EXHIBIT 10-CC
GPU, INC.
1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC. AND SUBSIDIARIES
AS AMENDED AND RESTATED
TO REFLECT AMENDMENTS
THROUGH JUNE 5, 1997
1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC. AND SUBSIDIARIES
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1. Purpose
GPU, Inc. (the "Corporation") desires to attract and retain employees
of outstanding talent. The 1990 Stock Plan for Employees of GPU, Inc. and
Subsidiaries (the "Plan") affords eligible employees the opportunity to acquire
proprietary interests in the Corporation and thereby encourages their highest
levels of performance.
2. Scope and Duration
(a) Awards under the Plan may be granted in the following forms:
(i) incentive stock options ("incentive stock options") as
provided in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") and non-qualified stock options ("non-qualified
options") (the term "options" includes incentive stock options and
non-qualified options);
(ii) shares of Common Stock of the Corporation (the "Common
Stock") which are restricted as provided in paragraph 10 ("restricted
shares"); or
(iii)rights to acquire shares of Common Stock which are
restricted as provided in paragraph 10 ("units" or "restricted units").
Options may be accompanied by stock appreciation rights ("rights").
(b) The maximum aggregate number of shares of Common Stock as to which
awards of options, restricted shares, units or rights may be made from time to
time under the Plan is 1,974,190 shares(1). Shares issued pursuant to this Plan
may be in whole or in part, as the Board of Directors of the Corporation (the
"Board of Directors") shall from time to time determine, authorized but unissued
shares or issued shares reacquired by the Corporation. If for any reason any
shares as to which an option has been granted cease to be subject to purchase
thereunder or any restricted shares or restricted units are forfeited to the
Corporation, or to the extent that any awards under the Plan denominated in
shares or units are paid or settled in cash or are surrendered upon the exercise
of an option, then (unless the Plan shall have been terminated) such shares or
units, and any shares surrendered to the Corporation upon such exercise, shall
become available for subsequent awards under the Plan unless such shares or
units, if so made available for subsequent awards under the Plan, would not be
exempt from Section 16(b) of the Securities Exchange Act of 1934 (the "Exchange
Act") pursuant to Rule 16b-3, as amended, thereunder; provided, however, that
shares surrendered to the Corporation upon the exercise of an incentive stock
option and shares subject to an incentive stock option surrendered upon the
exercise of a right shall not be available for subsequent award of additional
stock options under the Plan.
(c) No incentive stock option shall be granted hereunder after November
30, 1999.
3. Administration
(a) The Plan shall be administered by those members of the Personnel,
Compensation and Nominating Committee, or any successor thereto, of the Board of
Directors who are "non-employee directors" within the meaning of Rule 16b-3, as
amended, under Section 16(b) of the Exchange Act or by such other committee
consisting of not less than two persons each of whom shall qualify as
"non-employee directors," as may be determined by the Board of Directors ("the
Committee").
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(1) Initially, 1,000,000 shares were authorized to be issued under the
Plan. On May 29, 1991, the Corporation effected a two-for-one stock
split by way of a stock dividend, leaving 1,974,190 shares available
for issuance under the Plan on and after that date, after giving effect
to shares previously awarded.
