<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 3, 1999
REGISTRATION STATEMENT NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
SCOTTISH POWER PLC
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
SCOTLAND NONE
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) No.)
</TABLE>
1 Atlantic Quay
Glasgow G2 8SP
United Kingdom
011-44-141-248-8200
(Address, zip code and telephone number of Principal Executive Offices)
------------------------
PACIFICORP STOCK INCENTIVE PLAN
(formerly 1996 Stock Retention Plan)
(Full title of the plan)
PACIFICORP K PLUS EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
(Full title of the plan)
and
PACIFICORP COMPENSATION REDUCTION PLAN DATED DECEMBER 1, 1994
(as amended through Amendment No. 5)
(Full title of the plan)
PacifiCorp
825 NE Multnomah
Portland, Oregon 97232-4116
Attention: Richard T. O'Brien
(Name and address of agent for service)
(503) 813-5000
(Telephone number, including area code, of agent for service)
------------------------
It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
<TABLE>
<S> <C>
Robert W. Mullen, Jr., Esq. John M. Schweitzer, Esq.
Milbank, Tweed, Hadley & McCloy LLP Stoel Rives LLP
One Chase Manhattan Plaza 900 SW Fifth Avenue, Suite 2600
New York, New York 10005 Portland, Oregon 97204-1268
(212) 530-5150 (503) 294-9225
</TABLE>
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(2) OFFERING PRICE(2) FEE(2)
<S> <C> <C> <C> <C>
Scottish Power plc ordinary shares(1) 35,717,000 $8.77 $313,238,090 $82,695
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933. Such
estimate has been computed based on the average of the high and low sales
prices on the London Stock Exchange on November 30, 1999 for ordinary shares
of Scottish Power plc converted at the currency exchange ratio of
L1.0000:$1.5927 on such date. American Depositary Shares are traded on the
New York Stock Exchange, and each represents four ordinary shares of
Scottish Power plc, of nominal value 50p each.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INTRODUCTORY STATEMENT
This Registration Statement on Form S-8 is being filed to register
35,717,000 ordinary shares of 50 pence each ("Scottish Ordinary Shares") of
Scottish Power plc (the "Registrant"), a public limited company incorporated in
Scotland, issuable (i) upon the exercise of options assumed by the Registrant in
connection with its merger transaction with PacifiCorp, an Oregon corporation
("PacifiCorp"), effective as of November 29, 1999, which options were originally
granted to employees under the PacifiCorp Stock Incentive Plan (formerly 1996
Stock Retention Plan of PacifiCorp) (the "SIP Plan") or issuable from time to
time pursuant to such SIP Plan, (ii) pursuant to the PacifiCorp K Plus Employee
Savings and Stock Ownership Plan (the "K Plus Plan"), and (iii) pursuant to the
PacifiCorp Compensation Reduction Plan.
Pursuant to the Amended and Restated Agreement and Plan of Merger dated as
of December 6, 1998, as amended and restated, by and among the Registrant,
Scottish Power U.K. plc (formerly known as Scottish Power plc), NA General
Partnership (the "Partnership"), a Nevada general partnership indirectly
wholly-owned by the Registrant, and PacifiCorp, Scottish Power Acquisition Co.
("Merger Sub"), an Oregon corporation wholly-owned by Partnership, merged with
and into PacifiCorp whereupon PacifiCorp became a wholly-owned (other than
outstanding shares of PacifiCorp preferred stock) subsidiary of the Registrant.
Under the terms of the Merger Agreement, each outstanding share of common stock
of PacifiCorp was converted into .58 American Depositary Shares of Scottish
Power plc, or if certain elections are duly made, 2.32 Scottish Ordinary Shares
(the "Exchange Ratio"). In addition, each outstanding option to purchase
PacifiCorp common stock (each, a "PacifiCorp Option") under the SIP Plan was
converted into an option to acquire, upon the same terms and conditions as are
applicable under the SIP Plan, a number of Scottish Ordinary Shares (or ADSs),
equal to the number of shares of PacifiCorp common stock that could have been
purchased under the PacifiCorp Option multiplied by the Exchange Ratio, at a
price per share of common stock equal to the PacifiCorp Option exercise price
divided by the Exchange Ratio.
ITEM 1. PLAN INFORMATION.
The information to be provided to employees pursuant to this Item is
included in documents sent or given to the employees of PacifiCorp pursuant to
Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
In accordance with the Note to Part I of Form S-8, such documents are not filed
with the Securities and Exchange Commission either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule 424 in
reliance on Rule 428.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The written statement required to be provided to employees pursuant to this
Item is set forth in the documents referenced in Item 1 above.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with or furnished to the Securities
and Exchange Commission by Scottish Power plc (formerly New Scottish Power plc),
a public limited company incorporated under the laws of Scotland (the
"Company"), and are incorporated herein by reference to the extent not
superseded by documents or reports subsequently filed or furnished:
(a) The Company's latest annual report on Form 20-F filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that contains
audited financial statements for the Company's latest fiscal year for which
such statements have been filed.
(b) The Company's Interim Report on Form 6-K for the six months ended
September 30, 1999 (File No. 333-77877).
(c) The description of the ordinary shares and American Depositary
Shares of the Company contained in the Company's registration under
Section 12 of the Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating such description.
To the extent designated therein, certain Reports on Form 6-K and all other
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c)
and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment to this registration statement which
indicates that all securities offered hereunder have been sold, or which
deregisters all securities then remaining unsold hereunder, shall be deemed to
be incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Certain of the securities registered hereby include participation interests
in the PacifiCorp Compensation Reduction Plan and the K Plus Plan. With respect
to the PacifiCorp Compensation Reduction Plan, these interests represent the
contractual obligation of PacifiCorp to pay or distribute when due to
participants in such plan cash and/or securities with respect to amounts
deferred in accordance with the terms of the plan. The right of each participant
in the PacifiCorp Compensation Reduction Plan is that of a general, unsecured
creditor of PacifiCorp. The participation interests in the plans may not be
sold, assigned, transferred, pledged or otherwise encumbered by the
participants.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph 159 of the Articles of Association of Scottish Power plc provides
as follows:
Subject to the provisions of and so far as may be consistent with the
Statutes, but without prejudice to any indemnity to which such person
may otherwise be entitled, every Director, auditor, Secretary, other
officer or employee of the Company shall be entitled to be
II-1
<PAGE>
indemnified out of the assets of the Company against all costs, charges,
losses, expenses and liabilities incurred by him in the actual or
purported execution and/or discharge of his duties and/or the exercise
or purported exercise of his powers and/or otherwise in relation to or
in connection with his duties, powers or office including (without
prejudice to the generality of the foregoing) any liability incurred by
him in defending any proceedings, civil or criminal, which related to
anything done or omitted or alleged to have been done or omitted by him
as an officer, auditor or employee of the Company and in which decree or
judgment is given in his favor (or the proceedings are otherwise
disposed of without any finding or admission of any material breach of
duty on his part) or in which he is acquitted or in connection with any
application under any statute for relief from liability in respect of
any such act or omission in which relief is granted to him by the Court.
Section 310 of the Companies Act 1985 of the United Kingdom (as amended by
Section 137 of the Companies Act 1989 of the United Kingdom) provides as
follows:
310. Provisions exempting officers and auditors from liability
(1) This section applies to any provision, whether contained in a
company's articles or in any contract with the company or otherwise, for
exempting any officer of the company or any person (whether an officer or
not) employed by the company as auditor from, or indemnifying him against,
any liability which by virtue of any rule of law would otherwise attach to
him in respect of any negligence, default, breach of duty or breach of trust
of which he may be guilty in relation to the company.
(2) Except as provided by the following subsection, any such provision
is void.
(3) This section does not prevent a company
(a) from purchasing and maintaining for any such officer or auditor
insurance against any such liability; or
(b) from indemnifying any such officer or auditor against any
liability incurred by him
(i) in defending any proceedings (whether civil or criminal) in
which judgment is given in his favor or he is acquitted, or
(ii) in connection with any application under Section 144(3) or
(4) (acquisition of shares by innocent nominee) or Section 727
(general power to grant relief in case of honest and reasonable
conduct) in which relief is granted to him by the court.
Section 727 of the Companies Act 1985 of the United Kingdom provides as follows:
727. Power of court to grant relief in certain cases:
(1) If in any proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person employed by a
company as auditor (whether he is or is not an officer of the company) it
appears to the court hearing the case that that officer or person is or may
be liable in respect of the negligence, default, breach of duty or breach of
trust, but that he has acted honestly and reasonably, and that having regard
to all the circumstances of the case (including those connected with his
appointment) he ought fairly to be excused for the negligence, default,
breach of duty or breach of trust, that court may relieve him, either wholly
or partly, from his liability on such terms as it thinks fit.
(2) If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in respect of any
negligence, default, breach of duty or breach of trust, he may apply to the
court for relief; and the court on the application has the same power to
relieve him as under this section it would have had if it had been a court
before which
II-2
<PAGE>
proceedings against that person for negligence, default, breach of duty or
breach of trust had been brought.
(3) Where a case to which subsection (1) applies is being tried by a
judge with a jury, the judge, after hearing the evidence, may, if he is
satisfied that the defendant or defender ought in pursuance of that
subsection to be relieved either in whole or in part from the liability
sought to be enforced against him, withdraw the case in whole or in part
from the jury and forthwith direct judgment to be entered for the defendant
of defender on such terms as to costs or otherwise as the judge may think
proper.
Scottish Power plc has obtained insurance policies which provide for the
indemnification of its directors and officers in the event they are found liable
for "Wrongful Acts." A "Wrongful Act" is defined in the insurance policies as:
Any actual or alleged breach of duty, breach of trust, neglect, error,
misstatement, misleading statement, omission, breach of warranty of
authority or other act by the directors or officers in their respective
capacities as a director or officer of the company or as a director or
officer of any outside entity or any matter claimed against them solely
because of their status as a director or officer of the company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index which is incorporated herein by reference. Exhibits
are numbered in accordance with the numbering requirements of Item 601 of
Regulation S-K of the Securities and Exchange Commission, and, accordingly, are
not numbered consecutively. The undersigned registrant hereby undertakes to
submit, or cause to be submitted, or has caused to be submitted, the K Plus Plan
and any amendment thereto to the Internal Revenue Service ("IRS") in a timely
manner, and has caused to be made or will cause to be made all changes required
by the IRS in order to qualify such plan.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
II-3
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Portland, State of Oregon, on December 3, 1999.
<TABLE>
<S> <C> <C>
SCOTTISH POWER PLC
(Registrant)
By: /s/ ALAN V. RICHARDSON
-----------------------------------------
Name: Alan V. Richardson
Title: Director
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the following
capacities on December 3, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<S> <C>
*CHARLES MURRAY STUART CBE
- ------------------------------ Chairman of the Board and
Charles Murray Stuart CBE Director
Chief Executive Officer
*IAN ROBINSON and Director
- ------------------------------ (Principal Executive
Ian Robinson Officer)
Deputy Chief Executive and
*IAN SIMON MACGREGOR RUSSELL Finance Director
- ------------------------------ (Principal Financial and
Ian Simon MacGregor Russell Accounting Officer)
*KENNETH LESLIE VOWLES
- ------------------------------ Director
Kenneth Leslie Vowles
*CHARLES MILLER SMITH
- ------------------------------ Deputy Chairman of the
Charles Miller Smith Board and Director
*CHARLES BERRY
- ------------------------------ Director
Charles Berry
*ALAN RICHARDSON
- ------------------------------ Director
Alan Richardson
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ --------------------------
<S> <C>
*EWEN CAMERON STEWART
MACPHERSON
- ------------------------------ Director
Ewen Cameron Stewart
Macpherson
*JOHN PARNABY CBE
- ------------------------------ Director
John Parnaby CBE
*MAIR BARNES
- ------------------------------ Director
Mair Barnes
</TABLE>
<TABLE>
<S> <C> <C>
*By: /s/ ALAN V. RICHARDSON
-------------------------
Alan V. Richardson
(Attorney-in-Fact)
</TABLE>
<TABLE>
<S> <C>
Authorized Representative
PacifiCorp: in the United States
</TABLE>
<TABLE>
<S> <C> <C>
By: /s/ W. E. PERESSINI
-------------------------
William E.
Peressini
Vice President
and Treasurer
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the trustees (or
other persons who administer the employee benefit plans) have duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Portland, State of Oregon, on December 3, 1999.
<TABLE>
<S> <C> <C>
PACIFICORP K PLUS EMPLOYEE
SAVINGS AND STOCK OWNERSHIP PLAN
By: /s/ MICHAEL J. PITTMAN
-----------------------------------------
Name: Michael J. Pittman
Title: Vice President, PacifiCorp
PACIFICORP COMPENSATION
REDUCTION PLAN
By: /s/ MICHAEL J. PITTMAN
-----------------------------------------
Name: Michael J. Pittman
Title: Vice President, PacifiCorp
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
- --------- --------------------------------------------------------------------------------------------------------
<S> <C>
(4)(a) Memorandum and Articles of Association of Scottish Power plc (incorporated by reference to
Exhibit (3)(i)a to the Registration Statement on Form F-4 (333-77877)).
(4)(b) Amended and Restated Deposit Agreement, dated as of December 18, 1991, amended and restated as of
September 4, 1997, and as further amended and restated as of May 6, 1999, among Scottish Power plc
(formerly New Scottish Power plc), Scottish Power U.K. plc (formerly Scottish Power plc), The Bank of
New York and all holders from time to time of American Depositary Receipts issued thereunder,
including the form of American Depositary Receipts (incorporated by reference to Exhibit A to the
Registration Statement on Form F-6 (Reg. No. 333-10322)).
(4)(c) The PacifiCorp Stock Incentive Plan, as amended and restated.
(4)(d) Form of the PacifiCorp K Plus Employee Savings and Stock Ownership Plan, as amended and restated.
(4)(e) The PacifiCorp Compensation Reduction Plan, as amended.
(5) Opinion of Shepherd & Wedderburn WS.
(15) Letter re Unaudited Interim Financial Information.
(23)(a) Consent of PricewaterhouseCoopers.
(23)(b) Consent of Shepherd & Wedderburn WS (included in Exhibit 5).
(24) Powers of Attorney.
</TABLE>
II-7
<PAGE>
EXHIBIT 4(C)
PACIFICORP STOCK INCENTIVE PLAN
PacifiCorp, an Oregon corporation ("PacifiCorp") and an indirect, wholly
owned subsidiary of Scottish Power plc, a public limited company incorporated
under the laws of Scotland, formerly known as New Scottish Power plc
("ScottishPower"), hereby amends and restates its 1996 Stock Retention Plan, as
adopted effective August 14, 1996, and as previously amended and restated as of
February 12, 1997, at which time it was renamed the PacifiCorp Stock Incentive
Plan, to provide in its entirety as set forth herein (the "Plan"). The Plan
shall govern awards made on or after February 12, 1997; PROVIDED, HOWEVER, that
awards made on or after the effective date of the merger transaction described
below shall be subject to the limitations set forth herein. The amendment and
restatement of the Plan described herein will not affect the terms of any
outstanding awards granted under the previously-adopted PacifiCorp Stock
Incentive Plan, except to the extent necessary to reflect the ScottishPower
merger transaction described below.
PacifiCorp, Scottish Power U.K. plc (formerly Scottish Power plc),
ScottishPower and other affiliated entities entered into an Amended and Restated
Agreement and Plan of Merger, amended and restated as of February 23, 1999 (the
"Merger Agreement"). Under the Merger Agreement, an indirect wholly owned
subsidiary of ScottishPower merged with and into PacifiCorp, with PacifiCorp as
the surviving corporation. As a result of the merger transaction, PacifiCorp
became an indirect wholly owned subsidiary of ScottishPower.
In accordance with Section 6.09 of the Merger Agreement, PacifiCorp may use
this Plan for the benefit of the persons eligible for participation hereunder,
subject to the terms and restrictions contained herein. The securities granted
hereunder (or the securities underlying the options or awards granted hereunder)
will be American Depositary Shares of ScottishPower ("ADSs"), which are traded
in the US on the New York Stock Exchange. Each ADS represents four ordinary
shares of ScottishPower, and such ordinary shares are listed on the London Stock
Exchange.
1. PURPOSE. The purpose of this Plan is to enable PacifiCorp to attract
and retain the services of and provide performance incentives to (1) selected
employees, officers and directors of PacifiCorp or of any subsidiary of
PacifiCorp ("Employees") and (2) selected nonemployee agents, consultants,
advisors and independent contractors of PacifiCorp or any subsidiary of
PacifiCorp.
2. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided below and
in paragraph 14, the securities to be offered under the Plan shall consist of
ADSs, and the total number of ADSs that may be issued under the Plan shall not
exceed 8,410,000, all of which may be issued pursuant to the exercise of options
granted pursuant to the Plan. The shares issued under the Plan may be previously
unissued ADSs or reacquired ADSs or ADSs acquired in the market; PROVIDED,
HOWEVER, that ScottishPower will not cause to be issued any ADSs pursuant to the
Plan or take any action pursuant to the Plan that would be contrary to the
guidelines set forth by the Association of British Insurers published in
February 1995 relating to the percentages of new share capital that may be used
for discretionary share schemes during certain time periods (the "ABI
Guidelines"), or that would require approval of any regulatory or other
authorities having jurisdiction over issuances of securities by ScottishPower
until it has received all such required approvals. In the event the number of
ADSs directly issuable is limited by the ABI Guidelines, or prior to receipt of
the above-described approvals, any ADSs awarded pursuant to the Plan will be
acquired in the market. Subject to the foregoing limitations, (a) if any award
granted under the Plan expires, terminates or is canceled, the unissued ADSs
subject to such award shall again be available under the Plan and (b) if ADSs
sold or awarded under the Plan are forfeited to ScottishPower or PacifiCorp or
repurchased by ScottishPower or PacifiCorp, that number of ADSs shall again be
available under the Plan.
3. EFFECTIVE DATE AND DURATION OF PLAN.
(a) EFFECTIVE DATE. The Plan (as amended and restated) shall become
effective on the later of (i) the date it is approved by the Board of Directors
of PacifiCorp and (ii) the Effective Time of the
<PAGE>
Merger, as such terms are defined in the Merger Agreement (the "Effective
Date"). New awards may be granted and ADSs may be awarded or sold under the Plan
at any time after the Effective Date and before termination of the Plan.
(b) DURATION. The Plan shall continue in effect for a period of two
years from the Effective Time (as such term is defined in the Merger Agreement),
subject to earlier termination by the PacifiCorp Board of Directors. The
PacifiCorp Board of Directors may suspend or terminate the Plan at any time,
except with respect to awards then outstanding under the Plan. Termination shall
not affect the terms of any outstanding awards.
4. ADMINISTRATION.
(a) BOARD OF DIRECTORS. The Plan shall be administered by the
PacifiCorp Board of Directors, which shall determine and designate from time to
time the individuals to whom awards shall be made, the amount of the awards and
the other terms and conditions of the awards; PROVIDED, HOWEVER, that (i) the
terms of any awards proposed to be granted to the persons described on
SCHEDULE 1 hereto, and (ii) the aggregate number of ADSs capable of acquisition
by eligible individuals hereunder, shall be subject to the concurrence of the
ScottishPower Board of Directors or any duly appointed committee thereof, and
PROVIDED, FURTHER, THAT, under no circumstances shall the option exercise price
per ScottishPower ADS be less than the aggregate par value of the ScottishPower
Ordinary Shares represented by a ScottishPower ADS. Subject to the provisions of
the Plan, the PacifiCorp Board of Directors may from time to time adopt and
amend rules and regulations relating to administration of the Plan, advance the
lapse of any waiting period, accelerate any exercise date, waive or modify any
restriction applicable to shares (except those restrictions imposed by law) and
make all other determinations in the judgment of the PacifiCorp Board of
Directors necessary or desirable for the administration of the Plan. The
interpretation and construction of the provisions of the Plan and related
agreements by the PacifiCorp Board of Directors shall be final and conclusive.
The PacifiCorp Board of Directors may correct any defect or supply any omission
or reconcile any inconsistency in the Plan or in any related agreement in the
manner and to the extent it shall deem expedient to carry the Plan into effect,
and it shall be the sole and final judge of such expediency.
(b) COMMITTEES. The PacifiCorp Board of Directors may delegate any or
all authority for administration of the Plan, as described in Section 4(a)
above, to any committee thereof (the "Committee"). If authority is so delegated
to a Committee, all references to the PacifiCorp Board of Directors in the Plan
shall mean and relate to the Committee, except (i) as otherwise provided by the
PacifiCorp Board of Directors and (ii) that only the PacifiCorp Board of
Directors may amend or terminate the Plan as provided in paragraphs 3 and 15.
(c) OFFICERS. The PacifiCorp Board of Directors, or the Committee, as
applicable, may delegate to an executive officer of PacifiCorp authority to
administer those aspects of the Plan that do not involve the designation of
individuals to receive awards or decisions concerning the timing, amounts or
other terms of awards. No officer to whom administrative authority has been
delegated pursuant to this provision may waive or modify any restriction
applicable to an award to such officer under the Plan.
5. TYPES OF AWARDS; ELIGIBILITY. The PacifiCorp Board of Directors may,
from time to time, take the following actions, separately or in combination,
under the Plan: (i) grant Incentive Stock Options, as defined in Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), as provided in
paragraph 6; (ii) grant options other than Incentive Stock Options
("Non-Statutory Stock Options") as provided in paragraph 6; (iii) award ADSs as
provided in paragraph 7; (iv) sell ADSs subject to restrictions as provided in
paragraph 8; (v) grant stock appreciation rights as provided in paragraph 9;
(vi) grant cash bonus rights as provided in paragraph 10; (vii) grant dividend
equivalent rights as provided in paragraph 11; (viii) grant Performance-based
Rights as provided in paragraph 12 and (ix) grant foreign qualified awards as
provided in paragraph 13; PROVIDED, HOWEVER, that (i) the terms of
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any awards proposed to be granted to the persons described on SCHEDULE 1 hereto,
and (ii) the aggregate number of ADSs capable of acquisition by eligible
individuals hereunder, shall be subject to the concurrence of the ScottishPower
Board of Directors or any duly appointed committee thereof. Any such awards may
be made to Employees, including Employees who are officers or directors, and to
other individuals described in paragraph 1 whom the PacifiCorp Board of
Directors believes have made or will make an important contribution to
PacifiCorp or any subsidiary of PacifiCorp; PROVIDED, HOWEVER, that only
Employees shall be eligible to receive Incentive Stock Options under the Plan.
