EXHIBIT 10.29
OGLETHORPE POWER CORPORATION
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
This is the OGLETHORPE POWER CORPORATION EXECUTIVE SUPPLEMENTAL RETIREMENT
PLAN, executed by Oglethorpe Power Corporation, a Georgia corporation
(hereinafter the "Corporation"), this 15th day of March, 2002.
W I T N E S S E T H:
WHEREAS, the Corporation desires to provide incentives to one or more of
its key executives to encourage them to remain in the employ of the Corporation;
and
WHEREAS, one of the means selected by the Corporation to offer such
incentives is through the adoption of an unfunded nonqualified deferred
compensation plan to provide supplemental retirement and other benefits to only
a select group of management or highly compensated personnel;
NOW, THEREFORE, the Corporation hereby adopts the following as the
Oglethorpe Power Corporation Executive Supplemental Retirement Plan (the
"Plan"), effective as of March 15, 2002:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this instrument, the following terms shall have
the meaning hereinafter set forth:
(a) "Beneficiary" shall mean a person entitled to benefits hereunder as
beneficiary of a deceased Participant or as beneficiary of a deceased
Beneficiary.
(b) "Board" shall mean the Board of Directors of the Corporation.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Committee" shall mean the duly appointed Compensation Committee of
the Board of Directors.
(e) "Disability" shall have the same meaning as set forth in the
Corporation's long-term disability group insurance program, as in effect from
time to time.
(f) "Distribution Event" shall mean the Participant's retirement,
death, disability, termination of employment or other event giving rise to the
Participant's right to a distribution of all or a portion of his or her accrued
benefits under this Plan, as more fully described in the Participation
Agreement.
(g) "Executive" shall mean any person employed by the Corporation who
is identified by the Corporation as being a member of a select group of the
Corporation's management.
(h) "Normal Retirement Age" shall mean age sixty-five (65).
(i) "Participant" shall mean any Executive who is designated by the
Corporation as eligible to participate in the Plan and who actually participates
in the Plan.
(j) "Participation Agreement" shall mean the agreement executed by the
Corporation and the Participant, under which the Participant agrees to
participate in the Plan and setting forth the terms of such participation,
including, without limitation, the amount of deferred compensation to be
contributed to the Plan, the applicable Distribution Events, the vesting and
forfeiture provisions and the term of such participation. Unless the Board of
Directors shall otherwise direct, a Participation Agreement may be executed on
behalf of the Corporation by the Chairman of the Board, the President and Chief
Executive Officer or the Chief Operating Officer.
(k) "Plan" shall mean the Oglethorpe Power Corporation Executive
Supplemental Retirement Plan set forth herein.
1.2 Rules of Interpretation.
(a) Where necessary or appropriate to the meaning hereof, the singular
shall be deemed to include the plural, the plural to include the singular, the
masculine to include the feminine and neuter, the feminine to include the
masculine and neuter, and the neuter to include the masculine and feminine.
(b) This Plan has been executed for the benefit of the Participants and
their Beneficiaries, subject to the claims of the Corporation's creditors and
other limitations set forth hereinabove. So far as possible, this Plan shall be
interpreted and administered in a manner consistent with this intent and with
the intention of the Corporation that this Plan shall at all times fully comply
with the requirements of the law. The Corporation's reasonable determination of
the interpretation of the provisions of this Plan shall be binding upon the
Corporation, the Participants and Beneficiaries hereunder and all other persons.
ARTICLE II
ELIGIBILITY AND PARTICIPATION
2.1 Eligibility. No employee of the Corporation shall be eligible to
participate in this Plan unless he or she is an Executive selected by the Board
of Directors.
2.2 Participation. Each Executive selected to participate in the Plan shall
enter the Plan immediately upon being designated and executing a Participation
Agreement in such form as is required by the Corporation.
