Exhibit 10(xxviii)
DOMINION RESOURCES, INC.
RETIREMENT BENEFIT FUNDING PLAN
Effective June 29, 1990
TABLE OF CONTENTS
Article Page
INTRODUCTION
ARTICLE I DEFINITIONS
1.01. Account................................................ 1
1.02. Administrative Benefit Committee....................... 1
1.03. Administrative and Investment Benefit Committee........ 1
1.04. Affiliate.............................................. 1
1.05. Alternate Payee........................................ 1
1.06. Beneficiary............................................ 1
1.07. Code................................................... 2
1.08. DRI.................................................... 2
1.09. DRI Board.............................................. 2
1.10. DRI Committee.......................................... 2
1.11. DRI Participant........................................ 2
1.12. Employer............................................... 2
1.13. ERISA.................................................. 2
1.14. Investment Manager..................................... 2
1.15. Nonregulated Subsidiary................................ 2
1.16. Participant............................................ 3
1.17. Plan................................................... 3
1.18. Plan Administrator..................................... 3
1.19. Plan Year.............................................. 3
1.20. Qualified Domestic Relations Order..................... 3
1.21. Special Trust.......................................... 3
1.22. Trust.................................................. 3
1.23. Trustee................................................ 3
1.24. Trust Fund............................................. 3
1.25. Valuation Date......................................... 3
1.26. Virginia Power......................................... 3
1.27. Virginia Power Board................................... 3
1.28. Virginia Power Committee............................... 3
1.29. Virginia Power Participant............................. 3
ARTICLE II PARTICIPATION.................................... 4
ARTICLE III CONTRIBUTIONS
3.01. Employer Contributions................................. 4
3.02. Transfer Contributions................................. 4
3.03. General Provisions on Contributions.................... 5
ARTICLE IV ALLOCATIONS
4.01. Participants' Accounts................................. 5
4.02. Allocation of Contributions and Transfers.............. 6
4.03. Schedule of Contributions.............................. 6
4.04. Other Allocations...................................... 6
4.05. Subaccount Recordkeeping............................... 7
ARTICLE V VESTING........................................... 7
ARTICLE VI DISTRIBUTIONS
6.01. Periodic Distributions................................. 7
6.02. Separation from Service................................ 8
6.03. Participants in Pay Status............................. 10
6.04. Death Benefits......................................... 10
ARTICLE VII APPOINTMENTS AND ALLOCATION OF
FIDUCIARY RESPONSIBILITY
7.01. Sponsor, Named Fiduciary............................... 11
7.02. Accountant............................................. 11
7.03. Insurer................................................ 11
7.04. Investment Manager..................................... 12
7.05. Trustee................................................ 12
7.06. Allocation of Responsibility........................... 12
7.07. General................................................ 13
7.08. Fiduciary Discretion................................... 13
ARTICLE VIII COMMITTEES
8.01. General................................................ 13
8.02. Members................................................ 14
8.03. Voting................................................. 14
8.04. Delegation of Responsibilities......................... 14
8.05. Duties................................................. 15
8.06. Action Affecting Committee Member...................... 15
8.07. Agents................................................. 15
8.08. Officers............................................... 15
8.09. Rules.................................................. 16
ARTICLE IX ADMINISTRATION OF THE PLAN
9.01. Duties of Participants and Beneficiaries............... 16
9.02. General................................................ 16
9.03. Disclosure............................................. 17
9.04. Annual Accountings..................................... 17
9.05. Expenses - Compensation................................ 18
9.06. Directions to Trustee, Insurers and Investment
Managers............................................ 18
9.07. Claims Procedure....................................... 19
ARTICLE X OBLIGATIONS OF EMPLOYER
10.01. No Contract or Inducement.............................. 20
10.02. No Right to Employment................................. 20
10.03. Obligation for Benefits................................ 20
ARTICLE XI AMENDMENT AND TERMINATION OF PLAN
11.01. Amendment of the Plan.................................. 21
11.02. Termination of the Plan................................ 21
ARTICLE XII GENERAL PROVISIONS
12.01. Interpretation......................................... 21
12.02. Merger, Consolidation and Transfers of Assets
or Liabilities...................................... 22
12.03. Limitation on Assignment............................... 22
12.04. Discharge of Liability................................. 22
12.05. Payments to Minors and Incompetents.................... 23
12.06. Unclaimed Benefits..................................... 23
12.07. Headings and Subheadings............................... 23
12.08. Use of Masculine and Feminine, Singular and Plural..... 23
12.09. Governing Law.......................................... 23
12.10. Errors and Omissions................................... 23
EXECUTION..................................................... 24
INTRODUCTION
Dominion Resources, Inc. and its Affiliates have made various benefit
promises and commitments to certain of their current and former elected
officers. The Board of Directors of Dominion Resources, Inc. and the Board
of Directors of Virginia Electric and Power Company determined that the
adoption of the Dominion Resources, Inc. Retirement Benefit Funding Plan, which
is designed to permit the funding of certain benefits promised to Participants,
would assist them in attracting and retaining those employees whose judgment,
abilities, and experience will contribute to the continued success of Dominion
Resources, Inc. and its Affiliates.
The Plan is intended to be an employee pension benefit plan within the
meaning of Section 3(2) of ERISA. The Trust that has been established in
conjunction with the Plan is intended to be a "grantor trust" under Code
sections 671 through 679 such that the income of the Trust Fund will be
includible in income by the Employers. The Plan and Trust shall be administered
and interpreted in accordance with these intentions.
ARTICLE I
DEFINITIONS
1.01. Account means the separate account that is established for each
Participant. A Participant's Account is comprised of three subaccounts: the
ESRP Account, the Benefit Restoration Account, and the Credited Service
Account.