The PacifiCorp Board of Directors shall select the individuals to whom awards
shall be made and shall specify the action taken with respect to each individual
to whom an award is made; PROVIDED, HOWEVER, that awards proposed to be granted
to the persons described on Schedule 1 hereto shall be subject to the
concurrence of the ScottishPower Board of Directors or any duly appointed
committee thereof. Unless otherwise determined by the PacifiCorp Board of
Directors with respect to an award, each option, stock appreciation right, cash
bonus right, dividend equivalent right or performance-based right granted
pursuant to the Plan by its terms shall be nonassignable and nontransferable by
the recipient, either voluntarily or by operation of law, except by will or by
the laws of descent and distribution of the state or country of the recipient's
domicile at the time of death. No fractional shares shall be issued in
connection with any award. In lieu of any fractional shares, cash may be paid in
an amount equal to the value of the fraction or, if the PacifiCorp Board of
Directors shall determine, the number of shares may be rounded downward to the
next whole share. No Employee may be granted options or stock appreciation
rights under the Plan for more than an aggregate of 1,740,000 ADSs in any
consecutive three-year period.
6. OPTION GRANTS. Subject to the concurrence rights described in
paragraphs 4 and 5, and with respect to each option grant, the PacifiCorp Board
of Directors shall determine the number of shares subject to the option, the
option price, the period of the option, the time or times at which the option
may be exercised and whether the option is an Incentive Stock Option or a
Non-Statutory Stock Option and any other terms of the grant, all of which shall
be set forth in an option agreement between PacifiCorp and the optionee. In the
case of Incentive Stock Options, all terms shall be consistent with the
requirements of the Code and applicable regulations. Upon the exercise of an
option, the number of ADSs reserved for issuance under the Plan shall be reduced
by the number of ADSs issued upon exercise of the option less the number of ADSs
surrendered or withheld in connection with the exercise of the option and the
number of ADSs surrendered or withheld to satisfy withholding obligations in
accordance with paragraph 18.
7. ADS AWARDS. Subject to the concurrence rights described in paragraphs 4
and 5, the PacifiCorp Board of Directors may award ADSs under the Plan as stock
bonuses or otherwise. The aggregate number of shares that may be awarded
pursuant to this provision shall not exceed 870,000 ADSs. Shares awarded
pursuant to this paragraph shall be subject to the terms, conditions, and
restrictions determined by the PacifiCorp Board of Directors. The PacifiCorp
Board of Directors may require the recipient to sign an agreement as a condition
of the award, but may not require the recipient to pay any monetary
consideration other than amounts necessary to satisfy tax withholding
requirements. The agreement may contain any terms, conditions, restrictions,
representations and warranties required by the PacifiCorp Board of Directors.
The certificates representing the ADSs awarded shall bear any legends required
by the PacifiCorp Board of Directors or US or UK laws. Upon the issuance of an
ADS award, the number of ADSs available for issuance under the Plan shall be
reduced by the number of ADSs issued less the number of any ADSs, surrendered to
satisfy withholding obligations in accordance with paragraph 18.
8. PURCHASED ADSS. Subject to the concurrence rights described in
paragraphs 4 and 5, and to the extent made available by ScottishPower, the
PacifiCorp Board of Directors may cause ADSs to be issued pursuant to the terms
of this Plan for such consideration (including promissory notes and services) as
determined by the PacifiCorp Board of Directors. ADSs issued under the Plan
shall be
3
<PAGE>
subject to the terms, conditions and restrictions determined by the PacifiCorp
Board of Directors. All ADSs issued pursuant to this paragraph 8 shall be
subject to a purchase agreement, which shall be executed by PacifiCorp and the
prospective recipient of the shares prior to the delivery of certificates
representing such shares to the recipient. The purchase agreement may contain
any terms, conditions, restrictions, representations and warranties required by
ScottishPower, PacifiCorp or the PacifiCorp Board of Directors. The certificates
or receipts representing the ADSs shall bear any legends required by the
PacifiCorp Board of Directors or US or UK laws. Upon the issuance of purchased
ADSs, the number of ADSs available for issuance under the Plan shall be reduced
by the number of ADSs issued less the number of any ADSs surrendered to satisfy
withholding obligations in accordance with paragraph 18.
9. STOCK APPRECIATION RIGHTS.
(a) GRANT. Subject to the concurrence rights described in paragraphs 4
and 5, stock appreciation rights may be granted under the Plan by the PacifiCorp
Board of Directors, subject to such rules, terms, and conditions as the
PacifiCorp Board of Directors prescribes.
(b) EXERCISE. Each stock appreciation right shall entitle the holder,
upon exercise, to receive from PacifiCorp in exchange therefor an amount equal
in value to (i) the excess of the fair market value on the date of exercise of
one ADS over (ii) its fair market value on the date of grant (or, in the case of
a stock appreciation right granted in connection with an option, the excess of
the fair market value of one ADS over the option price per ADS under the option
to which the stock appreciation right relates), multiplied by the number of ADSs
covered by the stock appreciation right or the option, or portion thereof, that
is surrendered. Payment by PacifiCorp upon exercise of a stock appreciation
right may be made in ADSs valued at fair market value, in cash, or partly in
ADSs and partly in cash, all as determined by the PacifiCorp Board of Directors.
The PacifiCorp Board of Directors may withdraw any stock appreciation right
granted under the Plan at any time and may impose any conditions upon the
exercise of a stock appreciation right or adopt rules and regulations from time
to time affecting the rights of holders of stock appreciation rights. Such rules
and regulations may govern the right to exercise stock appreciation rights
granted prior to adoption or amendment of such rules and regulations as well as
stock appreciation rights granted thereafter. Upon the exercise of a stock
appreciation right for ADSs, the number of ADSs available for issuance under the
Plan shall be reduced by the number of ADSs issued less the number of any ADSs
surrendered or withheld to satisfy withholding obligations in accordance with
paragraph 18. Cash payments of stock appreciation rights shall not reduce the
number of ADSs available for issuance under the Plan.
10. CASH BONUS RIGHTS. Subject to the concurrence rights described in
paragraphs 4 and 5, the PacifiCorp Board of Directors may grant cash bonus
rights under the Plan in connection with (i) options granted or previously
granted, (ii) stock appreciation rights granted or previously granted,
(iii) ADSs awarded or previously awarded and (iv) ADSs sold or previously sold
under the Plan. Cash bonus rights will be subject to rules, terms and conditions
as the PacifiCorp Board of Directors may prescribe. The payment of a cash bonus
shall not reduce the number of ADSs available for issuance under the Plan. A
cash bonus right granted in connection with an option will entitle an optionee
to a cash bonus when the related option is exercised (or terminates in
connection with the exercise of a stock appreciation right related to the
option) in whole or in part if, in the sole discretion of the PacifiCorp Board
of Directors, the bonus right will result in a tax deduction that PacifiCorp has
sufficient taxable income to use. A cash bonus right granted in connection with
a stock award pursuant to paragraph 7 or purchase of ADSs pursuant to
paragraph 8 will entitle the recipient to a cash bonus payable when the ADS is
awarded or the ADSs are purchased or restrictions, if any, to which the ADS is
subject, lapse. If the ADSs awarded or purchased are subject to restrictions and
are repurchased by ScottishPower or PacifiCorp or forfeited by the holder, the
cash bonus right granted in connection with the ADS awarded or ADSs purchased
shall terminate and may not be exercised.
4
<PAGE>
11. DIVIDEND EQUIVALENT RIGHTS. Subject to the concurrence rights
described in paragraphs 4 and 5, the PacifiCorp Board of Directors may grant
dividend equivalent rights under the Plan in connection with (i) options granted
or previously granted, (ii) stock appreciation rights granted or previously
granted, (iii) ADSs awarded or previously awarded, (iv) ADSs sold or previously
sold under the Plan or (v) as a freestanding award. The terms and conditions of
a dividend equivalent right shall be specified by the PacifiCorp Board of
Directors at the time of grant. Each dividend equivalent right shall entitle the
recipient to receive an amount based on cash dividends that would be payable
with respect to the number of ADSs specified in connection with the grant of the
dividend equivalent right (or other award to which it relates) if such ADSs had
been held by the recipient during the period specified in connection with such
grant. Payment with respect to a dividend equivalent right shall be made,
subject to the limitations set forth in paragraph 2, at the discretion of the
PacifiCorp Board of Directors, in cash or in ADSs or in any combination thereof.
Upon the exercise of a dividend equivalent right for ADSs, the number of ADSs
available for issuance under the Plan shall be reduced by the number of ADSs
issued less the number of any ADSs surrendered to satisfy withholding
obligations in accordance with paragraph 18. Cash payments of dividend
equivalent rights shall not reduce the number of ADSs available for issuance
under the Plan.
12. PERFORMANCE-BASED AWARDS. Subject to the concurrence rights described
in paragraphs 4 and 5, the PacifiCorp Board of Directors may grant awards
intended to qualify as performance-based compensation under Section 162(m) of
the Code and the regulations thereunder ("Performance-based Awards").
Performance-based Awards shall be denominated at the time of grant either in
ADSs ("Stock Performance Awards") or in dollar amounts ("Dollar Performance
Awards"). Payment under a Stock Performance Award or a Dollar Performance Award
shall be made, at the discretion of the PacifiCorp Board of Directors, subject
to the limitations set forth in paragraph 2, in ADSs ("Performance Shares"), or
in cash or in any combination thereof. Performance-based Awards shall be subject
to the following terms and conditions:
(a) AWARD PERIOD. The PacifiCorp Board of Directors shall determine
the period of time for which a Performance-based Award is made (the "Award
Period").
(b) PERFORMANCE GOALS AND PAYMENT. The PacifiCorp Board of Directors
shall establish in writing objectives ("Performance Goals") that must be met by
PacifiCorp or any subsidiary, division or other unit of PacifiCorp ("Business
Unit") during the Award Period as a condition to payment being made under the
Performance-based Award. The Performance Goals for each award shall be one or
more targeted levels of performance with respect to one or more of the following
objective measures with respect to PacifiCorp or any Business Unit: earnings,
return on equity, return on assets, return on capital, economic value added,
revenues, operating income, cash flows or any of the foregoing (determined
according to criteria established by the PacifiCorp Board of Directors). The
PacifiCorp Board of Directors shall also establish the number of Performance
Shares or the amount of cash payment to be made under a Performance-based Award
if the Performance Goals are met or exceeded, including the fixing of a maximum
payment (subject to paragraph 12(d)). The PacifiCorp Board of Directors may
establish other restrictions to payment under a Performance-based Award, such as
a continued employment requirement, in addition to satisfaction of the
Performance Goals. Some or all of the Performance Shares may be issued at the
time of the award as restricted shares subject to forfeiture in whole or in part
if Performance Goals or, if applicable, other restrictions are not satisfied.
(c) COMPUTATION OF PAYMENT. During or after an Award Period, the
performance of PacifiCorp or Business Unit, as applicable, during the period
shall be measured against the Performance Goals. If the Performance Goals are
not met, no payment shall be made under a Performance-based Award. If the
Performance Goals are met or exceeded, the PacifiCorp Board of Directors shall
certify that fact in writing and certify the number of Performance Shares earned
or the amount of cash payment to be made under the terms of the
Performance-based Award.
5
<PAGE>
(d) MAXIMUM AWARDS. No participant may receive Stock Performance
Awards in any fiscal year under which the maximum number of shares issuable
under the award, when aggregated with the shares issuable under any awards made
in the immediately preceding two fiscal years, exceeds 290,000 ADSs or Dollar
Performance Awards in any fiscal year under which the maximum amount of cash
payable under the award, when aggregated with the amount of cash payable under
awards made in the immediately preceding two fiscal years, exceeds an aggregate
of $3,000,000.
(e) EFFECT ON SHARES AVAILABLE. The payment of a Performance-based
Award in cash shall not reduce the number of ADSs available for issuance under
the Plan. The number of ADSs available for issuance under the Plan shall be
reduced by the number of ADSs issued upon payment of an award, less the number
of ADSs surrendered or withheld to satisfy withholding obligations.
13. FOREIGN QUALIFIED GRANTS. Awards under the Plan may be granted to such
Employees and such other persons described in paragraph 1 residing in foreign
jurisdictions as the PacifiCorp Board of Directors may determine from time to
time. The PacifiCorp Board of Directors may adopt such supplements to the Plan
as may be necessary to comply with the applicable laws of such foreign
jurisdictions and to afford participants favorable treatment under such laws;
PROVIDED, HOWEVER, that no award shall be granted under any such supplement with
terms that are more beneficial to the participants than the terms permitted by
the Plan.
14. CHANGES IN CAPITAL STRUCTURE.
(a) STOCK SPLITS; STOCK DIVIDENDS. If the outstanding capital stock of
ScottishPower is hereafter increased or decreased or changed into or exchanged
for a different number or kind of shares or other securities of ScottishPower by
reason of any stock split, combination of shares or dividend payable in shares,
recapitalization or reclassification, appropriate adjustment shall be made by
the PacifiCorp Board of Directors in the number and kind of shares available for
grants under the Plan. In addition, the PacifiCorp Board of Directors shall make
appropriate adjustment in the number and kind of shares as to which outstanding
options, or portions thereof then unexercised, shall be exercisable, so that the
optionee's proportionate interest before and after the occurrence of the event
is maintained. Notwithstanding the foregoing, the PacifiCorp Board of Directors
shall have no obligation to effect any adjustment that would or might result in
the issuance of fractional shares, and any fractional shares resulting from any
adjustment may be disregarded or provided for in any manner determined by the
PacifiCorp Board of Directors. Any such adjustments made by the PacifiCorp Board
of Directors shall be conclusive.
(b) MERGERS, REORGANIZATIONS, ETC. The PacifiCorp Board of Directors
may include such terms and conditions, including without limitation, provisions
relating to acceleration in the event of a change in control, as it deems
appropriate in connection with any award under the Plan with respect to a
merger, consolidation, plan of exchange, acquisition of property or stock,
separation, reorganization or liquidation to which ScottishPower, PacifiCorp or
a subsidiary of PacifiCorp is a party or a sale of all or substantially all of
the assets of ScottishPower or PacifiCorp (each, a "Transaction").
Notwithstanding the foregoing, in the event of a Transaction, the PacifiCorp
Board of Directors shall, in its sole discretion and to the extent possible
under the structure of the Transaction, select one of the following alternatives
for treating outstanding Incentive Stock Options or Non-Statutory Stock Options
under the Plan:
(i) Outstanding options shall remain in effect in accordance with their
terms.
(ii) Outstanding options shall be converted into options to purchase
stock in the corporation that is the surviving or acquiring corporation in
the Transaction. The amount, type of securities subject thereto and exercise
price of the converted options shall be determined by the PacifiCorp Board
of Directors, taking into account the relative values of the companies
involved in the Transaction and the exchange rate, if any, used in
determining shares of the surviving corporation
6
<PAGE>
to be issued to holders of shares of ScottishPower. Unless otherwise
determined by the PacifiCorp Board of Directors, the converted options shall
be vested only to the extent that the vesting requirements relating to
options granted hereunder have been satisfied.
(iii) The PacifiCorp Board of Directors shall provide a 30-day period
prior to the consummation of the Transaction during which outstanding
options may be exercised to the extent then exercisable, and upon the
expiration of such 30-day period, all unexercised options shall immediately
terminate. The PacifiCorp Board of Directors may, in its sole discretion,
accelerate the exercisability of options so that they are exercisable in
full during such 30-day period.
(c) DISSOLUTION OF THE COMPANIES. In the event of the dissolution of
ScottishPower or PacifiCorp, options shall be treated in accordance with
paragraph 14(b)(iii).
(d) RIGHTS ISSUED BY ANOTHER CORPORATION. The PacifiCorp Board of
Directors may also grant options, stock appreciation rights, performance units,
stock bonuses and cash bonuses and issue restricted stock under the Plan having
terms, conditions and provisions that vary from those specified in this Plan
provided that any such awards are granted in substitution for, or in connection
with the assumption of, existing options, stock appreciation rights, stock
bonuses, cash bonuses, restricted stock and performance units granted, awarded
or issued by another corporation and assumed or otherwise agreed to be provided
for by PacifiCorp or ScottishPower pursuant to or by reason of a Transaction.
15. AMENDMENT OF PLAN. The PacifiCorp Board of Directors may at any time,
and from time to time, modify or amend the Plan in such respects as it shall
deem advisable because of changes in the law while the Plan is in effect or for
any other reason; PROVIDED, HOWEVER, that amendments to the Plan that would
change the aggregate number of ordinary shares or ADSs available to be issued
under the Plan shall be subject to the concurrence of the ScottishPower Board of
Directors or any duly appointed committee thereof. Except as provided in
paragraphs 9, 10 and 14, however, no change in an award already granted shall be
made without the written consent of the holder of such award.
16. APPROVALS. The obligations of ScottishPower and PacifiCorp under the
Plan are subject to the approval of foreign, state and federal authorities or
agencies with jurisdiction in the matter, including without limitation, public
utility regulatory authorities. PacifiCorp and ScottishPower will use their best
efforts to take steps required by foreign, state or federal law or applicable
regulations, including rules and regulations of the Securities and Exchange
Commission and any stock exchange on which ScottishPower's shares may then be
listed, in connection with the grants under the Plan. The foregoing
notwithstanding, ScottishPower shall not be obligated to issue or deliver ADSs
under the Plan if such issuance or delivery would violate applicable foreign,
state or federal securities laws or any applicable law relating to the issuance
of securities by a public utility or a public utility holding company.
17. EMPLOYMENT AND SERVICE RIGHTS. Nothing in the Plan or any award
pursuant to the Plan shall (i) confer upon any employee any right to be
continued in the employment of ScottishPower, PacifiCorp or any subsidiary or
interfere in any way with the right of ScottishPower, PacifiCorp or any
subsidiary by whom such employee is employed to terminate such employee's
employment at any time, for any reason, with or without cause, or to decrease
such employee's compensation or benefits, or (ii) confer upon any person engaged
by ScottishPower or PacifiCorp any right to be retained or employed by
ScottishPower or PacifiCorp or to the continuation, extension, renewal, or
modification of any compensation, contract, or arrangement with or by
ScottishPower or PacifiCorp.
18. TAXES. Each participant who has received an award under the Plan
shall, upon notification of the amount due, pay to PacifiCorp in cash amounts
necessary to satisfy any applicable foreign, federal, state and local
withholding requirements, if applicable. If the participant fails to pay the
amount demanded, PacifiCorp may withhold that amount from other amounts payable
by PacifiCorp to the participant including salary, subject to applicable law.
With the consent of the PacifiCorp Board of
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<PAGE>
Directors, a participant may satisfy this withholding obligation, in whole or in
part, by having PacifiCorp withhold from any ADSs to be issued that number of
ADSs that would satisfy the amount due or by delivering ADSs to PacifiCorp to
satisfy the withholding amount.
19. RIGHTS AS A SHAREHOLDER. The recipient of any award under the Plan
shall have no rights as a shareholder with respect to any ADSs until the date of
issue to the recipient of a stock certificate or American Depositary Receipt for
such shares. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date occurs
prior to the date such stock certificate or American Depositary Receipt is
issued.
Approved by the Board of Directors of PacifiCorp: November 10, 1999.
8
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SCHEDULE 1
ScottishPower Concurrence
Concurrence by the ScottishPower Board of Directors or a duly appointed
committee thereof is required for any awards to be granted under the Plan to:
(1) Any director of PacifiCorp;
(2) Any persons holding one or more of the following offices at PacifiCorp:
Chief Executive Officer
President
Chief Operating Officer
Chief Financial Officer; and
(3) Any other officer of PacifiCorp directly reporting to the Chief
Executive Officer of PacifiCorp.
