EXHIBIT 10-L
METROPOLITAN EDISON COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective June 5, 1997
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 3
Section 2 - Application and Basis of the Plan 7
Section 3 - Payment of Benefits 8
Section 4 - Administration 15
Section 5 - Amendment and Termination 16
i
METROPOLITAN EDISON COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective June 5, 1997)
Foreword
Effective as of January l, 1988, Metropolitan Edison Company (referred to in
this document as the "Company") established a supplemental pension plan for the
benefit of certain of its employees. This Metropolitan Edison Company
Supplemental and Excess Benefits Plan (the "Plan") is a continuation of that
plan as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of the Company who
meet the requirements described in this Plan and who are actively employed by
the Company after August 1, 1996. The benefits of any employee who ceased
employment with the Company, by retirement, death, or otherwise, prior to August
1, 1996 are determined in accordance with the terms of the applicable
predecessor to this Plan as in effect at the time of such cessation of
employment, except that the provisions of Section 1.11 are retroactive and apply
to any employee who ceased employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan be an "excess
benefits plan" as that term is defined in Section 3(36) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and that the
"supplemental benefits" provided under the Plan be a deferred compensation plan
for "a select group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the Metropolitan Edison
Company Employee Pension Plan ("Pension Plan") and their surviving spouses with
the amount of company-provided benefits that would have been provided to them
under the Pension Plan but for the limitation on benefits imposed under Section
415 of the Internal Revenue Code, as amended.
The second purpose of the Plan is to provide elected officers and certain other
highly compensated employees of the Company and their surviving spouses with the
amount of company-provided benefits that would have been provided to them under
the Pension Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan imposed by
Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the Pension Plan is
incorporated by reference.
2
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions contained in
Section l of the Pension Plan are applicable under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean the Board of
Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean the occurrence
during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation ("Common Stock")
or other voting securities of the Corporation entitled to vote
generally for the election of directors (the "Voting Securities") by
any "Person" (as the term person is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the then outstanding
shares of Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting Securities
which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change
in Control. A "Non-Control Acquisition" shall mean an acquisition by
(A) an employee benefit plan (or a trust forming a part thereof)
maintained by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or indirectly, by the
Corporation (for purposes of this definition, a "Subsidiary"), (B) the
Corporation or its Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members of the board
of directors of the Corporation (the "Incumbent Board"), cease for any
reason to constitute at least seventy percent (70%) of the members of
the board of directors of the Corporation; provided, however, that if
the election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for
3
purposes of this Plan, be considered as a member of the Incumbent
Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the board of directors of the
Corporation (a "Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are issued,
unless such merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the Corporation or in
which securities of the Corporation are issued where:
(i) the shareholders of the Corporation, immediately
before such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization constitute
at least seventy percent (70%) of the members of the board of directors
of the Surviving Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of the
Surviving Corporation, and
(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
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reorganization had Beneficial Ownership of twenty percent (20%) or more
of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more
of the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the Corporation;
or
(C) The sale or other disposition of all or substantially all
of the assets of the Corporation to any Person (other than a transfer
to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the Corporation
which, by reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons, provided that if a
Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner of any
additional shares of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common Stock or Voting
Securities Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated in the
Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation Plan shall
mean the GPU System Companies Deferred Compensation Plan, as adopted by
the Company.
1.6 Earnings: The term Earnings shall mean an Employee's "Earnings" as
defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the excess, if any,
of (i) each pension benefit which would be payable to an Employee or to
the Employee's surviving spouse under the Pension Plan if the
limitations on benefits imposed by Section 18.1 of the Pension Plan
were not applicable over (ii) each pension benefit payable under the
Pension Plan.
