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 Partici-
pant 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.
24
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 immedi-
ately 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 Partici-
pants 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.
25
4.7 Notwithstanding any other provision of this
Agreement to the contrary, if the IRS should finally determine
that any amounts held in any Trust are includible in the gross
income of any Participant or Beneficiary prior to payment of such
amounts from the Trust, the Trustee shall, as soon as prac-
ticable, 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.
26
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
27
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 (here-
after 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 Litiga-
tion 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 Liti-
gation be settled or discontinued, the Trustee shall take all
appropriate action to follow such direction, provided that such
written direction specifies the terms and conditions of the
settlement or discontinuance and provided further that the
Claimant, if requested to do so by the Trustee, executes and
delivers to the Trustee a document in a form acceptable to the
Trustee releasing the Trustee and holding it harmless from any
liability resulting from its following such direction. If the
Claimant refuses to consent to a settlement or other disposition
of the Litigation on terms recommended in writing by the Trustee,
the Trustee may proceed, in its sole and absolute discretion, to
take such action as it deems appropriate in the Litigation,
including settlement or discontinuance of the Litigation;
provided, however, that the Trustee shall afford the Claimant at
least 14 days' advance notice in writing of any decision by the
Trustee to settle or otherwise discontinue the Litigation.
28
(e) A Claimant may at any time revoke the authoriza-
tion 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.
(h) Notwithstanding any provision herein to the con-
trary, 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
29
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 pro-
ceeding to uphold the validity and enforceability of the provi-
sions 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 reason-
able fees, costs and disbursements of any counsel, actuaries,
accountants or other experts retained by the Trustee in connec-
tion 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
30
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 pur-
suant to a Company's Plans if the Company is Insolvent.
6.2 At all times during the continuance of each Trust,
as provided in Section 2.4 hereof, the principal and income of
the Trust shall be subject to claims of general creditors of the
Applicable Company under federal and state law as set forth
below:
(a) The Board of Directors and Chief Executive Officer
of each Company shall have the duty to inform the Trustee in
writing of such Company's Insolvency. If a person claiming to be
a creditor of a Company alleges in writing to the Trustee that
such Company has become Insolvent, the Trustee shall determine
whether the Company is Insolvent and, pending such determination,
the Trustee shall discontinue making payment from such Company's
Trust to Participants and Beneficiaries.
(b) Unless the Trustee has actual knowledge of a
Company's Insolvency, or has received notice from a Company or a
person claiming to be a creditor of such Company alleging that
the Company is Insolvent, the Trustee shall have no duty to
31
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 pur-
suant to Section 6.2 hereof and subsequently resumes such pay-
ments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants
or their Beneficiaries under the terms of the Applicable
Company's Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their
Beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance.
ARTICLE 7
Payments to Company
7.1 Prior to a Change in Control (but not during a
Threatened Change in Control Period), a Company may, by written
notice to the Trustee, direct the Trustee to pay to such Company,
32
out of the Trust Fund for such Company's Trust, such amount as is
specified in the notice. Any such notice shall specify the Plan
Accounts and the Participant Accounts, if any, which shall be
debited with respect to such payment. If the amount that would
remain in the Trust Fund after any such payment would be less
than the unpaid fees and expenses of the Trustee properly
chargeable to such Trust Fund, the Trustee may deduct such fees
and expenses from the payment that otherwise would be made to the
Company.
7.2 Except as provided in Article 6 hereof, during
such time as the Trust is irrevocable, the Applicable Company
shall have no right or power to direct the Trustee to return to
the Company or to divert to others any of the Trust assets before
all payment of Benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Company's Plans.
ARTICLE 8
Investment Authority and Disposition of Income
8.1 Except as otherwise provided in Sections 8.2, 8.4,
and 8.5, the Trustee, prior to a Change in Control, shall invest
and reinvest the assets of each Trust, in its sole discretion, in
such investments as may be permitted in accordance with any
written investment guidelines that may be delivered to the
Trustee from time to time by the Applicable Company and that are
acceptable to the Trustee or, at any time when no such investment
guidelines are in effect, in Permitted Investments.