9
<PAGE>
PACIFICORP K PLUS
EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
1999 RESTATEMENT
PACIFICORP
AN OREGON CORPORATION
700 NE MULTNOMAH
PORTLAND, OREGON 97232 COMPANY
STOEL RIVES LLP
ATTORNEYS
STANDARD INSURANCE CENTER
900 SW FIFTH AVENUE, SUITE 2300
PORTLAND, OREGON 97204-1268
TELEPHONE (503) 224-3380
FAX (503) 220-2480
TDD (503)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I RELEVANT DATES; QUALIFICATION
1.01 Effective Date; Valuation Dates;
Plan Year 2
1.02 Qualification 2
ARTICLE II APPLICATION TO THE COMPANY AND AFFILIATES
2.01 Eligible Employers 3
2.02 Service for Affiliates 3
2.03 Adoption Procedure 4
ARTICLE III ELIGIBILITY AND SERVICE
3.01 Conditions of Eligibility 4
3.02 Service 5
3.03 Leaves of Absence 7
3.04 Break in Service 9
ARTICLE IV CONTRIBUTIONS
4.01 Compensation 10
4.02 Pre-Tax Contributions 12
4.03 Matching Contributions 14
4.04 Contribution Limits for Highly
Compensated Employees 16
4.05 Actions to Correct Excess Contributions
for Highly Compensated Employees 18
4.06 Fixed and Supplemental Contributions 19
4.07 Post-Tax Contributions 21
4.08 Deductibility 21
4.09 Limit on Annual Additions 22
4.10 Payment of Contributions 24
ARTICLE V PARTICIPANTS' ACCOUNTS
5.01 Participants' Accounts 25
5.02 Valuations and Adjustments 27
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Page
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5.03 Allocations from Leveraged ESOP
Suspense Account 27
5.04 Special Distribution of Dividends 29
5.05 In-Service Withdrawals 30
5.06 Loans to Participants 33
5.07 Rollovers 37
5.08 Transfers Between Plans 38
ARTICLE VI RETIREMENT BENEFITS
6.01 Entitlement; Retirement Dates;
Participation After Mandatory
Benefit Starting Date 39
6.02 Amount and Form of Benefit 40
6.03 Distribution Survives Death 42
6.04 Application for Benefits; Time of
Distribution 42
6.05 Distribution Rules 44
6.06 Restrictions on Transfer of Distributed
Shares 45
6.07 Right to Sell Distributed Shares 45
ARTICLE VII BENEFITS ON DEATH OR DISABILITY
7.01 Benefits on Death 48
7.02 Disability 49
7.03 Designation of Beneficiary 50
ARTICLE VIII BENEFITS AFTER TERMINATION OF EMPLOYMENT
8.01 Vesting 52
8.02 Distributable Amount 52
8.03 Payment of Benefits 52
8.04 Forfeiture of Unvested Amounts 54
8.05 Restoration of Forfeited Amounts 55
8.06 Vesting After Rehire or Withdrawal 56
ARTICLE IX PLAN ADMINISTRATION
9.01 Administrative Committee 57
9.02 Committee Powers and Duties 57
9.03 Company and Employer Functions 58
iii
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Page
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9.04 Claims Procedure 59
9.05 Expenses 59
9.06 Indemnity and Bonding 60
ARTICLE X INVESTMENT OF TRUST FUNDS
10.01 Establishment of Trust 60
10.02 Investment Funds 61
10.03 ESOP Loans 65
ARTICLE XI AMENDMENT; TERMINATION; MERGER
11.01 Amendment 66
11.02 Termination 68
11.03 Treatment of Employers 68
11.04 Merger 69
ARTICLE XII MISCELLANEOUS PROVISIONS
12.01 Information Furnished 69
12.02 Applicable Law 69
12.03 Plan Binding on All Parties 69
12.04 Not Contract of Employment 69
12.05 Notices 70
12.06 Benefits Not Assignable;
Qualified Domestic Relations
Orders 70
12.07 Nondiscrimination 70
12.08 Nonreversion of Assets 70
12.09 Forfeiture of Benefits for Lost Persons 71
ARTICLE XIII SPECIAL TOP-HEAVY PLAN RULES
13.01 Application of Rules 72
13.02 Determination of Top-Heavy Status 72
13.03 Top-Heavy Plan Restrictions 74
APPENDIX A PARTICIPANTS IN UTAH SAVINGS PLAN 75
APPENDIX B 1998 ENHANCED RETIREMENT PROGRAM 78
</TABLE>
iv
<PAGE>
INDEX OF TERMS
<TABLE>
<CAPTION>
TERM SECTION PAGE
<S> <C> <C>
Administrative Committee 9.01 57
ADP 4.04-2 16
ADS Shares 4.10-1 24
Affiliate 2.01-2 3
Agent for Service of Process 9.02-2 58
Annual Addition 4.09-3 22
Beneficiary 7.03 50
Break in Service 3.04 9
Break in Service Year 3.04-1(b) 9
Committee 9.01 57
Company Heading, 9.03 1, 58
Compensation 4.01 10
CP 4.04-2 16
Death Benefit 7.01 48
Deferred Retirement Date 6.01-2(b) 40
Disability 7.02-2 49
Effective Date 1.01-1 2
Employer 2.01-3, 9.03 3, 58
Employment Year 3.02-2 6
Financial Hardship 5.05-8 31
Fixed Contribution 4.06-1 19
Highly Compensated Employee 4.04-2(a) 16
Hour of Service 3.02-4 6
Investment Fund 10.02-1 61
Key Employee 13.02-4 73
Leaves of Absence 3.03 7
Leveraged ADS Shares 5.01-3 26
Leveraged ESOP Suspense Account 5.01-3 26
Matching Contribution 4.03 14
Maternity or Paternity 3.04-1(d) 9
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TERM SECTION PAGE
<S> <C> <C>
New ESOP Program Preamble 1
Normal Retirement Date 6.01-2(a) 40
Participant 3.01-4 5
Plan Administrator 9.02-2 58
Plan Year 1.01-3 2
Post-Tax Contributions 4.07 21
Pre-Tax Contributions 4.02 12
Prior ESOPs Preamble 1
Prior ESOP Program Preamble 1
Prior Savings Plans Preamble 1
Qualified Employee 3.01-3 5
Rollover 5.07 37
Service 3.02 5
Service Year 3.02-1 6
Supplemental Contribution 4.06-3 20
Top-Heavy Plan 13.02-1 72
Transfer 5.08 38
Trustee 10.01 60
Utah Plan Participants APPENDIX A 75
Valuation Date 1.01-2 2
Year of Service 3.02-3 6
</TABLE>
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<PAGE>
PACIFICORP K PLUS
EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
1999 RESTATEMENT
PACIFICORP
AN OREGON CORPORATION
700 NE MULTNOMAH
PORTLAND, OREGON 97232 COMPANY
The Company adopted the PacifiCorp K Plus Employee Savings and
Stock Ownership Plan effective January 1, 1988 as a consolidation of several
employee savings plans (the Prior Savings Plans) and several employee stock
ownership plans (the Prior ESOPs) each maintained by the Company or one of
its affiliates. The plan initially consisted of a savings plan for each of
four operating segments of the Company's affiliated group (each a Plan
Segment), a continuation of the Prior ESOPs as an employee stock ownership
plan, and a new employee stock ownership plan (the New ESOP Program). The
Plan Segments, the Prior ESOP and the New ESOP Program all were operated as
parallel plans under a single document. The plan subsequently was amended to
reflect the merger of the Plan Segments into a single savings plan and the
merger of the Prior ESOP with the New ESOP Program to form a single employee
stock ownership plan.
As a result of divestiture or reorganization, the Company ceased to
maintain separate operating segments. The plan was restated effective
generally January 1, 1998 to eliminate unnecessary references to Plan
Segments and Segment Leaders, to conform to changes in applicable law, and to
make various editorial and administrative changes.
The plan is funded through a master trust maintained under an
agreement with a trustee. Separate trusts previously were maintained under
the same agreement for several categories of unallocated shares of Company
stock, which ceased to exist when the shares were allocated. Company stock
was converted into ADS Shares issued by Scottish Power plc (ScottishPower),
the Company's parent corporation, upon the merger of PacifiCorp with a
<PAGE>
subsidiary of ScottishPower. After that conversion all plan references to
Company stock were changes to ADS Shares.
In order to reflect the conversion of Company stock to ADS Shares,
the Company adopts this 1999 Restatement.
ARTICLE I
RELEVANT DATES; QUALIFICATION
1.01 EFFECTIVE DATE; VALUATION DATES; PLAN YEAR
1.01-1 This restatement shall be effective as of the date of merger
of PacifiCorp and a subsidiary of ScottishPower.
1.01-2 December 31 of each year shall be the regular valuation
date. Each other date on which the trust assets are valued at the request of
the Committee shall be a special valuation date.
1.01-3 The plan year and limitation year shall be a calendar year.
1.02 QUALIFICATION
1.02-1 The Savings Plan Program and the ESOP Program and the
related trusts are for the exclusive benefit of eligible employees and are
intended to comply with sections 401(a), 401(k), 409 (formerly 409A), 501 and
4975(e)(7) of the Internal Revenue Code, as amended, and related Code provisions
and applicable regulations.
1.02-2 If the Commissioner of Internal Revenue rules that any
plans under the Savings Plan Program, the ESOP Program as amended by this
restatement do not qualify under section 401(a), 401(k), 409 or 4975(e)(7) of
the Internal Revenue Code and related Code provisions, the Company may amend
this document retroactively to qualify the plans.
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ARTICLE II
APPLICATION TO THE COMPANY AND AFFILIATES
2.01 ELIGIBLE EMPLOYERS
2.01-1 The Company has adopted this plan, and any affiliate
approved by the Company may adopt this plan, for the benefit of its employees.
2.01-2 "Affiliate" means a corporation, person or other entity
that is any of the following:
(a) A member, with an Employer, of a controlled group
of businesses under section 414(b) of the Internal Revenue
Code.
(b) A member, with an Employer, of a group of trades
or businesses under common control under section 414(c) of
the Internal Revenue Code.
(c) A member, with an Employer, of an affiliated
service group under section 414(m) of the Internal Revenue
Code.
(d) A member, with an Employer, of a group of
businesses required to be aggregated under section 414(o) of
the Internal Revenue Code.
(e) An entity that has been designated an affiliate
for this purpose by the Company.
2.01-3 "Employer" means the Company and any adopting affiliate.
The Savings Plan Program and the ESOP Program, respectively, as adopted by
Employers, are separate plans. All of the plan assets of each such plan are
available to pay benefits for all participants in the plan, except to the
extent ESOP Program assets are pledged as security for ESOP Loans.
2.02 SERVICE FOR AFFILIATES
2.02-1 Transfer of employment from one affiliate to another
shall not cause a termination or Break in Service.
2.02-2 Work for any affiliate, whether or not an adopting
Employer, shall be counted as Service after the business becomes an affiliate
or an earlier date fixed by the Company or in a statement of adoption.
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2.02-3 If a business is acquired by the Company or an affiliate
and not continued as a separate affiliate, Service for employees of the
acquired business who become employees of the Company or the acquiring
affiliate shall be counted from their date of hire by the Company or the
affiliate. Past service for the acquired business may be counted from dates
fixed by the Company or in a statement of adoption, filed with the Committee
and announced to affected employees.
2.02-4 If a person is employed by two or more affiliates at the
same time, the following rules shall apply:
(a) Service for both affiliates shall count to
determine whether a Service Year is a Year of Service.
(b) The employee may elect pre-tax contributions up to
the maximum allowed percentage of Compensation from each
Employer but may not elect contributions from Compensation
from a nonadopting affiliate.
(c) The employee shall receive a share of the matching
contribution from each Employer based on pre-tax
contributions with respect to Compensation from each.
(d) The employee shall receive an allocation of the
fixed and supplementary contributions, if any, based on
Compensation from each Employer.
2.03 ADOPTION PROCEDURE
An affiliate may adopt this plan by a written statement signed by
the affiliate, approved by the Company and filed with the Trustee. The
statement shall include the effective date of adoption and any special
provisions that are to be applicable only to employees of the adopting
affiliate.
ARTICLE III
ELIGIBILITY AND SERVICE
3.01 CONDITIONS OF ELIGIBILITY
3.01-1 A Qualified Employee of an Employer shall become eligible
to participate in the Plan as follows:
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(a) Eligibility to elect Pre-Tax Contributions shall
begin with the first of the pay period in which the
Qualified Employee becomes eligible for Employer's welfare
benefits. Such eligibility occurs on the first of the
calendar month coinciding with or next following the
Qualified Employee's first day of employment, or such later
date as the administrative actions necessary to permit
election of Pre-Tax Contributions are completed. In no
event shall eligibility occur more than 90 days after the
first day of employment.
(b) Eligibility for all contributions, other than Pre-Tax
Contributions, shall begin with the first day of the pay period in
which the Qualified Employee completes one Year of Service.
3.01-2 The Committee may postpone the eligibility dates
described in 3.01-1(a) or (b) to the first day of the next pay period after
the pay period described.
3.01-3 "Qualified Employee" means any employee of Employer
except the following:
(a) An employee identified as a "casual employee"
within Employer's payroll system.
(b) An employee covered by a collective bargaining
agreement that does not provide for participation in this
plan.
(c) A leased employee treated as an employee for
pension purposes solely because of section 414(n) of the
Internal Revenue Code.
(d) An employee identified as a "temporary employee"
within Employer's payroll system.
(e) An individual classified by Employer as an
independent contractor or as an employee of a nonaffiliated
entity.
3.01-4 Every employee eligible to elect contributions or having
an account under this plan shall be known as a participant. The Committee
shall inform participants about the plan and furnish enrollment forms for
designating beneficiaries, making contribution elections and making
investment elections.
3.02 SERVICE
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3.02-1 "Service Year" means:
(a) For initial eligibility under 3.01 and Break in
Service under 3.05--an Employment Year.
(b) For vesting under 8.01--an Employment Year.
3.02-2 "Employment Year" means the 12-month period starting on the
date the employee first performs an Hour of Service or an anniversary of that
date.
3.02-3 "Year of Service" means a Service Year in which an
employee has 1,000 or more Hours of Service.
3.02-4 "Hours of Service" are the following:
(a) Hours, whether or not worked, for which the
employee is directly or indirectly paid or entitled to
payment.
(b) Regularly scheduled hours during leave of absence
under 3.03.
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(c) Hours covered by a back pay award or agreement,
regardless of mitigation of damages, unless already counted.
(d) Hours paid for at or after termination of
employment for unused vacation, holiday, sick leave,
disability or jury duty.
3.02-5 The following shall apply to Hours of Service for periods
not worked:
(a) Hours shall be computed and attributed to Service
Years in accordance with Department of Labor Regulations
sections 2530.200b-2(b) and (c).
(b) Hours directly or indirectly paid for under
3.02-4(a) include regularly scheduled hours during periods
of disability when the individual is receiving payments from
an Employer or from an insurance company under a policy
maintained by Employer or under workers' compensation laws.
(c) Hours directly or indirectly paid for under
3.02-4(a) do not include hours during periods in which an
individual receives payments only under unemployment
compensation laws, regardless of the source of payment.
(d) Hours counted under 3.02-4(d) do not include any
hours on account of severance pay, except severance pay in
lieu of Service.
3.02-6 Hours of Service shall be credited as follows:
(a) For employees who are paid semimonthly, 95 hours
shall be credited for each half-monthly pay period in which
the employee has one or more hours as defined in 3.02-4.
(b) For employees who are paid bi-weekly, 90 hours
shall be credited for each bi-weekly pay period in which the
employee has one or more hours as defined in 3.02-4.
3.03 LEAVES OF ABSENCE
3.03-1 An employee on leave of absence shall be treated as
employed for all purposes of this plan.
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3.03-2 Leave of absence under 3.03-1 shall mean the following:
(a) Leave of absence authorized by Employer, if the
employee returns within the time prescribed and otherwise
fulfills all conditions imposed by Employer.
(b) Leave of absence in accordance with Employer
policies because of illness or accident, including
disability that does not result in retirement, if the
employee returns promptly after recovery.
(c) Periods of military service if the employee
returns with employment rights protected by law.
(d) Periods of leave covered by the Family and Medical
Leave Act of 1993 (FMLA leave).
3.03-3 In authorizing leaves of absence, Employer shall treat
all employees who are similarly situated alike as much as possible.
3.03-4 If a person on leave fails to meet the conditions of the
leave or fails to return to work when required, the following shall apply:
(a) Employment shall be terminated and accrual of
Service shall stop when the failure occurs if either of the
following applies:
(1) The leave is not for military service
and the failure is because of death, disability
under 7.02 or retirement.
(2) The leave is FMLA leave.
(b) If (a) does not apply, employment shall be
terminated and accrual of Service shall stop as of the date
the leave began.
(c) No previous allocation of contributions or
forfeitures shall be changed.
(d) Any resulting forfeiture shall occur not earlier
than the date the failure occurs.
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3.04 BREAK IN SERVICE
3.04-1 A Break in Service shall be determined as follows:
(a) A Break in Service shall occur when an employee
has five consecutive Break-in-Service Years.
(b) Subject to (c), a Break-in-Service Year is a
Service Year in which an employee who has terminated
employment has no Hours of Service.
(c) Regardless of Hours of Service, an employee absent
because of maternity or paternity shall not, because of such
absence, have a Break in Service Year until the second
Employment Year following the Employment Year in which the
absence begins, subject to (e) below.
(d) "Absence because of maternity or paternity" means
an absence from Service because of any of the following:
(1) Pregnancy.
(2) Birth of the employee's child or care
following birth.
(3) Adoption of the employee's child or care
following adoption or placement for adoption.
(e) Paragraph (c) above shall not apply unless the
employee furnishes timely information satisfactory to the
Committee to establish the following:
(1) That the absence was due to maternity or
paternity.
(2) The length of such absence.
3.04-2 Intermittent periods of Service shall be aggregated until
there is a five-year Break in Service. If a Break in Service occurs and the
employee has later Service, Service before the Break will be counted as
follows:
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(a) For vesting, pre-Break Service will be counted if
the tests in (b) below are met and the employee has a Year
of Service after the Break.
(b) For eligibility for participation, pre-Break
Service will be counted only if either of the following
applies:
(1) The employee had a vested interest
before the Break.
(2) The number of Years of Service before
the Break is greater than the number of
consecutive Break-in-Service Years.
3.04-3 If an employee has a five-year Break in Service, has
later Service and Service before the Break is counted, the following shall
apply:
(a) The employee shall participate immediately on
resumption of employment as a Qualified Employee.
(b) Service before and after the Break shall be
combined for vesting of future contributions.
(c) Restoration of any forfeiture of an employee's
account shall be governed by 8.05.
3.04-4 If a rehired employee's Service before a Break is not
counted, the employee shall be treated as newly hired and may participate
when eligible under 3.01. In that event, the first day of Service after
rehire shall start a new Employment Year for eligibility and vesting.
ARTICLE IV
CONTRIBUTIONS
4.01 COMPENSATION
4.01-1 "Compensation" means the following, up to the limit in
4.01-2:
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(a) For deductibility under 4.08, compensation means
wages subject to income tax withholding, as reported on IRS
Form W-2.
(b) For the annual addition limit under 4.09-2(b), for
determination of highly compensated employees under 4.04-5,
and for ADP and CP testing under 4.04-2, compensation means
the amount described in (a) plus pre-tax contributions and
amounts set aside by the participant from otherwise taxable
income under a welfare benefit plan qualified under
section 125 of the Internal Revenue Code.
(c) For fixed and supplemental contributions under
4.06, pre-tax contributions under 4.02, and matching
contributions under 4.03, compensation means the amount in
(b), but excluding all of the following:
(1) Noncash compensation, expense
reimbursement, and fringe benefits.
(2) Payments before termination of
employment for surrender of accumulated unused
personal time.
(3) Payment for termination of employment
(such as retirement bonuses, disability benefits
and severance pay).
(4) Recognition awards under the Company's
Spot Award Recognition Program.
(5) Incentive pay (such as taxable income
from stock options, the long-term incentive pay
program and the restricted stock plan).
4.01-2 Except for determination of the annual addition limit and
the making of pre-tax and matching contributions, compensation counted for
any participant shall be limited to $150,000 plus any cost-of-living
adjustment authorized by applicable law. The limit shall apply to
compensation after reduction for pre-tax contributions and cafeteria plan
salary reductions. It shall not prevent pre-tax contributions from
continuing after a participant has received compensation in excess of the
limit as long as 4.04 is satisfied based on compensation after the limit has
been imposed.
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4.01-3 During any leave of absence for military service under
3.03-2(c), compensation shall be imputed at the rate the participant would
have been paid if not absent. If this amount is not reasonably certain,
compensation shall be based on the participant's average compensation during
the 12 months immediately before the leave began, or all such months if fewer
than 12.
4.02 PRE-TAX CONTRIBUTIONS
4.02-1 For each plan year Employer shall make pre-tax
contributions as follows for participants not excluded for pre-tax
contributions by the terms of an Employer's adoption statement or a
collective bargaining agreement:
(a) Subject to 4.08, 4.09, and the limits stated
below, the contribution for a participant shall be an amount
elected by the participant, and the participant's
compensation for the year shall be reduced by that amount.
(b) The Committee shall fix the maximum percentage of
compensation that may be elected under (a). The Committee
may fix lower maximums for highly compensated employees to
satisfy the requirements of 4.04.
(c) The maximum pre-tax contribution for any
participant under (a) shall be $7,000 plus any
cost-of-living adjustment authorized by applicable
regulations.
(d) In the first year of participation, compensation
shall be counted for the part year after participation starts.
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(e) This plan shall be a profit sharing plan with
respect to pre-tax contributions.
4.02-2 The Committee shall establish rules covering the method
and frequency of elections and procedures for starting, stopping and changing
the rate of pre-tax contributions.
4.02-3 If an employee's pre-tax contributions for a plan year
would be more than permitted under 4.02-1(c) (an excess deferral), the
following shall apply:
(a) Any direction for such an excess deferral shall be
invalid and the directed deferral shall not be made. An
excess deferral made by mistake shall be returned under
12.08-3 if possible by the end of the plan year during which
the excess deferral is received. If a participant's excess
deferral cannot be returned by the end of the plan year, it
shall be withdrawable under (b) by the participant by notice
in accordance with Committee rules and the rules in (c)
below shall apply.
(b) If an excess deferral occurs because of combined
pre-tax deferrals under this plan and another plan, the
participant may withdraw the excess only if all of the
following conditions are satisfied:
(1) The participant notifies the Committee
of the excess deferral by March 1 following the
close of the year, unless the Committee waives the
deadline.
(2) The notice specifies how much of the
excess deferral is to be withdrawn from this plan.
(3) Other applicable rules of the Committee
are followed.
(c) Any withdrawal under (a) or (b) shall be completed
by April 15 following the close of the year for which the
excess deferral is made.
(d) A participant's withdrawal under (b) shall be
reduced by the amount of any excess contribution previously
distributed under 4.05-2 for the same plan year.
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(e) A participant's withdrawal under (a) or (b) shall
include related investment earnings and shall be reduced by
the amount of any excess contribution previously distributed
under 4.06-2 for the same plan year.
4.02-4 A participant who returns from military leave under
3.03-2(c) may make pre-tax contributions on account of the period of leave as
follows:
(a) Subject to (c), make-up pre-tax contributions may
be made during the contribution make-up period under (b) out
of compensation payable during such make-up period.
(b) The contribution make-up period begins on the date
the participant is reemployed and ends on the earlier of the
following:
(1) The fifth anniversary of reemployment.
(2) The last day of a period that is three
times the period of military leave.
(c) To the extent permitted by applicable regulations,
make-up contributions may be made out of funds other than
compensation. Each such contribution shall be considered
made when the participant delivers funds to the plan equal
to the contribution amount.
(d) The participant shall file an election with the
Committee designating the plan year during military leave to
which make-up pre-tax contributions under (a) and (c)
relate.
(e) Pre-tax contributions under (a) and (c), plus pre-tax
contributions otherwise made for the plan year for which the make-up
contributions are made, shall not exceed the limit in 4.02-1(c) and
4.02-3 shall apply.
4.03 MATCHING CONTRIBUTIONS
4.03-1 Employer shall make a matching contribution for each
participant for each plan year. The matching contribution shall be a
percentage of the participant's pre-tax contributions for the year, other
than those attributable to unused credits under a cafeteria plan.
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The pre-tax contributions on which matching contributions may be based shall
be limited to 6 percent of Compensation. The matching contribution
percentage shall be the following:
(a) 50 percent, unless a different percentage is set
under (b) below.
(b) A percentage set pursuant to a collective
bargaining agreement.
4.03-2 Any addition to the matching contribution that is fixed
under 4.03-1(b) after the end of a calendar quarter shall be made only for
participants who do one of the following:
(a) Remain employed on the last day of the quarter.
(b) Terminate employment during the quarter due to
death, disability or retirement.
4.03-3 Matching contributions shall be credited to each
participant's ESOP Program account for matching contributions. If the ESOP
Program is funded with an ESOP Loan under 10.03, then each matching
contribution shall be applied to repayment of the ESOP Loan to the extent
directed by the Company, under the applicable Leveraged ESOP suspense account
procedures in accordance with 5.01-3, 5.03 and 10.03-2.
4.03-4 Pre-tax contributions shall be determined after giving
effect to any reductions under 4.05, 4.06-4 or 12.08, and to any withdrawals
under 5.05.
4.03-5 Each plan year, Employer shall make an additional matching
contribution with respect to make-up pre-tax contributions made during that
plan year under 4.02-4 as follows:
(a) The additional matching contribution shall be
determined separately with respect to each plan year to
which a participant's election under 4.02-4(d) relates.
(b) The amount of the additional matching contribution
with respect to any plan year during military leave shall
equal the amount of additional matching contribution that
would have been made had the make-up pre-tax contributions
been made during that plan year.
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4.04 CONTRIBUTION LIMITS FOR HIGHLY COMPENSATED EMPLOYEES
4.04-1 For each year the plan shall satisfy the
nondiscrimination tests in sections 401(k)(3) and 401(m) of the Internal
Revenue Code in accordance with Treasury Regulation sections 1.401(k)-1 and
1.401(m)-1 and -2. The following provisions shall be applied in a manner
consistent with the Code and Regulation sections, which are incorporated by
this reference.