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1.8 Incentive Compensation Plan: The term Incentive Compensation Plan
shall mean the Company's Employee Incentive Compensation Plan or its
Incentive Compensation Plan for Elected Officers or Annual Performance
Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning indicated
in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall mean the
excess, if any, of (i) each pension benefit that would be payable to an
Employee or to an Employee's surviving spouse under the Pension Plan if
all amounts of base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included in Earnings
(and if the limitations on benefits imposed by Section 18.1 of the
Pension Plan and on Earnings imposed by Section 401(a)(17) of the
Internal Revenue Code were not applicable) over (ii) the sum of (a)
each pension benefit payable under the Pension Plan and (b) any Excess
Benefit payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount of base
compensation deferred under the Deferred Compensation Plan shall be
treated as Earnings for the period in which such amount would have been
paid to the Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee under the
Incentive Compensation Plan and deferred under the Deferred
Compensation Plan shall be treated as Earnings for the period
corresponding to the Performance Period for which such award is made to
the Employee. No amount of base compensation so deferred, and no amount
awarded under the Incentive Compensation Plan, shall be treated as
Earnings for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount of any
additional years of Creditable Service determined in accordance with
Section 5.9 of the Pension Plan will be recalculated by replacing the
Employee's annual base salary rate of Earnings as of April 1, 1989 by
(a) for purposes of calculating projected Basic Pensions, the product
of (i) such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award percentage as
described under the Incentive Compensation
6
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate before any
reductions on account of the Deferred Compensation Plan.
7
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess Benefit, to
each Employee described in Section 2.1 of the Pension Plan and (ii) in
the case of the Supplemental Benefit, to each Employee described in
clause (i) who is an elected officer of the Company and to each other
Employee described in clause (i) who for any calendar year has Earnings
(plus any Incentive Compensation Plan awards deferred) in excess of the
amount of compensation for such year that can be taken into account for
purposes of the Pension Plan pursuant to Section 401(a)(17) of the
Code.
8
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is applicable,
or to the surviving spouse of any such Employee, the Excess Benefit
and/or the Supplemental Benefit determined for such Employee or
surviving spouse under Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving spouse
shall be paid or commence to be paid:
(i) on the first of the month following the Employee's
retirement, if the Employee retires in accordance with
Section 3.1, 3.2, 3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee becomes
entitled to benefits in accordance with Section 3.5 of
the Pension Plan, or
(iii) in the case of a Benefit which becomes payable hereunder
to an Employee's surviving spouse on account of the
Employee's death before the Employee has received any
Benefit payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension under the
applicable provisions of Section 9 of the Pension Plan
could commence, without regard to any election by such
spouse to defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable hereunder to
the Employee shall be paid in the form of a single life
annuity, unless the Employee is married on the date on which
payment of such Benefit is to be made or commence under
Section 3.2(a) above, in which event it shall be paid in the
same form as Option 2, as described in Section 10.1 of the
Pension Plan, with the Employee's spouse as the beneficiary
thereunder.
(c) Notwithstanding the preceding provisions of this Section 3.2,
an Employee may elect (i) to delay payment, or commencement of
payment, of his or her Excess and Supplemental Benefits to a
specified date after the date applicable under Section 3.2(a)
but not later than the Employee's Normal Retirement Date, or
9
(ii) in the case of any Employee who becomes entitled to
benefits in accordance with Section 3.5 of the Pension Plan,
to accelerate payment, or commencement of payment, of his or
her Excess and Supplemental Benefits to a specified date
before the date applicable under Section 3.2(a) but not
earlier than the first day of the month immediately following
his or her 55th birthday, and/or (iii) to have payment of his
or her Excess and Supplemental Benefits made (A) in any form
permitted (without regard to any requirements for spousal
consent) under the Pension Plan other than the form applicable
under Section 3.2(b), or (B) in the form of a single lump sum
payment. The amount of the lump sum payment payable to an
Employee, or to his or her surviving spouse, pursuant to an
election by the Employee under clause (iii)(B) of the
preceding sentence shall be determined in the same manner as
the amount of the lump sum payment payable pursuant to an
Employee's election under clause (i) of the first paragraph of
Section 3.2(h) would be determined, as provided in the third
paragraph of Section 3.2(h), except that for purposes of
determining the amount of the lump sum payment so payable to
the Employee, the actuarial equivalence of such payment to the
Excess and/or Supplemental Benefit that otherwise would be
payable hereunder to the Employee shall be determined as of
the date on which such lump sum payment is to be made to the
Employee.
