EXHIBIT 10-C
GPU SYSTEM COMPANIES
MASTER EXECUTIVES' BENEFITS PROTECTION TRUST
As Amended and Restated Effective February 6, 1997
TABLE OF CONTENTS
Article Title Page No.
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ARTICLE 1 Definitions 2
ARTICLE 2 Establishment of the Trusts 7
ARTICLE 3 Contributions and Accounts 9
ARTICLE 4 Payments to Participants and Beneficiaries 14
ARTICLE 5 Legal Defense Fund 21
ARTICLE 6 Insolvency 25
ARTICLE 7 Payments to Company 26
ARTICLE 8 Investment Authority and Disposition of Income 27
ARTICLE 9 General Powers and Duties of Trustee 29
ARTICLE 10 Taxes, Expenses, and Compensation of Trustee 34
ARTICLE 11 Accounting by Trustee 35
ARTICLE 12 Communications 37
ARTICLE 13 Resignation or Removal of Trustee 38
ARTICLE 14 Amendments and Termination 40
ARTICLE 15 Miscellaneous 41
THIS TRUST AGREEMENT, Amended and Restated as of February 6,
1997, 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
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 corporations are hereinafter referred to collectively as the "Companies"),
and SUMMIT BANK (formerly UNITED JERSEY BANK), a New Jersey state chartered bank
(hereinafter referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS each Company has adopted one or more Plans (as
hereinafter defined) under which it has incurred or expects to incur liability
under the terms of such Plans with respect to Benefits (as hereinafter defined)
payable to individuals participating in such Plans; and
WHEREAS, pursuant to a Trust Agreement dated as of September
1, 1995 between the 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
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 Employee 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 contrary meaning:
(a) "Agreement" shall mean this instrument, as the same may be
amended from time to time as permitted herein.
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(b) "Applicable Company" shall mean, with respect to any Trust
established hereunder, or any Plan, the Company that established such
Trust, or that has adopted or maintains such Plan.
(c) "Beneficiary", with respect to a Participant, shall mean
the person or entity designated by such Participant under a Plan, or
such other person or entity with respect to such Participant as may be
designated under the terms of such Plan, to receive the Benefits, if
any, payable from such Plan following such Participant's death.
(d) "Benefits" shall mean those amounts specified in Exhibit B
that are payable under a Plan to (or with respect to) a Participant,
or, upon his death, to his Beneficiary.
(e) "Benefit Valuation Date" shall mean the first day of each
calendar year.
(f) "Board" shall mean the board of directors of the
Corporation.
(g) "Change in Control" shall mean the occurrence of any of
the following:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the Corporation ("Common Stock") or
other voting securities of the Corporation entitled to vote generally
for the election of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute
an acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the Corporation
or (ii) any corporation or other Person of which a majority of its
voting power or its voting equity securities or equity interest is
owned, directly or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its Subsidiaries,
or (C) any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the Board (the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the members of the Board;
provided, however, that if the election, or nomination for election by
the Corporation's shareholders, of any new director was approved by a
vote of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Trust, be considered as a member of the
Incumbent Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
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(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 stockholders of the Corporation, immediately before
such merger, consolidation or reorganization, own directly or
indirectly immediately following such merger, consolidation or
reorganization, at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the corporation resulting
from such merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such
merger, consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of the
Surviving Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the Corporation, (x)any
Subsidiary,(y) any employee benefit plan (or any trust forming a
part thereof) that, immediately prior to such merger, consolidation or
reorganization, was maintained by the Corporation or any Subsidiary,
or (z) any Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or common stock of the
Corporation, has Beneficial Ownership of twenty percent (20%) or more
of the combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or substantially all
of the assets of the Corporation to any Person (other than a transfer
to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Common Stock
or Voting Securities as a result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the number of shares of Common
Stock or Voting Securities then outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, provided that if a Change in
Control would occur (but for 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.
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(h) "Code" shall mean the Internal Revenue Code of 1986 as the
same may be amended from time to time.
(i) "Insolvent"--A Company shall be considered "Insolvent" for
purposes of this Agreement if (i) the Company is unable to pay its
debts as they become due, or (ii) the Company is subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.
(j) "Participant" shall mean any person who is or may become
entitled to receive Benefits under a Plan and who is included in the
list of persons who are to be treated as Participants for purposes of
this Agreement, as set forth in Exhibit A hereto.
(k) "Permitted Investments" shall mean direct obligations of
the United States of America or agencies or instrumentalities thereof
or obligations unconditionally and fully guaranteed as to principal and
interest by the United States of America ("Obligations"), and
certificates of deposit and bankers' acceptances of a bank organized
and existing under the laws of the United States of America or any
State thereof that has a combined capital and surplus of at least
$100,000,000, all having respective maturities of not more than one
year when purchased. The term "Permitted Investments" shall also mean
any fund or portfolio maintained by any open-end investment company
registered under the Investment Company Act of 1940, the assets of
which are invested exclusively in Obligations, certificates of deposit
and/or bankers' acceptances of the kind described in the preceding
sentence including, without limitation, any such fund or portfolio for
which the Trustee or any affiliate of the Trustee serves as investment
adviser.
(l) "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.
(m) "Plan" or "Plans" shall mean, with respect to any Company,
any (or if the context requires, all) of the plans, programs or
policies maintained by such Company, and agreements entered into by
such Company, that are included in the list set forth in Exhibit B
hereto.
(n) "Threatened Change in Control" shall mean the occurrence
of any of the following events (but no event other than the following
events), except as otherwise provided below: Any Person
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(1) becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing fifteen
percent (15%) or more of the then-outstanding Common Stock or of the
combined voting power of the Corporation's then-outstanding voting
securities, or
(2) initiates a tender offer or exchange offer to
acquire securities of the Corporation representing twenty percent (20%)
or more of the then-outstanding Common Stock or of the combined voting
power of the Corporation's then-outstanding voting securities, or
(3) solicits proxies for the election within any
single twelve (12)-month period of three or more directors, whose
election or nomination is not approved by a majority of the Incumbent
Board then serving as members of the Board, to serve on the Board.
Notwithstanding the foregoing, a Threatened Change in
Control shall not be deemed to occur pursuant to this Section 1.1(n)
solely because of an acquisition or tender offer made or effected in
connection with a Non-Control Acquisition.