4.04-2 For each plan year the Committee shall determine the
actual deferral percentage (ADP) and the contribution percentage (CP) of the
eligible employees who are highly compensated employees under 4.04-5 and the
ADP and CP of the remaining eligible employees as follows:
(a) The ADP and CP for the highly compensated
employees or for the nonhighly compensated employees is the
average of the individual deferral or contribution
percentages for all eligible employees in the group.
(b) An employee's individual deferral percentage is
the individual's pre-tax contributions for the year as a
percentage of the individual's compensation under (e).
Excess pre-tax deferrals for a nonhighly compensated
employee under a plan maintained by Employer shall be
disregarded.
(c) An employee's individual contribution percentage
is the sum of the following for the year as a percentage of
the individual's compensation under (e):
(1) The individual's allocated fixed and
matching contributions.
(2) The individual's allocated supplemental
contribution.
(d) If any employee group does not participate in
leveraged ADS Shares with respect to matching contributions
for all or part of any year, a separate CP shall be
calculated for that group in that year or part year.
(e) Compensation for purposes of the ADP and CP is
compensation as defined in 4.01-1(d) or (e) while the
employee is eligible to participate.
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(f) The following shall be aggregated to determine the
ADP and CP for this provision and for 4.04-3:
(1) All plans that are aggregated with this
plan under Internal Revenue Code sections
401(a)(4) and 410(b) (other than for the average
benefit percentage test).
(2) All cash and deferred arrangements in
which the same highly compensated employee is
eligible to participate.
4.04-3 Neither the ADP nor the CP of the highly compensated
employees may exceed the greater of the following as adjusted in 4.04-4:
(a) 1.25 times the ADP or CP of the nonhighly
compensated employees for the prior plan year.
(b) 2 percentage points higher than the ADP or CP of
the nonhighly compensated employees for the prior plan year,
up to 2 times such ADP or CP.
4.04-4 The limit in 4.04-3(b) shall be adjusted in accordance
with the Treasury Regulation section 1.401(m)-2 to avoid duplicate use of the
limit for any highly compensated employee in violation of Code section
401(m)(9).
4.04-5 "Highly compensated employee" is defined in section
414(q) of the Internal Revenue Code and related Treasury regulations. In
determining which employees are highly compensated employees, the following
shall apply:
(a) Subject to (b), (c) and (d) below, highly
compensated employees for a plan year are persons who
perform services for Employer during the year or the prior
plan year and are one of the following:
(1) An owner of five percent or more of an
Employer during either year.
(2) A person paid over $$80,000 for the
prior year who is among the highest paid 20 percent of
employees of Employer for such prior
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year, aggregating employees of all statutory affiliates
under 2.01-2.
(b) The dollar amounts in (a) shall be adjusted in
accordance with Treasury regulations for changes in cost of
living.
(c) Former employees shall be taken into account in
accordance with applicable regulations.
(d) Pay for this purpose shall mean compensation under
4.01-1(c).
4.05 ACTIONS TO CORRECT EXCESS CONTRIBUTIONS FOR HIGHLY COMPENSATED
EMPLOYEES
4.05-1 If the ADP or CP of the highly compensated employees
would exceed the limits in 4.04-3, the Committee shall adjust the
contributions for certain highly compensated employees to come within the
limits, as follows:
(a) If the ADP limit is exceeded, pre-tax
contributions and related matching contributions shall be
reduced taking the highest individual deferral amount first.
(b) If the CP limit is exceeded, the matching
contributions shall be reduced, taking the highest
individual contribution amount first.
4.05-2 Amounts adjusted under 4.05-1 shall be by forfeiture or
distribution as follows:
(a) Any amount from matching contributions shall be
forfeited, with related earnings, as follows:
(1) Any amount under 4.05-1(a) shall be
forfeited whether or not it would otherwise have
been vested.
(2) Any amount under 4.05-1(b) shall be
forfeited to the extent of any unvested balance in
the matching contribution account of the highly
compensated employee to whom it applies. The
unvested balance shall be determined before the
reduction.
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(3) Amounts forfeited shall be applied first
to restore previously forfeited amounts under
8.05-1, then to pay plan expenses or offset future
matching contributions.
(b) Subject to (c) below, any amount not forfeited
under (a) above shall be distributed, with related earnings,
to the highly compensated employees to whom it applies. The
related earnings shall be determined under a method that
does not discriminate in favor of highly compensated
employees, is consistent for all participants and corrective
distributions for the same plan year, and is used by the
plan for allocating income to participants' accounts.
Distribution shall be made during the plan year after the
year to which the excess applies.
(c) A distribution under (b) above because of the ADP
test shall be adjusted by the amount of any excess deferral
previously withdrawn under 4.02-3(b) for the same plan year.
4.06 FIXED AND SUPPLEMENTAL CONTRIBUTIONS
4.06-1 For participants each year who meet the conditions of
4.06-4, Employer shall make a fixed contribution to the plan equal to a
percentage of Compensation as follows:
(a) A percentage set from time to time by resolution
of the Board of Directors of the Company and announced to
participants. Except as provided in (b), the percentage
shall be a uniform percentage of Compensation for all
participants of all Employers.
(b) A percentage set pursuant to a collective
bargaining agreement for employees in one or more collective
bargaining units. Each collective bargaining agreement
shall specify a uniform percentage of Compensation for each
affected participant.
4.06-2 Fixed contributions designated by the Company for
repayment of an ESOP Loan under 5.01-3 shall be credited to the Leveraged
ESOP suspense account maintained for the ESOP Loan and allocated pursuant to
5.03-1(c). Other fixed contributions shall be allocated to participant's
accounts directly as a percentage of Compensation corresponding with the
fixed contribution rate of the participant's Employer for the year.
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4.06-3 The Company may direct Employers to make supplemental
contributions, to the extent necessary to supplement dividends on ADS Shares
held in a Leveraged ESOP suspense account for such loans so as to allow
interest on the loans to be paid fully from such dividends and supplemental
contributions. The amount of the supplemental contributions and the portion
of it to be made by each Employer shall be decided by the Company in its sole
discretion.
4.06-4 Fixed contributions shall be allocated to participants'
accounts regardless of continuing employment. Supplemental contributions
shall be allocated to participants' accounts as of the last day of each plan
year and shall only be allocated to accounts of participants who remain
employed on the last day of the year. An employee absent at year-end because
of a period of leave during which service must be counted under the Family
and Medical Leave Act of 1993 shall be treated as employed for this purpose.
4.06-5 Fixed contributions and supplemental contributions
allocated to a participant under 4.06-2 or 4.06-6(b) shall be credited to the
participant's ESOP Program account for fixed contributions. If the ESOP
Program is funded with an ESOP Loan, then the fixed and supplemental
contributions shall be applied to repayment of the ESOP Loan to the extent
directed by the Company, under the applicable Leveraged ESOP suspense account
procedures in accordance with 4.06-6 and 5.01-3.
4.06-6 The supplemental contribution for each year shall be
allocated as follows:
(a) If directed by the Company, the contribution first
shall be allocated to the Leveraged ESOP suspense account in
the amount, if any by which dividends paid in the year on
ADS Shares in the suspense account and matching and fixed
contributions for the year designated for repayment of the
ESOP Loan in the suspense account are less than the payments
due for the year on the ESOP Loan. The amount shall be
allocated in proportion to Compensation for all participants
of all Employers.
(b) The remaining contribution after any allocation
under (a) shall be allocated to participants under
collective bargaining agreements who meet the conditions of
4.06-3 in proportion to the fixed and matching contributions
leading to the federal tax reductions
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with reference to which the supplemental contributions have
been made. No supplemental contributions shall be made in
amounts that would cause allocations to participants other
than as described in 4.06-3. Each collective bargaining
agreement shall specify a uniform percentage of Compensation
for each affected participant.
4.06-7 Employer shall make additional fixed and supplemental
contributions as follows for a participant who returns from military leave
under 3.03-2(c):
(a) The additional fixed and supplemental
contributions shall be determined separately with respect to
each plan year during which the participant was absent on
military leave.
(b) The additional fixed and supplemental
contributions with respect to a year during any period of
absence for military leave shall equal the amount of
additional fixed and supplemental contributions that would
have been made on behalf of the participant for the plan
year if the compensation imputed under 4.01-3 had been paid
during the period of absence.
(c) The additional fixed and supplemental
contributions shall be subject to the limits in 4.08 and
4.09 that applied to the plan year for which the additional
contribution is made.
4.07 POST-TAX CONTRIBUTIONS
No post-tax contributions by employees shall be required or
accepted under this plan. Post-tax contributions made under the Prior
Savings Plans or the Utah Power Plan shall be held under this plan in a
post-tax contribution account for distribution under the terms of this plan.
4.08 DEDUCTIBILITY
4.08-1 Contributions are conditioned upon deductibility under
section 404 of the Internal Revenue Code, except to the extent that
deductible contributions are not sufficient to pay principal and interest on
money borrowed to acquire ADS Shares. To the extent a deduction is
disallowed, 12.08 shall apply.
4.08-2 If contributions would exceed the limit because of
another defined contribution plan, the amount recovered under 12.08 shall be
charged in the same order as reductions under 4.09-8.
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4.09 LIMIT ON ANNUAL ADDITIONS
4.09-1 Benefits shall be limited in accordance with the
following rules as provided in Internal Revenue Code section 415 and related
regulations. The following provisions shall be applied in a manner consistent
with the Code and regulations, which are incorporated by this reference.
4.09-2 No annual addition for any participant shall be more than
the lesser of the following:
(a) $30,000 plus any cost-of-living adjustment
authorized by applicable law; or
(b) 25 percent of the participant's compensation, as
defined in 4.01-1(b), for the limitation year.
4.09-3 "Annual addition" means for any limitation year the sum
of all contributions and forfeitures allocated to the participant's accounts
for the year, subject to the following:
(a) Allocations to a participant's account in the form
of leveraged ADS Shares acquired with the proceeds of an
ESOP Loan under 10.03 shall be calculated with reference to
Employer contributions used to repay the loan.
(b) Contributions applied to pay interest on an ESOP
Loan shall be excluded if the requirements in (c) are
satisfied.
(c) The exclusion under (b) shall apply in a year only
if no more than one-third of all the contributions for the
year under the ESOP Program are contributed for the benefit
of persons who are highly compensated employees under
4.04-5.
(d) In applying the limitations on annual additions,
all employers that are statutory affiliates as described in
2.01-2, with the adjustment provided in section 415(h) of
the Internal Revenue Code, shall be considered a single
employer.
4.09-4 If an Employer contributes ADS Shares under the ESOP
Program, or an Employer contribution is used to purchase ADS Shares, the
Employer contribution limit under 4.09-2(a) for the year shall be increased
by the amount so contributed up to a maximum limit of twice that stated in
4.09-2(a) if the requirements of 4.09-3(c) are met.
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4.09-5 If an annual addition for a participant would exceed the
limit in 4.09-2, the Committee shall, pursuant to Treasury Regulation section
1.415-6(b)(6), eliminate the excess by reducing the participant's pre-tax,
matching, fixed and supplemental contributions for the year in that order.
The amount of the reduction shall be credited to a suspense account and
reallocated to participants in the following year as a reduction in the
contributions to the plan by the Employer of the participant from whom the
excess was taken. Gains and losses may be credited to the suspense account,
as determined by the Committee.
4.09-6 If Employer maintains one or more other defined
contribution plans at any time, the annual additions under all such plans
shall be combined for purposes of applying the above limitations giving
effect to any adjustment allowed for annual additions under any other plan.
For the purposes of 4.09-2(a) only, any contribution to a separate account
for post-retirement medical benefits for a key employee under a funded
welfare benefit plan shall be considered such an annual addition.
4.09-7 If Employer maintains or has maintained one or more
defined benefit pension plans at any time, the following rules shall apply:
(a) The defined benefit fraction under all such plans
combined with the defined contribution fraction under this
plan and all other defined contribution plans currently or
previously maintained by Employer shall not exceed 1.0 for
any individual.
(b) The defined benefit fraction numerator shall be
the participant's projected annual normal retirement
benefit. The denominator shall be the maximum benefit under
section 415(b)(1) of the Internal Revenue Code, adjusted
under (d).
(c) The defined contribution fraction numerator shall
be the sum of all annual additions for the participant since
the plan's inception. The denominator shall be the sum of
the maximum annual additions under section 415(c)(1) of the
Internal Revenue Code for all years of the participant's
employment with Employer, adjusted under (d).
(d) The denominators under (b) and (c) shall be the
smaller of the maximum percentage limitation amount times
1.4 or the maximum dollar limitation amount times 1.25.
4.09-8 If an annual addition for a participant would exceed the
limits in 4.09-2 or 4.09-7 because of any other tax qualified retirement plan
of an Employer, the contributions
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under this plan shall stand and the contributions or benefits under the
other plan shall be reduced as necessary to meet the limit.
4.09-9 In applying the limitations on annual additions, all
employers who are affiliates under 2.01-2 shall be considered a single
employer.
4.09-10 If an annual addition for a participant would exceed the
limit in 4.09-2 for a limitation year, then excess annual additions may be
corrected in one or a combination of the following ways, as determined by the
Committee:
(a) By corrective disbursement to the affected
participants in accordance with Treasury Regulation section
1.415-6(b)(6)(iv).
(b) By applying the excess amounts in the
participant's account to reduce Employer contributions to
the plan for that participant for the next limitation year,
and, to the extent necessary, for future limitation years.
If the participant is not covered by the plan as of the end
of the limitation year, the excess amounts shall be held
unallocated in a suspense account for the limitation year
and reallocated in the next limitation year to reduce
Employer contributions for all remaining participants in the
plan in accordance with Treasury Regulation section
1.415-6(b)(6)(ii).
4.10 PAYMENT OF CONTRIBUTIONS
4.10-1 Contributions may be in cash or in ADS Shares, subject to
the following rules:
(a) Contributions to the extent necessary to pay
principal and interest on money borrowed to acquire ADS
Shares shall be in cash.
(b) "ADS Shares" means American depository securities
of the Company's parent corporation, ScottishPower plc, that
are readily tradable on an established securities market.
4.10-2 Employer shall make payments to the Trustee to cover all
contributions as follows:
(a) Subject to (b) and (c), a pre-tax contribution
shall be paid as soon as the amount can reasonably be
identified and separated from Employer's other assets.
Payment shall in any event be made
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within 15 business days after the end of the month in which the
participant would otherwise have received the amount deducted from
pay on account of the pre-tax contribution.
(b) All contributions for a plan year shall be paid
within the regular or extended time for filing Employer's
federal income tax return for the year.
(c) In any event, all pre-tax and matching
contributions for a plan year shall be paid no later than 12
months after the end of the plan year.
ARTICLE V
PARTICIPANTS' ACCOUNTS
5.01 PARTICIPANTS' ACCOUNTS
5.01-1 The Committee shall keep separate accounts for each
participant for the following:
(a) Savings Plan accounts for amounts derived from
pre-1988 contributions for matching contributions, and
post-tax contributions.
(b) Savings Plan accounts as follows:
(1) Pre-tax contribution accounts for
amounts derived from pre-tax contributions
received before 1991 as well as those received
after 1990.
(2) Special collective bargaining employees'
accounts for post-1987 contributions for any
matching, fixed and supplementary contributions
pursuant to collective bargaining agreements that
do not permit the contributions to be allocated to
ESOP Program accounts under (d).
(3) Rollover and transfer accounts.
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(4) Utah Power Prior Savings Plan Accounts
for amounts transferred to the Savings Plan
program from the Utah Power Savings Plan effective
as of the close of the 1990 plan year.
(5) North-West Prior Savings Plan Accounts
for amounts transferred to the Savings Plan
Program from the North-West Savings Plan effective
as of the close of the 1990 plan year.
(c) ESOP Program accounts for amounts derived from
pre-1988 tax credit contributions.
(d) ESOP Program accounts for amounts derived from
post-1987 contributions for the following:
(1) Matching contributions other than those
under (b) above.
(2) Fixed contributions other than those
under (b) above.
(3) Supplemental contributions other than
those under (b) above.
(e) ESOP Program accounts for amounts transferred from
the Utah Power Savings Plan and from the North-West ESOP.
5.01-2 The Committee shall furnish each participant annually a
statement showing contributions to date and the funds credited to each
account.
5.01-3 The Committee shall direct the Trustee to maintain an
unallocated suspense account (Leveraged ESOP suspense account) for each loan
(ESOP Loan) entered into by the Trustee to finance the purchase of ADS Shares
(leveraged ADS Shares) under 10.03. A separate Leveraged ESOP suspense
account shall be maintained for each ESOP Loan. The following amounts shall
be credited to the Leveraged ESOP suspense account:
(a) Proceeds from the ESOP Loan and any earnings from
the proceeds if invested pending acquisition of the
leveraged ADS Shares.
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(b) Leveraged ADS Shares acquired with the ESOP Loan
proceeds.
(c) Amounts contributed by an Employer under the ESOP
Program and designated by the Employer for repayment of the
ESOP Loan.
(d) Earnings received on leveraged ADS Shares under
(b) and contributions under (c) while held in the leveraged
ESOP Suspense Account.
5.02 VALUATIONS AND ADJUSTMENTS
5.02-1 As of each regular or special valuation date, the Trustee
shall value the pooled investment funds and segregated accounts at their fair
market values and report the values to the Committee. The Committee shall
allocate the values to segregated and nonsegregated accounts as of the
valuation date. The allocation to nonsegregated accounts shall be in
proportion to account balances on the valuation date before adding any
allocations or subtracting any withdrawals or other distributions made as of
that date and appropriate adjustment shall be made for any interim
contributions or distributions since the last valuation date. Segregated
accounts shall be adjusted individually to reflect changes affecting each
account.
5.02-2 The Committee may call for a special valuation upon
finding that desirable to avoid a material distortion in benefits or
otherwise to administer the plan properly.
5.02-3 The Trustee shall determine the fair market value of ADS
Shares and other securities issued by Employers (Employer securities) as of
each regular or special valuation date. The Trustee shall engage a
qualified, independent person or organization to fix the value of Employer
securities held under the plan, if required by the Trust Agreement or by
applicable law.
5.03 ALLOCATIONS FROM LEVERAGED ESOP SUSPENSE ACCOUNT
5.03-1 Subject to 5.03-5, as of each plan year end and, if
designated by the Committee, as of each special allocation date during the plan
year, the Committee shall determine in accordance with applicable law and
regulations the number of shares of leveraged ADS Shares to be released from
each Leveraged ESOP suspense account and allocated to participants' accounts
under either 5.03-2 or 5.03-3. The Committee shall make allocations to
participants for the year in accordance with the following:
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(a) Allocations of leveraged ADS Shares shall be based
on nonmonetary units corresponding with the Trustee's cost
for the stock being allocated.
(b) Allocations shall be made first to ESOP Program
matching contribution accounts in accordance with matching
contributions designated for repayment of the ESOP Loan
during the year.
(c) After allocation under (b), an allocation of any
remaining amount shall be made to ESOP Program fixed
contribution accounts in accordance with fixed contributions
designated for repayment of the ESOP Loan during the year.
(d) After allocations under (b) and (c), an allocation
of any remaining amount shall be made to ESOP Program
supplemental contribution accounts in accordance with
4.06-6.
(e) To the extent that earnings on leveraged ADS
Shares need not be retained in a suspense account to repay
money borrowed, such earnings shall be included in the
allocations under (b), (c) and (d).
5.03-2 Subject to 5.03-3, 5.03-4 and 5.03-5, the number of
shares of leveraged ADS Shares to be released from a Leveraged ESOP suspense
account shall be at least equal to the number of shares held in the account
just prior to the release multiplied by a fraction as follows:
(a) The numerator shall be the amount of principal
paid for the plan year on a loan for money borrowed to buy
such stock or to repay money previously borrowed for such
purpose.
(b) The denominator shall be the sum of the numerator
plus the principal to be paid on such borrowed funds in all
future years.
5.03-3 Release of shares under 5.03-2 may be made only if the
following requirements are met:
(a) The Leveraged ESOP loan must provide for the
payment each year of principal and interest at a cumulative
rate that
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is not less rapid at any time than annual payments of such
amounts for 10 years.
(b) Interest included in any payment can be
disregarded only to the extent that it would be treated as
interest under standard loan amortization tables.
(c) The term of the loan including renewals,
extensions and refinancings cannot exceed 10 years.
5.03-4 The alternative procedure described in this provision
shall apply if elected by the Committee or if the requirements of 5.03-3 are
not met. Subject to 5.03-5, under the alternative method, the number of
shares of leveraged ADS Shares to be released from a Leveraged ESOP suspense
account shall at least equal the number of such shares held in the account
just prior to the release multiplied by a fraction as follows:
(a) The numerator shall be the sum of the principal
and interest paid for the plan year on a loan for money
borrowed to buy such stock or to repay money previously
borrowed for such purpose.
(b) The denominator shall be the sum of the numerator
plus the principal and interest to be paid on such borrowed
funds in all future years.
(c) If the interest under the loan is variable, future
interest shall be computed at the rate in effect on the
regular valuation date.
5.03-5 If an ESOP Loan is repaid with the proceeds of another
loan (Replacement ESOP Loan), the following shall apply:
(a) Such repayments shall not release shares for
allocation to participants under 5.03-1, and
(b) Shares released by such repayments shall be
transferred to a Leveraged ESOP Suspense Account for the
Replacement ESOP Loan.
5.04 SPECIAL DISTRIBUTION OF DIVIDENDS
5.04-1 If directed to do so by the Company, except as provided in
5.04-2(e), the Trustee shall distribute cash dividends on ADS Shares held on the
dividend record date by the
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trust. The distribution of cash dividends under this provision shall apply
to dividends on ADS Shares allocated to participants under ESOP Program
accounts.
5.04-2 Distributions under 5.04-1 shall be subject to the
following:
(a) Company direction under 5.04-1 must be by written
notice from the person designated in 9.03-1, and may be
revoked by the Company with respect to a dividend at any
time before the dividend is distributed.
(b) Dividend distributions shall be paid in cash no
later than 90 days after the end of the plan year in which
the dividends are received by the trust.
(c) For each participant or beneficiary, the amount
distributed shall equal the amount otherwise allocable to
the individual's account for the dividend.
(d) Any earnings on a dividend before distribution
shall be retained in the trust and allocated to the account
of the participant or beneficiary affected.
(e) The Committee may allow participants to elect to
have dividends retained in their accounts rather than
distributed currently in cash.
5.05 IN-SERVICE WITHDRAWALS
5.05-1 All or part of a participant's Prior Savings Plan account
for post-tax contributions may be withdrawn before termination of employment
at the participant's option, subject to 5.06-3(c), in the following order:
(a) The lesser of accumulated post-tax contributions
made before January 1, 1987 or the current value of the
account may be withdrawn first.
(b) If all amounts under (a) have been withdrawn, the
remainder of the account may be withdrawn.