Any election under this Section 3.2(c) shall be effective only
if it is made at least twenty-four (24) months (twelve (12)
months, if the election is made on or before August 31, 1997)
prior to the Employee's retirement or other termination of
employment. Any election made under this Section 3.2(c) may be
revoked, and a new election may be made hereunder, at any
time; provided, however, that any such revocation or new
election shall be effective only if it is made within the
period specified in the preceding sentence. Any election, or
revocation of an election, that may be made under this Section
3.2(c) shall be made in writing, on a form that is furnished
to the Employee for such purpose by the Administrative
Committee and that is signed by the Employee and delivered to
the Administrative Committee.
(d) If payment of Excess and/or Supplemental Benefits commences
earlier or later than payment of Pension Plan benefits, the
amount of the Excess and/or Supplemental
10
Benefits to be paid hereunder shall be determined as though
payment of Pension Plan benefits commenced on the same date as
payment of such Benefits commences, except that no increase in
the dollar limitation of section 415(b)(1)(A) of the Code
occurring after payment of Pension Plan benefits commences
shall be taken into account.
(e) If Excess and/or Supplemental Benefits are payable in any form
other than as a single lump sum payment and if payments under
such form commence on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or Supplemental
Benefits to be paid hereunder shall be determined in
accordance with the following additional rules:
(i) determine the Employee's Excess and/or Supplemental
Benefits as though such Benefits were payable in the
same form, and with the same beneficiary, if any, as
Pension Plan benefits, and disregarding any change in
marital status occurring subsequent to the date on
which payment of Pension Plan benefits commence,
(ii) if the Employee's Pension Plan benefits are payable
in accordance with Option 1 or 2, as described in
Section 10.1 of the Pension Plan, divide the amount
determined in (i) by the complement of the reduction
percentage applied to Pension Plan benefits in
accordance with such Section 10.1, to convert such
amount into a benefit payable in the form of a single
life annuity, and
(iii)if payment of the Employee's Excess and/or Supplemental
Benefits is to be made in a form other than as a
single life annuity, reduce the amount determined in
(ii) by the reduction percentage that would be
applicable under Section 10.1 of the Pension Plan to
an annuity payable thereunder to the Employee in the
same form as the form in which payment of the
Employee's Excess and/or Supplemental Benefits is to
be made hereunder and with the same beneficiary.
If Excess and/or Supplemental Benefits are payable in any form
other than as a single lump sum payment and if payments under
such form are to commence before Pension Plan benefits
commence to be paid, the amount of such
11
Benefits to be paid hereunder shall be determined as though
Pension Plan benefits were being paid at the same time and in
the same form as Excess and/or Supplemental Benefits, until
such time as Pension Plan benefits commence to be paid, at
which time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a manner
consistent with the foregoing paragraph, to the extent
necessary to reflect any difference in the form of payment for
the Employee's Pension Plan benefits and the form of payment
for his or her Excess and/or Supplemental Benefits.
(f) In determining the amount of the Excess and/or Supplemental
Benefit payable hereunder to an Employee or the Employee's
surviving spouse, there shall be taken into account any
increase in the amount of the pension benefit that is payable,
pursuant to Section 6 or Section 9 of the Pension Plan, to the
Employee or his or her surviving spouse for the first 12
months during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an Employee's
Excess and/or Supplemental Benefit is otherwise required to
be paid in the same form as Option 1 or Option 2 as
described in Section 10.1 of the Pension Plan, and if the
person designated by the Employee as his or her beneficiary
for purposes of such payment form should die at any time
prior to the fifth anniversary of the date on which the
Employee's Benefits hereunder commence to be paid (the
Employee's Benefit Starting Date"), the Benefit amounts
payable to the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit amounts
that would have been payable to the Employee hereunder after
such date if such Benefit amounts had been payable to the
Employee, from his or her Benefit Starting Date, in the form
of a single life annuity.
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution otherwise
elected or provided for hereunder, each Employee shall be
permitted to make either one, or both, of the following
special distribution elections: (i) to have his or her Excess
and/or Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment for any reason within the two (2)
year period following a Change in Control, or (ii) if a
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Change in Control occurs after the Employee's termination of
employment but before all payments required to be made
hereunder with respect to his or her Excess and/or
Supplemental Benefits have been made, to have the Excess
and/or Supplemental Benefit payments that otherwise would be
made hereunder after the date of such Change in Control paid
in the form of a single lump sum payment.