8.2 Prior to a Change in Control, the Applicable
Company may in its sole discretion appoint an investment manager
33
to manage the investment of any part or all of the Trust Fund for
any Trust. The Applicable Company shall promptly inform the
Trustee in writing of any such appointment, shall furnish the
Trustee with a copy of the instrument pursuant to which any
investment manager is so appointed, and shall inform the Trustee
in writing as to the specific portions of the Trust Fund for its
Trust that will be subject to the management of such investment
manager. During the term of any such appointment, the investment
manager shall have the sole responsibility for the investment and
reinvestment of that portion of any Trust Fund subject to its
investment management, and the Trustee shall have no
responsibility for, or liability with respect to, the investment
of such portion of such Trust Fund.
In exercising the powers granted to it hereunder, the
Trustee shall follow the directions of any investment manager
with respect to the portion of any Trust Fund subject to manage-
ment 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 transac-
tions 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.
34
The Applicable Company, by written notice to the
Trustee, may at any time terminate its appointment of any invest-
ment 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.
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.
35
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 admin-
istrative powers and authority with respect to the property com-
prising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant options
for the purchase or exchange thereof, including call options for
property held in the Trust Fund and put options for the purchase
of such property, including, without limitation, at any time to
sell any asset other than cash held in the Trust Fund to pay
Benefits if there is not sufficient cash in the Trust Fund to pay
Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar
plan relating to any such property, and to consent to or oppose
any such plan or any action thereunder, or any contract, lease,
mortgage, purchase, sale or other action by any corporation or
other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary
power to any such committee; and to pay part of the expenses and
compensation of any such committee and any assessments levied
with respect to any property so deposited.
(d) To exercise any conversion privilege or subscrip-
tion 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.
36
(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 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.
37
(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 (includ-
ing deposits with the Trustee in its individual capacity that pay
a reasonable rate of interest).
(p) To invest and reinvest all or any specified por-
tion of any Trust Fund through the medium of any common,
collective, or commingled trust fund that has been or may
hereafter be established and maintained by the Trustee.
(q) To invest in mutual funds registered with the
Securities Exchange Commission under the Investment Company Act
of 1940.
The Trustee also shall have, without exclusion, all
powers conferred on Trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that if an
insurance policy is held as an asset of any Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor
trustee, or to loan to any person the proceeds of any borrowing
against such policy.
Prior to a Change in Control, the Trustee shall exer-
cise 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 manage-
ment of such portion of the Trust Fund, only as directed by such
38
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 pur-
suant to this Agreement or to applicable law, the Trustee shall
not have any power that could give any Trust the objective of
carrying on a business and dividing the gains therefrom, within
the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall,
subject to Article 6 hereof, discharge its duties under this
Agreement solely in the interest of the beneficiaries of each
Trust and (i) for the exclusive purpose of providing Benefits to
such beneficiaries and defraying reasonable expenses of
administering such Trust; (ii) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims; and (iii) by diversifying the investments of the
Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not
to do so.
9.3 The Trustee shall not be required to give any bond
or any other security for the faithful performance of its duties
under this Agreement, except as required by law.
9.4 Except as otherwise expressly provided herein, the
Trustee shall not be responsible in any respect for administering
39
any Plan; nor shall the Trustee be responsible for the adequacy
of the Trust Fund for any Trust to meet and discharge all pay-
ments and liabilities under any Plan.
9.5 The Trustee shall be under no duties whatsoever
except such duties as are specifically set forth as such in this
Agreement, and no implied covenant or obligation shall be read
into this Agreement against the Trustee. Except as otherwise
provided in Article 5, the Trustee shall not be required to take
any action toward the execution or performance of any Trust
created hereunder or to prosecute or defend any suit or claim in
respect thereof, unless indemnified to its satisfaction against
loss, liability, and reasonable costs and expenses. The Trustee
shall be under no liability or obligation to anyone with respect
to any failure on the part of any Company to perform any of its
obligations under any Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall pro-
tect, 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 penal-
ties), 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,
40
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 obli-
gation to make such indemnification. Promptly after any assets
of any Trust are so applied, the Trustee shall institute legal
proceedings on behalf of the Trust to recover from the
Applicable Company an amount equal to the amount of any Trust
assets so applied.