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ARTICLE III
DEFERRED COMPENSATION,
INVESTMENTS AND FORFEITURES
3.1 Participant Accounts.
(a) The Corporation shall cause an account to be kept in the name of
each Participant which shall reflect the value of the deferred payments,
designating what portion is vested and nonvested from time to time. Until and
except to the extent that deferred compensation hereunder is distributed to or
vested in a Participant (or Beneficiary) from time to time in accordance with
the Participation Agreement and orders of the Corporation, the interest of each
Participant and Beneficiary therein shall be contingent only. The account of a
Participant, even if vested, shall be subject to forfeiture as provided in the
Participation Agreement.
(b) Title to and beneficial ownership of any assets, whether cash or
investments, which the Corporation may set aside or earmark to meets its
deferred compensation obligations hereunder, shall at all times remain in the
Corporation; and no Participant or Beneficiary shall under any circumstances
acquire any property interest in any specific assets of the Corporation. To the
extent that any person acquires a right to receive a distribution from the
Corporation under this Plan, such right shall be no greater than the right of
any unsecured general creditor of the Corporation. Hence the right of a
Participant or Beneficiary to receive a distribution from the Plan shall be an
unsecured claim against the general assets of the Corporation, and neither the
Participant nor Beneficiary shall have any rights in or against any specific
assets of the Corporation. All amounts credited to a Participant's account
hereunder shall constitute general assets of the Corporation and may be disposed
of by the Corporation at such times and for such purposes as it may deem
appropriate.
3.2 Setting Aside of Assets to Meet the Corporation's Plan Obligations. In
order to meet its deferred obligations hereunder, the Corporation shall each
year set aside or earmark funds in an amount equal to the total amounts
allocated and deferred for such year under this Article III.
3.3 Investment of Funds.
(a) Funds set aside or earmarked to meet the Corporation's deferred
obligation hereunder may be kept in cash, or invested and reinvested, in the
discretion of the Corporation. The Corporation may permit the Participant to
determine the investment of such funds, but ownership of the funds shall remain
with the Corporation, and the investment authority given to a Participant shall
not constitute an incident of ownership with respect to such investments. The
degree of authority over investment decisions shall be set forth in the
Participation Agreement.
(b) Except as provided in paragraphs (a) and (d) of this Section 3.3,
and as otherwise permitted in the Participation Agreement, the investment of
funds set aside or earmarked to meet the Corporation's obligations hereunder
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shall generally be made in stocks, bonds, insurance policies or other assets
selected by the Committee in its sole discretion; provided, however, that no
portion of such funds shall be invested in any securities of the Corporation or
any of its affiliates. In the exercise of the foregoing discretionary investment
powers, the Committee may engage investment counsel, and, if it so desires, may
delegate to such counsel full or limited authority to select the securities in
which the funds are to be invested. The cost of any such service shall be
charged as an expense of administering the Plan and paid from the invested funds
unless otherwise provided in the Participation Agreement.
(c) The income and gains and losses, both realized and unrealized, from
investments made pursuant to paragraph (b), net of any expenses properly
chargeable thereto, shall be determined at least annually at the close of the
year by the Corporation. An amount equal to the net income or loss as so
determined shall be allocated among the accounts of the Participants concerned
in proportion to the values of their accounts at the beginning of the year or as
may otherwise be appropriate. Amounts so allocated shall increase or decrease,
as the case may be, the future benefits receivable by such Participants or their
Beneficiaries.
(d) In the event a Distribution Event occurs and the deferred benefits
are to be paid in installments rather than in a lump sum, the Corporation shall
set aside funds in an amount equal to the unpaid balance of such obligation.
Funds to set aside may be kept in cash, or invested and reinvested in the
discretion of the Corporation, except that the Corporation may permit the
Participant to indicate how such funds are to be invested (including investment
in money market or savings accounts or bonds). The total amount payable to the
Participant shall be appropriately adjusted by an amount equal to the net income
or loss on such funds, determined in accordance with the principles of
paragraphs (b) and (c) above.