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(b) The Committee shall have plenary authority in its sole discretion,
subject to and not inconsistent with the express provisions of this Plan: (i) to
grant options, to determine the purchase price of the Common Stock covered by
each option, the term of each option, the employees to whom, and the time or
times at which, options shall be granted and the number of shares to be covered
by each option; (ii) to designate options as incentive stock options or
non-qualified options and to determine which options shall be accompanied by
rights; (iii) to grant rights and to determine the purchase price of the Common
Stock covered by each right or related option, the term of each right or related
option, the employees to whom, and the time or times at which, rights or related
options shall be granted and the number of shares to be covered by each right or
related option; (iv) to grant restricted shares and restricted units and to
determine the term of the Restricted Period (as defined in paragraph 10) and
other conditions applicable to such shares or units, the employees to whom, and
the time or times at which, restricted shares or restricted units shall be
granted and the number of shares or units to be covered by each grant; (v) to
interpret the Plan; (vi) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) to determine the terms and provisions of the option
and rights agreements (which need not be identical) and the restricted share and
restricted unit agreements (which need not be identical) entered into in
connection with awards under the Plan, including any provisions of such
agreements that may permit a recipient of an award of restricted units to elect,
prior to the vesting of such units, to defer the payment of cash and/or the
delivery of shares of Common Stock otherwise to be made upon the vesting of such
restricted units, and/or to defer the payment of any cash compensation awarded
to the recipient with respect to such restricted units, or with respect to any
restricted stock awarded to the recipient, either under this Plan or the GPU
System Companies Deferred Compensation Plan (a "Deferral"); and to make all
other determinations deemed necessary or advisable for the administration of the
Plan. Without limiting the foregoing, the Committee shall have plenary authority
in its sole discretion, subject to and not inconsistent with the express
provisions of the Plan, (1) to select GPU Officers (as defined below) for
participation in the Plan, (2) to determine the timing, price and amount of any
grant or award under the Plan to any GPU Officer, (3) either (A) to determine
the form in which payment of any right granted or awarded under the Plan will be
made (i.e., cash, securities or any combination thereof) or (B) to approve the
election of the employee to receive cash in whole or in part in settlement of
any right granted or awarded under the Plan. As used herein, the term "GPU
Officer" shall mean an officer (other than an assistant officer) of the
Corporation and any person who may from time to time be designated an executive
officer of the Corporation by its Board of Directors. The exercise by the
Committee of the powers granted in clauses (i), (ii), (iii), (iv), and (vii)
hereof shall be subject to the approval of the Board of Directors with respect
to a recipient of an award hereunder who is an officer (other than assistant
officer) of the Corporation or the Chairman or President of any subsidiary (as
defined in paragraph 4(a) hereof) of the Corporation (the"Board"). (The
Committee and the Board are sometimes hereinafter referred to as the
"Grantors.")
(c) The Grantors may delegate to one or more of their members or to one
or more agents such administrative duties as they may deem advisable, and the
Grantors or any person to whom
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they have delegated duties as aforesaid may employ one or more persons to render
advice with respect to any responsibility the Grantors or such person may have
under the Plan; provided, that the Grantors may not delegate any duties to a
member of the Board of Directors who would not qualify as a "non-employee
director" to administer the Plan as contemplated by Rule 16b-3, as amended, or
other applicable rules under the Exchange Act. The Grantors may employ
attorneys, consultants, accountants or other persons and the Grantors, the
Corporation and its officers and directors shall be entitled to rely upon the
advice, opinions or valuations of any such persons. All actions taken and all
interpretations and determinations made by the Grantors in good faith shall be
final and binding upon all employees who have received awards, the Corporation
and all other interested persons. Notwithstanding the foregoing, any action
taken or any interpretation or determination made by the Grantors after the
occurrence of a "Change in Control" (as defined in paragraph 7(c) hereof) which
adversely affects the rights of any employee with respect to any award made to
the employee hereunder shall be subject to judicial review under a "de novo"
rather than a deferential standard. No member or agent of the Grantors shall be
personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or awards made thereunder, and all members and
agents of the Grantors s shall be fully protected by the Corporation in respect
of any such action, determination or interpretation.
4. Eligibility; Factors to be Considered in Making Awards
(a) Only employees of the Corporation or its subsidiaries may receive
awards under the Plan. The term "subsidiary" means any corporation one hundred
(100%) percent of the common stock of which is owned, directly or indirectly, by
the Corporation. A director of the Corporation or of a subsidiary who is not
also an employee will not be eligible to receive an award.
(b) In determining the employees to whom awards shall be granted and
the number of shares or units to be covered by each award, the Committee shall
take into account the nature of the employee's duties, his or her present and
potential contributions to the success of the Corporation and such other factors
as it shall deem relevant in connection with accomplishing the purposes of the
Plan.