An election under clause (i) of the preceding paragraph shall
be effective only if it is made either at least twenty-four
(24) months prior to such termination of the Employee's
employment, or if such termination of employment constitutes
an "Involuntary Termination" as defined below, at least one
year prior to such Change in Control. An election under clause
(ii) of the preceding paragraph shall be effective only if it
is made at least one year prior to the Change in Control, and
prior to the Employee's termination of employment. Any special
election made under clause (i) or (ii) of the preceding
paragraph may be revoked, and a new special election may be
made thereunder, at any time; provided, however, that any such
revocation or new election shall be effective only if it is
made within the election period specified in this paragraph.
Any special election, or revocation of a special election,
that may be made hereunder shall be made in the manner set
forth in Section 3.2(c).
The lump sum payment to be made to an Employee pursuant to his
or her election under clause (i) of the second preceding
paragraph shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of the first
day of the month following the date of the Employee's
termination of employment) to the Excess and/or Supplemental
Benefit that otherwise would be payable hereunder to the
Employee if (x) payment of the Employee's Excess and/or
Supplemental Benefit and the benefits payable to the Employee
under the Pension Plan were to commence on the Employee's
Normal Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee could
elect to have payment of his or her benefits under the Pension
Plan commence, (y) the Employee's Excess and/or Supplemental
Benefit were payable in the form of a single life annuity, and
(z) the Employee's benefits under the Pension Plan were
payable either (1) in the same form as Option 2 as described
in Section 10.1 of the Pension Plan with the Employee's spouse
as the beneficiary thereunder, if the
13
Employee is married on the date of his or her termination of
employment, or (2) in the form of a single life annuity, if
the Employee is not married on such date. The lump sum payment
to be made to the surviving spouse of an Employee pursuant to
the Employee's election under clause (i) of the second
preceding paragraph shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and determined as
of the first day of the month following the date of the
Employee's death) to the Excess and/or Supplemental Benefit
that otherwise would be payable hereunder to such spouse by
reason of the Employee's death. The lump sum payment to be
made with respect to any Employee pursuant to his or her
election under clause (i) of the second preceding paragraph
shall be made by no later than thirty (30) days following the
date of the Employee's termination of employment.
The lump sum payment to be made pursuant to an Employee's
election under clause (ii) of the third preceding paragraph
shall be in an amount that is Actuarially Equivalent (as
defined in the Pension Plan and determined as of the first day
of the month coincident with or next following the date on
which the Change in Control occurs) to the payments that
otherwise would be made hereunder with respect to the
Employee's Excess and/or Supplemental Benefits after the date
of such Change in Control. Such lump sum payment shall be made
by no later than thirty (30) days following the date on which
such Change in Control occurs. If, as of the date on which
such Change in Control occurs, payments with respect to the
Employee's benefits under the Pension Plan, or with respect to
his or her Excess and/or Supplemental Benefit hereunder, have
not yet commenced, the Actuarially Equivalent amount of the
lump sum payment to be made to the Employee pursuant to his or
her election under clause (ii) of the third preceding
paragraph shall be determined using the same assumptions as to
the form and time of commencement of such payments as are
specified in clause (x), (y) or (z) of the preceding
paragraph.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an Employee's
employment (A) as a result of the Employee's death, (B) by the
Company, for any reason, or (C) by
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the Employee, for "Good Reason" as defined below. For purposes
of the clause (C) of the preceding paragraph, "Good Reason"
shall mean the occurrence after a Change in Control of any of
the following events or conditions:
(1) a change in the Employee's status, title, position or
responsibilities (including reporting
responsibilities) which, in the Employee's reasonable
judgement, represents an adverse change from his or
her status, title, position or responsibilities as in
effect immediately prior thereto; the assignment to
the Employee of any duties or responsibilities which,
in the Employee's reasonable judgement, are
inconsistent with his or her status, title, position
or responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her to
any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
(2) any reduction in the rate of the Employee's annual
base salary;
(3) the relocation of the offices of the Company at which
the Employee is principally employed to a location
more than twenty-five (25) miles from the location of
such offices immediately prior to such relocation, or
the Company's requiring the Employee to be based
anywhere other than at such offices, except to the
extent the Employee was not previously assigned to a
principal place of duty and except for required
travel on the Company's business to an extent
substantially consistent with the Employee's previous
business travel obligations;
(4) the failure by the Company to pay to the Employee any
amount of the Employee's current compensation, or any
amount payable under any deferred compensation
program of the Company in which the Employee
participated, within seven (7) days of the date on
which payment of such amount is due; or
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(5) the failure by the Company (A) to continue in effect
(without reduction in benefit level, and/or reward
opportunities) any material compensation or employee
benefit plan in which the Employee was participating
immediately prior to such failure by the Company
unless a substitute or replacement plan has been
implemented which provides substantially identical
compensation or benefits to the Employee or (B) to
continue to provide the Employee with compensation
and benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward opportunities)
to those provided for under all other compensation or
employee benefit plans, programs and practices in
which the Employee was participating immediately
prior to such failure by the Company.