5.05-2 If all amounts under 5.05-1 have been withdrawn, a
participant may withdraw any amounts attributable to rollovers and
unrestricted transfers without a showing of financial hardship. A restricted
transfer is one that is attributable to accounts that were subject
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to legally required withdrawal restrictions under the transferor plan and is
not an elective transfer under 5.08-2(d).
5.05-3 The following accounts may be withdrawn before
termination of employment to the extent needed for a financial hardship of
the participant approved by the Committee under 5.05-9:
(a) The lesser of (1) or (2) below:
(1) Pre-tax contributions, including those
received before January 1, 1988.
(2) The current balance of the pre-tax
contribution account.
(b) The vested portion of a Prior Savings Plan account
for matching contributions.
(c) Subject to 5.05-5, the current balance of the
participant's rollover and transfer account, including
earnings to the most recent valuation date.
5.05-4 Subject to 5.05-5, a participant over age 59 1/2 may
withdraw all or part of the participant's accounts at the participant's
option, exclusive of amounts attributable to the ESOP Program accounts.
5.05-5 Withdrawals shall not be allowed from funds (including
post-transfer earnings) attributable to amounts transferred from a money
purchase pension plan, excluding amounts attributable to any after-tax
employee contributions included in the transfer, unless the employee has
reached age 70 1/2.
5.05-6 A participant who is totally disabled under Employer's
Long-Term Disability Plan or who meets the standards for Social Security
total, permanent disability payments may withdraw all or part of the
participant's accounts at the participant's option.
5.05-7 A participant who has reached age 70 1/2 may elect to
receive all or part of the entire account.
5.05-8 "Financial hardship" means a participant's immediate and
heavy financial need that cannot be met from other reasonably available
resources and is caused by one or more of the following:
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(a) Medical expenses under Internal Revenue Code
section 213(d) of the participant, a dependent member of the
participant's immediate family or household, or another
dependent.
(b) The cost of current tuition and room and board for
post-secondary education and related educational fees for
the next 12 months for the participant, the participant's
child or spouse, or a dependent under Internal Revenue Code
section 152.
(c) The cost of buying the principal residence of the
participant, not including making mortgage payments.
(d) The cost of preventing eviction from or
foreclosure on the principal residence of the participant.
(e) Temporary layoff without pay at the instance of
Employer.
(f) Other unexpected or unusual expenses creating a
financial need for which withdrawal is permitted by Treasury
Regulation section 1.401(k)-1.
5.05-9 Withdrawals shall be carried out under the following rules:
(a) The withdrawal date shall be fixed by the
Committee after application by the participant under
Committee procedures.
(b) If the withdrawal is requested because of
financial hardship, the application shall include a signed
statement of the facts causing financial hardship and any
other facts required by the Committee. No hardship
withdrawal shall be granted unless the participant has
borrowed the maximum amount available under 5.06-4 and has
withdrawn all amounts available under 5.05-1.
(c) The Committee may require a minimum advance
notice, may limit the amount and frequency of withdrawals
and may delay payment of an approved withdrawal to permit a
special valuation, to permit liquidation of necessary assets
or for other pertinent reasons.
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(d) The Committee shall designate which investment
fund or funds are to be charged with the withdrawal if more
than one fund is involved.
(e) Accounts shall be adjusted as of the last regular
or special valuation date on or before the withdrawal unless
the Committee elects to have a special valuation, which will
then control.
(f) Withdrawals from post-tax contributions shall be
charged in the following order:
(1) Against contributions made before 1987.
(2) Against contributions made after 1986
and a proportionate share of related earnings.
(3) Against earnings related to
contributions made before 1987.
5.06 LOANS TO PARTICIPANTS
5.06-1 The Committee shall instruct the Trustee to lend money to
a participant or beneficiary as follows:
(a) The Committee shall make loans to participants and
beneficiaries who are parties in interest under 3(14) of
ERISA on a reasonably equivalent basis as follows:
(1) The borrower must establish an intention
and a reasonably certain capacity to repay the
loan and interest when due, and may have not more
than two loans outstanding at any time.
(2) A beneficiary shall not be eligible for
a loan unless all events needed to make the
beneficiary's rights unconditional have occurred.
(3) Loans may not be made from ESOP Program
accounts.
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(4) Subject to (3) above, a loan shall be
available for not less than $1,000 and not more
than the limits specified in 5.06-4.
(5) Loans shall not be made available to
highly compensated employees in an amount greater
than the amount available to other employees
expressed as a percentage of the account, subject
to (4) above.
(b) The loan date shall be fixed by the Committee
after application by the borrower under Committee
procedures.
(c) Receipt of a loan shall constitute consent by the
participant to withdrawals under 5.06-3 before normal
retirement age.
(d) Reasonable fees may be charged to the borrower for
making and administering the loan.
5.06-2 Loans shall be secured as follows:
(a) A loan shall be secured by the participant's
account balances, other than balances in ESOP Program
accounts. The loan shall be held as part of the accounts
that secure the loan, and any payments of principal and
interest and any withdrawals on default shall be credited to
or charged against such accounts.
(b) All loans shall be secured by an assignment of
current pay of the borrower sufficient to service the loan.
Termination of the employment producing the pay shall
constitute a default.
(c) The Committee may require or accept other
collateral in its discretion.
5.06-3 If a loan is not repaid when due, the following shall apply:
(a) The Committee shall have the option to declare the
entire principal and interest immediately due and payable.
(b) The Committee may instruct the Trustee to withdraw
from the participant's vested accounts the amount of the
loan and
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interest plus any applicable withholding, or foreclose on any other
collateral, or both, as provided below.
(c) After age 59 1/2 or termination of service, all or
part of a participant's entire vested plan interest may be
withdrawn on default.
(d) During employment before age 59 1/2, only the
following portions of a participant's vested plan interest
may be withdrawn on default:
(1) Post-tax contributions and related
earnings.
(2) Elective contributions, plus earnings
credited through December 31, 1988 but not later
earnings, to the extent the Committee finds a
financial hardship under 5.05-8.
(3) Amounts attributable to rollovers and
unrestricted transfers. A restricted transfer is
one that is attributable to amounts that were
subject to legally required withdrawal
restrictions under the transferor plan and is not
an elective transfer under 5.08-2(d).
(e) In all cases, withdrawals will be charged first to
any post-tax contributions and related earnings. Otherwise,
withdrawals will be charged as the Committee may decide
against different accounts to which the participant's
contributions have been allocated.
5.06-4 Unless the Committee imposes lower limits on a
nondiscriminatory basis, loans permitted by 5.06-1(a) may be made so long as
the aggregate outstanding principal balance of all loans with respect to any
participant does not exceed the lesser of the following at the time the loan
is made:
(a) 50 percent of the participant's vested accounts.
(b) $50,000, reduced by any principal payment made on
plan loans in the 12 months preceding the date of the loan.
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(c) 100 percent of the participant's account under the
Savings Plan Program.
5.06-5 The Committee shall fix the terms of payment and interest
rate for loans under the following rules, treating all persons similarly
situated alike:
(a) All loans shall be evidenced by negotiable
promissory notes payable to the Trustee. The maker shall be
personally liable on the note regardless of any security.
(b) The interest rate shall be a reasonable rate fixed
by the Committee based on locally prevailing commercial
lending rates at the time for comparable loans.
(c) Loans must be payable in not more than five years,
unless used to acquire a principal residence of the
participant.
(d) Loans must be amortized by substantially level
principal and interest payments made no less often than
quarterly over the loan term. Prepayments shall be allowed.
(e) Loan payments may be suspended during leave under
3.03 as permitted by applicable law, including under section
414(u)(4) of the Internal Revenue Code.
5.06-6 Regardless of the payment terms, the following rules shall
apply:
(a) A loan to an employee-participant shall be
immediately due and payable on termination of employment
with Employer unless the borrower continues to be a party in
interest.
(b) The loan shall be in default and 5.06-3 shall
apply if the pay assignment lapses by termination of
employment or is cancelled.
(c) If a participant or beneficiary applies for a
distribution or withdrawal of assets that secures an
outstanding loan, the distribution or withdrawal shall, to
the extent necessary to maintain adequate security, be made
by offsetting a corresponding amount of the loan and accrued
interest.
5.06-7 The Committee may suspend or resume making loans as follows:
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(a) Suspension or resumption shall occur at such time
or times as the Committee considers necessary or desirable
for proper administration of the plan and orderly investment
of trust assets.
(b) The Committee may consider, among other things,
any of the following:
(1) Cash flow.
(2) Trust liquidity.
(3) Minimum amounts needed to diversify investment
funds.
(4) Experience in administering and
collecting loans.
(5) Any risk of disqualification of the plan
or loss of exemption of the trust.
(6) Any other perceived jeopardy to any
party under applicable laws and regulations.
5.06-8 Loans shall be held as a plan investment as follows:
(a) All loans shall be held as separate investments
for the accounts of the respective borrowers unless the
Committee directs the Trustee to hold the loans as
investments of one or more pooled investment funds under
10.02-1(a).
(b) The Committee shall decide between the
alternatives in (a) and may change from one alternative to
the other. Such a change shall apply to new loans at any
date selected by the Committee and to existing loans as of
the next valuation date.
5.07 ROLLOVERS
5.07-1 The Committee may approve rollover of funds from a tax
qualified retirement plan or Individual Retirement Account (IRA) if all of the
following criteria are met:
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(a) The individual rolling over the funds is a
Qualified Employee of Employer at the time the rollover is
made, unless 5.07-3 applies.
(b) The funds come from either of the following:
(1) A qualifying rollover distribution from
a qualified plan.
(2) An IRA that holds only amounts rolled
over from one or more total distributions or
eligible rollover distributions from other
qualified plans and related earnings.
(c) The funds are paid to this plan within 60 days
after distribution from the other plan or IRA.
(d) The funds do not include any employee
contributions.
(e) The Committee finds that the rollover will not
impair the qualified status of this plan.
5.07-2 A rollover shall be credited to the participant's rollover
and transfer account.
5.07-3 A participant in this plan with a benefit under the
PacifiCorp Retirement Plan who elects a lump sum distribution from the
Retirement Plan may elect to roll over such distribution to this plan under
the rules set out above whether or not the participant is currently a
Qualified Employee of Employer.
5.08 TRANSFERS BETWEEN PLANS
5.08-1 The Committee may approve a transfer from this plan
directly into another qualified plan if the following conditions are met:
(a) The account is vested and currently distributable
under this plan.
(b) The individual involved requests that the account
be distributed directly to the other plan in which the
individual may participate.
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(c) The plan administrator of the receiving plan has
agreed to accept the funds and has affirmed that the
receiving plan is authorized to accept the transfer.
5.08-2 The Committee may direct the Trustee to accept funds
transferred directly to this plan from another qualified plan if all of the
following conditions are met:
(a) The individual involved has requested the transfer
and is a Qualified Employee of Employer at the time the
transfer is made.
(b) The Committee determines that the transfer will
not impair the qualified status of this plan.
(c) Subject to (d) below, none of the amount
transferred is subject to any distribution requirement that
is inconsistent with the distribution options in this plan.
(d) A transfer that does not satisfy (c) above may be
accepted if it is an elective transfer under Treasury
Regulation section 1.411(d)-4Q & A-3 and the requirements of
the regulation are met.
5.08-3 An amount received by direct transfer shall be fully vested
and shall be accounted for as follows:
(a) Amounts derived from post-tax contributions shall
be carried in the post-tax contribution account.
(b) Amounts derived from employer contributions and
forfeitures shall be carried in the rollover and transfer
account.
ARTICLE VI
RETIREMENT BENEFITS
6.01 ENTITLEMENT; RETIREMENT DATES; PARTICIPATION AFTER MANDATORY
BENEFIT STARTING DATE
6.01-1 A participant shall be entitled to benefits on retirement or
on reaching the mandatory benefit starting date under 6.05-2.
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6.01-2 Retirement shall occur on termination of employment after
reaching one of the following dates:
(a) Normal retirement date shall be age 65.
(b) Deferred retirement date shall be any day after
normal retirement date.
6.01-3 Commencing benefits under 6.05-2(a) while still employed
shall not constitute retirement and shall not prevent continued participation
in contributions or forfeiture allocations. Contributions and forfeitures
allocated to the account of a participant after the distribution date under
6.04-2 shall be distributed in accordance with 6.04-2 and related provisions.
6.01-4 If a person receiving benefits is rehired, the benefit
shall not be paid until later termination of employment except as provided in
6.04-2.
6.02 AMOUNT AND FORM OF BENEFIT
6.02-1 On retirement the benefit shall be based on the
participant's entire account, whether or not vested, adjusted to the last
regular or special valuation on or before distribution. Valuations may be
updated under uniformly applied Committee procedures to reflect interim
investment gains or losses and for expenses.
6.02-2 Benefits shall be paid in one or a combination of the
following ways as selected under 6.03-5, subject to 6.04:
(a) By a total or partial lump sum payment.
(b) By payment in installments fixed by the recipient
subject to 6.04 if all the conditions in 6.02-3 are met.
6.02-3 Benefits shall be paid in installments under 6.02-2(b)
only if all of the following conditions are met:
(a) The participant's account exceeds $5,000.
(b) The installment payment rate is at least $250 per
month, adjusted for cost of living changes in the same
proportions as the $30,000 limit on annual additions under 4.06-2(a).
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(c) The installment period does not exceed 15 years
from the date of commencement of benefits.
(d) The recipient selects the installment form of
benefit.
6.02-4 If payment is by installments, the following shall apply:
(a) Installments shall normally be substantially equal
over the period of payout. Variations may occur because of
changes in the account balances caused by trust investment
results. The installment amounts may also be changed by the
recipient subject to 6.04 and administrative rules of the
Committee.
(b) If the participant dies before payment of the
entire account, the balance shall be paid as a death benefit
under 7.01.
6.02-5 Unless the participant consents to payment at a slower rate,
the following shall apply:
(a) Benefits must begin no later than the end of the
plan year commencing after date of retirement.
(b) A benefit under 6.02-2(b) will not be paid more
slowly than substantially equal periodic payments at least
annually, over a period not longer than five years.
6.02-6 Distributions shall be in cash from investment funds that
are not invested in stock of the Company or another Employer. Distributions
from funds invested in stock of the Company or another Employer shall be in
cash unless the participant elects to receive all such stock in kind under
procedures established by the Committee.
6.02-7 If a person receiving benefits is rehired, the following
shall apply:
(a) Subject to 6.04 and (c) below, the participant may
elect at any time to stop benefits or to reduce the size of
installments.
(b) When the participant later terminates, the amount
and form of benefit shall be redetermined.
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6.03 DISTRIBUTION SURVIVES DEATH
If a participant dies before full payment of the accounts, the
balance shall be paid as a death benefit under Article VII.
6.04 APPLICATION FOR BENEFITS; TIME OF DISTRIBUTION
6.04-1 A participant or beneficiary eligible for benefits must
apply in writing under 9.04 as follows:
(a) Application shall be made on a form prescribed by
the Committee.
(b) Application shall be made between 30 and 90 days
before benefits are to start.
6.04-2 The participant or beneficiary shall select the form of
payment in the application. Absent a selection, benefits shall be paid in a
single lump sum.
6.04-3 Subject to 6.05, the participant or beneficiary shall
select the time of payment in application and the following shall apply:
(a) Subject to (b), the Committee shall direct the
Trustee to start benefits as soon as reasonably possible
after retirement whether or not an application has been
filed, if either of the following applies:
(1) The distributable amount has never been
over $5,000.
(2) The participant has reached the
mandatory benefit starting date under 6.05-2.
(b) The Committee may delay the start of benefits for
a reasonable period necessary to process payment but in no
event beyond 60 days after the latest of the following:
(1) The end of the plan year of retirement.
(2) The date the amount is known.
(3) The date an application is received.
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(c) Unless (a) above applies, the Committee shall,
between 30 and 90 days before benefits are to start, give
the participant an explanation of the distribution options
and the right to defer payment until the mandatory benefit
starting date.
(d) Whether or not (a) applies, the Committee shall
give the participant or other eligible recipient an
explanation of the following between 30 and 90 days before
benefits start:
(1) The right to have a direct rollover
under 6.04-5, if applicable.
(2) The applicability of mandatory
withholding if a direct rollover could be elected
under 6.04-5 and is not.
(3) The applicable rules on rollover and
taxation of the distribution as required by
section 402(f) of the Internal Revenue Code.
6.04-4 If a matching, fixed or supplementary contribution
account is fully distributed before the final allocation of contributions, a
final payment shall be made to the participant promptly after allocation.
6.04-5 An eligible recipient of an eligible rollover
distribution under 6.04-3(d) may elect before a benefit is paid to have the
benefit distributed by a direct rollover into an eligible retirement plan or
IRA and the following shall apply:
(a) The recipient shall furnish the Committee
sufficient information to identify the eligible retirement
plan or IRA and the fund holder to whom the direct rollover
should be paid.
(b) "Eligible retirement plan" means an individual
retirement account or annuity, an employer-sponsored
qualified retirement trust, or an employer-sponsored
qualified annuity plan.
(c) "Eligible rollover distribution" means any
distribution from the plan other than the following:
(1) One of a series of substantially equal
periodic payments over life, life expectancy, or a
period of 10 years or more.
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(2) A payment required by the minimum
distributions rules under 6.05.
(3) Return of post-tax contributions.
(4) Corrective distribution of excess annual
additions as described in 4.09-10(a).
(5) Corrective distribution of excess
deferrals under 4.02-3 or of excess contributions
under 4.05-2.
(6) Deemed distributions of participant
loans.
(d) "Eligible recipient" means the participant, the
spouse of a deceased participant or a spouse or former
spouse who is an alternate payee under a qualified domestic
relations order.
6.05 DISTRIBUTION RULES
6.05-1 Benefits shall be paid in accordance with the following
overriding rules as provided in Treasury Regulations 1.401(a)(9)-1 and -2.
6.05-2 Payments to participant shall be subject to the following:
(a) Payment shall start by the April 1 after the
calendar year in which the participant has reached age
70 1/2 and either is a five-percent owner under Section
416(i) of the Internal Revenue Code or has terminated
employment.
(b) Payment shall be made over a period no longer than
the life expectancies of the participant and any designated
beneficiary. Life expectancies shall not be recalculated
after initial determination.
(c) If the designated beneficiary is not the spouse
and is more than 10 years younger than the participant, the
joint life expectancy shall be calculated based on the
participant's age as though the age difference were 10
years.
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6.06 RESTRICTIONS ON TRANSFER OF DISTRIBUTED SHARES
6.06-1 Shares distributed to participants under the plan shall
be transferable only in conformance with applicable state and federal
securities laws. Shares distributed may not otherwise be subject to any
restrictions on resale.
6.06-2 If leveraged ADS Shares are distributed, any restrictions
on the transfer of the shares are subject to the following limitations:
(a) The participant is required to offer the shares
for a period of not more than 14 days to the participant's
employer or the plan or both before sale to a third party.
(b) The offering price must not be less favorable than
the greater of the fair market value of the shares or a bona
fide offer from a third party.
(c) The other terms of the offer must be at least as
favorable as those of the third party.
(d) The offer may not be required if the shares are
publicly traded, as that is defined by applicable
regulations, on a national securities exchange or on a
quotation service sponsored by a national securities
association.
6.06-3 Shares distributed may not otherwise be subject to any
restrictions on transfer.
6.06-4 The right described in 6.06-2 shall continue even if this
plan ceases to be a qualified employee stock ownership plan.
6.07 RIGHT TO SELL DISTRIBUTED SHARES
6.07-1 This section shall not apply to ADS Shares that meet the
following criteria as defined by applicable regulations:
(a) They are publicly traded on a national securities
exchange; or
(b) They are publicly traded on a quotation service
sponsored by a national securities association; and
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(c) In either event, they are not subject to a trading
limitation.
6.07-2 If ADS Shares that are not leveraged ADS Shares but that
are subject to this section are distributed from the trust, the holder may
require the Company to buy the ADS Shares (subject to 6.07-5) as follows:
(a) The ADS Shares must be held by a participant,
former participant, beneficiary of a participant, or a
person who received the shares by gift from or by reason of
the death of a participant or beneficiary, or by the trustee
of an individual retirement account of any of the above
persons.
(b) The holder may elect to sell the ADS Shares 60
days after they are distributed.
(c) If the holder does not sell all the ADS Shares
under (b), the Company must notify the holder of the value
of the ADS Shares as of the end of the plan year of the
Company in which the 60- day period ends. The holder may
then elect to sell any remaining ADS Shares held within 60
days after receipt of the notice.
(d) If the Company is prohibited by federal or state
law or regulation from purchasing ADS Shares within the time
limits applicable to this provision, PacifiCorp Holdings,
Inc., a wholly owned subsidiary of the Company, shall buy
the ADS Shares as may be necessary to satisfy the Company's
purchase obligation.
(e) The periods referred to in (b) and (c) shall
exclude any period during which the Company and PacifiCorp
Holdings, Inc. are both not permitted by applicable federal
or state law or regulation to make a purchase.
6.07-3 If ADS Shares that are leveraged stock subject to this
section are distributed from the trust, the holder may require the Company to
buy the ADS Shares (subject to 6.08-5) as follows:
(a) The ADS Shares must be held by a participant,
former participant, beneficiary of a participant, or a
person who received them by gift from or by reason of the
death of a participant or beneficiary.
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(b) An election to sell must be made by the holder
within 15 months after the ADS Shares are distributed
excluding any period after distribution during which the
Company and PacifiCorp Holdings, Inc. are not permitted by
applicable federal or state law to make such a purchase.
(c) Where ADS Shares meet the criteria of 6.07-1 when
distributed but cease to meet the criteria within 15 months
after distribution, the Company must notify the holder that
for the remainder of the 15-month period ADS Shares are
subject to the election described in 6.07-3(b).
Notification must be made according to applicable
regulations.
(d) PacifiCorp Holdings, Inc. shall satisfy the
Company's obligation to purchase ADS Shares under the
provision in circumstances described in 6.07-2(d).
6.07-4 The price and terms of payment for a purchase under
6.07-2 and 6.07-3 shall be as follows:
(a) The purchase price shall be the fair market value
as of the last valuation date or the date of exercise as
required by applicable regulations. The fair market value
shall be determined by a qualified, independent, reputable
person or organization selected by the Trustee and approved
by the Committee.
(b) The purchase price shall be paid in cash in a lump
sum, in substantially equal installments over a period not
in excess of the time permitted by (c) and by applicable
regulations, or partly in cash and partly in installments.
Installment payments may only be made on a repurchase of ADS
Shares distributed by lump sum payment.
(c) Any amount paid in a lump sum shall be paid within
60 days after the election to sell.
(d) The following requirements shall apply to amounts
paid by installments:
(1) The amounts shall bear interest from the
date of the election to sell at the prime
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commercial rate of the Trustee for short-term borrowings on
that date.
(2) The amounts shall be secured by ADS
Shares or other assets with a value equal to at
least 125 percent of the outstanding balance.