(c) Awards may be granted singly, in combination or in tandem and may
be made in combination or in tandem with or in replacement of, or as
alternatives to, awards or grants under any other employee plan maintained by
the Corporation or its
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subsidiaries. An award made in the form of an option, a unit or a right may
provide, in the discretion of the committee, for (i) the crediting to the
account of, or the current payment to, each employee who has such an award of an
amount equal to the cash dividends and stock dividends paid by the Corporation
upon one share of Common Stock for each restricted unit, or share of Common
Stock subject to an option or right, included in such award, and for each
restricted unit which is the subject of a Deferral ("Dividend Equivalents"), or
(ii) the deemed reinvestment of such Dividend Equivalents and stock dividends in
shares of Common Stock or the deemed reinvestment of units in additional units ,
which deemed reinvestment in each case shall be deemed to be made in accordance
with the provisions of paragraph 10 and credited to the Employee's account
("Additional Deemed Shares"). Such Additional Deemed Shares shall be subject to
the same restrictions (including but not limited to provisions regarding
forfeitures) applicable with respect to the option, unit or right with respect
to which such credit is made. Dividend Equivalents not deemed reinvested as
stock dividends shall not be subject to forfeiture, and may bear amounts
equivalent to interest or cash dividends as the Committee may determine. An
employee who has been granted incentive stock options under the Plan may be
granted an additional award or awards, subject to such limitations as may be
imposed by the Code with respect to incentive stock options.
(d) The Committee, in its sole discretion, may grant to an employee who
has been granted an award under the Plan or any other employee plan maintained
by the Corporation, any of its subsidiaries, or any successor thereto, in
exchange for the surrender and cancellation of such award, a new award in the
same or a different form and containing such terms, including without limitation
a price which is different (either higher or lower) than any price provided in
the award so surrendered and cancelled, as the Committee may deem appropriate.
5. Option Price
(a) The purchase price of the Common Stock covered by each option shall
be determined by the Committee; provided, however, that in the case of incentive
stock options, the purchase price shall not be less than 100% of the fair market
value of the Common Stock on the date the option is granted. Fair market value
shall mean the closing price of the Common Stock as reported on the New York
Stock Exchange Composite Tape for the date on which the option is granted, or if
there are no sales on
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such date, on the next preceding day on which there were sales. Such price shall
be subject to adjustment as provided in paragraph 13. The price so determined
shall also be applicable in connection with the exercise of any related right.
(b) The purchase price of the shares as to which an option is exercised
shall be paid in full at the time of exercise; payment may be made in cash,
which may be paid by check or other instrument acceptable to the Corporation, in
shares of the Common Stock, valued at the closing price of the Common Stock as
reported on the New York Stock Exchange Composite Tape for the date of exercise,
or if there were no sales on such date, on the next preceding day on which there
were sales, or (if permitted by the Committee and subject to such terms and
conditions as it may determine) by surrender of outstanding awards under the
Plan. In addition, the employee shall pay any amount necessary to satisfy
applicable federal, state or local tax requirements promptly upon notification
of the amount due. The Committee may permit such amount to be paid in shares of
Common Stock previously owned by the employee, or a portion of the shares of
Common Stock that otherwise would be distributed to such employee upon exercise
of the option, or a combination of cash and shares of such Common Stock.
6. Term of Options
The term of each incentive stock option granted under the Plan shall be
such period of time as the Committee shall determine, but not more than ten
years from the date of grant, subject to earlier termination as provided in
paragraphs 11 and 12. The term of each non-qualified stock option granted under
the Plan shall be such period of time as the Committee shall determine, subject
to earlier termination as provided in paragraphs 11 and 12.
7. Exercise of Options
(a) Each option shall become exercisable in whole or in part, as the
Committee shall determine provided, however, that the Committee may also, in its
discretion, accelerate the exercisability of any option in whole or in part at
any time.
(b) Subject to the provisions of the Plan and unless otherwise provided
in the option agreement, an option granted under the Plan shall become
exercisable in full at the earliest of the employee's death, Eligible Retirement
(as defined below),
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or Total Disability (as defined in paragraph 12). For purposes of this Plan, the
term "Eligible Retirement" shall mean the date upon which an employee, having
attained an age of not less than fifty-five, terminates his or employment with
the Corporation and all of its subsidiaries, provided that such employee is
immediately eligible to receive a pension (whether or not he or she otherwise
elects to defer such receipt) under Section 3.1 or 3.3 of the "Employee Pension
Plan" maintained by any subsidiary or subsidiaries of the Corporation for
salaried employees, or any successor plan thereto.