ARTICLE 10
Taxes, Expenses, and Compensation of Trustee
10.1 Each Company shall pay any federal, state, local
or other taxes imposed or levied with respect to the corpus
and/or income of its Trust or any part thereof under existing or
future laws and such Company in its discretion, or the Trustee in
its discretion, may contest the validity or amount of any tax,
assessment, claim or demand respecting such Trust or any part
thereof.
10.2 Each Company shall pay to the Trustee its
allocable share of the compensation that is payable to the
Trustee for its services hereunder pursuant to the schedule of
41
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, actu-
ary, accountant or other agent engaged by the Trustee pursuant to
this Agreement. Any such compensation or expenses shall be allo-
cated 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 par-
ticular Trust, the amount of such compensation or expenses shall
be allocated solely to the Applicable Company; in the case of
any such compensation that is not specifically chargeable to, or
any such expenses that were not specifically incurred with
respect to, a particular Trust, the amount of such compensation
or expenses shall be allocated to the Companies in proportion to
the respective values of the Trust Funds for the Companies'
Trusts as of the Valuation Date immediately preceding the date as
of which the Trustee bills the Companies for such compensation or
expenses. Each Company's allocable share of such compensation
and expenses shall be charged against and paid from the Trust
Fund for such Company's Trust, to the extent not paid by such
Company within 45 days after the date on which the Trustee bills
the Company for such compensation and expenses. Any amount so
charged against and paid from the Trust Fund for any Company's
Trust shall be further allocated to and charged against the Plan
Accounts and Participant Accounts maintained within such Trust
(a) in such manner as the Applicable Company directs in written
42
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.
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.
43
11.3 Unless a Company shall have filed with the
Trustee written exceptions or objections to any such statement
and account within 90 days after receipt thereof, such Company
shall be deemed to have approved such statement and account; and
in such case or upon the written approval by such Company of any
such statement and account, the Trustee shall be forever released
and discharged with respect to all matters and things embraced in
such statement and account as though it had been settled by
decree of a court of competent jurisdiction in an action or pro-
ceeding to which the Company and all persons having any benefi-
cial interest in its Trust were parties.
11.4 Nothing contained in this Agreement or in any
Plan shall deprive the Trustee of the right to have a judicial
settlement of its accounts with respect to any Trust. In any
proceeding for a judicial settlement of the Trustee's accounts or
for instructions in connection with any Trust, the only other
necessary party thereto in addition to the Trustee shall be the
Applicable Company. If the Trustee so elects, it may bring in as
a party or parties defendant any other person or persons. No
person interested in any Trust, other than the Applicable
Company, shall have a right to compel an accounting, judicial or
otherwise, by the Trustee, and each such person shall be bound by
all accounting by the Trustee to such Company, as herein pro-
vided, 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.
44
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 offi-
cers of the Company authorized to act or give directions here-
under and shall promptly notify the Trustee of the termination of
office of any such officer of the Company and the appointment of
a successor thereto. Until notified in writing to the contrary,
the Trustee shall be fully protected in relying upon the most
recent list of the officers of the Company furnished to it by the
Company.
12.2 Any action required by any provision of this
Agreement to be taken by the board of directors of a Company
shall be evidenced by a resolution of such board of directors
certified to the Trustee by the Secretary or an Assistant Secre-
tary of the Company under its corporate seal, and the Trustee
shall be fully protected in relying upon any resolution so certi-
fied 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
45
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, communica-
tions 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 commu-
nications to any Company shall be sent to it c/o GPU Service
Corporation, 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
46
shorter notice if acceptable to the Trustee. In the event it
resigns or is removed, the Trustee shall have a right to have its
accounts settled as provided in Article 11 hereof.
13.2 Notwithstanding the provisions of Section 13.1,
the Trustee may not be removed as trustee of any Trust after a
Change in Control or during a Threatened Change in Control Period
without the written consent of at least two-thirds in number of
the Participants who are, or who may become, entitled to receive
payments from such Trust. The Applicable Company shall furnish
the Trustee with evidence to establish that such majority in
number of such Participants has granted written consent to such
removal.