(3) The initial installment shall be paid
within 30 days after the election.
(4) Installment payments must be at least as
fast as substantially equal periodic payments, not
less frequently than annually, over a period not
longer than five years.
6.07-5 The Committee may grant the Trustee an option to assume
the rights and obligations of the Company under 6.07-2 through 6.07-4 if the
Trustee has sufficient available assets to do so. The Committee may grant
such option any time before the closing of the sale by delivering to the
Company and the Trustee a notice authorizing the Trustee to make the
purchase. The Committee shall determine the method of payment under 6.07-4.
6.07-6 The right to sell under this section shall continue even
if this plan ceases to be a qualified employee stock ownership plan.
ARTICLE VII
BENEFITS ON DEATH OR DISABILITY
7.01 BENEFITS ON DEATH
7.01-1 A deceased participant's vested account, adjusted to the
last regular or special valuation date before payment or segregation and
including any final allocation for the year of death, shall be paid as a
death benefit to the beneficiary. Valuations may be updated under uniformly
applied Committee procedures to reflect interim investment gains or losses
and for expenses. Payment shall be made at a time and in a form selected by
the recipient, subject to the restrictions set out below, which shall
override any inconsistent distribution options. If death occurs before
employment terminates, the participant's account shall be fully vested.
7.01-2 If the participant was past the required beginning date
under 6.05-2(a) before death, the account shall be distributed at least as
rapidly as under the method of distribution in effect at death.
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7.01-3 If 7.01-2 does not apply and benefits on death are
payable to a beneficiary other than the surviving spouse, the participant's
entire account shall be distributed in a single lump sum within five years
after death.
7.01-4 If 7.01-2 does not apply and benefits on death are
payable to the participant's surviving spouse, payment shall not provide for
any of the following:
(a) Installments over a period longer than the lesser
of the spouse's life expectancy or the period allowed under
6.02-3(c).
(b) Installment payments with respect to a benefit
less than $5,000 or at a rate less than the rate specified
in 6.02-3(b).
(c) Benefits to start after the later of the following
dates:
(1) The date the participant would have
attained age 70 1/2.
(2) Five years after death.
7.01-5 The restrictions of 7.01-2 and 7.02-4 shall be complied
with by distributions in accordance with Treasury Regulations 1.401(a)(9)-1
and 1.401(a)(9)-2.
7.01-6 Except as provided below or as otherwise elected by the
participant, payment of a death benefit attributable to ADS Shares acquired
after December 31, 1986 under the ESOP Program must begin no later than the
end of the plan year commencing after the date of death. Such payments must
be made in substantially equal annual or more frequent installment payments
over not more than five years, unless otherwise elected by the participant.
Any ADS Shares acquired with money borrowed by the Trustee need not be
distributed until the end of the plan year in which the Trustee's borrowing
is repaid.
7.01-7 If distribution is deferred or payment is by
installments, retained funds shall be invested under 10.02-3(d).
7.02 DISABILITY
7.02-1 A participant whose employment ceases because of
disability shall be fully vested.
7.02-2 A participant is disabled if the Committee determines
that the participant meets the criteria for disability under both of the
following:
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(a) Long-term disability insurance maintained by
Employer.
(b) Social Security disability benefits.
7.02-3 The Committee shall determine the existence of disability
and may have the participant examined by and rely on advice from a medical
examiner satisfactory to the Committee in making the determination.
7.03 DESIGNATION OF BENEFICIARY
7.03-1 Each participant shall file a designation of
beneficiaries for the Savings Plan Program and for the ESOP Program as
follows:
(a) A designation under a Prior Savings Plan shall
continue in effect for the Savings Plan Program and a
designation under a Prior ESOP shall continue in effect for
the Prior ESOP Program and shall apply to the ESOP Program
until changed by new designations.
(b) The designations shall name a specific beneficiary
or beneficiaries, which may include a trust. The
beneficiaries may be changed from time to time in accordance
with these provisions.
(c) A designation by a married participant of a
beneficiary other than the surviving spouse shall not be
effective unless either of the following applies:
(1) The spouse executes a consent in writing
that acknowledges the effect of the designation
and is witnessed by a notary public.
(2) The consent cannot be obtained because
the spouse cannot be located or because of other
circumstances provided by applicable regulations.
(d) A determination in good faith by the Committee
that (c) has been complied with shall be final and binding
if the Committee has exercised proper fiduciary care in
making the determination.
(e) The designated beneficiary or other recipient
described below shall receive any residual benefit after
death of a participant.
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7.03-2 If the participant's marital status changes after the
participant has designated a beneficiary, the following shall apply subject
to any qualified domestic relations order under 12.06-2.
(a) If the participant is married at death but was
unmarried when the designation was made, the designation
shall be void unless the spouse consents to it in the manner
prescribed above.
(b) If the participant is unmarried at death but was
married at or after the time that the designation was made,
the benefit shall be paid as though the former spouse had
predeceased the participant.
(c) If the participant was married when the
designation was made and is married to a different spouse at
death, the designation shall be void unless the new spouse
consents to it in the manner prescribed above.
7.03-3 If a beneficiary dies after the death of a participant
but before full distribution to the beneficiary, any benefit to which the
beneficiary was entitled shall be paid to the estate of the deceased
beneficiary.
7.03-4 The following shall apply to any part of a benefit as to
which no valid designation of beneficiary is in effect at death:
(a) Subject to (b) and (c) below, the benefit shall be
paid in the following order of priority:
(1) To the participant's surviving spouse.
(2) To the participant's surviving children
in equal shares.
(3) To the participant's estate.
(b) If a beneficiary designated under 7.03-1 or 7.03-4
disclaims a benefit, the benefit shall be paid as though
that beneficiary had predeceased the participant.
(c) If a surviving spouse entitled to a benefit
consents after the participant's death to the participant's
designation of another beneficiary, the other beneficiary
shall be a validly designated beneficiary as to such
benefit.
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ARTICLE VIII
BENEFITS AFTER TERMINATION OF EMPLOYMENT
8.01 VESTING
8.01-1 A participant's matching contribution account shall be
vested as follows based on Years of Service under 3.01:
<TABLE>
<CAPTION>
PERCENT
YEARS OF SERVICE VESTED
<S> <C>
Less than 1 0
1 20%
2 40%
3 60%
4 80%
5 or more 100%
</TABLE>
8.01-2 All other accounts of a participant shall be fully vested
at all times.
8.01-3 A participant who, while employed by Employer, dies,
becomes disabled under 7.02 or becomes eligible for retirement shall be fully
vested.
8.02 DISTRIBUTABLE AMOUNT
8.02-1 Subject to 8.05, a participant whose employment
terminates for any reason other than retirement, disability under 7.02 or
death shall receive only the vested interest under 8.01.
8.02-2 The amount to be forfeited shall be determined under
8.04-3(a). The amount of the vested benefit shall be based on the last
regular or special valuation on or before payment or segregation under 8.03.
8.03 PAYMENT OF BENEFITS
8.03-1 Subject to 6.05-2, the participant shall specify the time
of payment in the application under 6.04 and the following shall apply:
(a) Except as otherwise required below or as otherwise
elected by the participant, payment of a benefit
attributable to
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Company stock or ADS Shares acquired after December 31, 1986 under
the ESOP Program must be paid at least as fast as substantially
equal annual or more frequent installment payments over not more
than five years, and must be made by the later of the following
dates:
(1) The last day of the fifth plan year
commencing after employment terminated.
(2) As to any Company stock or ADS Shares
acquired with money borrowed by the Trustee, the
last day of the plan year in which the Trustee's
borrowing is repaid.
(b) Subject to (c) below, the Committee shall pay
benefits as soon as reasonably possible, whether or not an
application has been filed, if either of the following
applies:
(1) The distributable amount has never been
over $5,000.
(2) The participant has reached normal
retirement age.
(c) The Committee may delay payment for a reasonable
period necessary to process payment but in no event beyond
60 days after the latest of the following:
(1) The end of the plan year of retirement date.
(2) The date the amount is known.
(3) The date an application is received.
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(d) Unless (b) above applies, the Committee shall
provide the participant, between 30 and 90 days before
benefits are to start, with an explanation of the
distribution options and the right to defer payment until
normal retirement date.
8.03-2 Benefits shall be paid by a single lump sum, except in
either of the following circumstances payment may, at the participant's
election, be made in installments in accordance with 6.02:
(a) The participant terminated employment with
Employer at or after age 55.
(b) The participant participated in the 1996 Enhanced
Early Retirement Program of Pacific Telecom, Inc.
8.03-3 If distribution is deferred, the former participant may
withdraw the entire post-tax contribution account excluding any accumulated
earnings or appreciation.
8.04 FORFEITURE OF UNVESTED AMOUNTS
8.04-1 The portion of a participant's matching contribution
account that is not vested shall be forfeited at the earlier of:
(a) The date on which the participant has no vested
interest or the vested interest has been distributed.
(b) The end of the fifth Break in Service Year.
8.04-2 With respect to forfeitures under the ESOP Program,
leveraged ADS Shares in a participant's matching contribution account shall
be forfeited only after all other assets in the participant's matching
contribution account have been forfeited.
8.04-3 Forfeitures shall be accounted for as follows:
(a) The amount forfeited shall be based on the balance
in the account as of the end of the plan year in which
forfeiture occurs, adjusted to reflect distributions during
the year.
(b) Forfeitures shall first be applied to restore
prior forfeitures under 8.05-2. Forfeitures under the ESOP
Program or the Savings Plan Program, respectively, shall
only be used to restore
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forfeitures in accounts under the Program from which the
forfeitures arose.
(c) Any forfeitures remaining after application under
(b) shall be utilized as follows:
(1) Forfeitures under matching contribution
accounts under the ESOP Program shall be applied
first to offset plan expenses including matching
contributions, and any remaining forfeitures shall
be reallocated to participants' accounts as
additional fixed contributions. Forfeitures shall
not be applied to repay ESOP Loans.
(2) Forfeitures under the Savings Plan
Program shall be applied to offset Savings Plan
Program contributions of the Employer by which the
participant was last employed.
8.04-4 A zero vested balance of a participant shall be treated
as though it is distributed immediately when employment terminates.
8.05 RESTORATION OF FORFEITED AMOUNTS
8.05-1 If a participant is rehired before a five-year Break in
Service, but after a forfeiture from a matching contribution account because
of a distribution under 8.04-1(a), then the forfeited amount, unadjusted for
any interim gains or losses, shall be subject to restoration under 8.05-2,
and 8.05-4 shall apply. If the rehire occurs after a five-year Break in
Service, then no restoration shall occur.
8.05-2 An amount subject to restoration under 8.05-1 shall be
credited to the participant's matching contribution account as of the first
plan-year-end after rehire and satisfaction of the requirement of 8.05-3.
Amounts restored shall be derived first from forfeitures for the plan year of
restoration, and then from additional Employer contributions.
8.05-3 In order to receive a restoration under 8.05-1 and
8.05-2, a participant must apply for restoration within the time allowed for
repayment under 8.05-4.
8.05-4 A rehired participant under 8.05-1 may repay the full
amount previously distributed from a partially vested account as follows:
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<PAGE>
(a) Partial repayments shall not be allowed.
(b) Repayment may only be made while the participant
remains employed, and may not be made later than five years
after rehire.
(c) Repaid amounts shall be fully vested and shall be
accounted for in such manner as the Committee may decide.
8.06 VESTING AFTER REHIRE OR WITHDRAWAL
8.06-1 A participant who is fully vested on termination of
employment shall remain fully vested on rehire.
8.06-2 The following rules shall apply in determining the future
vested balance of the matching contribution account after rehire of a
participant who is not fully vested:
(a) If the rehire occurs before a distribution is made
from the account or if the participant repays a distribution
under 8.04-3 after rehire, the participant's future vested
balance shall be determined by applying the vesting schedule
to the entire account.
(b) If the rehire occurs after distribution is made
from the account and before the participant has a five-year
Break in Service and no repayment is made under 8.05-4
terminates employment before full vesting, the participant's
vested balance shall be determined by taking the following
steps:
(1) Multiplying the participant's vesting
percentage times the sum of the current account
balance and the amount previously distributed.
(2) Subtracting the amount previously
distributed.
(c) If the rehire occurs after the participant has a
five-year Break in Service, the following shall apply:
(1) Any unforfeited and undistributed
residue of the participant's partially vested
account shall remain fully vested and be carried
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<PAGE>
as a separate account until the participant's
future contributions are fully vested.
(2) The forfeited balance shall not be
restored.
8.06-3 If a participant who has withdrawn matching contributions
has a termination of employment before full vesting, 8.06-2(b) shall apply as
though the withdrawal had been a distribution.
ARTICLE IX
PLAN ADMINISTRATION
9.01 ADMINISTRATIVE COMMITTEE
9.01-1 The plan shall be administered by an Administrative
Committee of four or more persons appointed by the Company. The Committee
shall have a chair chosen from among its members and a secretary who need not
be a member. Minutes shall be kept of all proceedings of the Committee. The
Committee may act at a meeting by a majority vote of a quorum present or
without a meeting by action recorded in a memorandum signed by a majority of
all members. A majority of members shall constitute a quorum.
9.01-2 Any member of the Committee may resign on 15 days' notice
to the Company. The Company may remove any Committee member without having
to show cause. All vacancies on the Committee shall be filled as soon as
reasonably practicable. Until a new appointment is made, the remaining
members of the Committee shall have authority to act although less than a
quorum.
9.01-3 The Trustee shall be given the names and specimen
signatures of the Committee members, the chair and the secretary. The
Trustee shall accept and rely on the names and signatures until notified of a
change.
9.01-4 Documents may be signed for the Committee by the chair,
the secretary or other person designated by the Committee.
9.02 COMMITTEE POWERS AND DUTIES
9.02-1 The Committee shall interpret the plan and trust, shall
decide any questions about the rights of participants and their beneficiaries
and in general shall administer
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<PAGE>
the plan. Any decision by the Committee shall be final and bind all parties.
The Committee shall have absolute discretion to carry out its
responsibilities.
9.02-2 The Committee shall be the plan administrator under
federal laws and regulations applicable to plan administration and shall
comply with such laws and regulations. The Chair of the Committee shall be
the agent for service of process on the plan at the Company's address.
9.02-3 The Committee shall keep records of all relevant data
about the rights of all persons under the plan. The Committee shall
determine the time, manner, amount and recipient of payment of benefits and
the Service of any employee and instruct the Trustee on distributions. Any
person having an interest under the plan may consult the Committee at any
reasonable time.
9.02-4 The Committee may delegate all or part of its
administrative duties to one or more agents and may retain advisors to assist
it. The Committee may consult with and rely upon the advice of counsel who
may be counsel for an Employer. The Committee shall appoint any independent
public accountant for the plan.
9.02-5 Each employer shall furnish the Committee any information
reasonably requested by it for plan administration.
9.03 COMPANY AND EMPLOYER FUNCTIONS
9.03-1 Except as provided in 9.03-2, all Company or Employer
functions or responsibilities shall be exercised by the following persons,
who may delegate all or any part of these functions:
(a) For the Company, by the President.
(b) For any other Employer, by the chief executive
officer of the corporation.
9.03-2 The power to amend or terminate the plan may be exercised
only by the Board of Directors of the Company, except as provided in 9.03-3.
The power to fix contributions shall be exercised by the Board of Directors
of the Company.
9.03-3 The President of the Company may amend the plan to make
technical, administrative or editorial changes on advice of counsel to comply
with applicable law or to simplify or clarify the plan.
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9.03-4 The Board of Directors of the Company or an Employer
shall have no administrative or investment authority or function. Membership
on the Board shall not, by itself, cause a person to be considered a plan
fiduciary.
9.04 CLAIMS PROCEDURE
9.04-1 Any person claiming a benefit, requesting an
interpretation or ruling under the plan or requesting information under the
plan shall present the request in writing to the Committee Chair, who shall
respond in writing as soon as practicable.
9.04-2 If the claim or request is denied, the written notice of
denial shall state the following:
(a) The reasons for denial, with specific reference to
the plan provisions on which the denial is based.
(b) A description of any additional material or
information required for review of the claim and an
explanation of why it is necessary.
(c) An explanation of the plan's claim review
procedure.
9.04-3 Any person whose claim or request is denied or who has
not received a response within 30 days may request review by notice in
writing to the Committee Chair. The original decision shall be reviewed by
the Committee, who may, but shall not be required to, grant the claimant a
hearing. On review, whether or not there is a hearing, the claimant may have
representation, examine pertinent documents and submit issues and comments in
writing.
9.04-4 The decision on review shall normally be made within 60
days. If an extension is required for a hearing or other special
circumstances, the claimant shall be so notified and the time limit shall be
120 days. The decision shall be in writing and shall state the reasons and
the relevant plan provisions. All decisions on review shall be final and
bind all parties concerned.
9.05 EXPENSES
9.05-1 Members of the Committee shall not be compensated for
services. The Committee shall be reimbursed for all expenses.
9.05-2 The Company may elect to pay administrative fees or
expenses and may allocate the cost among the Employers. Otherwise the
expenses and fees shall be paid from plan
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assets. Expenses related to an investment fund under 10.02-1 or 10.02-3 may
be charged directly to that fund.
9.05-3 The Company may elect to pay administrative fees for
participants who are actively employed and not for participants who have
terminated employment and elected to leave their accounts in the plan. The
Committee may establish a fixed periodic amount to be charged to the accounts
of such terminated participants for administration as long as the amount is
less than the total administrative fees properly allocable to their accounts.
9.06 INDEMNITY AND BONDING
9.06-1 The Company shall indemnity and defend any plan fiduciary
who is an officer, director or employee of Employer from any claim or
liability that arises from any action or inaction in connection with the plan
subject to the following rules:
(a) Coverage shall be limited to actions taken in good
faith that the fiduciary reasonably believed were not
opposed to the best interest of the plan.
(b) Negligence by the fiduciary shall be covered to
the fullest extent permitted by law.
(c) Coverage shall be reduced to the extent of any
insurance coverage.
9.06-2 The plan fiduciaries shall be bonded to the extent
required by applicable law for the protection of plan assets.
ARTICLE X
INVESTMENT OF TRUST FUNDS
10.01 ESTABLISHMENT OF TRUST
Benefits under this plan shall be funded through the PacifiCorp K
Plus Employee Savings and Stock Ownership Trust as established by agreement
between the Company and a trustee. The trustee shall receive the
contributions paid in by Employers, hold and invest them and pay benefits.
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10.02 INVESTMENT FUNDS
10.02-1 Plan assets shall be held in investment funds, as follows:
(a) Savings Plan Program Funds for assets attributable
to Prior Savings Plan and New Savings Plan accounts. Such
assets shall be pooled for investment in one or more
investment funds established by the Committee, which may
include funds invested primarily or entirely in stock of the
Company or an affiliate.
(b) Amounts transferred to the ESOP Program from the
PacifiCorp Employee Stock Ownership Plan and Trust, the
PacifiCorp Bargaining Employees Stock Ownership Plan and
Trust and the Utah Power Savings Plan shall be invested
primarily in ADS Shares.
(c) ESOP Program Funds for assets attributable to ESOP
Program accounts established in connection with ESOP loans
after 1987. Such Funds shall be invested primarily in ADS
Shares and shall include any separate suspense account funds
that hold the proceeds of one or more ESOP Loans, leveraged
ADS Shares purchased with such proceeds and any dividends
and other earnings attributable to the ESOP Loan proceeds
and leveraged ADS Shares in the account.
(d) Diversified investment funds may be created for
ESOP Program Funds as specified by the Committee under
10.02-4.
10.02-2 The Committee may create new funds, combine two or more
funds or change the objectives of an existing fund. The trustee holding the
assets involved and any affected investment manager shall be informed of such
action. The Committee shall inform all participants of the fund and the
objectives of each.
10.02-3 Allocation of the account for each participant among the
investment funds under 10.02-1(c) shall be controlled as follows:
(a) The participant shall allocate contributions
(including transfers under 5.08-1 and rollovers) among the
funds and may elect to transfer assets between funds. An
allocation once made shall apply to all future contributions
unless changed by the participant. If no allocation has
been made, the Committee shall determine the fund or funds
into which the contributions shall be deposited.
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(b) All allocations and elections shall be by written
notice to the Committee. The Committee shall adopt rules
for allocations and transfers, which may restrict amounts,
frequency and timing.
(c) Transfers shall be made over a reasonable period
to allow orderly liquidation and reinvestment of the funds.
10.02-4 Participants may elect to have their accounts under the
ESOP Program invested in funds other than those specified in 10.02-1(b) or
(c) as follows:
(a) A diversification election shall be allowed with
respect to each of the six plan years starting with the year
during which the participant first qualifies under (b).
(b) The diversification election shall only be
available to participants who are at least age 55 with 10 or
more years of participation in the ESOP Program (including
any participation in a plan from which the participants'
accounts have been merged or transferred into the ESOP
Program), and only if the current fair market value of the
securities affected is over $500.
(c) With respect to the first five years under (a), a
participant may elect in accordance with 10.02-3 to have up
to 25 percent of the total ADS Shares attributable to
contributions under the ESOP Program invested in alternative
investment funds under (e) below rather than the applicable
investments under 10.02-1(a) or (c). With respect to the
sixth year under (a), the applicable percentage shall be 50
percent. A participant's shares attributable to
contributions under the ESOP Program shall be determined on
a diversification date with reference to the number of
shares acquired by or contributed to the plan and allocated
to the participant's account, excluding such shares acquired
by or contributed to the plan prior to January 1, 1987 as
tax credit contributions and allocated to, and held in, the
participant's account for a period of less than 84 months
pursuant to Internal Revenue Code section 409(d), minus the
number of shares previously diversified by the participant.
If a person has met the requirements in (b) before the year
of first eligibility under (a)(2), the six-year period under
this provision shall be measured from the start of the 1991
plan year.
(d) Elections under (c) must be made within the first
90 days after the end of the applicable plan year, and shall
be carried out
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within 180 days after the end of the applicable plan year.
Diversification elections, once made, become irrevocable following
90 days after the applicable plan year.
(e) Investment alternatives under (c) shall be
specified by the Committee, and must include at least three
options not inconsistent with any applicable regulations
under Internal Revenue Code section 401(a)(28). Such
investment alternatives may include appropriate investment
funds under 10.02-1(b).
(f) In lieu of diversification into investment funds
under (e), the Committee may direct the Trustee to transfer
amounts to be diversified into the Savings Plan Program for
investment in funds such as those described in (e).
10.02-5 Participants and beneficiaries shall be permitted in
accordance with applicable federal regulations to direct the manner of
exercise of voting rights on ADS Shares or stock of an affiliate, including
fractional shares, allocated to any of their accounts, as follows:
(a) The issuer of the stock shall provide the trustee
and plan participants with all notices and information
provided to its shareholders in connection with the exercise
of their voting rights.