(o) "Threatened Change in Control Period" shall mean the
period commencing on the date on which a Threatened Change in Control
has occurred and ending (i) on the date on which a Change in Control
has occurred, or (ii), if earlier, on whichever of the following dates
is applicable:
(1) in the case of a Threatened Change in Control
described in Section 1.1(n)(1), the date as of which any Person
described in Section 1.l(n)(1) ceases to be the Beneficial Owner,
directly or indirectly, of securities of the Corporation representing
fifteen percent (15%) or more of the Common Stock or of the combined
voting power of the Corporation's then-outstanding voting securities,
or
(2) in the case of a Threatened Change in Control
described in Section 1.l(n)(2), the date as of which the tender offer
or exchange offer described in Section 1.1(n)(2) is terminated without
any securities described therein of the Corporation being purchased
thereunder, or
(3) in the case of a Threatened Change in Control
described in Section 1.l(n)(3), the date as of which any Person
described in Section 1.1(n)(3) fails to effect the election within any
single twelve (12)-month period of three or more directors, whose
election or nomination is not approved by a majority of the Incumbent
Board then serving as members of the Board, to serve on the Board.
(p) "Valuation Date" shall mean the last business day of each
calendar quarter.
ARTICLE 2
Establishment of the Trusts
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2.1 Each Company hereby establishes with the Trustee, and the
Trustee hereby accepts, a Trust consisting of such sums of money and other
property acceptable to the Trustee as such Company shall pay or deliver to the
Trustee from time to time. All such money and other property, all investments
and reinvestments made therewith or proceeds thereof and all earnings and
profits thereon, less all payments therefrom and charges thereto as authorized
herein, are hereinafter referred to as the "Trust Fund" for such Trust. Each
Trust Fund shall be held, administered and disposed of by the Trustee as
provided in this Agreement.
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2.2 Prior to a Change in Control, each Trust established
hereunder may be revoked, in whole or in part, by the Applicable Company giving
to the Trustee written notice of such revocation; provided, however, that no
Trust established hereunder may be revoked (i) at the request of a third party
who has indicated an intention or taken steps to effect a Change in Control and
who effectuates a Change in Control, (ii) in connection with, or in anticipation
of, a Change in Control which has been threatened or proposed and which actually
occurs or (iii) during a Threatened Change in Control Period, any such attempted
revocation being null and void. If a Trust is so revoked in its entirety, all of
the assets of the Trust (after payment of any unpaid fees and expenses of the
Trustee properly chargeable to such Trust) shall be transferred by the Trustee
to the Applicable Company or to such other person or entity as the Applicable
Company may direct in writing. If a Trust is so revoked in part, the Trustee
shall transfer to the Applicable Company such of the assets of the Trust as the
Applicable Company shall have specified in its written notice to the Trustee of
the partial revocation of such Trust. Upon a Change in Control, each Trust shall
become irrevocable.
2.3 Each Trust established hereunder is intended to constitute
a "grantor trust", of which the Company is the grantor, within the meaning of
subpart E, part I, subchapter J, chapter 1, subtitle A of the Code, and shall be
construed accordingly.
2.4 The principal of each Trust, and any earnings thereon,
shall be held separate and apart from other funds of the Applicable Company, and
shall be used exclusively for the uses and purposes of Participants under such
Company's Plans and general creditors of such Company, as herein set forth.
Participants and their Beneficiaries shall have no preferred claim on, or any
beneficial ownership interest in, any assets of any Trust. Any rights created
under the Plans and this Agreement shall be mere unsecured contractual rights of
Participants and their Beneficiaries against the Applicable Company. Any assets
held by each Trust will be subject to the claims of the Applicable Company's
general creditors under federal and state law in the event of the Applicable
Company's Insolvency, as defined in Section 1.1(h) herein.
2.5 Each Trust established hereunder shall be maintained by
the Trustee as a separate trust. However, the assets of any Trust may be
commingled with the assets of any other Trust, solely for investment purposes.
ARTICLE 3
Contributions and Accounts
--------------------------
3.1 Prior to a Change in Control, each Company may make
contributions to its Trust in such amounts, and at such times, as such Company
may determine in its sole discretion. Such contributions may be in the form of
cash, or such other property as may be determined by the Company and as may be
acceptable to the Trustee.
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
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the sum of (i) the aggregate Present Value of all Benefits accrued for all
Participants under all of such Company's Plans determined as of the most recent
Benefit Valuation Date preceding the date on which the Change in Control
occurred; and (ii) the aggregate Present Value of all other Benefits for all
Participants under all of such Company's Plans that accrue as a result of the
occurrence of the Change in Control, determined as of the first day of the month
coincident with or immediately following the date on which the Change in Control
occurred.
(b) Within 60 days after each Benefit
Valuation Date following the occurrence of a Change in Control, each Company
shall make an irrevocable contribution to its Trust in an amount that, when
added to the value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust Fund) determined as
of the most 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.
(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.
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3.4 With respect to each contribution that is made to a Trust
prior to a Change in Control but not during any Threatened Change in Control
Period, the amount, or property, so contributed to such Trust shall be allocated
by the Trustee to the Plan Accounts, and to the Participant Accounts, maintained
within such Trust in such manner as the Applicable Company directs in written
instructions delivered by the Applicable Company to the Trustee at the time of
the contribution.
3.5 As of each Valuation Date, the Trust Fund for
each Trust shall be revalued by the Trustee at its then current fair market
value, as determined by the Trustee. The net investment gains and losses of each
Trust Fund for each calendar year that ends prior to a Change in Control but not
during a Threatened Change in Control shall be allocated by the Trustee, as of
the last Valuation Date occurring in such year, among the Plan Accounts and
Participant Accounts maintained within such Trust, in such manner as the
Applicable Company shall specify in written instructions furnished by it to the
Trustee. As of each Valuation Date following the occurrence of a Change in
Control, or that falls within a Threatened Change in Control Period, the net
investment gains and losses of each Trust Fund for the calendar year ending on
such Valuation Date shall be allocated by the Trustee proportionately among the
Plan Accounts and Participant Accounts maintained within such Trust, based on
the value of such Accounts as of the immediately preceding Valuation Date. In
making the foregoing allocation, the value of Plan Accounts and Participant
Accounts in existence on the immediately preceding Valuation Date but not in
existence on the current Valuation Date shall be disregarded.