(c) Notwithstanding the foregoing, an option shall become immediately
exercisable as to all shares of Common Stock remaining subject to the option on
or following a "Change in Control" of the Corporation (the date upon which such
event occurs shall be referred to for purposes of this Plan as an "Acceleration
Date"). A "Change in Control" shall mean the occurrence during the term of the
Plan of:
(1) An acquisition (other than directly from the Corporation) of
any 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 (the "Incumbent Board"), cease for any reason to constitute
at least seventy percent (70%) of the members of the Board of Directors;
provided, however, that if
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the election, or nomination for election by the Corporation's shareholders, of
any new director was approved by a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of this Plan, be considered as a
member of the Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange Act) or other actual
or threatened solicitation of proxies or consents by or on behalf of a Person
other than the Board of Directors (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,
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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, 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.
(d) An option may be exercised, at any time or from time to time
(subject, in the case of an incentive stock option, to such restrictions as may
be imposed by the Code), as to any or all full shares as to which the option has
become exercisable, provided, however, that an option may not be exercised at
any one time as to less than 100 shares (or less than the number of shares as to
which the option is then exercisable, if that number is less than 100 shares).
(e) Subject to the provisions of paragraphs 11 and 12, in the case of
incentive stock options, no option may be exercised at any time unless the
holder thereof is then an employee of the
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subparagraph 7(e), subsidiary shall include, as under Treasury Corporation or
any of its subsidiaries. For purposes of this Regulations Section 1.421-7(h)(3)
and (4), example (3), any corporation which is a subsidiary of the Corporation
during the entire portion of the requisite period of employment during which it
is the employer of the holder.
(f) Upon the exercise of an option or portion thereof in accordance
with the Plan, the option agreement and such rules and regulations as may be
established by the Committee, the holder thereof shall have the rights of a
shareholder with respect to the shares issued as a result of such exercise.
8. Award and Exercise of Rights
(a) A right may be awarded by the Committee in connection with any
option granted under the Plan, either at the time the option is granted or
thereafter at any time prior to the exercise, termination or expiration of the
option ("tandem right"), or separately ("freestanding right"). Each tandem right
shall be subject to the same terms and conditions as the related option and
shall be exercisable only to the extent the option is exercisable. A right shall
be exercisable (as to a tandem right, only to the extent the related option is
exercisable) on or after an Acceleration Date.
(b) A right shall entitle the employee upon exercise in accordance with
its terms (subject, in the case of a tandem right, to the surrender unexercised
of the related option or any portion or portions thereof which the employee from
time to time determines to surrender for this purpose) to receive, subject to
the provisions of the Plan and such rules and regulations as from time to time
may be established by the Committee, a payment having an aggregate value equal
to the product of (A) the excess of (i) the fair market value on the exercise
date of one share of Common Stock over (ii) the exercise price per share, in the
case of a tandem right, or the price per share specified in the terms of the
right, in the case of a freestanding right, multiplied by (B) the number of
shares with respect to which the right shall have been exercised. The payment
may be made in the form of all cash, all shares of Common Stock, or a
combination thereof, as elected by the employee.
(c) The exercise price per share specified in a right shall be as
determined by the Committee, provided that, in the case of a tandem right
accompanying an incentive stock option,
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the exercise price shall be not less than fair market value of the Common Stock
subject to such option on the date of grant.
(d) If upon the exercise of a right the employee is to receive a
portion of the payment in shares of Common Stock, the number of shares shall be
determined by dividing such portion by the fair market value of a share on the
exercise date. The number of shares received may not exceed the number of shares
covered by any option or portion thereof surrendered. Cash will be paid in lieu
of any fractional share.
(e) No payment will be required from an employee upon exercise of a
right, except that any amount necessary to satisfy applicable federal, state or
local tax requirements shall be withheld or paid promptly by the employee upon
notification of the amount due and prior to or concurrently with delivery of
cash or a certificate representing shares. The Committee may permit such amount
to be paid in shares of Common Stock previously owned by the employee, or a
portion of the shares of Common Stock that otherwise would be distributed to
such employee upon exercise of the right, or a combination of cash and shares of
such Common Stock.