1.02. Administrative Benefit Committee means the committee comprised of the
individuals appointed by the Administrative and Investment Benefit Committee
in accordance with Section 8.01.
1.03. Administrative and Investment Benefit Committee means the committee
comprised of the individuals appointed by the Virginia Power Board in
accordance with Section 8.01.
1.04. Affiliate means an employer, whether or not incorporated, which with
Virginia Power is treated as a single employer under section 414(b), 414(c),
414(m) or 414(n) of the Code as determined before the application of the
provisions of section 414(r) of the Code.
1.05. Alternate Payee means a Participant's spouse, former spouse, child or
other dependent who is recognized in a Qualified Domestic Relations Order as
having, or who is assigned, a right to receive all or a portion of the
benefit payable to a Participant under the Plan.
1.06. Beneficiary means an individual or entity that is entitled to receive
any benefits that may be payable under the Plan on or after a Participant's
death. The Participant's Beneficiary shall be determined in accordance with
the following subsections.
(a) The Beneficiary shall be the Participant's surviving spouse unless
such spouse has consented in writing to the Participant's designation of a
different Beneficiary. The surviving spouse's consent must be in writing, must
acknowledge the effect of the Participant's election, and must be witnessed
by a Plan representative or notary public. With the consent of the surviving
spouse, the provisions of subsection (b) are effective for that Participant.
The provisions of subsection (b) also shall be effective with respect to a
Participant if the Plan Administrator is satisfied that the consent of the
surviving spouse cannot be obtained because the Participant has no spouse,
because the spouse cannot be located, or because of such other circumstances
as applicable regulations may provide.
(b) Except as provided in subsections (a) and (c), the Beneficiary shall
be the individual or entity designated by the Participant. In the absence of an
effective designation and if subsections (a) and (c) are not applicable, the
Beneficiary shall be the surviving spouse, if any, the Participant's children,
per stirpes, and if none, the Participant's estate.
(c) To the extent provided in a Qualified Domestic Relations Order, the
Beneficiary shall be the Alternate Payee recognized by the order as having a
right to receive all or a portion of the benefits payable under the Plan
on behalf of the Participant following the Participant's death.
1.07. Code means the Internal Revenue Code of 1986, as amended.
1.08. DRI means Dominion Resources, Inc.
1.09. DRI Board means the Board of Directors of DRI.
1.10. DRI Committee means the Organization and Compensation Committee of the
DRI Board.
1.11. DRI Participant means an individual who is or was an elected officer of
DRI or a Nonregulated Subsidiary and who has been designated to participate in
the Plan in accordance with Article II.
1.12. Employer means Virginia Power and each Affiliate that, with the approval
of the Virginia Power Board, has elected to contribute to the Plan on behalf
of one or more employees.
1.13. ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
1.14. Investment Manager means a fiduciary who satisfies the requirements
of ERISA section 3(38) and who is appointed by the Administrative Benefits
Committee to manage, acquire, or dispose of Trust Fund assets.
1.15. Nonregulated Subsidiary means Dominion Capital, Inc., Dominion Energy,
Inc., Dominion Lands, Inc. or another corporation (i) in which DRI owns stock
possessing at least 50 percent of the combined voting power of all classes
of stock and (ii) which is not subject to regulation as a public service
corporation by the State Corporation Commission of Virginia.
1.16. Participant means an individual who satisfies the requirements of
Article II and includes the DRI Participants and the Virginia Power
Participants.
1.17. Plan means the Dominion Resources, Inc. Retirement Benefit Funding Plan.
1.18. Plan Administrator means Virginia Power.
1.19. Plan Year means the calendar year.
1.20. Qualified Domestic Relations Order means a judgment, decree, order,
or approval of a property settlement that satisfies the requirements of
ERISA section 206(d)(3)(B).
1.21. Special Trust means the Dominion Resources, Inc. Special Trust Agreement
between DRI and Mellon Bank, N.A. and effective as of December 1, 1986.
1.22. Trust means the entity created pursuant to the agreement between
Virginia Power and the Trustee relating to the Plan.
1.23. Trustee means Mellon Bank, N.A.
1.24. Trust Fund means the assets of the Plan that are held in the Trust.
1.25. Valuation Date means the last business day of each calendar quarter.
1.26. Virginia Power means Virginia Electric and Power Company.
1.27. Virginia Power Board means the Board of Directors of Virginia Power.
1.28. Virginia Power Committee means the Organization and Compensation
Committee of the Virginia Power Board.
1.29. Virginia Power Participant means an individual who is or was an
elected officer of Virginia Power and who has been designated to participate
in the Plan in accordance with Article II.
ARTICLE II
PARTICIPATION
An individual who is or was an elected officer of Virginia Power and
who is designated by the Virginia Power Board to participate in the Plan shall
be a Participant. An individual who is or was an elected officer of DRI or
a Nonregulated Subsidiary and who is designated by the DRI Board to participate
in the Plan shall be a Participant. The Plan Administrator shall notify each
individual upon his qualification to become a Participant in the Plan.
Participation in the Plan ceases when a Participant's entire Account in the
Plan has been distributed.
ARTICLE III
CONTRIBUTIONS
3.01. Employer Contributions.
In each Plan Year, each Employer shall contribute to the Trust Fund the
amount, if any, that the Employer determines in its discretion to be its
contribution for the Plan Year. An Employer's contribution shall be made only
from its current or accumulated profits, as determined on the basis of its
financial statements and in accordance with its standard and customary
accounting practices for financial reporting. If an Employer is prevented from
making a contribution for any Plan Year because it lacks sufficient current
or accumulated profits, that Employer's contribution may be made, but is not
required to be made, by one or more other Employers. Notwithstanding the
foregoing, all Employer contributions on behalf of Virginia Power Participants
are subject to the approval of the Virginia Power Board and all contributions
on behalf of DRI Participants are subject to the approval of the DRI Board.