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
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.
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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
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
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4.1 Prior to a Change in Control, the Trustee shall make
payments from the Trust Fund for any Trust to such Participants and
Beneficiaries, in such manner, at such times, and in such amounts, as the
Applicable Company shall direct in written instructions delivered to the
Trustee.
4.2 After a Change in Control, the Trustee shall make payments
from the Trust Fund of any Trust to Participants and Beneficiaries in accordance
with the following provisions:
(a) Prior to a Change in Control, each Company shall deliver
to the Trustee a schedule ("Payment Schedule") substantially in the form annexed
hereto as Exhibit C for each Participant of each Plan whose Benefits under such
Plan may be paid from such Company's Trust after a Change in Control. The
Payment Schedule shall
(i) describe the events that must occur in order for the
Participant's Benefits to become payable under the terms of the Plan;
(ii) specify the amount of the Participant's Benefits accrued
under the Plan, as of the date on which the Payment Schedule is
furnished to the Trustee, and provide a formula or such other
instructions as will enable the Trustee to determine the amount of the
Participant's Benefits as of the time they become payable under the
terms of the Plan;
(iii) specify the form in which the Participant's Benefits are
to be paid, as provided for or available under the Plan;
(iv) specify the time of commencement for payment of the
Participant's Benefits under the Plan; and
(v) specify the address and social security number of the
Participant as well as the name, address, social security number and
relation to the Participant of the Participant's Beneficiary.
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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 under the Plan
with respect to the Participant, or that permits payment of such Benefits to be
made in a form, or to commence at a time, more favorable to the Participant or
his or her Beneficiary than as provided under the Plan prior to such amendment.
Except as otherwise provided herein, after a Change in Control, the Trustee
shall make payments with respect to a Participant's Benefits under any Plan only
in accordance with the Payment Schedule with respect to such Participant's
Benefits under such Plan that is on file with the Trustee, and that has not been
revoked, at the time such payments are to be made.
(b) Any Participant or Beneficiary seeking to obtain payments
from the Trust Fund for any Trust after a Change in Control shall first file
with the Trustee a written request for payment in substantially the form annexed
hereto as Exhibit D ("Payment Request Form"). In the Payment Request Form so
filed, the Participant or Beneficiary shall
(i) identify the Plan or Plans under which the Participant or
Beneficiary has become entitled to payment of Benefits;
(ii) describe the events that entitle the Participant or
Beneficiary to receive payment of Benefits under the terms of the Plan
or Plans, and affirm under oath that such events have occurred;
(iii) affirm under oath that no amount of the Benefits with
respect to which payment from the Trust Fund is sought was previously
paid by the Applicable Company; and
(iv) provide such information (including, without limitation,
information as to the Participant's period of service, compensation and
conditions of employment after a Change in Control) as will enable the
Trustee to determine the amount of the Benefits that the Participant or
Beneficiary is entitled to receive in accordance with the Payment
Schedules furnished to the Trustee with respect to the Participant's
Benefits under the Plan or Plans.
In the case of any Beneficiary seeking payments from a Trust Fund, the
Beneficiary shall furnish to the Trustee, along with the Payment Request Form, a
certified copy of the death certificate of the Participant, an inheritance tax
waiver and such other documents as the Trustee may reasonably require,
including, without limitation, certified copies of letters testamentary. For all
purposes under this Agreement, the Trustee may rely, and shall be fully
protected in relying, on the information contained in any Payment Request Form
(and in any documents accompanying such form) filed with it by any Participant
or Beneficiary.
(c) As soon as practicable after a Payment Request Form has
been filed with it by a Participant or Beneficiary, the Trustee, solely out of
the
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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 Participant or
Beneficiary has filed a Payment Request Form with respect to Benefits under any
Plan for which an unrevoked Payment Schedule is not on file with the Trustee, to
assist it in determining such Participant's or Beneficiary's entitlement to
Benefits under such Plan. For all purposes under this Agreement, the Trustee may
rely, and shall be fully protected in relying, on any advice given to it by such
actuary as to the amount of Benefits payable hereunder to any Participant or
Beneficiary.
(d) Following the occurrence of a Change in Control, the
Trustee shall make provision for the reporting and withholding of any federal,
state or local taxes that may be required to be withheld with respect to the
payment of Benefits to be made from any Trust pursuant to the terms of this
Agreement, and shall pay amounts withheld by it to the appropriate taxing
authorities or determine that the amounts required to be withheld with respect
to such payments have been reported, withheld and paid by the Applicable
Company. Prior to a Change in Control, the Trustee shall report and withhold any
federal, state or local taxes that may be required to be withheld with respect
to any payment of Benefits to be made from any Trust pursuant to Section 4.1,
but only to the extent that the Applicable Company has furnished to the Trustee,
in the written instructions delivered to the Trustee pursuant to Section 4.1
directing it to make such payment, the amount of the federal, state or local
taxes required to be withheld with respect to such payment. The Trustee shall be
entitled to rely, and shall be fully protected in relying, upon the information
so furnished to it as to the amount of taxes to be withheld.
4.3 The entitlement of a Participant or Beneficiary to
Benefits under any Plan shall be determined by the Applicable Company or such
other party as may have been designated under the Plan, and any claim for such
Benefits shall be considered and reviewed under the procedures set out in the
Plan. Notwithstanding the foregoing, after a Change in Control, any Participant
or Beneficiary for whom any unrevoked Payment Schedule is on file with the
Trustee at the time of the Change in Control shall be presumed conclusively, for
all purposes of this Agreement, to be entitled to any Benefit that the Trustee
determines to be payable to such Participant or Beneficiary on the basis of the
information contained in such Payment Schedule and in any Payment Request Form
filed by the Participant or Beneficiary; and in such case, the provisions set
forth in the immediately preceding sentence shall apply only with respect to any
claim by the Participant or Beneficiary for Benefits that are in addition to, or
in excess of, the Benefits that the Trustee has so determined to be payable to
the Participant or Beneficiary.
4.4 Each payment made from the Trust Fund for any Trust with
respect to a Participant's Benefits under any Plan shall be payable only from,
and shall be charged against, the Plan Account maintained within such Trust Fund
with respect to such Plan and the Participant Account established within such
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
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amount of the payment otherwise required to be made exceeds the amount then held
in the Plan Account for such Plan or the amount then held in the Participant
Account established within such Plan Account for the applicable Participant.