13.3 If the Trustee resigns or is removed as trustee
of any Trust, a successor shall be appointed by the Applicable
Company, by action of its board of directors, by the effective
date of such resignation or removal. Any successor trustee so
appointed shall be a bank as defined under the Investment
Advisers Act of 1940, having a net worth in excess of
$100,000,000 or having assets in excess of $2,000,000,000. After
a Change in Control or during a Threatened Change in Control
Period, such appointment of a successor trustee shall be approved
in writing by at least two-thirds in number of the Participants
who are or may become entitled to receive payments from such
Trust. Notwithstanding the foregoing, if no such appointment of
a successor trustee has been made by the effective date of such
resignation or removal, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor trustee or
for instructions. All expenses of the Trustee in connection with
47
such proceeding shall be allowed as administrative expenses of
the Trust and shall be paid by the Applicable Company.
13.4 Each successor trustee shall have the powers and
duties conferred upon the Trustee in this Agreement, and the term
"Trustee" as used in this Agreement, except where the context
otherwise requires, shall be deemed to include any successor
trustee. Upon designation or appointment of a successor trustee
for any Trust, the Trustee shall transfer and deliver the Trust
Fund for such Trust to the successor trustee, reserving such sums
as the Trustee shall deem necessary to defray its expenses in
settling its accounts with respect to such Trust, to pay any of
its compensation with respect to such Trust that is due and
unpaid, and to discharge any obligation of such Trust for which
the Trustee may be liable. If the sums so reserved are not
sufficient for these purposes, the Trustee shall be entitled to
recover the amount of any deficiency from either the Applicable
Company or the successor trustee, or both. When the Trust Fund
for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust
have been settled as provided in Article 11 hereof, the Trustee
shall be released and discharged from all further accountability
or liability for the Trust Fund for such Trust and shall not be
responsible in any way for the further disposition of such Trust
Fund or any part thereof.
ARTICLE 14
Amendments and Termination
14.1 Subject to Section 14.2, any or all of the provi-
sions of this Agreement and any Exhibits annexed hereto, as they
48
relate to any Company's Trust, may be amended at any time, with-
out 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 amend-
ment shall conflict with the terms of the Applicable Company's
Plans or shall make the Applicable Company's Trust revocable
after it has become irrevocable in accordance with Section 2.2
hereof.
14.2 No amendment may be made to delete a Participant
from Exhibit A or to delete a Plan from Exhibit B and no other
provision of this Agreement may be amended (i) during a
Threatened Change in Control Period, (ii) after a Change in
Control, (iii) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control or (iv) otherwise in connection
with, or in anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs unless in any
such case the written consent of at least two-thirds in number of
the Participants who are or may become entitled to payments from
each Trust affected by such amendment is obtained, in which case
such amendment may be made. The Trustee may request that the
Applicable Company or Companies furnish evidence to establish
that at least two-thirds of the Participants have granted written
consent to such an amendment.
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
49
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, with-
out 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, encum-
bered or subjected to attachment, garnishment, levy, execution or
other legal or equitable process.
15.3 This Agreement shall be governed by, and shall be
construed in accordance with, and each Trust hereby created shall
be administered in accordance with, the laws of the State of
New Jersey.
15.4 The titles to Articles of this Agreement are
placed herein for convenience of reference only, and this Agree-
ment is not to be construed by reference thereto.
15.5 This Agreement shall bind and inure to the bene-
fit 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.
50
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly
authorized officers under their corporate seals as of the day and
year first above written.
GPU, INC.
GPU SERVICE, INC.
GPU GENERATION, INC.
ENERGY INITIATIVES, INC.
By:_________________________________
J. R. Leva, Chairman and
Chief Executive Officer
ATTEST:
__________________________
JERSEY CENTRAL POWER & LIGHT COMPANY
METROPOLITAN EDISON COMPANY
PENNSYLVANIA ELECTRIC 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:
__________________________
51
GPU INTERNATIONAL, INC.