3.02. Transfer Contributions.
In lieu of or in addition to a contribution pursuant to Section 3.01, an
Employer may direct that an amount be transferred to the Trust from the Special
Trust. All such transfers on behalf of Virginia Power Participants shall be
subject to the approval of the Virginia Power Board and all such transfers on
behalf of DRI Participants shall be subject to the approval of the DRI Board.
In addition, all such transfers shall be in accordance with the terms of the
Special Trust.
3.03. General Provisions on Contributions.
(a) The Trustee is not required to collect Employer contributions or
transfer contributions pursuant to Section 3.02 and is reponsible only for
assets received in its capacity as Trustee. Subject to the approval of the
Virginia Power Committee (with respect to Virginia Power Participants) or the
DRI Committee (in the case of DRI Participants), an Employer may cause each
Plan Year's Employer contributions or transfers pursuant to Section 3.02
to be paid to the Trust in installments and on the dates that it selects.
(b) Unless allocated as of an earlier date, any contributions made to the
Plan by an Employer or transferred pursuant to Section 3.02 after the first day
of a Plan Year may be held by the Trustee and invested as a segregated account,
commingled with the Trust Fund, and allocated to Participants' Accounts as of
the last day of the Plan Year. The Trustee shall maintain such records as may be
necessary to assure that such contributions and amounts attributable to such
contributions are allocated to the proper Participants' Accounts as otherwise
provided by the Plan.
ARTICLE IV
ALLOCATIONS
4.01. Participants' Accounts.
The Plan Administrator shall cause an Account to be established and
maintained in the name of each Participant. Each Participant's Account
shall be comprised of three subaccounts: an ESRP Account, a Benefit
Restoration Account, and a Credited Service Account. Each Participant's
Account shall be credited with the Participant's share of amounts contributed
or transferred to the Trust pursuant to Article III, as well as a proportionate
share of the net earnings, gains, or losses of the Trust Fund and any
distributions from the Account.
4.02. Allocation of Contributions and Transfers.
Amounts contributed or transferred to the Trust pursuant to Article III,
if any, shall be allocated among Participants' Accounts as of the date
specified by the Virginia Power Committee (in the case of Virginia Power
Participants) or the DRI Committee (in the case of DRI Participants) or, if no
date is specified, the last day of the Plan Year.
4.03. Schedule of Contributions.
At least annually, the Plan Administrator shall furnish the Trustee a
schedule showing as to each Participant the amount, if any, of contributions
or transfers pursuant to Article III to be allocated to each Participant's
Account. The Plan Administrator also shall provide to the Trustee a schedule
showing the amount of any such contribution or transfer that is to be
allocated to the ESRP Account, the Benefit Restoration Account, and the
Credited Service Account of each Participant.
4.04. Other Allocations.
(a) As of each Valuation Date, before crediting any amounts allocated
to a Participant's Account under Section 4.02, the Trustee shall revalue the
net assets of the Trust Fund at their then current market value to reflect
any increase or decrease in the value of the investments of the Trust Fund
as of that date as compared with the total value of the Trust Fund on the
last preceding Valuation Date.
(b) As of each Valuation Date, after revaluing the assets of the Trust
Fund as provided in subsection (a) and before crediting any amounts allocated
to a Participant's Account under Section 4.02, the Trustee shall apportion
among the separate Accounts of all Participants the net income or loss earned
by the Trust Fund during the period following the preceding Valuation Date.
Such income or loss shall be apportioned on the basis of the Account balances
of the Participants as of the beginning of such Plan Year.
(c) If any interim contributions or transfers have been held in a
segregated account as provided in Section 3.03(b), any income attributable
to such contributions shall be allocated to the appropriate Account of each
Participant to whom such contributions or transfers are allocated.
4.05. Subaccount Recordkeeping.
Allocations to a Participant's Account pursuant to Sections 4.02 and 4.04
shall be further allocated between each Participant's ESRP Account, Benefit
Restoration Account, and Credited Service Account. The further allocation
of amounts allocated pursuant to Section 4.02 shall be made on the basis of
the Employer's direction, as approved by the Virginia Power Committee (in the
case of Virginia Power Participants) or the DRI Committee (in the case of DRI
Participants), and as reflected in the schedule described in Section 4.03.
The further allocation of amounts allocated pursuant to Section 4.04 shall
be made on the basis of the relative value of the Participant's ESRP Account,
the Benefit Restoration Account, and the Credited Service Account as of the
immediately preceding Valuation Date.
ARTICLE V
VESTING
Each Participant shall at all times have a fully vested and nonforfeitable
interest in his Account.
ARTICLE VI
DISTRIBUTIONS
6.01. Periodic Distributions.
As soon as practicable after an amount is allocated to a Participant's
Account under Section 4.02, but in any event before the April 15 of the Plan
Year following the Plan Year in which the allocation was made, a distribution
shall be made from the Account of each Participant as provided in the following
sentences. The amount to be distributed shall be the amount that the Virginia
Power Committee (in the case of Virginia Power Participants) or the DRI
Committee (in the case of DRI Participants) determines is required by the
Participant to satisfy the federal, state, and local income tax liability
attributable to the allocation. The amount distributed pursuant to this Section
shall be charged to the Participant's ESRP Account, Benefit Restoration
Account, and Credited Service Account in proportion to the contributions or
transfers allocated to such subaccounts for the Plan Year.
6.02. Separation from Service.
(a) A Participant who separates from the service of Virginia Power and
its Affiliates after June , 1990, shall be entitled to the benefits that
may be provided by his Account balance as of the Valuation Date coincident
with or immediately preceding such date, plus any amounts that are
subsequently allocated to his Account pursuant to Article IV. Benefits shall
be distributed to the Participant in accordance with the following
subsection (b) or (c).