If, because of the provisions of this Section 4.4, any amount
otherwise required to be paid by the Trustee to a Participant or Beneficiary
with respect to a Participant's Benefits under any Plan cannot be paid by the
Trustee, such amount shall be paid to the Participant or Beneficiary by the
Applicable Company.
4.5. At such time after a Change in Control as the aggregate
amount of the payments made hereunder from the Participant Account maintained
within any Plan Account for any Participant shall equal the maximum amount that
may be paid from such Participant Account pursuant to the most recent Payment
Schedule filed with respect to such Participant's Benefits under the Plan in
question, the balance then remaining in such Participant Account shall be
allocated and credited, on a pro rata basis, to all other Participant Accounts
maintained within such Plan Account, based on the respective values of such
other Participant Accounts determined as of the most recent Valuation Date.
At such time after a Change in Control as the aggregate amount
of the payments made from any Plan Account shall equal the maximum amount that
may be paid from such Plan Account pursuant to the most recent Payment Schedules
filed with respect to Participants' Benefits under the Plan for which such Plan
Account was established, the balance then remaining in such Plan Account shall
be allocated and credited, on a pro rata basis, to all other Plan Accounts and
Participant Accounts maintained within the same Trust Fund, based on the
respective values of such other Plan Accounts and Participant Accounts
determined as of the most recent Valuation Date.
4.6 Notwithstanding any other provision of this Agreement to
the contrary, if at any time any Trust is finally determined by the Internal
Revenue Service (the "IRS") not to be a "grantor trust," with the result that
the income of such Trust is not treated as income of the Applicable Company
pursuant to Sections 671 through 679 of the Code, such Trust shall immediately
terminate and the amounts allocated to each Plan Account and Participant Account
within such Trust shall be paid in a cash lump sum as soon as practicable by the
Trustee to the Participants for whom such Accounts were maintained. If any
Company should receive notice of such final determination from the IRS, such
Company shall promptly furnish written notice of such final determination to the
Trustee.
4.7 Notwithstanding any other provision of this Agreement to
the contrary, if the IRS should finally determine that any amounts held in any
Trust are includible in the gross income of any Participant or Beneficiary prior
to payment of such amounts from the Trust, the Trustee shall, as soon as
practicable, pay such amounts to such Participant or Beneficiary from such
Trust. For purposes of this Section 4.7, the Trustee shall be entitled to rely
on an affidavit by a Participant or Beneficiary to the effect that such a
determination has occurred.
4.8 Each Company may make payment of Benefits directly to
Participants or their Beneficiaries as they become due under the terms of the
Applicable Plans. After a Change in Control, a Company that decides to make
payment of Benefits directly shall notify the Trustee in writing of its decision
prior to the time amounts are payable to the Participants or their
Beneficiaries. In addition, each Company shall remain primarily liable to pay
all of the Benefits provided for under its Plans, to the extent such Benefits
are not payable from such Company's Trust pursuant to this Agreement.
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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.
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 shall take no further action with respect to the
claim. If the Trustee determines that there is a basis in law and fact for the
Participant's or Beneficiary's claim, the Trustee shall take the following
actions to assist the Participant or Beneficiary (hereafter referred to as the
"Claimant") to recover on such claim:
(a) The Trustee shall promptly attempt to negotiate with the Applicable
Company to obtain payment, settlement or other disposition of the
claim, subject to the Claimant's consent.
(b) If (i) negotiations fail after 60 days of their
commencement to result in a payment, settlement or other disposition
acceptable to the Claimant, (ii) the Trustee at any time reasonably
believes that further negotiations would not be in the Claimant's best
interest or (iii) any applicable statute of limitations would otherwise
expire within 60 days, the Trustee shall advise the Claimant of such
fact. Thereupon, the Claimant may, by filing with the Trustee a written
authorization in substantially the form attached hereto as Exhibit E,
direct the Trustee to institute and maintain legal proceedings (the
"Litigation") against the Applicable Company to recover on the claim on
behalf of the Claimant.
(c) The Trustee shall direct the course of any Litigation and
shall keep the Claimant informed of the progress thereof at such
intervals as the Trustee deems appropriate, but no less frequently than
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quarterly. The Trustee shall have the discretion to determine the form
and nature that any Litigation shall take, and the procedural rules and
laws applicable to such Litigation shall supersede any inconsistent
provision of this Agreement.
(d) If the Claimant directs in writing that the Litigation be
settled or discontinued, the Trustee shall take all appropriate action
to follow such direction, provided that such written direction
specifies the terms and conditions of the settlement or discontinuance
and provided further that the Claimant, if requested to do so by the
Trustee, executes and delivers to the Trustee a document in a form
acceptable to the Trustee releasing the Trustee and holding it harmless
from any liability resulting from its following such direction. If the
Claimant refuses to consent to a settlement or other disposition of the
Litigation on terms recommended in writing by the Trustee, the Trustee
may proceed, in its sole and absolute 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.
(e) A Claimant may at any time revoke the authorization of the
Trustee to continue any Litigation on his behalf by delivering to the
Trustee a written revocation in substantially the form attached as
Exhibit F hereto, and notifying the Trustee in writing that the
Claimant has appointed his own counsel (whose fees and expenses shall
not be paid from any Legal Defense Fund) to represent the Claimant in
the Litigation in lieu of counsel retained by the Trustee. Upon the
Trustee's receipt of such revocation and notice, the Trustee shall have
no obligation to proceed further on behalf of the Claimant in the
Litigation, or to pay any costs or expenses incurred in the Litigation
after the date on which such revocation and notice is delivered to the
Trustee.
(f) The Trustee shall be empowered to retain counsel and other
appropriate experts, including actuaries and accountants, to assist it
in making any determination under this Section 5.3, in determining
whether to pursue, settle or discontinue any Litigation, and to
prosecute and maintain any such Litigation on behalf of any Claimant.
Notwithstanding the foregoing, each Company, prior to a Change in
Control, may designate in writing the counsel to be retained by the
Trustee after a Change in Control to assist in enforcing the rights of
Claimants under such Company's Plans in accordance with the provisions
of this Section 5.3. If the counsel so designated declines to provide
representation, or if such counsel's representation would involve a
conflict of interest with the Trustee, or if the Trustee is not
satisfied with the quality of representation provided, the Trustee may
dismiss such counsel and engage another qualified law firm for this
purpose; provided, however, that any law firm so engaged may not be the
same law firm that represents any Company after a Change in Control. No
Company may dismiss or engage such counsel, or cause the Trustee to
engage or dismiss such counsel, after a Change in Control.