3.4 Distribution Events. The Corporation shall determine and set forth, in
a Participant's Participation Agreement, the Distribution Event or Events
applicable to such Participant. Upon the occurrence of a Distribution Event, the
Corporation shall determine the benefits payable to the Participant or his or
her Beneficiary, using the last available value of each of such assets. The last
available value shall be determined by reference to the regularity and frequency
of valuation of particular assets, such as daily valuation of marketable
securities or periodic valuations of real estate. The amount of benefits so
determined shall then be paid to the Participant or Beneficiary in cash or other
property according to the terms of the Participation Agreement.
3.5 Beneficiaries. Each Participant shall have the right to designate
beneficiaries who are to succeed to his or her contingent right to receive
future payments hereunder in the event of his or her death, pursuant to the
provisions set forth in Article V of this Plan. A beneficiary may also designate
beneficiaries with respect to his or her interest in any benefits to be paid
hereunder. In the event that the Corporation elects to invest in insurance
policies or products on the life of a Participant, the Corporation shall honor
the beneficiary designation of the Participant with respect to the proceeds of
any such policy and shall take appropriate steps to communicate such matters
with the insurance company or companies.
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3.6 Forfeitures. The right of a Participant or Beneficiary to receive a
payment of deferred benefits under this Plan, even if such right is otherwise
fully vested, shall be forfeited upon the occurrence of any of the events of
forfeiture set forth in the Participation Agreement.
3.7 No Fiduciary Relationship. Nothing contained herein shall be deemed to
create a trust of any kind or create any fiduciary relationship. Funds invested
hereunder shall continue for all purposes to be a part of the general funds of
the Corporation, and no person other than the Corporation shall by virtue of the
provisions of this Plan have any interest in such funds.
ARTICLE IV
ADMINISTRATION
4.1 Plan Administrator. The Corporation is the plan administrator and has
the authority to control and manage the operation and administration of the
Plan. The Corporation shall make such rules, regulations, interpretations, and
shall take such other actions to administer the Plan as the Corporation may deem
appropriate. In administering the Plan, the Corporation shall act in a
nondiscriminatory manner with respect to Participants and Beneficiaries.
4.2 Delegation of Authority. The Board of Directors may delegate any
administrative duties of the Corporation hereunder to its designee. Unless the
Board of Directors shall determine otherwise, all actions that could otherwise
be taken by the Board of Directors hereunder may be and shall be taken by the
Committee. Whenever action is required by the Corporation hereunder, the same
may be taken by any individual designated by the Committee as agent for the
purpose. Should it become necessary to perform some act hereunder and there is
no direction in this Plan, the Corporation shall exercise its discretion in a
manner that is consistent with the purpose of this Plan; and in so acting the
Corporation and its agents shall be fully protected and shall be absolved from
all liability except from fraud or bad faith. With respect to the initial
administration of the Plan, the Board of Directors delegates to Jami Reusch and
Homerzelle Gentry all duties with respect to the daily administration of the
Plan and its installation. The signature of both of them shall be sufficient to
bind the Corporation in connection with the administration of the Plan,
including the establishment of any and all corporate accounts with Salomon Smith
Barney or any other entity for the holding and investment of any assets
earmarked pursuant to this Plan, including the execution of client agreements
and any and all other documents, and the taking of any and all actions, that
they deem necessary or appropriate to ensure the efficient administration of
this Plan.
4.3 Records and Expenses. The books and records to be maintained for the
purpose of the Plan shall be maintained by the officers and employees of the
Corporation at its expense and subject to the supervision and control of the
Board of Directors. All the expenses of administering the Plan, shall be paid by
the Corporation either from funds set aside or earmarked under the Plan or from
other funds
4.4 Absence of Liability. No member of the Board or of the Committee and no
officer or employee of the Company shall be liable to any person for any action
taken or omitted in connection with the administration of this Plan unless
attributable to his or her own fraud or willful misconduct; nor shall the
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Corporation be liable to any person for any such action unless attributable to
fraud or willful misconduct on the part of a director, officer or employee of
the Corporation.