Any event or condition described in clauses (1) through (5)
above which occurs (A) within twelve (12) months prior to a
Change in Control or (B) prior to a Change in Control but
which (x) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in
Control, or (y) otherwise arose in connection with, or in
anticipation of, a Change in Control which has been threatened
or proposed and which actually occurs, shall constitute Good
Reason for purposes of this Section 3.2(h) notwithstanding
that it occurred prior to a Change in Control.
3.3 Each Employee entitled to benefits under the Plan shall have the status
of a mere unsecured creditor of the Company. The Plan shall constitute
a mere promise by the Company to make payments in the future of the
benefits provided for herein. It is intended that the arrangements
reflected in this Plan be treated as unfunded for tax purposes and for
purposes of Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors
of the Employee or his or her spouse or other beneficiary.
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SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative Committee. The
Administrative Committee shall consist of such persons as the Company
from time to time may appoint to serve thereon. Action to appoint or
remove members of the Committee may be taken by the Company either by
resolution duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom authority to
appoint or remove members of the Committee has been delegated pursuant
to a resolution duly adopted by the Company's Board of Directors.
4.2 The Administrative Committee shall have the power to interpret the
Plan, to decide all questions that may arise as to the construction or
application of any of its provisions, and make all determinations as to
the rights of Employees or other persons to benefits under the Plan.
Any determination made by the Administrative Committee prior to a
Change in Control as to the interpretation, construction or application
of the Plan, or as to the rights of any Employee or other persons to
benefits under the Plan, shall be conclusive and binding on all
parties. Any such determination made by the Administrative Committee
after the occurrence of a Change in Control that denies, in whole or in
part, any claim made by any individual for benefits hereunder shall be
subject to judicial review, under a "de novo", rather than a
deferential, standard.
4.3 Each member of the Administrative Committee shall be indemnified and
held harmless by the Company for any liability or loss (including legal
fees or other expenses of litigation) arising out of or in connection
with his or her services to the Plan in such capacity, to the extent
that such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by the
Company) and (b) is not determined to be due to the gross negligence or
willful misconduct of such member or other person.
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SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at any time. Any
such amendment may be made with retroactive effect to the extent not
prohibited by law.
Action to amend the Plan may be taken by the Company either by
resolution duly adopted by the Company's Board of Directors, or by an
instrument in writing executed by an officer of the Company to whom
authority to adopt or approve amendments to the Plan has been delegated
pursuant to a resolution duly adopted by the Company's Board of
Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be terminated at
any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a) no
amendment to or termination of the Plan shall impair any rights to
benefits which have accrued hereunder and (b) no amendment to Section
3.2(h), Section 4.2 or to this Section 5.3, nor any termination of the
Plan, effectuated (i) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months prior to,
or otherwise in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed and which actually
occurs, or (iii) following a Change in Control, shall be effective if
the amendment or termination adversely affects the rights of any
Employee under the Plan.
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