(f) The fair market value of a share shall mean the closing price of
the Common Stock as reported on the New York Stock Exchange Composite Tape for
the date of exercise, or if there are no sales on such date, on the next
preceding day on which there were sales; provided, however, that in the case of
rights that relate to an incentive stock option, the Committee may prescribe, by
rules of general application, such other measure of fair market value as the
Committee may in its discretion determine but not in excess of the maximum
amount that would be permissible under Section 422 of the Code without
disqualifying such option under Section 422.
(g) Upon exercise of a tandem right, the number of shares subject to
exercise under the related option shall automatically be reduced by the number
of shares represented by the option or portion thereof surrendered.
(h) A right related to an incentive stock option may only be exercised
if the fair market value of a share of Common Stock on the exercise date exceeds
the option price.
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9. Non-Transferability of Options, Rights and Units; Holding Periods for
GPU Officers
Options, rights, and units granted under the Plan shall not be
transferable by the grantee thereof otherwise than by will or the laws of
descent and distribution; provided, that the designation of a beneficiary by an
employee shall not constitute a transfer; and options and rights may be
exercised during the lifetime of the employee only by the employee or, unless
such exercise would disqualify an option as an incentive stock option, by the
employee's guardian or legal representative.
10. Award and Delivery of Restricted Shares or Restricted
Unit
(a) At the time an award of restricted shares or restricted units is
made, the Committee shall establish a period of time (the "Restricted Period")
applicable to such award. Each award of restricted shares or restricted units
may have a different Restricted Period. The Committee may, in its sole
discretion, at the time an award is made, prescribe conditions for the
incremental lapse of restrictions during the Restricted Period and for the lapse
or termination of restrictions upon the satisfaction of other conditions in
addition to or other than the expiration of the Restricted Period with respect
to all or any portion of the restricted shares or restricted units. Subject to
Section 9 hereof, the Committee may also, in its sole discretion, shorten or
terminate the Restricted Period, or waive any conditions for the lapse or
termination of restrictions with respect to all or any portion of the restricted
shares or restricted units. Notwithstanding the foregoing but subject to Section
9 hereof, all restrictions shall lapse, and the Restricted Period shall
terminate, with respect to all restricted shares or restricted units upon the
earliest to occur of an employee's Eligible Retirement, death, Total Disability
or the occurrence of an Acceleration Date.
(b) (1) Unless such shares are issued as uncertificated shares pursuant
to subparagraph (3) below, a stock certificate representing the number of
restricted shares granted to an employee shall be registered in the employee's
name but shall be held in custody by the Corporation or an agent therefor for
the employee's account. The employee shall generally have the rights and
privileges of a shareholder as to such restricted shares,
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including the right to vote such restricted shares, except that, subject to the
provisions of paragraph 11, the following restrictions shall apply: (i) the
employee shall not be entitled to delivery of the certificate until the
expiration or termination of the Restricted Period and the satisfaction of any
other conditions prescribed by the Committee; (ii) none of the restricted shares
may be sold, transferred, assigned, pledged, or otherwise encumbered or disposed
of during the Restricted Period and until the satisfaction of any other
conditions prescribed by the Committee at the time of award; and (iii) all of
the restricted shares shall be forfeited and all rights of the employee to such
restricted shares shall terminate without further obligation on the part of the
Corporation unless the employee has remained an employee of the Corporation or
any of its subsidiaries until the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee
at the time of award applicable to such restricted shares. At the discretion of
the Committee, (i) cash and stock dividends with respect to the restricted
shares may be either currently paid or withheld by the Corporation for the
employee's account, and interest may be paid on the amount of cash dividends
withheld at a rate and subject to such terms as determined by the Committee or
(ii) the Committee may require that all cash dividends be applied to the
purchase of additional shares of Common Stock, and such purchased shares,
together with any stock dividends related to such restricted shares (such
purchased shares and stock dividends are hereafter referred to as "Additional
Restricted Shares") shall be treated as Additional Shares, subject to forfeiture
on the same terms and conditions as the original grant of the restricted shares
to the employee.