ARTICLE V
DISTRIBUTIONS
5.1 Distribution of Accounts. In the event of the occurrence of a
Distribution Event, as set forth in the Participation Agreement (with
Distribution Events typically including the termination of a Participant's
employment, whether such termination shall occur by reason of death, Disability,
retirement or other separation from service), then the amount standing to such
person's account in the Plan shall be distributed to or on behalf of such
Participant at such time or times and in the manner provided under the terms of
the Participation Agreement.
5.2 Form of Payment. Distribution of benefits shall be made in a lump sum
except as otherwise provided in the Participation Agreement or in the following
sentence. Unless the Participation Agreement provides otherwise, in the event a
Participant terminates employment (a) after attainment of the Normal Retirement
Age, or (b) as a result of a Disability, he or she shall be paid the value of
his or her account in five (5) annual installments commencing within sixty (60)
days after the Distribution Event.
5.3 Death Benefits; Beneficiary Designation; Distribution of Death
Benefits.
(a) If a Participant or Beneficiary dies prior to receiving all of his
or her account balance hereunder, then unless the Participation Agreement
provides otherwise, the Participant's or Beneficiary's remaining account balance
shall be paid to the Participant's or Beneficiary's designated Beneficiary in
five (5) equal, annual installments commencing ninety (90) days after the
Participant's or Beneficiary's death, as the case may be. Notwithstanding the
foregoing, each annual installment payable to a Beneficiary shall be no less
than Five Thousand Dollars ($5,000) (or the Participant's remaining account
balance, if it is less than $5,000).
(b) At any time and from time to time, each Participant and each
Beneficiary who is receiving payments hereunder shall have the unrestricted
right to designate the person who, as his or her beneficiary, shall receive the
amount payable hereunder after his or her death, and the right to revoke any
such designations. Each such designation shall be evidenced by a written
instrument filed with the Corporation, signed by the Participant or Beneficiary
who is making the designation. No designation of beneficiaries shall be valid
unless in writing signed by the Participant, dated, and filed with the
Committee. Beneficiaries may be changed without the consent of any prior
beneficiaries. In the event a Participant dies without having filed a
beneficiary designation form with the Corporation, his or her deferred benefits
payable hereunder shall be paid in the following order: (a) to the Participant's
spouse; (b) if there is no surviving spouse, then to the Participant's children,
in equal shares (with adopted children being treated as children for purposes of
this Plan); and (c) if there are no surviving children, then to the
Participant's estate.
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ARTICLE VI
SPENDTHRIFT PROVISIONS AND OTHER PARTICIPANT RIGHTS
6.1 Spendthrift Clause. No interest of any person or entity in, or right to
receive a distribution under, the Plan shall be subject in any manner to sale,
transfer, assignment, pledge, attachment, garnishment or other alienation or
encumbrance of any kind; nor may such interest or right to receive a
distribution be taken, either voluntarily or involuntarily for the satisfaction
of the debts of, or other obligations or claims against, such person or entity,
including claims for alimony, support, separate maintenance and claims in
bankruptcy proceedings. A distribution by the estate of a deceased Participant
or Beneficiary to an heir or legatee of a right to receive payments hereunder
shall not be deemed an alienation, assignment or anticipation for purposes of
this Section 6.1.
6.2 No Guarantee of Benefits. Nothing contained in the Plan shall
constitute a guarantee by the Corporation or any other person or entity that the
assets of the Corporation will be sufficient to pay any benefits hereunder.
6.3 No Guarantee of Employment. Participating in this Plan shall not give
any Participant any right to be retained in the service of the Corporation or
any right or claim to any benefits hereunder unless such benefits have accrued
under the terms and provisions of this Plan.
6.4 Unclaimed Benefit. Each Participant shall keep the Corporation informed
of his or her current address and the current address of each Beneficiary. The
Corporation shall not be obligated to search for the whereabouts of any person,
except as set forth in the following sentence. In the event that all, or any
portion, of the distribution payable to a Participant or a Beneficiary hereunder
shall, at the expiration of seven (7) years after it shall become payable,
remain unpaid solely by reason of the inability of the Corporation, after
sending a registered letter, return receipt requested, to the last known
address, and after further diligent effort, to ascertain the whereabouts of such
Participant or Beneficiary, the amount so distributable shall be forfeited.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Right to Amend. The Corporation reserves the right by action of its
Board of Directors to amend this Plan at any time or times. Any amendment which
is necessary to bring this Plan into conformity with applicable government laws
or regulations may be made retroactively.