(g) All costs and expenses incurred by the Trustee in
connection with the performance of its duties under this Section 5.3,
including, without limitation, the payment of reasonable fees, costs
and disbursements of any counsel, actuaries, accountants or other
experts retained by the Trustee pursuant to Section 5.3(f), shall be
charged to and paid from the Applicable Company's Legal Defense Fund.
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(h) Notwithstanding any provision herein to the contrary, the
Trustee shall be required to act under this Section 5.3, including,
without limitation, instituting or continuing any Litigation, only to
the extent there are sufficient amounts available in the Applicable
Company's Legal Defense Fund to defray the costs and expenses the
Trustee reasonably anticipates will be incurred in connection with such
action. If, at any time after a Claimant has filed a written notice
with the Trustee under Section 5.3(a) the Trustee determines that there
will not be sufficient amounts in the Applicable Company's Legal
Defense Fund to defray such costs and expenses, the Trustee shall
promptly advise the Claimant of such fact. Unless within 30 days after
it has given such notice to the Claimant the Trustee receives from the
Claimant assurances, in such form as may be satisfactory to the
Trustee, that any costs and expenses in excess of amounts available in
the Applicable Company's Legal Defense Fund will be paid by the
Claimant, the Trustee shall have no obligation to take any further
action on behalf of the Claimant pursuant to this Section 5.3; and, if
a Litigation on behalf of the Claimant is then pending, the Trustee may
discontinue such Litigation on such terms and conditions as it deems
appropriate in its sole discretion.
5.4. If, at any time after a Change in Control or during a
Threatened Change in Control Period, legal proceedings are brought against the
Trustee by a Company or other party seeking to invalidate any of the provisions
of this Agreement as they relate to a Company's Trust, or seeking to enjoin the
Trustee from paying any amounts from any Trust or from taking any other action
otherwise required or permitted to be taken by the Trustee under this Agreement
with respect to any Trust, the Trustee shall take all steps that may be
necessary in such proceeding to uphold the validity and enforceability of the
provisions of this Agreement as they relate to such Trust. All costs and
expenses incurred by the Trustee in connection with any such proceeding
(including, without limitation, the payment of reasonable fees, costs and
disbursements of any counsel, actuaries, accountants or other experts retained
by the Trustee in connection with such proceeding) shall be charged to and paid
from the Applicable Company's Legal Defense Fund. Any costs and expenses so
incurred by the Trustee in excess of amounts available in the Applicable
Company's Legal Defense Fund shall be charged to and paid from the other assets
of such Company's Trust. Any such excess costs and expenses so charged shall be
allocated to the Plan Accounts maintained within such Trust, and to the
Participant Accounts maintained within such Plan Accounts, on a pro rata basis.
5.5 Each Company's Legal Defense Fund shall continue to be
held and administered by the Trustee for the purposes described in Section 5.1
until such time as all Benefits to which all Participants are entitled under all
of such Company's Plans shall have been paid in full to such Participants or
their Beneficiaries. Any balance then remaining in a Company's Legal Defense
Fund shall be distributed to such Company.
ARTICLE 6
Insolvency
----------
6.1 The Trustee shall cease making payment hereunder of
Benefits payable to Participants and their Beneficiaries pursuant to a Company's
Plans if the Company is Insolvent.
15
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 inquire whether the
Company is Insolvent. The Trustee may in all events rely on such
evidence concerning a Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for
making a determination concerning the Company's solvency.
(c) If at any time the Trustee has determined that a Company
is Insolvent, the Trustee shall discontinue making payments from such
Company's Trust to Participants and their Beneficiaries and shall hold
the assets of such Trust for the benefit of the Company's general
creditors. Nothing in this Agreement shall in any way diminish any
rights of Participants or their Beneficiaries to pursue their rights as
general creditors of the Applicable Company with respect to Benefits
due under the Company's Plans or otherwise.
(d) The Trustee shall resume making payment from a Company's
Trust of Benefits to Participants or their Beneficiaries in accordance
with Article 4 of this Trust Agreement only after the Trustee has
determined that the Company is not Insolvent, or is no longer
Insolvent.
6.3 Provided that there are sufficient assets, if the Trustee
discontinues the payment of Benefits from any Trust pursuant to Section 6.2
hereof and subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to
Participants or their Beneficiaries under the terms of the Applicable Company's
Plan for the period of such discontinuance, less the aggregate amount of any
payments made to Participants or their Beneficiaries by the Company in lieu of
the payments provided for hereunder during any such period of discontinuance.
ARTICLE 7
Payments to Company
-------------------
7.1 Prior to a Change in Control (but not during a Threatened
Change in Control Period), a Company may, by written notice to the Trustee,
direct the Trustee to pay to such Company, out of the Trust Fund for such
Company's Trust, such amount as is specified in the notice. Any such notice
shall specify the Plan Accounts and the Participant Accounts, if any, which
shall be debited with respect to such payment. If the amount that would remain
in the Trust Fund after any such payment would be less than the unpaid fees and
expenses of the Trustee properly chargeable to such Trust Fund, the Trustee may
deduct such fees and expenses from the payment that otherwise would be made to
the Company.
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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 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 management by such investment manager. All
directions given by an investment manager to the Trustee shall be in writing,
signed by an officer (or a partner) of the investment manager, or by such other
person or persons as may be designated by an officer (or a partner) of the
investment manager. The investment manager may directly place orders for the
purchase or sale of securities, subject to such conditions as may be approved by
the Applicable Company in authorizing the investment manager to effect
transactions directly with respect to the portion of the Trust Fund for any
Trust subject to its management, provided that the Trustee shall nevertheless
retain custody of the assets comprising such portion of the Trust Fund.
The Applicable Company, by written notice to the Trustee, may
at any time terminate its appointment of any investment manager. In such event,
the Applicable Company shall either appoint a successor investment manager for
the portion of the Trust Fund in question, or direct that such portion of the
Trust Fund thereafter be invested and reinvested by the Trustee in accordance
with the provisions of Section 8.1. Until receipt of such written notice, the
Trustee shall be fully protected in relying upon the most recent prior written
notice of appointment of an investment manager.