(2) The purchase of any such Additional Restricted Shares shall be made
either (x) through the Corporation's Dividend Reinvestment and Stock Purchase
Plan, in which event the price of such shares so purchased through the
reinvestment of dividends shall be as determined in accordance with the
provisions of that plan and no stock certificate representing such Additional
Restricted Shares shall be registered in the employee's name or (y) in
accordance with such alternative procedure as is determined by the Committee in
which event the price of such purchased shares shall be the closing price of the
Common Stock as reported on the New York Stock Exchange Composite Tape for the
date on which such purchase is made, or if there were no sales on such date, the
next preceding day on which there were sales. In the event that the Committee
shall not require reinvestment, cash or stock dividends so withheld by the
Committee shall not be subject to forfeiture. Upon the forfeiture of any
restricted
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shares (including any Additional Restricted Shares), such forfeited shares shall
be transferred to the Corporation without further action by the employee. The
employee shall have the same rights and privileges, and be subject to the same
restrictions, with respect to any shares received pursuant to paragraph 13.
(3) Notwithstanding anything herein to the contrary, shares
representing Restricted Shares or Additional Restricted Shares may be issued as
uncertificated shares.
(c) Upon the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Committee at the time of
award, or at such earlier time as provided for in paragraph 11, the restrictions
applicable to the restricted shares (including Additional Restricted Shares)
shall lapse and a stock certificate for the number of restricted shares
(including any Additional Restricted Shares) with respect to which the
restrictions have lapsed shall be delivered, free of all such restrictions,
except any that may be imposed by law, to the employee or the employee's
beneficiary or estate, as the case may be. The Corporation shall not be required
to deliver any fractional share of Common Stock but will pay, in lieu thereof,
the fair market value (determined as of the date the restrictions lapse) of such
fractional share to the employee or the employee's beneficiary or estate, as the
case may be.
No payment will be required from the employee upon the issuance or
delivery of any restricted shares, except that any amount necessary to satisfy
applicable federal, state or local tax requirements shall be withheld or paid
promptly upon notification of the amount due and prior to or concurrently with
the issuance or delivery of a certificate representing such shares. The
Committee may permit such amount to be paid in shares of Common Stock previously
owned by the employee, or a portion of the shares of Common Stock that otherwise
would be distributed to such employee upon the lapse of the restrictions
applicable to the restricted shares, or a combination of cash and shares of such
Common Stock.
(d) In the case of an award of restricted units, no shares of Common
Stock shall be issued at the time the award is made, and the Corporation shall
not be required to set aside a fund for the payment of any such award.
(e) Subject to subparagraph (g) below:
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(i) Upon the expiration or termination of the Restricted Period or the
occurrence of an Acceleration Date and the satisfaction of any other conditions
prescribed by the Committee or at such earlier time as provided for in paragraph
11, the Corporation shall deliver to the employee or the employee's beneficiary
or estate, as the case may be, one share of Common Stock for each restricted
unit with respect to which the restrictions have lapsed ("vested unit").
(ii) In addition, if the Committee has not required the deemed
reinvestment of such Dividend Equivalents pursuant to paragraph 4, at
such time the Corporation shall deliver to the employee cash equal to
any Dividend Equivalents or stock dividends credited with respect to
each such vested unit and, to the extent determined by the Committee,
the interest thereupon. However, if the Committee has required such
deemed reinvestment in connection with such restricted unit, in
addition to the stock represented by such vested unit, the Corporation
shall deliver the number of Additional Deemed Shares credited to the
employee with respect to such vested unit.
(iii)Notwithstanding the foregoing, the Committee may, in its
sole discretion, elect to pay cash or part cash and part Common Stock
in lieu of delivering only Common Stock for the vested units and
related Additional Deemed Shares. If a cash payment is made in lieu of
delivering Common Stock, the amount of such cash payment shall be equal
to the closing price of the Common Stock as reported on the New York
Stock Exchange Composite Tape for the date on which the Restricted
Period lapsed with respect to such vested unit and related Additional
Deemed Shares, or if there are no sales on such date, on the next
preceding day on which there were sales.
(f) Upon the occurrence of an Acceleration Date, all outstanding vested
units (including restricted units whose restrictions have lapsed as a result of
the occurrence of such acceleration date) and credited Dividend Equivalents or
related Additional Deemed Shares shall be payable as soon as practicable but in
no event later than 90 days after such Acceleration Date in cash, in shares of
Common Stock, or part in cash and part in Common Stock, as the Committee, in its
sole discretion, shall determine.