(b) The issuer of the stock shall solicit proxies from
participants to vote the shares allocated to participants'
accounts in the same manner as proxies are solicited
generally from its shareholders.
(c) The Trustee shall exercise the voting rights ADS
Shares not voted by participants in proportion to the
directions received from other participants for voting ADS
Shares.
(d) Except as required for trust administration or by
law, individual participant voting instructions shall be
held by the Trustee in confidence.
10.02-6 Except as otherwise provided below or required by law,
the Trustee shall exercise voting rights on unallocated ADS Shares held in a
suspense account under 10.03-2 in proportion to the directions received from
participants for voting ADS Shares allocated to their accounts from the
suspense account under the ESOP Program. During the time while no shares
have been allocated to participants under a leveraged ESOP suspense account,
stock in the account shall be voted in proportion to directions received from
participants for voting ADS Shares allocated to participants' accounts under
the ESOP Program and the Savings Plan Program.
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10.02-7 If the Trustee receives a tender offer for shares of ADS
Shares or stock of an affiliate, the following shall apply unless otherwise
required by law:
(a) Tender offer means an offer to acquire stock on
terms filed with the Securities and Exchange Commission
pursuant to applicable requirements of the Securities
Exchange Act of 1934, as amended.
(b) When a tender offer is received, the Trustee shall
inform all participants and beneficiaries of deceased
participants whose accounts are affected by the tender
offer. The notice shall include both of the following
features:
(1) Appropriate information about the tender
offer.
(2) Provisions for the participant or
beneficiary to instruct the Trustee in writing
whether or not to tender the shares affected,
including a reasonable time for returning the
instructions to the Trustee.
(c) The Trustee shall follow the instructions received
under (b). A failure to provide a timely instruction under
(b) shall be treated as an instruction not to tender the
shares.
(d) The Trustee shall hold the individual tender offer
instructions in confidence as described in 10.02-5(d).
(e) The Trustee shall tender unallocated ADS Shares
held in a suspense account under 10.03-2 in proportion to
the instructions under (c) on allocated shares under the
ESOP Program, except to the extent not permitted by any
pledge agreement or other such arrangement under which the
stock is held as security for an ESOP Loan. During the time
while no shares have been allocated to participants under a
Leveraged ESOP suspense account, stock in the account shall
be tendered in proportion to directions received from
participants for tender of ADS Shares allocated to
participants' accounts under the ESOP Program and the
Savings Plan Program.
10.02-8 If the manner of exercising voting rights under 10.02-5 or
10.02-6 or responding to a tender offer under 10.02-7 is not permitted by law,
then the Trustee shall
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determine how to exercise the voting rights or how to respond to the tender
offer, as applicable. In making such determinations, the Trustee may employ
such experts and advisors as it deems helpful or necessary. All reasonable
expenses incurred by the Trustee in making such determinations shall be paid
from the trust unless paid by the Company.
10.03 ESOP LOANS
10.03-1 If authorized in writing by the Committee, the Trustee
may borrow money for trust purposes on the security of certain assets held in
a separate trust under the ESOP Program, subject to the following:
(a) Money may be borrowed under ESOP Loans to purchase
ADS Shares and to repay money borrowed to purchase such ADS
Shares only on terms permitted under and subject to the
conditions of applicable law and regulations.
(b) The interest rate may not exceed a reasonable rate
at the time the loan is made.
(c) In the event of default on the ESOP Loan, the
value of trust assets transferred in satisfaction for the
loan shall not exceed the amount of default. If the lender
is a disqualified person, the loan must provide that assets
transferred on default of the loan will not exceed the
amount by which the plan has failed to meet the payment
schedule of the loan.
(d) The loan must be without recourse against the
plan. The only trust assets that may be used as security
for a loan to buy leveraged ADS Shares are leveraged ADS
Shares purchased with the loan proceeds, and leveraged ADS
Shares purchased with the proceeds of a prior ESOP Loan
repaid by the current ESOP Loan proceeds.
(e) The lender may not have a right to any assets held
under the ESOP Program other than the following:
(1) Collateral given for the loan under (d),
(2) Employer contributions (other than any
contributions of ADS Shares) made to repay the
ESOP Loan, and
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(3) Earnings on the collateral and the
employer contributions described in this clause
(e).
(f) Employer matching, fixed and supplemental
contributions and income from such contributions and ADS
Shares acquired with borrowed money may be used to repay the
ESOP loan, as directed by the Company.
(g) The ESOP loan must be primarily for the benefit of
participants and beneficiaries.
(h) Payments during a plan year with respect to a loan
under this provision may not exceed amounts under (f)
received during the year plus such amounts received during a
prior year of the loan, less amounts paid on the loan in a
prior year. Contributions and earnings under (f) shall be
accounted for separately until the loan is repaid.
10.03-2 All assets acquired with the proceeds of a loan under
10.03-1 shall be held in a suspense account under 5.01-3 and allocated under
5.03.
ARTICLE XI
AMENDMENT; TERMINATION; MERGER
11.01 AMENDMENT
11.01-1 The Company may amend this plan under 9.03 at any time,
subject to the following:
(a) No amendment shall revest any of the plan assets
in any Employer or otherwise modify the plan or trust so
that it would not be for the exclusive benefit of eligible
employees.
(b) No amendment shall reduce the accrued benefit of a
participant, or a participant's vested percentage in that
accrued benefit, as of the date the amendment is adopted or
is effective, whichever is later.
(c) No amendment shall increase the Years of Service
required for vesting without allowing each participant with
at least
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three Years of Service on the date the amendment is
adopted a 60-day period to elect in writing to the Committee
to have the prior vesting schedule continue to apply to
future benefits under the plan. The 60-day election period
shall begin on the latest of the following:
(1) The date the amendment is adopted.
(2) The date the amendment is effective.
(3) The date the participant is provided
written notice of the amendment.
11.01-2 Amendments may be made effective retroactively to the extent
permitted by applicable law and regulations.
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11.02 TERMINATION
11.02-1 The Company may terminate this plan or direct the
discontinuance of contributions at any time. In the event of any total or
partial termination or discontinuance, the accounts of all affected
participants shall fully vest and be nonforfeitable. The Company may request
a ruling from the Internal Revenue Service on the effect of termination on
the qualification of the plan.
11.02-2 Subject to 11.02-3, upon termination or discontinuance,
the Company may continue the trust to pay benefits as they mature or
liquidate and distribute the relevant portion of the trust fund as follows:
(a) If the Employer does not maintain a successor
defined contribution plan, the assets may be distributed to
employees or transferred to a qualified plan that is not a
successor plan.
(b) If the Employer maintains a successor defined
contribution plan, the assets may be transferred to the
successor plan. The assets may not be distributed to
employees before termination of employment except as allowed
under 5.05 for in-service withdrawals.
(c) The net assets transferred or distributed shall be
allocated by the Committee among participants and
beneficiaries in proportion to their interests.
11.02-3 No ADS Shares shall be distributed from a tax credit
contribution account under 5.01-1 to any participant who has not terminated
employment before the end of the 84th month after the month in which they
were allocated to the participant's account.
11.03 TREATMENT OF EMPLOYERS
11.03-1 All employees of all Employers, including the Company,
shall be treated as though employed by one Employer for purposes of
determining total or partial termination. For this purpose this plan shall
be treated as one plan and not as a collection of separate plans of the
Employers. If some or all of the employees of an Employer terminate
employment, this shall be viewed in the context of the whole plan to
determine whether there has been a partial termination or curtailment and
whether accelerated vesting is required.
11.03-2 An Employer may be excluded from the plan with respect to
its employees at any time by the Company. Such exclusion shall not constitute a
termination or partial termination of the plan. Employees of the excluded
affiliate shall be treated as having
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terminated employment if the affiliate ceases to maintain its affiliated
status. Unless the Committee determines or the Internal Revenue Service rules
that the exclusion constitutes a partial termination of the plan, the rights
of employees of the excluded affiliate shall not become fully vested and
nonforfeitable as a result of the exclusion. If the excluded affiliate
retains its affiliated status with the Company, its employees shall continue
to accrue Service for the purposes of vesting, but shall not be eligible to
participate in contributions and forfeitures with respect to pay after the
effective date of the exclusion.
11.04 MERGER
If this plan is merged or consolidated with or the assets or
liabilities are transferred to any other plan or trust, the benefit that each
participant would receive if the plan terminated just afterwards shall be at
least as much as if it terminated just before.
ARTICLE XII
MISCELLANEOUS PROVISIONS
12.01 INFORMATION FURNISHED
The Committee may require satisfactory proof of age, marital status
or other data from a participant, spouse or beneficiary. The Committee may
adjust any retirement benefit if an error in relevant data is discovered.
12.02 APPLICABLE LAW
This plan shall be construed according to the laws of Oregon except
as preempted by federal law.
12.03 PLAN BINDING ON ALL PARTIES
This plan shall be binding upon the heirs, personal
representatives, successors and assigns of all present and future parties.
12.04 NOT CONTRACT OF EMPLOYMENT
The plan shall not be a contract of employment between an Employer and
any employee, and no employee may object to amendment or termination of the
plan. The plan shall not prevent any Employer from discharging any employee at
any time.
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12.05 NOTICES
Except as otherwise required or permitted under this plan or
applicable law, any notice or direction under this plan shall be in writing and
shall be effective when actually delivered or deposited postpaid as first-class
mail. Mail shall be directed to the address stated in this plan or in a
statement of adoption or to such other address as a party may specify by notice
to the other parties. Notice to the Committee shall be sent to the Company's
address.
12.06 BENEFITS NOT ASSIGNABLE; QUALIFIED DOMESTIC RELATIONS ORDERS
12.06-1 This plan is for the personal protection of the
participants. No vested or unvested interest of any participant or
beneficiary may be assigned, seized by legal process, transferred or
subjected to the claims of creditors in any way, except as provided in
12.06-2.
12.06-2 Benefits shall be paid in accordance with a qualified
domestic relations order (QDRO) under section 414(p) of the Internal Revenue
Code pursuant to procedures established by the Committee. If the alternate
payee's benefit is fully vested and is not required as security for a plan
loan, it shall be distributed to the alternate payee as soon as practicable
regardless of whether the participant has terminated employment or whether
the alternate payee consents to the distribution, unless the QDRO precludes
current distribution.
12.07 NONDISCRIMINATION
The Company, each Employer and the Committee shall to the fullest
extent possible treat all persons who may be similarly situated alike under this
plan.
12.08 NONREVERSION OF ASSETS
12.08-1 Subject to the following paragraphs, no part of the
contributions or the principal or income of this trust shall be paid to or
revested in an Employer or be used other than for the exclusive benefit of
the participants and their beneficiaries.
12.08-2 On termination of the plan amounts shall be returned to
Employer that remain in a suspense account as follows:
(a) Amounts in a forfeiture suspense account under
8.05 that cannot be allocated because of limitations on
annual additions under 4.09.
(b) Amounts in an ESOP Loan suspense account that
cannot be allocated to participants because of limitations
on annual additions under 4.09.
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12.08-3 A contribution may be returned to an Employer to the extent
that either of the following applies:
(a) The contribution was made by mistake of fact.
(b) A deduction for the contribution under 4.08 is
disallowed.
12.08-4 Return of contributions under 12.08-3 shall be subject
to the following:
(a) Any return must occur within one year of the
mistaken payment or disallowance of the deduction.
(b) The returnable amount shall be reduced by a pro
rata share of any investment losses attributable to the
contribution and by any amounts that cannot be charged under
(c) below.
(c) The amounts returned shall be charged to
participants' accounts in the same proportion as the
accounts were credited with the contribution. No
participant's account shall be charged more than it was
previously credited.
(d) If a participant's pre-tax contribution is
returned, Employer shall promptly pay the amount to the
participant as additional compensation.
(e) No contributions shall be returned that are
necessary to pay principal or interest on money borrowed to
buy ADS Shares.
(f) If any part of a tax credit for Employer
contributions is recaptured or redetermined, any amounts
transferred to the plan in satisfaction of the conditions of
the Internal Revenue Code for allowance of the credit shall
remain in the plan and shall remain allocated to
participants.
12.09 FORFEITURE OF BENEFITS FOR LOST PERSONS
12.09-1 If the Committee is unable to locate a participant or
beneficiary to whom a benefit is payable, the benefit shall be forfeited at
the end of the plan year in which the Committee determines that the person
cannot be located using reasonable efforts. Amounts forfeited under this
provision shall be accounted for as follows:
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(a) The amount forfeited shall be based on the balance
of the account as of the forfeiture date.
(b) Amounts forfeited shall be applied in accordance
with 8.04-3.
12.09-2 The benefit shall be reinstated if a claim for it is made
by the participant or beneficiary. No adjustment shall be made for any gains
or losses in the trust in the amount reinstated for the period between
forfeiture and reinstatement. Amounts restored shall be derived first from
forfeitures under 8.04 for the plan year of reinstatement, and then from
additional Employer contributions.
ARTICLE XIII
SPECIAL TOP-HEAVY PLAN RULES
13.01 APPLICATION OF RULES
If the plan becomes top-heavy, the rules in this Article shall
apply and shall control over any other provisions with which they conflict.
13.02 DETERMINATION OF TOP-HEAVY STATUS
13.02-1 The plan shall be top-heavy for a plan year if, as of the
determination date, the plan's top-heavy percentage for the year exceeds 60
percent. The top-heavy percentage is the present value of accrued benefits
of all key employees as a percentage of the present value of accrued benefits
of all key and non-key employees other than the following:
(a) Former key employees.
(b) Former employees who have performed no services
for an Employer during the five-year period ending on the
determination date.
13.02-2 The determination date shall be the last day of the
preceding plan year.
13.02-3 The following plans of Employers and affiliates shall be
considered as one plan for determining top-heaviness:
(a) Any plan in which a key employee participates.
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(b) Any plan that must be considered in order for a
plan in (a) to meet the minimum coverage requirements for
qualification under Internal Revenue Code sections 401(a)(4)
and 410.
13.02-4 "Key employee" and "non-key employee" are defined in
section 416(i) of the Internal Revenue Code.
13.02-5 For purposes of 13.02-1, the present value of a
participant's accrued benefit shall be the account balance as of the
determination date, subject to all of the following:
(a) Any later Employer contributions allocated as of
that date shall be excluded.
(b) Nondeductible employee contributions shall be
included but amounts attributable to deductible employee
contributions shall be excluded.
(c) Rollovers and transfers shall be included or
excluded as provided in 13.02-6 and 13.02-7.
13.02-6 Except as provided below, distributions and transfers
made within the plan year ending on the determination date or the four
preceding plan years shall be added back to the present value of accrued
benefits as of the determination date unless already counted. A transfer out
of this plan or distribution that is rolled over shall not be added back if
either of the following applies:
(a) It goes to a plan maintained by Employer or an
affiliate.
(b) It is not initiated by the employee.
13.02-7 A rollover or transfer accepted into this plan or a
predecessor plan before 1934 shall be included in the present value of
accrued benefits. A rollover or transfer accepted after 1983 shall be
included only if it satisfies either of the following:
(a) It comes from a plan maintained by Employer or an
affiliate under 2.01-2.
(b) It is not initiated by the employee.
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13.03 TOP-HEAVY PLAN RESTRICTIONS
13.03-1 The following provisions shall apply for a plan as of the
first day of any plan year for which the plan is top-heavy.
13.03-2 Each participant who is a non-key employee employed at
the end of the year shall receive a minimum Employer contribution regardless
of whether the participant elects to have contributions under 4.02 or has
1,000 Hours of Service for the year. The minimum contribution (excluding any
elective contributions) for a non-key employee shall be the lesser of the
following:
(a) The largest combined pre-tax and other Employer
contribution, expressed as a percentage of compensation, as
defined in 4.01-1(b), for any key employee for the year.
(b) Three percent of such compensation.
13.03-3 The limitation in 4.09-7(d) shall be determined using 1.0 in
place of 1.25.
Company: PACIFICORP
By
----------------------------------------
Keith McKennon
President
Executed: , 1999
---------------------------
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RESTATED
APPENDIX A
TO
PACIFICORP K PLUS
EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
PARTICIPANTS IN UTAH SAVINGS PLAN
Until June 30, 1997 the Company maintained the Utah Power & Light
Company Employee Savings & Stock Purchase Plan (the "Utah Savings Plan") for
certain employees of the Utah Power & Light Company division covered by
collective bargaining agreements. Effective on that date, the Utah Savings
Plan was merged into the Savings Plan Program of K Plus. In order to set out
special provisions for former participants in the Utah Savings Plan, the
Company adopts this Appendix.
1. TRANSFER OF ACCOUNTS; INVESTMENTS
All the assets and liabilities of the Utah Savings Plan shall be
transferred to the trustee of K Plus effective July 1, 1997 and shall be held
in Savings Plan accounts parallel to accounts held for employees who have
moved to active participation in K Plus in the past. Such accounts shall be
allocated among investment funds at the direction of the participants as
provided in 10.02 of the plan. Employer contributions under K Plus for
former participants in the Utah Savings Plan made for periods after June 30,
1997 shall be made to the ESOP Program and invested in Company stock or,
after the effective date of the 1999 Restatement, in ADS Shares.
2. PRE-TAX CONTRIBUTIONS
After June 30, 1997, contributions elected by employees who
formerly participated in the Utah Savings Plan shall be paid to K Plus as
pre-tax contributions. After-tax contributions shall not be permitted. The
percentage of compensation elected by the employee as a pre-tax contribution
under the Utah Savings Plan as of June 30, 1997 shall remain in effect and
shall be applied to compensation as defined in 4.01-1 of K Plus. The
ineligibility to re-start contributions for six months following a suspension
of contributions, as provided in 5.6 of the Utah Savings Plan document, shall
not apply to such employees and is removed from the Utah Savings Plan
effective January 1, 1996 in order to conform to administrative practice.
3. MATCHING CONTRIBUTIONS
A participant in K Plus who is a member of IBEW, Local 57 covered
by a collective bargaining agreement dated January 26, 1996 shall have
matching contributions under K Plus equal to 85 percent of the participant's
matchable pre-tax contributions. "Matchable pre-
<PAGE>
tax contributions" are the participant's pre-tax contributions to K Plus up
to a maximum percentage of earnings as provided in the following table:
<TABLE>
<CAPTION>
Years Maximum
of Service Percentage of Earnings
---------- ----------------------
<S> <C>
1 to 4 3%
5 to 9 4%
10 to 14 5%
Over 14 6%
</TABLE>
"Years of Service" for purposes of the table above are Employment Years,
measured by anniversaries of the date the employee first performed an Hour of
Service, in which the employee has 1,000 or more Hours of Service. Upon
completing an additional Year of Service that moves a participant to a higher
level under the table, the higher maximum percentage of earnings shall apply
to matching of pre-tax contributions starting with the pay period in which
the Year of Service is completed. "Earnings" means the regular salary or
wages received by the employee from the Company for working times regularly
established by agreement or law as "straight time" and including any amounts
otherwise deferred under Section 401(k) of the Internal Revenue Code as well
as any sick leave or vacation benefits received from the Company while the
participant is still employed by the Company, exclusive of any bonuses,
overtime, premium pay, per diem payments, overtime meal allowances, long-term
disability payments, or other special or additional payments.
4. FIXED CONTRIBUTIONS
A participant in K Plus who is a member of IBEW, Local 57 covered
by a collective bargaining agreement dated January 26, 1996 or a succeeding
agreement shall have no fixed contributions under K Plus.
5. VESTING
A member of IBEW, Local 57 who had completed the conditions for
eligibility to participate in the Utah Savings Plan on June 30, 1997 shall be
fully vested in matching contributions to K Plus. A member of such a
collective bargaining unit who had not completed the conditions for
eligibility to participate in the Utah Savings Plan on that date shall be
subject to the regular vesting provisions of K Plus.
76
<PAGE>
6. HARDSHIP WITHDRAWALS
A participant in the Utah Savings Plan who is subject to a 12-month
suspension of contributions under 13.1(c) of that plan, shall not be
permitted to elect pre-tax contributions to K Plus for the remainder of such
12 months. Hardship withdrawals of pre-tax amounts and related earnings from
K Plus after June 30, 1997, including amounts transferred from the Utah
Savings Plan, shall be subject to the restrictions of 5.05-8 and 5.05-9 of K
Plus and shall not require a 12-month suspension of contributions. After-tax
amounts contributed to the Utah Savings Plan and related earnings may be
withdrawn under 5.05-1 of K Plus.
7. PARTICIPANT LOANS
Participant loans made from the Utah Savings Plan and transferred
to K Plus shall be repaid to K Plus in accordance with their terms.
Participant loans to former participants in the Utah Savings Plan, including
loans of assets transferred from that plan, shall be made in accordance with
the provisions of K Plus.
Company: PACIFICORP
By KEITH MCKENNON
---------------------------------------
Keith McKennon
President
Executed: January 29, 1999
77
<PAGE>
APPENDIX B
TO
PACIFICORP EMPLOYEE SAVINGS AND STOCK OWNERSHIP PLAN
1998 ENHANCED RETIREMENT PROGRAM
Enhanced retirement benefits shall be paid under the PacifiCorp K
Plus Employee Savings and Stock Ownership Plan (K Plus Plan) to eligible
employees who elect to participate in the 1998 Enhanced Retirement Program
(the Program), as provided below.
1. ELIGIBILITY
A participant who participates in the Program pursuant to the terms
of section 1 of Appendix H to the PacifiCorp Retirement Plan shall also be
subject to the special provisions in section 2 below.
2. K PLUS BENEFITS
A participant in the Program may elect to receive the participant's
account in the K Plus Plan in installments as provided in 6.02 of the K Plus
Plan document, regardless of being under age 55 at retirement. A participant
in the Program whose account is not paid out in full upon retirement shall be
treated the same as regular retirees with respect to account maintenance
charges. Participants who elect to receive a lump sum distribution from the
PacifiCorp Retirement Plan pursuant to 2.7 of Appendix H to the PacifiCorp
Retirement Plan may roll over their lump sum distributions from that plan to
the K Plus Plan.