8.3 After a Change in Control, the Trustee shall have
exclusive authority and discretion to manage and control the investment and
reinvestment of the Trust Fund for each Trust; provided, however, that the Trust
Fund for each Trust shall be so invested and reinvested only in Permitted
Investments.
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8.4 In no event may the assets of any Trust be invested in
securities (including stock or rights to acquire stock) or obligations issued by
any Company, other than a de minimis amount held in common investment vehicles
in which the Trustee invests. All rights associated with assets of each Trust
shall be exercised by the Trustee or an Investment Manager appointed under
Section 8.2, and shall in no event be exercisable by or rest with Participants.
8.5 During the term of each Trust, all income received by the
Trust, net of expenses and taxes, shall be accumulated and reinvested.
ARTICLE 9
General Powers and Duties of Trustee
------------------------------------
9.1 In addition to the other powers granted to it under this
Agreement, the Trustee shall have the following administrative powers and
authority with respect to the property comprising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant options
for the purchase or exchange thereof, including call options for
property held in the Trust Fund and put options for the purchase
of such property, including, without limitation, at any time to
sell any asset other than cash held in the Trust Fund to pay
Benefits if there is not sufficient cash in the Trust Fund to pay
Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan
relating to any such property, and to consent to or oppose any such
plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale or other action by any corporation or other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate discretionary power to
any such committee; and to pay part of the expenses and compensation of
any such committee and any assessments levied with respect to any
property so deposited.
(d) To exercise any conversion privilege or subscription right
available in connection with any such property; to oppose or to consent
to the reorganization, consolidation, merger or readjustment of the
finances of any corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any corporation, company
or association of any of the securities of which may at any time be
held in the Trust Fund and to do any act with reference thereto,
including the exercise of options, the making of agreements or
subscriptions and the payment of expenses, assessments or
subscriptions, which may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other property
which it may so acquire.
(e) To commence or defend suits or legal proceedings and to
represent the Trust in all suits or legal proceedings; to settle,
compromise or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust.
(f) To exercise, personally or by general or limited power of
attorney, any right, including the right to vote, appurtenant to any
securities or other such property.
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(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.
(m) To hold any portion of the Trust Fund in cash pending
investment, or for the payment of expenses and Benefits, without
liability for interest.
(n) To vote personally or by proxy and to delegate power and
discretion over such proxy on account of securities held in the Trust
Fund.
(o) To hold assets in time or demand deposits (including
deposits with the Trustee in its individual capacity that pay a
reasonable rate of interest).
(p) To invest and reinvest all or any specified portion of any
Trust Fund through the medium of any common, collective, or commingled
trust fund that has been or may hereafter be established and maintained
by the Trustee.
19
(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 exercise the
powers referred to in Section 9.1(h) only as directed by the Applicable Company;
and, with respect to the portion of any Trust Fund for which an investment
manager has been appointed under Section 8.2, the Trustee shall exercise any
power referred to in this Section 9.1, as it relates to the investment
management of such portion of the Trust Fund, only as directed by such
investment manager. After a Change in Control, the Trustee may exercise such
powers in its sole and absolute discretion, except as otherwise provided in
Article 8.
Notwithstanding any powers granted to the Trustee pursuant to
this Agreement or to applicable law, the Trustee shall not have any power that
could give any Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall, subject to
Article 6 hereof, discharge its duties under this Agreement solely in the
interest of the beneficiaries of each Trust and (i) for the exclusive purpose of
providing Benefits to such beneficiaries and defraying reasonable expenses of
administering such Trust; (ii) with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent man acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; and (iii) by diversifying the
investments of the Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not to do so.
9.3 The Trustee shall not be required to give any bond or any
other security for the faithful performance of its duties under this Agreement,
except as required by law.
9.4 Except as otherwise expressly provided herein, the Trustee
shall not be responsible in any respect for administering any Plan; nor shall
the Trustee be responsible for the adequacy of the Trust Fund for any Trust to
meet and discharge all payments and liabilities under any Plan.
9.5 The Trustee shall be under no duties whatsoever except
such duties as are specifically set forth as such in this Agreement, and no
implied covenant or obligation shall be read into this Agreement against the
Trustee. Except as otherwise provided in Article 5, the Trustee shall not be
required to take any action toward the execution or performance of any Trust
created hereunder or to prosecute or defend any suit or claim in respect
thereof, unless indemnified to its satisfaction against loss, liability, and
reasonable costs and expenses. The Trustee shall be under no liability or
obligation to anyone with respect to any failure on the part of any Company to
perform any of its obligations under any Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall protect,
indemnify and save harmless the Trustee and its officers, directors or trustees,
employees and agents from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments,
20
demands, damages, reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any nature arising from or relating
to any action or failure to act by the Trustee, its officers, directors or
trustees, employees and agents with respect to any Trust, or arising from or
relating to the transactions contemplated by this Agreement that pertain to or
affect such Trust, except to the extent that any such loss, liability, action,
suit, demand, damage, cost or expense is the result of the negligence or willful
misconduct of the Trustee, its officers, directors or trustees, employees or
agents.
If the Trustee shall become entitled to indemnification by any
Company pursuant to this Section 9.6 and such Company fails to provide such
indemnification to the Trustee within 30 days of the Company's receipt of a
written request from the Trustee for such indemnification, the Trustee may apply
assets of such Company's Trust in full satisfaction of the Company's obligation
to make such indemnification. Promptly after any assets of any Trust are so
applied, the Trustee shall institute legal proceedings on behalf of the Trust to
recover from the Applicable Company an amount equal to the amount of any Trust
assets so applied.
ARTICLE 10
Taxes, Expenses, and Compensation of Trustee
--------------------------------------------
10.1 Each Company shall pay any federal, state, local or other
taxes imposed or levied with respect to the corpus and/or income of its Trust or
any part thereof under existing or future laws and such Company in its
discretion, or the Trustee in its discretion, may contest the validity or amount
of any tax, assessment, claim or demand respecting such Trust or any part
thereof.