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(i) Subject to subparagraph (g) below, to the extent that an
employee receives cash in payment for his or her vested units and
Additional Deemed Shares, such employees shall receive an amount equal
to the product of (x) the number of vested units and Additional Deemed
Shares credited to such employee's account for which such employee is
receiving payment in cash multiplied by (y) the highest closing price
per share of Common Stock occurring during the ninety (90) day period
preceding and the ninety (90) day period following the Acceleration
Date (the "Multiplication Factor").
(ii) Subject to subparagraph (g) below, to the extent that an
employee receives Common Stock in payment for his or her vested units
and Additional Deemed Shares, such employee shall receive the number of
shares of Common Stock determined by dividing (x) the product of (I)
the number of vested units and Additional Deemed Shares credited to
such employee's account for which such employee is receiving payment in
Common Stock multiplied by (II) the Multiplication Factor, by (y) the
fair market value per share of the Common Stock for the day preceding
the payment date, or if there are no sales on such date, on the next
preceding day on which there were sales.
(g) No payment will be required from the employee upon the award of any
restricted units, the crediting or payment of any Dividend Equivalents or
Additional Deemed Shares, or the delivery of Common Stock or the payment of cash
in respect of vested units, except that any amount necessary to satisfy
applicable federal, state or local tax requirements shall be withheld or paid
promptly upon notification of the amount due. The Committee may permit such
amount to be paid in shares of Common Stock previously owned by the employee, or
a portion of the shares of Common Stock that otherwise would be distributed to
such employee in respect of vested units and Additional Deemed Shares, or a
combination of cash and shares of such Common Stock.
(h) In addition, the Committee shall have the right, in its absolute
discretion, upon or prior to the vesting of any restricted shares (including
Additional Restricted Shares) and restricted units (including Additional Deemed
Shares) to award cash compensation to the employee for the purpose of aiding the
employee in the payment of any and all federal, state and local income taxes
payable as a result of such vesting, if the performance of the Corporation
during the Restricted Period meets such criteria as the Committee shall have
prescribed.
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(i) Notwithstanding any other provision in this paragraph 10 to
the contrary, any payment of cash and/or delivery of any shares of Common Stock
otherwise required to be made hereunder on any date with respect to any
restricted units awarded to an employee, or with respect to any cash
compensation awarded to an employee pursuant to subparagraph (h) above, may be
deferred, at the employee's election, either under this Plan or under the GPU
System Companies Deferred Compensation Plan for Elected Officers, to the extent
such deferral is permitted under, and upon such terms and conditions as may be
set forth in, the written agreement between the employee and the Corporation
(whether as initially entered into, or as subsequently amended) evidencing the
award of such units, or cash compensation, to the employee.
11. Termination of Employment
In the event that the employment of an employee to whom an option or
right has been granted under the Plan shall be terminated for any reason other
than as set forth in paragraph 12, such option or right may, subject to the
provisions of the Plan, be exercised (but only to the extent that the employee
was entitled to do so at the termination of his or her employment) at any time
within three (3) months after such termination, but in no case later than the
date on which the option or right terminates.
Unless otherwise determined by the Committee, if an employee to whom
restricted shares or restricted units have been granted ceases to be an employee
of the Corporation or of any subsidiary prior to the end of the Restricted
Period and the satisfaction of any other conditions prescribed by the Committee
at the time of grant for any reason other than as set forth in paragraph 12, the
employee shall immediately forfeit all restricted shares and restricted units,
including all Additional Restricted Shares or Additional Deemed Shares related
thereto.
Any option, right, restricted share or restricted unit agreement, or
any rules and regulations relating to the Plan, may contain such provisions as
the Committee shall approve with reference to the determination of the date
employment terminates and the effect of leaves of absence. Any such rules and
regulations with reference to any option agreement shall be consistent with the
provisions of the Code and any applicable
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rules and regulations thereunder. Nothing in the Plan or in any award granted
pursuant to the Plan shall confer upon any employee any right to continue in the
employ of the Corporation of any of its subsidiaries or interfere in any way
with the right of the Corporation or any such subsidiary to terminate such
employment at any time.