(b) The value of the Participant's Account, as of the applicable Valuation
Date, may be segregated and, by way of example and not of limitation, may
be invested in a savings account, money market fund, or other interest-
bearing investment medium. The Plan Administrator shall determine the
projected Trust Fund earnings allocable to the Participant's Account (based
on the value of the Account as of the applicable Valuation Date) during the
period beginning with the Participant's separation from service and ending
one hundred and twenty months thereafter. The amount payable to the Participant
each month shall be the amount that, based on the Plan Administrator's
determination of projected earnings, will provide one hundred twenty
substantially equal payments to the Participant. Notwithstanding the
foregoing, the amount distributable from the Participant's ESRP Account shall
not be greater than the amount required to fully satisfy the obligation of
Virginia Power and DRI to the Participant under the Dominion Resources, Inc.
Executive Supplemental Retirement Plan and the amount distributable from the
Participant's Credited Service Account shall not be greater than the
amount required to fully satisfy the obligation of Virginia Power and DRI
to the Participant under any contractual agreement related to the Participant's
years of credited service for employee benefit plan purposes. The payments
to the Participant shall end when the entire value of his Account has
been distributed and the final payment to the Participant shall equal
his remaining balance in his Account. Distributions under this Section
6.02(b) shall begin with the first day of the month next following the day
that the Participant separates from the service of Virginia Power and its
Affiliates.
(c) In lieu of the benefit described in subsection (b), and with the
consent of the Administrative Benefit Committee, a Participant may elect to
receive his benefit under the Plan during a period that is more than ten years
but less than the lesser of (i) sixteen years or (ii) the remaining period of
the Participant's life expectancy. A Participant's election under this
subsection must provide for benefit payments under the Plan on the same basis
as his benefit payments under the Dominion Resources, Inc. Executive
Supplemental Retirement Plan. If a Participant makes the election described
in this subsection, the value of the Participant's Account, as of the
applicable Valuation Date, may be segregated and, by way of example and not
of limitation, may be invested in a savings account, money market fund, or
other interest-bearing investment medium. If a Participant makes the election
described in this subsection, the Plan Administrator shall determine the
projected Trust Fund earnings allocable to the Participant's Account (based
on the value of the Account as of the applicable Valuation Date) during the
period beginning with the Participant's separation from service and ending
with the last month of the distribution period selected by the Participant.
The amount payable to the Participant each month shall be the amount that,
based on the Plan Administrator's determination of projected earnings, will
provide substantially equal payments to the Participant during the
distribution period selected by the Participant. Notwithstanding the foregoing,
the amount distributable from the Participant's ESRP Account shall not be
greater than the amount required to fully satisfy the obligation of Virginia
Power and DRI to the Participant under the Dominion Resources, Inc.
Supplemental Retirement Plan and the amount distributable from the
Participant's Credited Service Account shall not be greater than the amount
required to fully satisfy the obligation of Virginia Power and DRI to the
Participant under any contractual agreement related to the Participant's years
of credited service for employee benefit plan purposes. The payments to the
Participant shall end when the entire value of his Account has been distributed
and the final payment to the Participant shall equal his remaining balance in
his Account. Distributions under this subsection shall begin with the first
day of the month next following the day that the Participant separates from the
service of Virginia Power and its Affiliates. An election under this
subsection shall be made in writing and delivered to the Plan Administrator,
and shall take effect as of the date that benefits are to commence being paid
to the Participant. An election may be altered, amended, or revoked by the
Participant prior to the date on which the first benefit payment is
scheduled to be paid. After the date that the first benefit payment is
scheduled to be paid, no further elections or adjustments will be permitted.
6.03. Participants in Pay Status.
A Participant who separated from the service of Virginia Power and its
Affiliates on or before June __, 1990, shall be entitled to receive his benefits
as provided in the following sentences. The value of the Account of a
Participant described in the preceding sentence may be segregated and, by way of
example and not of limitation, may be invested in a savings account, money
market fund, or other interest-bearing investment medium. The Plan Administrator
shall determine the projected Trust Fund earnings allocable to the Participant's
Account (based on the value of the Account as of the applicable Valuation Date)
during the period beginning with the Participant's selection as a Participant
and ending with the last month for which a benefit is payable to the Participant
under the Dominion Resources, Inc. Executive Supplement Retirement Plan. The
amount payable to the Participant each month shall be the amount that, based on
the Plan Administrator's determination of projected earnings, will provide equal
monthly payments to the Participant during the period described in the preceding
sentence. Notwithstanding the foregoing, the amount distributable from the
Participant's ESRP Account shall not be greater than the amount required to
fully satisfy the obligation of Virginia Power and DRI to the Participant under
the Dominion Resources, Inc. Executive Supplemental Retirement Plan and the
amount distributable from the Participant's Credited Service Account shall not
be greater than the amount required to fully satisfy the obligation of Virginia
Power and DRI to the Participant under any contractual agreement related to the
Participant's years of credited service for employee benefit plan purposes. The
payments to the Participant shall end when the entire value of his Account has
been distributed and the final payment to the Participant shall equal his
remaining balance in his Account. The payments under this Section shall begin on
the first day of the month next following the day that the Participant is
selected to participate in the Plan.
6.04. Death Benefits.
(a) If a Participant dies after the commencement of benefit payments
under Section 6.02 or 6.03 but before he has received his entire interest in his
Account, the remainder of the Participant's interest in his Account shall be
paid to the Participant's Beneficiary in the same manner that the Participant
was receiving benefits before his death.
(b) If a Participant dies before the commencement of benefit payments
under Section 6.02 or 6.03, the value of his Account shall be paid to his
Beneficiary in the manner described in Section 6.02(b) or 6.03, as applicable.