7.2 Termination. The Corporation has established this Plan with the bona
fide intention and expectation that it will be continuing and permanent.
However, the Corporation reserves the right to terminate the Plan when, in the
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sole opinion of the Company, such termination is advisable.
7.3 Effect of Amendment or Termination. No amendment or termination shall
directly or indirectly reduce the balance of any account held hereunder as of
the effective date of such amendment or termination. Upon termination of the
Plan, there shall be paid to each Participant and each Beneficiary the amount of
his or her account in the Plan, in accordance with the further terms of this
Plan.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Claims Procedure. The Corporation shall make a determination as to the
right of any person to a benefit, and shall afford any person dissatisfied with
such determination the right to a hearing thereon. Any denial by the Corporation
of the claim for benefits under the Plan by a Participant or Beneficiary shall
be stated in writing by the Corporation and delivered or mailed to the
Participant or Beneficiary, and such notice shall set forth the specific reasons
for the denial, written to the best of the Corporation's ability in a manner
that may be understood without legal or actuarial counsel. In addition, the
Corporation shall afford a reasonable opportunity to any Participant whose claim
for benefits has been denied for a full and fair review of the decision denying
the claim.
8.2 Adoption of Plan by Successor. In the event of the merger or
consolidation of the Corporation, or the transfer of the assets of the
Corporation to another corporation, association, partnership, sole
proprietorship, or business organization, the Plan may be adopted by the
surviving corporation, association, partnership, sole proprietorship, or other
business organization which employs a substantial number of the Participants of
the Plan. Such adoption of the Plan shall be expressed in an agreement between
such surviving or other corporation, association, partnership, sole
proprietorship, or business organization and the Committee under which such
other corporation, association, partnership, sole proprietorship, or business
organization adopts the Plan with respect to the Participants employed by it.
If, pursuant to the terms hereof, the Plan is adopted by any other corporation,
association, partnership, sole proprietorship, or business organization, such
other corporation, association, partnership, sole proprietorship or business
organization shall be deemed to succeed to the position of the Corporation under
the Plan. If the Plan is not so adopted, then it shall be deemed terminated. The
failure of any Participant hereunder to become an employee of such other
corporation, association, partnership, sole proprietorship, or business
organization shall constitute a Distribution Event. Nothing in this Agreement
shall be construed to prevent a Participant and the Corporation from agreeing to
use a rabbi trust for the purpose of handling investments and segregating assets
to be used to fund benefits under the Plan, even though any such assets, until
distributed to the Participant, shall always be subject to the claims of the
Corporation's creditors.
8.3 Governing Laws. This Plan shall be construed and enforced under the
laws of the State of Georgia, and all provisions hereof shall be administered in
accordance with the provisions of the laws of the State of Georgia, provided
that in case of conflict between Georgia law and any applicable and binding
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provision of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), the provisions of ERISA shall control.
8.4 Alternative Acts. In the event it becomes impossible for the
Corporation to perform any act required by this Plan, then the Corporation may
perform such alternative act which most nearly carries out the intent and
purpose of this Plan.
8.5 Title Headings. The headings in this Plan are solely for the
convenience of reference and shall not affect its interpretation.
IN WITNESS WHEREOF, this Executive Supplemental Retirement Plan is signed
by the Corporation through its duly authorized officer on the day and year first
above written.
OGLETHORPE POWER CORPORATION
By: /s/ J. Calvin Earwood
----------------------------------------
J. Calvin Earwood,
Chairman of the Board
Attest: /s/Patricia N. Nash
-------------------------------------
Patricia N. Nash, Secretary
(CORPORATE SEAL)
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