By:_________________________________
B. L. Levy, President and
Chief Executive Officer
ATTEST:
___________________________
Summit Bank, Trustee
By: _________________________________
ATTEST:
__________________________
52
Exhibit A
List of Participants
Company Participants
Jersey Central Power
& Light Company Dennis P. Baldassari
Metropolitan Edison Company Fred D. Hafer
Pennsylvania Electric Company Robert L. Wise
GPU Service, Inc. Robert C. Arnold
Verner M. Condon (Retired)
Herman Dieckamp (Retired)
F. Allen Donofrio
John G. Graham
Ira H. Jolles
William G. Kuhns (Retired)
James R. Leva
James B. Liberman (Retired)
Philip C. Mezey
Hazel R. O'Leary (Retired)
GPU Nuclear, Inc. Philip R. Clark
Thomas G. Broughton
GPU International, Inc. Bruce L. Levy
53
Exhibit B
Covered Plans and Benefits
Set forth below is a list, for each Company, of the
plans, programs, policies or agreements that are to be treated as
"Plans", and the amounts payable under the Plans that are to be
treated as "Benefits", for purposes of the annexed Agreement.
Jersey Central Power & Light Company
1. The severance payment benefit provided under Jersey
Central Power & Light Company's Severance Procedure.
2. The excess pension benefit payable to James R. Leva
pursuant to the amended Agreement dated August 1, 1996, between
Jersey Central Power & Light Company and Mr. Leva.
3. All benefit amounts payable under the Jersey Central
Power & Light Company Supplemental and Excess Benefits Plan.
4. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
5. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of Jersey Central Power &
Light Company.
6. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
7. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Jersey
Central Power & Light Company pursuant to Split Dollar Agreement
with Dennis P. Baldassari.
8. The severance payment benefit payable to Dennis P.
Baldassari provided under the Severance Agreement, dated August
1, 1996, between Mr. Baldassari, Jersey Central Power & Light
Company and GPU, Inc.
Metropolitan Edison Company
1. The severance payment benefit provided under
Metropolitan Edison Company's Severance Procedure.
54
2. All benefit amounts payable under the Metropolitan
Edison Company Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan for Elected Officers.
4. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of Metropolitan Edison
Company.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Metropolitan
Edison Company pursuant to Split Dollar Agreement with Fred D.
Hafer.
Pennsylvania Electric Company
1. The severance payment benefit provided under
Pennsylvania Electric Company's Severance Procedure.
2. All benefit amounts payable under the Pennsylvania
Electric Company Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan for Elected Officers.
4. Awards for Performance Period preceding Change in
Control payable under the Incentive Compensation Plan for Elected
Officers of Pennsylvania Electric Company.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Pennsylvania
Electric Company pursuant to Split Dollar Agreement with Robert
L. Wise.
7. The severance payment benefit payable to Robert L.
Wise provided under the Severance Agreement, dated August 1,
1996, between Mr. Wise, GPU Generation, Inc. and GPU, Inc.
55
GPU Service, Inc.
1. The severance payment benefit provided under GPU
Service Corporation's Severance Procedure.
2. The additional retirement pension and the
supplemental pension payable to Ira H. Jolles pursuant to
Sections 3 and 4 of the Agreement among GPU, Inc., GPU Service,
Inc. and Mr. Jolles.
3. The additional retirement pension payable to Philip
C. Mezey pursuant to the Agreement among GPU, Inc., GPU Service,
Inc. and Mr. Mezey.
4. The pension payable to Hazel R. O'Leary pursuant to
the Agreement among GPU, Inc., GPU Service, Inc. and
Mrs. O'Leary.
5. All benefit amounts payable under the GPU Service,
Inc. Supplemental and Excess Benefits Plan.
6. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
7. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of GPU Service, Inc.
8. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
9. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU Service,
Inc. pursuant to Split Dollar Agreements with Messrs. Leva,
Jolles, Graham, Arnold, Donofrio and Mezey, and pursuant to
Letter Agreements with Messrs. Kuhns and Dieckamp.
10. Supplemental pension payable to William G. Kuhns
pursuant to the Agreement among GPU, Inc., GPU Service, Inc. and
Mr. Kuhns.
11. The retirement annuity payable to James B. Liberman
pursuant to the Agreement between GPU Service, Inc. and Mr.
Liberman.