(c) A Beneficiary who is receiving benefits under this Section may
designate a beneficiary who will be entitled to receive any benefits that remain
to be paid to the Beneficiary after the Beneficiary's death. Such designation
shall be made in the same manner as the Participant's designation of a
Beneficiary.
ARTICLE VII
APPOINTMENTS AND ALLOCATION
OF FIDUCIARY RESPONSIBILITY
7.01. Sponsor, Named Fiduciary.
Virginia Power is hereby designated and appointed the sponsor and named
fiduciary of the Plan.
7.02. Accountant.
To the extent required by law, the Administrative Benefit Committee shall
designate as accountant for the Plan a person recognized by the Secretary of
Labor as an independent qualified public accountant or a firm which maintains on
its staff at least one such person. Such entity shall be engaged by the
Administrator to perform (to the extent required by law) in accordance with
generally accepted accounting principles the examination of the financial
statements and other books and records of the Plan that are necessary to enable
it to form and render an opinion as to whether the financial statements and
schedules required by law to be included in the annual report of the Plan are
presented fairly and in conformity with generally accepted accounting principles
applied on a basis consistent with that of the preceding year and to render such
other opinions and perform such other services with regard to the Plan as may be
necessary or desirable.
7.03. Insurer.
The Administrative Benefit Committee may designate one or more insurance
companies licensed to do business in Virginia to invest or insure part or all of
the assets of the Plan.
7.04. Investment Manager.
The Administrative Benefit Committee, acting as a named fiduciary for
this purpose, may appoint an Investment Manager to manage all or a designated
part of the assets of the Trust Fund. An Investment Manager shall have complete
control and authority over all matters concerning the investment of assets under
its direction and control, including brokerage transactions. When an Investment
Manager has been appointed and has accepted its fiduciary responsibility to the
Plan in writing, the Trustee shall be under no obligation to invest the portion
of the Trust Fund under the control of the Investment Manager and shall not
incur any liability with respect to that portion of the Trust Fund unless it
shall knowingly participate in or knowingly conceal another party's breach of
its fiduciary responsibilities with respect to that portion of the Trust Fund.
Nothing herein, however, shall relieve the Trustee of responsibility for its
acts or omissions as Trustee.
7.05. Trustee.
The Virginia Power Board must appoint a Trustee. A Trustee may resign at
any time upon 60 days' written notice to Virginia Power or such other period as
may be agreed upon in writing by Virginia Power and the Trustee. The Virginia
Power Board may remove a Trustee at any time upon like notice to the Trustee. In
either event, the Virginia Power Board may appoint a successor Trustee or
Trustees. Any successor Trustee shall become vested with all the estate, rights,
powers, discretion and duties of a Trustee hereunder.
7.06. Allocation of Responsibility.
The Virginia Power Board, through this document, has delegated certain
fiduciary responsibilities to various committees. The Virginia Power Board (or
any committee to which it has delegated a function hereunder) shall have the
power to further allocate fiduciary responsibilities among other fiduciaries and
to designate fiduciaries and nonfiduciaries to carry out other responsibilities
in order to provide for the orderly operation and administration of the Plan.
Any allocation, delegation, or other assignment of duties with regard to the
Plan shall continue until it is revoked, modified, or altered. To the extent
allowed by law, each fiduciary's responsibility is limited to the duties
allocated or assigned to the fiduciary. Fiduciaries serving under the Plan may
serve in more than one fiduciary capacity.
7.07. General.
A person or entity serving in a fiduciary capacity to the Plan may employ
one or more persons to render advice as to his or its responsibilities
hereunder. Any person serving under the Plan without compensation may, with the
approval of the Virginia Power Committee, have his reasonable expenses incurred
in serving hereunder reimbursed from the Fund.
7.08. Fiduciary Discretion.
In discharging the duties assigned to it under the Plan, each fiduciary
has the discretion to interpret the Plan; adopt, amend, and rescind rules and
regulations pertaining to his or its duties under the Plan; and to make all
other determinations necessary or advisable for the discharge of his or its
duties under the Plan. Each fiduciaries' discretionary authority is absolute and
exclusive if exercised in a uniform and nondiscriminatory manner with respect to
all similarly situated individuals. The express grant in the Plan of any
specific power to a fiduciary with respect to any duty assigned to him or it
under the Plan must not be construed as limiting any power or authority of the
fiduciary to discharge him or its duties.
ARTICLE VIII
COMMITTEES
8.01. General.
One or more committees may be established to carry out various functions
relating to the Plan. The committees currently constituted, how they are
appointed and their specific responsibilities are as follows:
(a) Virginia Power Committee. The Virginia Power Committee is a committee
of and appointed by the Virginia Power Board. It is responsible for recommending
to the Virginia Power Board: contributions or transfers pursuant to Article III
on behalf of Virginia Power Participants, allocations to Virginia Power
Participants' Accounts; and amendments to the Plan or the Trust. The Virginia
Power Committee is also responsible for establishing a funding policy for the
Plan with respect to Virginia Power Participants.
(b) DRI Committee. The DRI Committee is a committee of and appointed by
the DRI Board. It is responsible for recommending to the DRI Board:
contributions or transfers pursuant to Article III on behalf of DRI Participants
and allocations to DRI Participants' Accounts. The DRI Committee is also
responsible for establishing a funding policy for the Plan with respect to DRI
Participants.
(c) Administrative and Investment Benefit Committee. The Administrative
and Investment Benefit Committee is appointed by the Virginia Power Board. This
committee is responsible for establishing an investment policy for the Plan.
This committee also appoints the Administrative Benefit Committee.
(d) Administrative Benefit Committee. This committee is responsible for:
selecting an accountant and Investment Managers; communicating the Plan's
investment policy (established by the Administrative and Investment Benefit
Committee) to the Trustee and any Investment Manager; the review of the Trust
Fund's investment performance; assuring that established investment policies are
carried out; supervising administration; determining benefits; and maintaining
records.