10.2 Each Company shall pay to the Trustee its allocable share of
the compensation that is payable to the Trustee for its services hereunder
pursuant to the schedule of fees annexed hereto as Exhibit G. Each Company shall
also pay its allocable share of the reasonable and necessary expenses incurred
by the Trustee in the performance of its duties under this Agreement, including
reasonable fees of any counsel, actuary, accountant or other agent engaged by
the Trustee pursuant to this Agreement. Any such compensation or expenses shall
be allocated among the Companies as follows: in the case of any such
compensation that is specifically chargeable to, or any such expenses that were
specifically incurred with respect to, a particular Trust, the amount of such
compensation or expenses shall be allocated solely to the Applicable Company; in
the case of any such compensation that is not specifically chargeable to, or any
such expenses that were not specifically incurred with respect to, a particular
Trust, the amount of such compensation or expenses shall be allocated to the
Companies in proportion to the respective values of the Trust Funds for the
Companies' Trusts as of the Valuation Date immediately preceding the date as of
which the Trustee bills the Companies for such compensation or expenses. Each
Company's allocable share of such compensation and expenses shall be charged
against and paid from the Trust Fund for such Company's Trust, to the extent not
paid by such Company within 45 days after the date on which the Trustee bills
the Company for such compensation and expenses. Any amount so charged against
and paid from the Trust Fund for any Company's Trust shall be further allocated
to and charged against the Plan Accounts and Participant Accounts maintained
within such Trust (a) in such manner as the Applicable Company directs in
written instructions delivered by it to the Trustee, in the case of any amount
so charged and paid prior to a Change in Control; and (b) in proportion to the
respective balances of such Accounts as determined as of the most recent
Valuation Date, in the case of any amount so charged and paid after a Change in
Control.
21
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.
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 proceeding to which the Company and all persons
having any beneficial interest in its Trust were parties.
11.4 Nothing contained in this Agreement or in any Plan shall
deprive the Trustee of the right to have a judicial settlement of its accounts
with respect to any Trust. In any proceeding for a judicial settlement of the
Trustee's accounts or for instructions in connection with any Trust, the only
other necessary party thereto in addition to the Trustee shall be the Applicable
Company. If the Trustee so elects, it may bring in as a party or parties
defendant any other person or persons. No person interested in any Trust, other
than the Applicable Company, shall have a right to compel an accounting,
judicial or otherwise, by the Trustee, and each such person shall be bound by
all accounting by the Trustee to such Company, as herein provided, as if the
account had been settled by decree of a court of competent jurisdiction in an
action or proceeding to which such person was a party.
ARTICLE 12
Communications
--------------
12.1 With respect to any Trust, the Trustee shall be fully
protected in relying upon any written notice, instruction, direction or other
communication signed by an officer of the Applicable Company. Each Company from
time to time shall furnish the Trustee with the names and specimen signatures of
the officers of the Company authorized to act or give directions hereunder and
shall promptly notify the Trustee of the termination of office of any such
officer of the Company and the appointment of a successor thereto. Until
notified in writing to the contrary, the Trustee shall be fully protected in
relying upon the most recent list of the officers of the Company furnished to it
by the Company.
22
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 Secretary of the Company under its corporate seal, and the
Trustee shall be fully protected in relying upon any resolution so certified to
it. Unless other evidence with respect thereto has been specifically prescribed
in this Agreement, any other action of a Company under any provision of this
Agreement, including any approval of or exceptions to the Trustee's accounts,
shall be evidenced by a certificate signed by an officer of the Company, and the
Trustee shall be fully protected in relying upon such certificate. The Trustee
may accept a certificate signed by an authorized officer of a Company as proof
of any fact or matter that it deems necessary or desirable to have established
in the administration of such Company's Trust (unless other evidence of such
fact or matter is expressly prescribed herein) and the Trustee shall be fully
protected in relying upon the statements in the certificate.
12.3 The Trustee shall be entitled conclusively to rely upon
any written notice, instruction, direction, certificate or other communication
believed by it to be genuine and to be signed by the proper person or persons,
and the Trustee shall be under no duty to make investigation or inquiry as to
the truth or accuracy of any statement contained therein.
12.4 Until notice be given to the contrary, communications to
the Trustee shall be sent to it at its office at 210 Main Street, Hackensack,
New Jersey 07601, Attention: Corporate Agency Administration, Investment
Management Division; and communications to any Company shall be sent to it c/o
GPU 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 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
23
Participants who are or may become entitled to receive payments from such Trust.
Notwithstanding the foregoing, if no such appointment of a successor trustee has
been made by the effective date of such resignation or removal, the Trustee may
apply to a court of competent jurisdiction for appointment of a successor
trustee or for instructions. All expenses of the Trustee in connection with such
proceeding shall be allowed as administrative expenses of the Trust and shall be
paid by the Applicable Company.
13.4 Each successor trustee shall have the powers and duties
conferred upon the Trustee in this Agreement, and the term "Trustee" as used in
this Agreement, except where the context otherwise requires, shall be deemed to
include any successor trustee. Upon designation or appointment of a successor
trustee for any Trust, the Trustee shall transfer and deliver the Trust Fund for
such Trust to the successor trustee, reserving such sums as the Trustee shall
deem necessary to defray its expenses in settling its accounts with respect to
such Trust, to pay any of its compensation with respect to such Trust that is
due and unpaid, and to discharge any obligation of such Trust for which the
Trustee may be liable. If the sums so reserved are not sufficient for these
purposes, the Trustee shall be entitled to recover the amount of any deficiency
from either the Applicable Company or the successor trustee, or both. When the
Trust Fund for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust have been
settled as provided in Article 11 hereof, the Trustee shall be released and
discharged from all further accountability or liability for the Trust Fund for
such Trust and shall not be responsible in any way for the further disposition
of such Trust Fund or any part thereof.
ARTICLE 14
Amendments and Termination
--------------------------
14.1 Subject to Section 14.2, any or all of the provisions of
this Agreement and any Exhibits annexed hereto, as they relate to any Company's
Trust, may be amended at any time, without the consent of any Participant or
Beneficiary, by a written instrument of amendment, duly executed by the
Applicable Company and the Trustee. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Applicable Company's Plans or
shall make the Applicable Company's Trust revocable after it has become
irrevocable in accordance with Section 2.2 hereof.