12. The supplemental pension payable to Herman Dieckamp
pursuant to the Agreement among GPU, Inc., GPU Service, Inc. and
Mr. Dieckamp.
13. Annuities payable to Messrs. Kuhns, Dieckamp and
Condon under the Deferred Compensation Plan for Senior Officers
of GPU Service, Inc.
56
14. The supplemental pension payable to Messrs. R. C.
Arnold, J. G. Graham and I. H. Jolles pursuant to Agreements
between GPU Service, Inc. and Messrs. Arnold, Graham and Jolles.
15. The severance payment benefit payable to Messrs.
James R. Leva, R. C. Arnold, J. G. Graham and I. H. Jolles
provided under the Severance Agreements, dated August 1, 1996,
between GPU, Inc., GPU Service, Inc. and each of Messrs. Leva,
Arnold, Graham and Jolles.
16. The severance payment benefit payable to Fred D.
Hafer provided under the Severance Agreement, dated August 1,
1996, between Mr. Hafer, GPU Service, Inc. and GPU, Inc.
GPU Nuclear, Inc.
1. The severance payment benefit provided under GPU
Nuclear Inc.'s Severance Procedure.
2. All benefit amounts payable under the GPU Nuclear
Inc. Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
4. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of GPU Nuclear Inc.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU Nuclear
Inc. pursuant to Split Dollar Agreements with Philip R. Clark and
Thomas G. Broughton.
7. The supplemental pension payable to Philip R. Clark
pursuant to the Agreement between GPU Nuclear Inc. and Mr. Clark.
8. The severance payment benefit payable to Thomas G.
Broughton provided under the Severance Agreement, dated August
1, 1996, between Mr. Broughton, GPU Nuclear Inc. and GPU, Inc.
57
GPU International, Inc.
1. All benefit amounts payable under the GPU Service,
Inc. Supplemental and Excess Benefits Plan, as adopted by GPU
International, Inc.
2. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
3. Awards for Performance Periods preceding and
including Change in Control payable under the Annual Performance
Award Plan of GPU International, Inc.
4. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
5. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU
International, Inc. pursuant to Split Dollar Agreement with Bruce
L. Levy.
6. The severance payment benefit payable to Bruce L.
Levy provided under the Severance Agreement, dated August 1,
1996, between Mr. Levy, GPU International, Inc. and GPU, Inc.
58
EXHIBIT C-1
GPU RABBI TRUST
PARTICIPANT INFORMATION
SOCIAL
NAME ADDRESS SECURITY No.
Arnold 7 Fernwood Trail, PO Box 151 ###-##-####
Mountain Lakes, New Jersey 07046
Baldassari 9 Willow Spring Drive ###-##-####
Morristown, New Jersey 07960
Broughton 7 Knoll Top Court ###-##-####
Denville, New Jersey 07834
Clark 297 Morris Avenue ###-##-####
Mountain Lakes, New Jersey 07046
Condon Box 116 Young's Road ###-##-####
Basking Ridge, New Jersey 07920
Dieckamp 29 Crystal Road ###-##-####
Mountain Lakes, New Jersey 07046
Donofrio 40 Longview Avenue ###-##-####
Randolph, New Jersey 07869
Graham 21 Candace Lane ###-##-####
Chatham Township, New Jersey 07928
Hafer 1730 Meadowlark Road ###-##-####
Wyomissing, Pennsylvania 19610
Jolles 610 West End Avenue ###-##-####
New York, New York 10024
Kuhns 49 Creston Avenue ###-##-####
Tenafly, New Jersey 07670
Leva 2 Ryan Court ###-##-####
Chester, New Jersey 07930
Levy 5 Oak Ridge Court ###-##-####
Pomona, New York 10970
Liberman 205 East 69th Street ###-##-####
New York, New York 10021
Mezey 46 Gatehouse Road ###-##-####
Bedminster, New Jersey 07921
O'Leary 5610 Wisconsin Avenue PH20C ###-##-####
Chevy Chase, Maryland 20815
Wise 701 Tioga Street ###-##-####
Johnstown, Pennsylvania 15905
59
EXHIBIT C-2
GPU RABBI TRUST
SEVERANCE PLAN - 8/1/96
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
Weeks Base Pay Payment
FORM/TIMING OF PAYMENT: Lump sum.