8.02. Members.
Each committee shall consist of not less than 3 nor more than 7 persons.
Any member of a committee may be removed at any time and for any reason by the
entity which appointed him. Any member of a committee may resign at any time
by giving notice to the appointing entity.
8.03. Voting.
Except as otherwise specifically provided herein, all acts and decisions
of a committee shall be on the concurrence of a majority of the members. Any
decision of a committee shall be evidenced in writing.
8.04. Delegation of Responsibilities.
Each committee may delegate to any of its members or to the secretary
of the committee authority to sign any documents on its behalf, or to perform
solely ministerial acts, but such person shall not exercise any discretion
over matters delegated to him without obtaining the concurrence of a majority
of the members. If at any time there is less than 3 members of a committee,
the remaining members shall have authority to act as a committee. All acts and
determinations of a committee shall be duly recorded by the secretary thereof
and all such records, together with such other documents as may be necessary,
shall be preserved by the secretary.
8.05. Duties.
Each committee shall have control of the duties set out in Section 8.01
or specifically allocated to it under Article VII or which are delegated to it
by the Virginia Power Board or the DRI Board, as applicable, and shall have all
necessary powers to carry out its duties. Any delegation of authority by the
Virginia Power Board or the DRI Board to a committee shall be made in writing
and specify the nature and scope of such delegation. In exercising its duties
hereunder, each committee shall at all times act in a uniform, equitable and
nondiscriminatory manner. Notwithstanding its powers granted hereunder, no
committee shall have the power to modify any provision of the Plan in any way.
8.06. Action Affecting Committee Member.
A member of a committee who is also a Participant shall abstain from any
action which directly affects him as a Participant and which does not also
similarly affect all similarly situated Participants. In the event of an
abstention, such matter shall be decided by the remaining members of the
committee. Nothing herein shall prevent any member of a committee who is also
a Participant or Beneficiary from receiving any benefit to which he may be
entitled, so long as the benefit is computed and paid on a basis that is
consistently applied to all other Participants and Beneficiaries.
8.07. Agents.
Each committee may engage agents to assist it in its duties, and may
consult with counsel, who may be counsel for Virginia Power, with respect to
the meaning or construction of this document and its obligations hereunder,
or with respect to any action, proceeding, or question of law related thereto.
8.08. Officers.
Each committee shall choose a chairman from its members and may appoint
a secretary, who is not required to be a member of the committee, to keep such
records of the acts of the committee as may be necessary. The secretary may
perform any and all purely ministerial acts which may be delegated to him by
the committee.
8.09. Rules.
Each committee may formulate any rules and regulations not inconsistent
with the purposes and provisions of the Plan as it may deem necessary to enable
it to carry out its duties hereunder.
ARTICLE IX
ADMINISTRATION OF THE PLAN
9.01. Duties of Participants and Beneficiaries.
Each Participant and Beneficiary shall furnish to the Administrator any
information or proof requested of him and reasonably required to administer the
Plan.
9.02. General.
(a) The Plan Administrator, or such persons as it may designate, shall
be responsible for the operation and administration of the Plan, except to the
extent its duties are allocated to or assumed by other persons or entities
hereunder.
(b) The Administrative Benefit Committee shall establish rules and
procedures to be followed by the Participants and Beneficiaries in filing
applications for benefits and for furnishing and verifying proofs necessary
to establish any matters required in order to establish their rights to
benefits under the terms of the Plan.
(c) The Plan Administrator shall supply such full and timely information
on all matters relating to the Plan as (1) the Trustee, (2) the accountant,
(3) any insurance company and (4) any Investment Manager may require for the
effective discharge of their respective duties and responsibilities.
(d) It shall be the duty of the Plan Administrator to handle the
day-to-day operations of the Plan, including distributing booklets, notices
and other information regarding the Plan; maintaining Beneficiary designation
forms; explaining the optional form of benefit payout which, with the consent
of the Administrative Benefit Committee, may be elected by a Participant under
the Plan; and communicating all other matters relating to participation and
entitlement to benefits to (1) the Trustee and (2) the accountant as may be
necessary to enable them to discharge their duties and responsibilities. The
Plan Administrator shall carry out these duties in a uniform, equitable and
nondiscriminatory manner with regard to all Participants and Beneficiaries
under similar circumstances.
9.03. Disclosure.
(a) The Plan Administrator shall see that descriptions of the Plan are
prepared as necessary for filing with the Department of Labor and shall make
available to Participants and Beneficiaries receiving benefits under the Plan
a summary of the Plan at such place and at such times as may be required by
federal statutes and regulations issued thereunder.
(b) The Plan Administrator shall arrange for the preparation and filing
of such annual reports, including financial statements of the Plan's assets
and liabilities, schedules, receipts and disbursements and changes in financial
position in such form, at such place and at such times as may be required by
federal statutes and regulations. The Plan Administrator shall furnish annually
as required by law to all Participants and Beneficiaries receiving benefits
under the Plan a copy of a summary of the financial statement of the Plan's
assets and liabilities and schedules of receipts and disbursements and such
other material as is necessary to fairly summarize the latest annual report
at such times as may be required by federal statutes and regulations.
(c) The Plan Administrator shall make available copies of the Plan,
copies of any contracts relating to the Plan, descriptions of the Plan, and
annual reports at its principal office for examination by any Participant and
any Beneficiary receiving benefits under the Plan.
(d) Upon written request of any Participant or any Beneficiary receiving
benefits under the Plan, the Plan Administrator shall furnish him a copy of the
latest updated summary plan description, plan description, latest annual report
and a copy of the Plan. The Plan Administrator may make a reasonable charge
for the costs of furnishing such copies.