12. Eligible Retirement, Death or Total Disability of Employee
If any employee to whom an option, right, restricted share or
restricted unit has been granted under the Plan shall die, or suffer a Total
Disability, while employed by the Corporation or any of its subsidiaries or if
an employee terminates his or her employment pursuant to an Eligible Retirement,
such option or right may be exercised, as set forth herein, or such restricted
shares or restricted unit shall be deemed to be vested, whether or not the
employee was otherwise entitled at such time to exercise such option or right,
or be treated as vested in such share or unit. Subject to the restrictions
otherwise set forth in this Plan, such option or right shall be exercisable by
the employee, a legatee or legatees of the employee under the employee's last
will, or by the employee's personal representatives or distributees, whichever
is applicable, at any time (but in no case later than the date on which the
option or right terminates in accordance with the terms of grant) within three
years after the date of the earlier of (i) the employee's death or Total
Disability (if the employee shall have died or suffered a Total Disability while
employed by the Corporation or its subsidiaries), or (ii) such employee's
Eligible Retirement.
For purposes of this paragraph 12, "Total Disability" is defined as the
permanent inability of an employee, as a result of accident or sickness, to
perform any and every duty pertaining to such employee's occupation or
employment for which the employee is suited by reason of the employee's previous
training, education and experience.
13. Adjustments Upon Changes in Capitalization, etc.
Notwithstanding any other provision of the Plan, the Committee may at
any time make or provide for such adjustments to the Plan, to the number and
class of shares available thereunder or to any outstanding options, restricted
shares or restricted units as it shall deem appropriate to prevent dilution or
enlargement of rights, including adjustments in the event of distributions to
holders of Common Stock other than a normal cash
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dividend, changes in the outstanding Common Stock by reason of stock dividends,
split-ups, recapitalizations, mergers, consolidations, combinations or exchanges
of shares, separations, reorganizations, liquidations and the like. In the event
of any offer to holders of Common Stock generally relating to the acquisition of
their shares, the Committee may make such adjustment as it deems equitable in
respect of outstanding options, rights, and restricted units including in the
Committee's discretion revision of outstanding options, rights, and restricted
units so that they may be exercisable for or payable in the consideration
payable in the acquisition transaction. Any such determination by the Committee
shall be conclusive and binding on all parties. No adjustment shall be made in
the minimum number of shares with respect to which an option may be exercised at
any time. Any fractional shares resulting from such adjustments to options,
rights, limited rights, or restricted units shall be eliminated.
14. Effective Date
The Plan as amended shall become effective as of June 1, 1990, subject
to the approval of the Corporation's shareholders at the Corporation's 1990
Annual Meeting of Shareholders. The Committee may, in its discretion, grant
awards under the Plan, the grant, exercise or payment of which shall be
expressly subject to the conditions that to the extent required at the time of
grant, exercise or payment (i) the shares of Common Stock covered by such awards
shall be duly listed, upon official notice of issuance, upon the New York Stock
Exchange, and (ii) if the Corporation deems it necessary or desirable a
Registration Statement under the Securities Act of 1933 with respect to such
shares shall be effective.
15. Termination and Amendment
The Board of Directors of the Corporation may suspend, terminate,
modify or amend the Plan, provided that no amendment or modification to the
penultimate sentence of Section 3(c), to Section 7(c) or to this Section 15, nor
any suspension or 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
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amendment, modification, suspension or termination adversely affects the rights
of any employee under the Plan.. If the Plan is terminated, the terms of the
Plan shall, notwithstanding such termination, continue to apply to awards
granted prior to such termination. In addition, no amendment, modification,
suspension or termination of the Plan shall adversely affect the rights of any
employee with respect to any award (including without limitation any right with
respect to the timing and method of payment of any award) granted to the
employee prior to the date of the adoption of such amendment, modification,
suspension or termination without such employee's written consent.
16. Written Agreements
Each award of options, rights, restricted shares or restricted units
shall be evidenced by a written agreement, executed by the employee and the
Corporation, which shall contain such restrictions, terms and conditions as the
Committee may require.
17. Effect on Other Stock Plans
The adoption of the Plan shall have no effect on awards made or to be
made pursuant to other stock plans covering employees of the Corporation, its
subsidiaries, or any successors thereto.
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