60
EXHIBIT C-3
GPU RABBI TRUST
INCENTIVE COMPENSATION PLAN
TERM OF PAYMENT:
AMOUNT OF PAYMENT:
Payment
FORM/TIMING OF PAYMENT: Lump sum.
61
EXHIBIT C-4
GPU RABBI TRUST
SENIOR EXECUTIVE LIFE INSURANCE PLAN
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: Lump sum payment on or before
of indicated year to the Life Insurance Company of
Virginia.
62
EXHIBIT C-5
GPU RABBI TRUST
DEFERRED COMPENSATION PLAN
TERMS OF PAYMENT:
PAYMENT SCHEDULE:
Balance
FORM/TIMING OF PAYMENT: Lump sum amount on or before
of indicated year.
63
EXHIBIT C-6
GPU RABBI TRUST
EMPLOYEE STOCK PLAN
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
Gross-Up
Balance Percentage Payment
FORM/TIMING OF PAYMENT: Lump sum amount on or before_________
______________________.
64
EXHIBIT C-7
GPU RABBI TRUST
DEFERRED COMPENSATION PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected
Beneficiary
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.
65
EXHIBIT C-8
GPU RABBI TRUST
SPECIAL PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected
Beneficiary
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.
66
EXHIBIT C-9
GPU RABBI TRUST
SUPPLEMENTAL AND EXCESS PENSIONS
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option. The determination of amount payable is made in
accordance with the Company's Excess and Supplemental Benefits
Plan for Elected Officers.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected
Beneficiary
OTHER AMOUNTS
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.
67
EXHIBIT C-10
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - MEZEY
TERMS OF PAYMENT: Mr. Philip Mezey shall be entitled to a
supplemental pension benefit in accordance with the retirement
provisions contained in his employment agreement with GPU, Inc.
(attached, amended 8/1/96, signed _______).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.
68
EXHIBIT C-11
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - JOLLES
TERMS OF PAYMENT: Mr. Ira Jolles shall be entitled to a
supplemental pension benefit in accordance with the retirement
provisions contained in his employment agreement with GPU, Inc.
and GPU Service, Inc. (attached, amended 8/1/96).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.
69
EXHIBIT C-12
GPU RABBI TRUST
Severance Agreement Payment
TERMS OF PAYMENT: Mr. [Name of Officer] shall be entitled to a
severance payment benefit in accordance with the provisions
contained in his severance agreement with [Company Name] and GPU,
Inc. (attached, dated 8/1/96).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
the amount indicated above shall be paid to the participant or
his beneficiary.
70
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
I, _______________________________________________, a
Participant [or Beneficiary] in the GPU System Companies Master
Executives' Benefits Protection Trust (the "Trust"), adopted
September 1, 1995 and amended August 1, 1996, pursuant to
Section 4.3(b) thereof, hereby request that [Name of Bank], as
Trustee thereunder, make payment to me of the Benefits to which I
am entitled as [Participant or Beneficiary] in accordance with
the terms of the Trust Agreement and the following [Company Name]
Plans:
_______________________________
_______________________________
_______________________________
_______________________________
I hereby attest, certify and affirm that to the best of my
knowledge and belief the following events, upon which entitlement
to and payment of Benefits under said Plans is conditioned, have
occurred:
[Insert Description of events that have occurred]
I further attest, certify and affirm that [Name of Company] has
not paid any of the Benefits claimed herein under said plans.
I am [or The Participant was] ____ years of age, having been born
on [Date of Birth]. I have been/was [or the Participant was]
employed by [Name of Company] from [Date] to [Date]. The [Name
of Company] records detailing my [his/her] compensation and the
terms and conditions of employment, if any, are attached hereto
and made a part hereof.
Dated:_________________ _______________________
[Name of Participant]
_______________________
_______________________
[Address & Telephone No.]
71
EXHIBIT E
REQUEST AND AUTHORIZATION FOR LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Executives'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended August 1, 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].
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.]
72
EXHIBIT F
REVOCATION OF AUTHORITY TO CONTINUE LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Executives'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended August 1, 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.]
73