9.04. Annual Accountings.
To the extent required by law, the Plan Administrator shall engage, on
behalf of all Participants, the independent qualified public accountant
selected by the Administrative Benefit Committee, to certify and render an
opinion that the financial statements and schedules prepared in conjunction
with the Plan are presented fairly and are in conformity with generally
accepted accounting principles consistently applied; provided, however, that
where assets are held under a contract with an insurance company or in trust
by a bank supervised and subject to periodic examination by a state or federal
agency and such insurance company or bank prepares statements concerning such
assets and certifies that such statements are accurate and the statements
are made a part of the annual report, the accountant may rely on such
statements as accurate.
9.05. Expenses - Compensation.
As permitted by ERISA, the reasonable expenses incurred in the
administration of the Plan may be paid by the Trustee or an insurance company
out of the Trust Fund. By way of example and not of limitation, the following
expenses may be paid out of the Trust Fund: the compensation of the Trustee
and any Investment Manager, fees for actuarial and accounting services, and
financial statement preparation and benefit processing fees. Any expenses that
are paid out of the Trust Fund shall be charged to the Account of each
Participant in the same proportion that the value of each Account bears to the
total value of the Trust Fund. To the extent that such expenses are not paid
by the Trustee or an insurance company, they shall be paid by Virginia Power
(to the extent that the expenses are attributable or allocable to Virginia
Power Participants) and DRI (to the extent that the expenses are attributable
or allocable to DRI Participants). Notwithstanding the foregoing, no employee
of Virginia Power or an Affiliate shall be entitled to compensation from
the Trust Fund for services rendered to the Plan.
9.06. Directions to Trustee, Insurers and Investment Managers.
All directions from Virginia Power or a committee to the Trustee, an
insurer or an Investment Manager shall be in writing from the chief executive
officer, the secretary or chairman of a committee, or such person or persons
as such individuals may designate in writing. Any Trustee, insurer or
Investment Manager may rely on directions from such persons and shall act in
accordance therewith, unless it knows or should know that the directions
constitute a breach of such person's or its own obligations under the Plan.
9.07. Claims Procedure.
(a) All claims for benefits under the Plan shall be submitted to the
Administrative Benefit Committee, who shall have the initial responsibility
for determining the eligibility of any Participant or Beneficiary for benefits.
All claims for benefits shall be made in writing and shall set forth the facts
which such Participant or Beneficiary believes to be sufficient to entitle
him to the benefit claimed.
If a claim for benefits is denied in whole or in part, the
Administrative Benefit Committee shall give the claimant written notice of
the decision within 90 days of the date the claim was submitted. Such
written notice shall set forth in a manner calculated to be understood by
the claimant (1) the specific reason or reasons for the denial; (2) specific
reference to pertinent Plan provisions on which the denial is based; (3) a
description of any additional material or information necessary for the
claimant to perfect the claim, along with an explanation of why such material
or information is necessary; and (4) appropriate information about the steps
to be taken if the claimant wishes to submit the claim for review of the
denial. If special circumstances require an extension of time for processing
the initial claim, a written notice of the extension and the reason therefor
shall be furnished to the claimant before the end of the initial ninety-day
period. In no event shall such extension exceed 90 days.
(b) If the initial claim for benefits is denied in whole or in part,
or if the claimant has had no response to such claim within 90 days of its
submission (in which case the claim for benefits shall be deemed to be
denied), the claimant or his duly authorized respresentative, at the claimant's
sole expense, may appeal the denial to the Virginia Power Committee (if the
claim is related to the participation of a Virginia Power Participant) or the
DRI Committee (if the claim is related to the participation of a DRI
Participant). Notice of the appeal must be received by the appropriate
committee within 60 days of receipt of written notice of the denial of the
claim or 60 days from the date such claim is deemed to be denied. In pursuing
his appeal, the claimant or his duly authorized represetative:
(1) may request in writing that the Committee review the denial;
(2) may review pertinent documents; and
(3) may submit issues and comments in writing.
The decision on review shall be made within 60 days of receipt of the
request for review, unless special circumstances require an extension of time
for processing, in which case a decision shall be rendered as soon as possible,
but not later than 120 days after receipt of the request for review. If such
an extension of time is required, written notice of the extension shall be
furnished to the claimant before the end of the original 60-day period. The
decision on review shall be made in writing, shall be written in a manner
calculated to be understood by the claimant, and shall include specific
references to the provisions of the Plan on which the denial is based. If the
decision on review is not furnished within the time specified above, the
claim shall be deemed denied on review.
ARTICLE X
OBLIGATIONS OF EMPLOYER
10.01. No Contract or Inducement.
The Plan shall not be deemed to be a contract between Virginia Power
or any Affiliate and any Participant or Beneficiary or to be a consideration
or an inducement for the employment of any Participant.
10.02. No Right to Employment.
Nothing contained in this Plan shall be deemed to give any Participant
the right to be retained in employment by Virginia Power or any Affiliate
or to interfere with the right of Virginia Power or any Affiliate to discharge,
layoff, or suspend any Participant at any time without regard to the effect
which such discharge, layoff, or suspension shall have upon his rights or the
rights of any Beneficiary under this Plan.
10.03. Obligation for Benefits.
The Trust Fund shall be the sole source of benefits under this Plan,
and each Participant and Beneficiary shall be entitled to look only to the
Trust Fund for payment of benefits. Neither Virginia Power nor any Affiliate
shall have any liability to make or continue from its own funds the payment
of any benefit under the Plan.