14.2 No amendment may be made to delete a Participant from
Exhibit A or to delete a Plan from Exhibit B and no other provision of this
Agreement may be amended (i) during a Threatened Change in Control Period, (ii)
after a Change in Control, (iii) at the request of a third party who has
indicated an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control or (iv) otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or proposed and
which actually occurs unless in any such case the written consent of at least
two-thirds in number of the Participants who are or may become entitled to
payments from each Trust affected by such amendment is obtained, in which case
such amendment may be made. The Trustee may request that the Applicable Company
or Companies furnish evidence to establish that at least two-thirds of the
Participants have granted written consent to such an amendment.
14.3 Unless sooner revoked in accordance with Section 2.2
hereof, each Trust shall terminate on the date on which Participants and their
Beneficiaries are no longer entitled to receive Benefits pursuant to the terms
of the Applicable Company's Plans. Upon termination of any Trust, any assets
remaining in the Trust Fund for such Trust shall be paid by the Trustee to the
Applicable Company.
24
ARTICLE 15
Miscellaneous
-------------
15.1 Any provision of this Agreement prohibited by law shall
be ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
15.2 Benefits payable to Participants and their Beneficiaries
under this Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
15.3 This Agreement shall be governed by, and shall be
construed in accordance with, and each Trust hereby created shall be
administered in accordance with, the laws of the State of New Jersey.
15.4 The titles to Articles of this Agreement are placed
herein for convenience of reference only, and this Agreement is not to be
construed by reference thereto.
15.5 This Agreement shall bind and inure to the benefit of the
successors and assigns of each Company and the Trustee, respectively, and all
Participants and Beneficiaries under the Companies' Plans.
15.6 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute but one instrument, which may be sufficiently
evidenced by any counterpart.
25
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:_________________________________
F. D. Hafer, Chairman, President and
Chief Executive Officer
ATTEST:
- --------------------------
JERSEY CENTRAL POWER & LIGHT COMPANY
METROPOLITAN EDISON COMPANY
PENNSYLVANIA ELECTRIC COMPANY
By:_________________________________
F. D. Hafer, Chairman of the Board and
Chief Executive Officer
ATTEST:
- -------------------------
GPU NUCLEAR, INC.
By:_________________________________
T.G. Broughton, President and
Chief Executive Officer
ATTEST:
- --------------------------
GPU INTERNATIONAL, INC.
By:_________________________________
B. L. Levy, President and
Chief Executive Officer
ATTEST:
- ---------------------------
Summit Bank, Trustee
By: _________________________________
ATTEST:
- --------------------------
Exhibit A
List of Current Participants
Company Participants
Jersey Central Power
& Light Company Dennis P. Baldassari
Metropolitan Edison Company Dennis P. Baldassari
Pennsylvania Electric Company Dennis P. Baldassari
GPU Service, Inc. Robert C. Arnold (Retired)
Verner M. Condon (Retired)
Herman Dieckamp (Retired)
F. Allen Donofrio
John G. Graham
Fred D. Hafer
Terrance G. Howson
Ira H. Jolles
William G. Kuhns (Retired)
James R. Leva (Retired)
James B. Liberman (Retired)
Philip C. Mezey (Retired)
Mary A. Nalewako
Hazel R. O'Leary (Retired)
Carole B. Snyder
GPU Nuclear, Inc. Philip R. Clark (Retired)
Thomas G. Broughton
GPU International, Inc. Bruce L. Levy
GPU Generation, Inc. Robert L. Wise
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.
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.
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.
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.
GPU Generation, Inc.
- --------------------
1. The severance payment benefit provided under GPU
Generation, Inc.'s Severance Procedure.
2. All benefit amounts payable under the GPU Generation, 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 Generation, 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. 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.
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.
EXHIBIT C-1
GPU RABBI TRUST
PARTICIPANT INFORMATION
SOCIAL
NAME ADDRESS SECURITY NUMBER
---- ------- ---------------
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
Howson 49 Hillside Avenue ###-##-####
Madison, New Jersey 07940
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
Nalewako 31 Manor Lane ###-##-####
Morris Plains, New Jersey 07950
O'Leary 5610 Wisconsin Avenue PH20C ###-##-####
Chevy Chase, Maryland 20815
Snyder 8 Tudor Court ###-##-####
Mohnton, Pennsylvania 19540
Wise 701 Tioga Street ###-##-####
Johnstown, Pennsylvania 15905
EXHIBIT C-2
GPU RABBI TRUST
SEVERANCE PLAN - ______
TERMS OF PAYMENT:
- -----------------
AMOUNT OF PAYMENT:
- ------------------
Weeks Base Pay Payment
----- -------- -------
FORM/TIMING OF PAYMENT: Lump sum.
- -----------------------
EXHIBIT C-3
GPU RABBI TRUST
INCENTIVE COMPENSATION PLAN
TERM OF PAYMENT:
- ----------------
AMOUNT OF PAYMENT:
- ------------------
Payment
-------
FORM/TIMING OF PAYMENT: Lump sum.
- -----------------------
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.
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.
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 _______________________.
- -----------------------
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.
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.
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.
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 4/20/95, signed 4/20/95).
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.
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
11/1/96).
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.
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. (_________).
AMOUNT OF PAYMENT:
- ------------------
FORM/TIMING OF PAYMENT: On or before __________________________ the amount
indicated above shall be paid to the participant or his beneficiary.
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 and
February 6, 1997, pursuant to Section 4.3 thereof, hereby request that [Name of
Bank], as Trustee thereunder, make payment to me of the Benefits to which I am
entitled as [Participant or Beneficiary] in accordance with the terms of the
Trust Agreement and the following [Company Name] Plans:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
I hereby attest, certify and affirm that to the best of my knowledge
and belief the following events, upon which entitlement to and payment of
Benefits under said Plans is conditioned, have occurred:
[Insert Description of events that have occurred]
-------------------------------------------------
I further attest, certify and affirm that [Name of Company] has not
paid any of the Benefits claimed herein under said plans.
I am [or The Participant was] ____ years of age, having been born on
[Date of Birth]. I have been/was [or the Participant was] employed by [Name of
Company] from [Date] to [Date]. The [Name of Company] records detailing my
[his/her] compensation and the terms and conditions of employment, if any, are
attached hereto and made a part hereof.
Dated:_________________ ___________________________
[Name of Participant]
---------------------------
---------------------------
[Address & Telephone No.]
EXHIBIT E
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 and February 6,
1997, 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.]
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 and February 6,
1997, 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]
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---------------------------
---------------------------
[Address & Telephone No.]