ARTICLE XI
AMENDMENT AND TERMINATION OF PLAN
11.01. Amendment of the Plan.
Virginia Power shall have the right by action of the Virginia Power
Board to modify, alter or amend the Plan in whole or in part; provided that
the duties, powers and liabilities of a Trustee, insurance company or
Investment Manager shall not be increased without its written consent; and
provided further that any such action shall not, in any way, affect adversely
the rights of Participants with respect to amounts credited to their Accounts
as of the date the Plan is amended. No amendment, modification or alteration
shall have the effect of revesting in Virginia Power or any Affiliate any part
of the principal or income of the Trust Fund. Notwithstanding the above,
nothing herein shall prevent the Virginia Power Board from modifying or
eliminating any form of benefit, subsidy, or payment option to the extent
allowed by law so long as the benefit provided as a result of such amendment
or alteration is an actuarial equivalent of the benefit otherwise payable to
the Participant or Beneficiary determined as of the effective date of such
amendment or alteration.
11.02. Termination of the Plan.
While Virginia Power expects to continue the Plan indefinitely, the
continuance of the Plan is not assumed as a contractual obligation. Virginia
Power reserves the right to discontinue its contributions and to terminate
the Plan at any time by action of the Virginia Power Board. In the event of
a termination of the Plan, no further contributions may be made to the Plan.
ARTICLE XII
GENERAL PROVISIONS
12.01. Interpretation.
This Plan has been created for the exclusive purpose of providing
benefits to Participants and their Beneficiaries and defraying reasonable
expenses of administering the Plan. The Plan shall be interpreted in a manner
consistent with applicable provisions of ERISA and as in effect from time to
time. Under no circumstances shall any funds contributed or transferred to this
Plan, any assets attributable to this Plan or income relating to such assets,
revert to Virginia Power or any Affiliate, nor shall any such funds, assets
or income ever be used or diverted to purposes other than the exclusive
benefit of the Participants and their Beneficiaries.
12.02. Merger, Consolidation and Transfers of Assets or Liabilities.
No merger or consolidation with, or transfer of assets or liabilities
to this Plan or from this Plan to any other plan shall be made, unless each
Participant would receive immediately after such event a benefit which is
equal to or greater than the benefit he would have been entitled to receive
under the Plan immediately before such event had the Plan terminated at that
time.
12.03. Limitation on Assignment.
Except as allowed by ERISA section 206 with respect to Qualified
Domestic Relations Orders, Plan benefits may not be anticipated, assigned
(either at law or in equity), alienated, or be subject to attachment,
garnishment, levy, execution, or other legal or equitable process. If a
Participant dies before the date that a Qualified Domestic Relations Order
directs that payments begin to an Alternate Payee, the Alternate Payee shall be
entitled to a payment from the Plan only if the Qualified Domestic Relations
Order requires the payment of such benefits. The Plan Administrator shall
establish reasonable written procedures for determining the qualified status of
a domestic relations order and for administering distributions to an Alternate
Payee. The Plan Administrator must promptly notify the Participant and each
Alternate Payee of the receipt of a domestic relations order and of the
procedures for determining its qualified status.
12.04. Discharge of Liability.
Any payment to a person or entity entitled to payment under the Plan,
or to the representative of such person or entity, shall be, to the extent
of the payment, in full satisfaction of all claims under the Plan against
the Trustee, the Plan Administrator, and the Employers. As a prerequisite
to the receipt of any such payment, the Trustee, the Plan Administrator, and
any Employer may require that such person execute a receipt and release in
such form as shall be determined by the Trustee, Plan Administrator, or an
Employer, as the case may be.
12.05. Payments to Minors and Incompetents.
If any Plan benefit is payable to a Participant or Beneficiary who is
a minor or who, in the opinion of the Plan Administrator, is not legally
capable of giving valid receipt and discharge for such payments, that payment
may be made for the benefit of the Participant or Beneficiary to such person
as the Plan Administrator, in its discretion, designates. Such payments, to the
extent made, shall be deemed a complete discharge of any liability for such
payment under the Plan, and the Trustee may make the payment without obligation
to require bond or to see to the further application of the payments.
12.06. Unclaimed Benefits.
If the Trustee cannot make payments of any amount to a Participant
or Beneficiary within seven years after the amount becomes payable because
the person's identity or whereabouts cannot be determined by the end of the
seven year period, all amounts that would have been payable to that
Participant or Beneficiary must be segregated and dealt with by the Trustee
in accordance with the applicable state law pertaining to abandoned intangible
personal property held in a fiduciary capacity.
12.07. Headings and Subheadings.
The headings and subheadings in this Plan have been inserted for
convenience of reference only and are to be ignored in any construction of the
provisions hereof.
12.08. Use of Masculine and Feminine, Singular and Plural.
In the construction of the Plan, the masculine shall include the
feminine and the singular the plural in all cases where such meanings are
indicated by the context.
12.09. Governing Law.
Except as otherwise may be required by the controlling law of the
United States, the Plan shall be construed, administered, and enforced in
accordance with the laws of the Commonwealth of Virginia.
12.10. Errors and Omissions.
It shall be the responsibility of those individuals and entities
charged with the administration of the Plan to see that it is administered
in accordance with its terms so long as it is not in conflict with ERISA. If
an innocent error or omission is discovered in the Plan's operation or
administration which is not correctable under normal administrative procedures,
and the Plan Administrator determines that it would cost more to correct the
error than is warranted, and if the Plan Administrator determines that the
error did not cause an excise tax problem, then the Plan Administrator may
authorize any equitable adjustment it deems necessary or desirable to correct
the error or omission, including but not limited to the authorization (with
the approval of the Virginia Power Board or the DRI Board, as appropriate), of
additional Employer contributions designed, in a manner consistent with the
goodwill intended to be engendered by the Plan, to put Participants or their
Beneficiaries in the same relative position they would have been in but for
such error or omission. Any contribution made pursuant to this section is
an additional discretionary contribution.
EXECUTION
IN WITNESS WHEREOF, this instrument has been executed this 7 day of
July, 1990.
VIRGINIA ELECTRIC AND POWER COMPANY
By