Company: PACIFICORP
By KEITH MCKENNON
----------------------------------------
Keith McKennon
President
Executed: January 29, 1999
78
<PAGE>
EXHIBIT 4(E)
PACIFICORP
COMPENSATION REDUCTION PLAN
DECEMBER 1, 1994
(AS AMENDED THROUGH AMENDMENT NO. 5)
PACIFICORP
AN OREGON CORPORATION
700 NE MULTNOMAH
PORTLAND, OREGON 97232 COMPANY
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----------
<C> <S> <C>
1. ADMINISTRATION; PLAN YEAR............................................................................ 1
2. ELIGIBILITY.......................................................................................... 1
3. DEFERRAL ELECTION.................................................................................... 1
4. DEFERRED COMPENSATION ACCOUNTS....................................................................... 2
5. TRUST................................................................................................ 3
6. TIME AND MANNER OF PAYMENT........................................................................... 4
7. DEATH OR DISABILITY.................................................................................. 6
8. WITHDRAWALS.......................................................................................... 6
9. SUPPLEMENTAL PENSION BENEFIT......................................................................... 7
10. AMENDMENT; TERMINATION............................................................................... 7
11. CLAIMS PROCEDURE..................................................................................... 8
12. GENERAL PROVISIONS................................................................................... 9
13. EXPENSES............................................................................................. 9
14. EFFECTIVE DATE....................................................................................... 10
</TABLE>
i
<PAGE>
INDEX OF TERMS
<TABLE>
<CAPTION>
SECTION PAGE
----------- -----------
<S> <C> <C>
Accounts 4.1 3
Advisory Boards 2.1(b) 2
ADS Shares 3.3 2
Change in Control 10.4 12
Code 3.3 2
Committee 1.2 1
Company Preamble 1
Compensation 3.2 2
Controlled Group of Corporations 6.1(b) 6
Credit Account 4.3 4
Deferred Election 3.1 2
Disabled 7.6 9
Employer 1.1 1
Financial Hardship 8.2 10
LTIP 3.3 2
Participant 2.2 2
Plan 1 1
Plan Year 1.3 1
Restricted Stock Awards 3.3 2
Retirement Plan 6.3(a) 7
Stock Account 4.2 4
Trust 5.1 5
Years of Service 6.3(b) 7
</TABLE>
ii
<PAGE>
PACIFICORP
COMPENSATION REDUCTION PLAN
DECEMBER 1, 1994
(AS AMENDED BY AMENDMENT NO. 5)
PACIFICORP
AN OREGON CORPORATION
700 NE MULTNOMAH
PORTLAND, OREGON 97232 "COMPANY"
The Company adopts this Compensation Reduction Plan (the "Plan") as a
nonqualified plan of deferred compensation for directors and a select group of
management or highly compensated employees. The purpose of the Plan is to
provide an additional benefit to eligible directors and employees as a means to
attract and retain highly effective individuals. Furthermore, by allowing
Participants to elect to have their deferred compensation adjusted by the
performance of Company stock, the Plan provides a vehicle for further incentive
to improve the economic return to shareholders.
1. ADMINISTRATION; PLAN YEAR.
1.1 The Plan shall apply to the Company and affiliates of the Company
for whom an eligible employee or director performs services. The term "Employer"
refers to the Company or such affiliate for which such services are performed.
1.2 This Plan shall be administered by the Personnel Committee of the
Board of Directors of the Company (the "Committee"). The Committee shall
interpret the Plan, determine eligibility and the amount of benefits, maintain
records, determine interest rates and stock credits and generally be responsible
for seeing that the purposes of the Plan are accomplished. The Committee may
delegate all or part of its administrative duties to others.
1.3 The fiscal year of the Plan (the "Plan Year") shall be a calendar
year.
1.4 The Plan is unfunded for tax purposes and for purposes of Title I
of ERISA.
2. ELIGIBILITY.
2.1 The following persons shall be eligible to participate in this Plan
if they are US taxpayers and not provided tax equalization by an Employer:
(a) A director of the Company;
(b) A member of the PacifiCorp Advisory Board, Pacific Advisory
Board, Utah Advisory Board, or Wyoming Advisory Board (together the
"Advisory Boards");
(c) An executive officer of the Company; and
(d) Any other employee of the Company or an affiliate who is
designated in writing for participation in the Plan by the Chief
Executive Officer of the Company.
2.2 An eligible employee or director who elects to defer Compensation
or Restricted Stock Awards pursuant to Section 3 for any Plan Year shall
participate in the Plan (a "Participant"). References to "director" in this Plan
shall include members of the Advisory Boards.
3. DEFERRAL ELECTION.
3.1 An eligible employee or director may elect to participate for each
Plan Year by completing a form prescribed by the Committee (a "Deferral
Election"), signing it and returning it to
1
<PAGE>
the Committee. The Deferral Election may provide for a deferral of Compensation
under 3.2 or deferral of Restricted Stock Awards under 3.3, or both.
3.2 "Compensation" means an eligible director's retainer and fees and
an eligible employee's salary and bonus earned within the Plan Year for which a
Deferral Election is made. The Deferral Election shall designate a dollar amount
or percentage to be deferred out of the director's annual retainer and/or fees,
or the employee's annual salary and/or bonus, which dollar amount or percentage
may be different as between retainer and fee, or salary and bonus. The minimum
annual retainer deferred shall be $3,600 and the minimum monthly salary deferred
shall be $300.
3.3 "Restricted Stock Award" means a grant to a Participant of shares
of American Depository Securities issued by ScottishPower plc ("ADS Shares")
under a plan or arrangement providing for a grant of ADS Shares in connection
with the performance of services that is not substantially vested for purposes
of Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"). The
Deferral Election for a Plan Year shall apply to any portion of a Restricted
Stock Award that vests within the 12-month period starting on May 1 of such Plan
Year, and such portion shall be considered as vested based on actions required
to be taken during such Plan Year. The Participant may elect deferral of all or
one-half of such portion, except that no deferral shall be allowed of a
Restricted Stock Award as to which the Participant has made an election under
Section 83(b) of the Code.
3.4 To be effective for a Plan Year, the Deferral Election must be
returned before January 1 of the Plan Year, except a Participant who becomes
eligible under 2.1 during a Plan Year may return a Deferral Election for that
Plan Year within 30 days after the eligibility date. Such Deferral Election
shall be effective for Compensation and Restricted Stock Awards for such Plan
Year that are payable after the eligibility date.
3.5 The Employer shall reduce the Participant's Compensation by the
amounts deferred and shall credit such amounts and any deferred Restricted Stock
Awards to the Participant's Account(s) as provided under Section 4. Amounts due
for FICA taxes on an employee-Participant's elected amounts, including all
deferred Compensation and Restricted Stock Awards, will be withheld from the
Participant's remaining nondeferred Compensation. If an employee-Participant has
no remaining nondeferred Compensation, such employee-Participant shall pay cash
to the Employer in an amount sufficient to cover amounts due for FICA taxes on
the employee-Participant's deferrals.
4. DEFERRED COMPENSATION ACCOUNTS.
4.1 Each Participant shall have one or two Accounts in the Plan: a
Stock Account and/or a Credit Account (individually, an "Account" and
collectively, the "Accounts"). Compensation deferred by a Participant under
Section 3 shall be credited to the Stock Account or Credit Account as elected by
the Participant in the Deferral Election. Such election may be divided between
the two Accounts in increments of 25 percent of the deferred Compensation
governed by the election, except as provided in 4.4. An election between the
Stock Account or the Credit Account shall be irrevocable as to the deferred
Compensation covered by the election. Restricted Stock Awards deferred by a
Participant under Section 3 shall be credited to the Stock Account.
4.2 A Participant's Stock Account shall be denominated in ADS Shares,
including fractional shares. With respect to each amount of Compensation
deferred to the Stock Account, the Participant's Stock Account shall be credited
with a number of shares equal to the deferred Compensation divided by the market
value of the ADS Shares on the day the deferred Compensation would have been
paid had it not been deferred. As of each date for payment of dividends on the
ADS Shares, the Participant's Stock Account shall be credited with an additional
number of shares (including fractional shares) equal to the amount of dividends
that would be paid on the number of shares recorded as the balance of the Stock
Account as of the record date for such dividend divided by the market value per
ADS Share on such payment date. Market value for purposes of this section shall
be the closing price
2
<PAGE>
on the New York Stock Exchange as of the relevant date. If the day to be used
for valuing ADS Shares in a deferral of Compensation or a dividend payment date
is not a trading day, market value shall be taken from the last preceding
trading day.
4.3 A Participant's Credit Account shall be denominated in dollars. As
of each date on which a Participant would have received Compensation deferred to
the Credit Account had it not been deferred, the amount of the deferred
Compensation shall be credited to the Participant's Credit Account. The Credit
Account also shall be credited with interest on the balance in the Account until
the entire Account has been paid out. Interest shall be compounded monthly at
the rate determined as of the last business day of the preceding calendar
quarter. The rate of interest shall be the Moody's Intermediate Corporate Bond
Yield for Aa rated Public Utility Bonds. If the index described in the foregoing
sentence ceases to exist, the rate of interest shall be determined under the
most nearly comparable index as selected by the Committee.
4.4 A Participant shall be permitted to transfer amounts from the
Credit Account to the Stock Account up to two times each year. Such transfers
shall be permitted within a period commencing with the third business day
following each date on which the Company releases its earnings report for the
preceding calendar quarter and ending with the twelfth business day following
such date. The minimum amount of each transfer shall be $2,000.
4.5 The Accounts shall be established solely for the purpose of
measuring the amount owed to a Participant under the Plan and shall not give
Participants any ownership rights in any assets of the Company or the Trust.
4.6 The Plan shall accept and hold amounts transferred from the
PacifiCorp Holdings, Inc. Executive Deferred Compensation Plan, formerly the
Pacific Telecom, Inc. Executive Deferred Compensation Plan (the PHI Plan), as
follows:
(a) The amounts transferred shall be for Participants who are removed
from participation in the PHI Plan pursuant to 2.1(a) of the PHI Plan.
(b) The transferred amounts shall be credited to the Participant's
Stock Account and/or Credit Account under 4.1 based on an election made
by the Participant at the time of transfer.
(c) The transferred amounts shall be paid to the Participant in
accordance with the payment forms and elections made by the Participant
under the PHI Plan, but shall be an obligation of the Company.
(d) The trustee of the Trust shall accept assets related to the
transferred amount from the trustee of the trust established for the PHI
Plan, shall pay to the Company any transferred amount as to which the
Participant has elected placement in the Credit Account, and shall hold
any remaining transferred amounts in the Trust.
5. TRUST.
5.1 The Company shall establish a trust with a financial institution
for payment of benefits under the Stock Account described in 4.2 (the "Trust").
The Trust may be established by amendment to the PacifiCorp Supplemental
Executive Retirement Trust or by separate agreement. The Trust shall be a
grantor trust for tax purposes and shall provide that any assets contributed to
the trustee shall be used exclusively for payment of benefits under 4.2 of this
Plan except in the event the Company becomes insolvent, in which case the trust
fund shall be held for payment of the Company's obligations to its general
creditors. The Trust shall further provide that all rights associated with the
assets of the Trust shall be exercised by the trustee, or a person designated by
the trustee, and in no event shall be exercisable by or rest with Participants.
3
<PAGE>
5.2 The Company shall periodically contribute to the Trust the amounts
necessary to purchase ADS Shares equal to the total balance of all Stock
Accounts. Such contributions shall be held in a separate fund within the Trust
for the sole purpose of paying benefits under the Plan measured by Stock
Accounts, except as provided in the Trust document upon the Company's
insolvency. The assets of such fund shall be invested by the trustee in ADS
Shares. If the assets of such fund exceed the total balance of all Stock
Accounts, the excess shall be retained in the fund until reduced by payment of
benefits.
5.3 The Company may, in its discretion, contribute amounts to the Trust
to be held in a separate fund for the sole purpose of paying benefits under the
Plan measured by the Credit Accounts described in 4.3, except as provided in the
Trust document upon the Company's insolvency. The assets of such fund shall be
invested by the trustee in accordance with instructions by the Committee. If the
assets of such fund exceed the total balance of all Credit Accounts, the excess
shall be retained in the fund until reduced by payment of benefits.
5.4 ADS Shares included in any deferred Restricted Stock Award shall be
transferred to the Trustee as soon as practicable after the date that such
Restricted Stock Award vests, which date may be after the end of the Plan Year
for which the Deferral Election was made.
6. TIME AND MANNER OF PAYMENT.
6.1 A benefit based on the Participant's deferrals shall be paid to the
Participant at a time determined as follows:
(a) A benefit derived from deferral of Compensation or from deferral
of Restricted Stock Awards receivable as a member of the Company's Board
of Directors or the Advisory Boards shall be payable upon termination of
membership of the Participant on such Board of Directors and Advisory
Boards.
(b) A benefit derived from deferral of Compensation or from deferral
of Restricted Stock Awards receivable as an employee shall be payable
upon termination of all employment with the controlled group of
corporations, as defined in Section 1563(a) of the Code, of which the
Company is a member.
(c) A benefit derived from deferral of Compensation or from deferral
of Restricted Stock Awards with respect to which the Participant elected
payment on a date certain under 6.5(c) shall be payable on that date.
(d) If a Participant moves between membership on the Company's Board
of Directors and membership on an Advisory Board, or directly between
employment with an Employer and membership on either the Company's Board
of Director's or an Advisory Board, payment shall not commence until the
Participant has ceased all service as an employee and director.
6.2 The total benefit payable to a Participant shall be an amount equal
to the Participant's Accounts. Subject to 6.4, the method of payment shall be
determined as follows:
(a) An amount payable to an employee-Participant upon a termination
of employment described in 6.1(b) that does not constitute a retirement
under 6.3 shall be paid as soon as practicable after the January 15
following the employment termination.
(b) An amount payable in circumstances other than those described in
(a) shall be paid by the method selected by the Participant under 6.5.
4
<PAGE>
6.3 An employee-Participant's termination of employment shall
constitute a retirement if:
(a) The employee-Participant qualifies at the time of employment
termination for early, normal or deferred retirement under the PacifiCorp
Retirement Plan (the "Retirement Plan"); or
(b) At the time of employment termination the employee-Participant is
not covered by the Retirement Plan, has attained age 55 and has completed
five "Years of Service" under the definition of such term in that
Retirement Plan as in effect at the time this Plan is adopted; or
(c) The Participant has reached any of the following:
(1) Age 65.
(2) Age 55 with 5 "Years of Participation" in the PacifiCorp
Supplemental Executive Retirement Plan (the "SERP") as such term is
defined in the SERP.
(3) Age 50 with 5 Years of Participation in the SERP and 15
"Years of Service" as such term is defined in the PacifiCorp
Retirement Plan.
6.4 Subject to 8.1, benefits payable to a Participant from a Stock
Account shall only be paid to such Participant as a distribution of ADS Shares
plus cash for fractional shares of ADS Shares credited to such Participant's
Stock Account.
6.5 In the Participant's Deferral Election the Participant shall select
the method of payment under 6.2(b) from among the following:
(a) A lump sum from the Credit Account and a distribution of ADS
Shares plus cash for fractional shares from the Stock Account, both as
soon as practicable after the January 15 following the termination of
membership on the Board of Directors or Advisory Boards, or employment.
(b) Substantially equal annual installments of cash from the Credit
Account and ADS Shares and cash for fractional shares from the Stock
Account beginning, both as soon as practicable after the January 15
following the termination of membership on the Board of Directors or
Advisory Boards, or employment and continuing for 5, 10 or 15 years.
(c) A lump sum from the Credit Account and a distribution of ADS
Shares plus cash for fractional shares from the Stock Account, both as
soon as practicable after a date certain.
6.6 A Participant's selection under 6.5 shall be irrevocable for
deferrals credited to the Participant's Account(s) while the selection is in
effect and any interest credited thereto. Upon application from a Participant at
the time of termination of membership on the Board of Directors or Advisory
Boards, termination of employment or at the date certain specified in such
Participant's Deferral Election, the Company, in its sole discretion, may change
the form of payment. The application shall be submitted to the Committee, which
shall transmit it to the Company. The Company shall consider its capital
requirements and the effective cost of funds. If the Company modifies the form
of payment, such a change may require a reduction in the rate of interest
credited to the Participant's Credit Account to three percentage points less
than the rate stated in 4.3, or such a change may require the Company to reduce
the total value of Participant's Stock Account by a specified discount
determined upon such application.
6.7 The Employer may withhold from any payments any deductions required
by law. If payments of cash are insufficient to cover the entire amount required
to be withheld, the Employer may withhold the required amounts from nondeferred
Compensation or require the Participant to pay such amounts.
5
<PAGE>
6.8 If a Participant receiving installment payments becomes an employee
of an Employer or a member of the Company's Board of Directors or of an Advisory
Board, the installments shall stop and shall commence again when the Participant
ceases all service as an employee and director.
7. DEATH OR DISABILITY.
7.1 Regardless of the provisions of Section 6, amounts payable to a
Participant thereunder shall be payable under 7.2 through 7.6 on the
Participant's death or disability.
7.2 On death, the amount payable shall be paid as follows:
(a) If the recipient is the surviving spouse and the Participant had
selected an installment payout, by installments in accordance with the
selection under 6.5, beginning within 60 days after the Participant's
death.
(b) In all other cases, by a lump sum from the Credit Account and a
distribution of ADS Shares plus cash for fractional shares from the Stock
Account, payable within 60 days after the Participant's death.
7.3 An amount payable on death of a Participant shall be paid to the
Participant's beneficiary in the following order of priority:
(a) To the surviving beneficiaries designated by the Participant in
writing to the Committee.
(b) To the Participant's estate.
7.4 If a surviving spouse is receiving installments from a Credit
Account and dies when a balance remains in one or both Accounts, the balance
shall be paid to the spouse's estate in a lump sum from the Credit Account and a
distribution of ADS Shares plus cash for fractional shares from the Stock
Account.
7.5 A Participant temporarily disabled while employed or receiving
long-term disability benefits under a plan described in 7.6 shall be treated as
employed, and no payments will be made under this Plan. If disability benefits
stop and disability continues, the amount payable shall be paid in the manner
selected under 6.5, with either the lump sum or the first installment due within
30 days of the date the disability benefits stop. If the Participant dies, the
provisions applicable to death shall be followed. If the Participant ceases to
be disabled and does not resume active employment, the amount payable shall be
paid in accordance with Section 6.
7.6 A Participant is disabled if the Committee determines that either
of the following apply:
(a) The Participant is eligible to receive long-term disability
benefits under a plan maintained by the Employer.
(b) In the absence of eligibility for a plan described in (a), the
Participant is permanently and totally disabled on the basis of
comparable criteria.
8. WITHDRAWALS.
8.1 A Participant or surviving spouse may withdraw the Participant's
entire Account at any time before the Account would otherwise be payable. The
amount paid on such a withdrawal shall be discounted ten percent from the stated
balance of the Account. The other ten percent shall be forfeited as a penalty
for early withdrawal. Distributions upon such a withdrawal shall be paid in cash
from the Credit Account and in the form of ADS Shares from the Stock Account.
8.2 A Participant or surviving spouse may withdraw amounts from an
Account before those amounts would otherwise have been paid because of Financial
Hardship, as determined by the Committee. The withdrawal shall be limited to the
amount reasonably necessary to meet the Financial
6
<PAGE>
Hardship. Distributions based upon Financial Hardship shall be paid entirely in
cash even if withdrawals are from a Stock Account.
8.3 "Financial Hardship" means a Participant's or surviving spouse's
immediate and substantial financial need that cannot be met from other
reasonably available resources and is caused by one or more of the following:
(a) Medical expenses for the Participant or surviving spouse, a
member of the Participant's or surviving spouse's immediate family or
household, or other dependent.
(b) Loss of or damage to a Participant's possessions or property due
to casualty.
(c) Other extraordinary and unforeseeable circumstances arising from
events beyond the Participant's control.
8.4 The Committee shall establish guidelines and procedures for
implementing withdrawals. An application shall be written, be signed by the
Participant or surviving spouse and include a statement of facts causing the
Financial Hardship, if applicable, and any other facts required by the
Committee.
8.5 The withdrawal date shall be fixed by the Committee. The Committee
may require a minimum advance notice and may limit the amount, time and
frequency of withdrawals.
9. SUPPLEMENTAL PENSION BENEFIT.
9.1 The Company's Retirement Plan provides retirement benefits for
eligible employees based in part on Compensation. A Participant that elects
deferral of Compensation may receive smaller benefits under the Retirement Plan
than would have been paid if none of the Participant's Compensation had been
deferred. If the Participant receives benefits under the PacifiCorp Supplemental
Executive Retirement Plan, or another nonqualified deferred compensation plan
providing benefits that are offset by benefits of the Retirement Plan, the
reduction in Retirement Plan benefits may be made up.
9.2 If a Participant receives benefits under the Company's Retirement
Plan that are reduced as a result of deferrals under this Plan and not made up
by another nonqualified deferred compensation plan, a supplemental pension
benefit shall be paid under this Plan as follows:
(a) The supplemental pension benefit shall be the amount by which the
benefit payable from the Retirement Plan is less than the amount of such
benefit that would have been payable if the Participant had not deferred
Compensation under this Plan.
(b) Employer shall pay the supplemental pension benefit to the
Participant at the same time and in the same form as the Participant's
benefit is paid under the Retirement Plan.
10. AMENDMENT; TERMINATION.
10.1 The Company may amend this Plan effective the first day of any
month by notice to the Participants, except the provisions in 4.2 on adjustments
of Stock Accounts shall not be changed, nor shall the rate of interest credited
under 4.3 be reduced, without the consent of a Participant as to the
Participant's Credit Account or Stock Account balance as of the date of the
change or reduction.
10.2 Subject to 10.4 at any time the Company may terminate the Plan and
pay out all amounts payable to the Participants, spouses or other persons then
entitled to such amounts and thereby discharge all the benefit obligations of
the Plan. Upon such termination any assets remaining in the Trust shall be
returned to the Company.
7
<PAGE>
10.3 If the Internal Revenue Service issues a final ruling that any
amounts deferred under this Plan will be subject to current income tax, all
amounts to which the ruling is applicable shall be paid to the Participants
within 30 days.
10.4 After a Change in Control, the Company may not terminate the Plan
pursuant to 10.2 without receiving written approval by Participants with
Accounts constituting a majority of the aggregate balance of all the Accounts in
the Plan at the time of the Change in Control. "Change in Control" shall mean
the occurrence of any of the following events:
(a) The consummation of:
(1) any consolidation, merger or plan of share exchange involving
the Company (a "Merger") as a result of which the holders of
outstanding securities of the Company ordinarily having the right to
vote for the election of directors ("Voting Securities") immediately
prior to the Merger do not continue to hold at least 50 percent of
the combined voting power of the outstanding Voting Securities of the
surviving or continuing corporation immediately after the Merger,
disregarding any Voting Securities issued or retained by such holders
in respect of securities of any other party to the Merger; or
(2) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, the assets of the Company.
(b) At any time during a period of two consecutive years, individuals
who at the beginning of such period constituted the Board ("Incumbent
Directors") shall cease for any reason to constitute at least a majority
thereof; provided, however, that the term "Incumbent Director" shall also
include each new director elected during such two-year period whose
nomination or election was approved by two-thirds of the Incumbent
Directors then in office.
(c) Any "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "Act"))
shall, as a result of a tender or exchange offer, open market purchases
or privately negotiated purchases from anyone other than the Company,
have become the beneficial owner (within the meaning of Rule 13d-3 under
the Act), directly or indirectly, of Voting Securities representing 20
percent or more of the combined voting power of the then outstanding
Voting Securities.
11. CLAIMS PROCEDURE.
11.1 Any person claiming a benefit or requesting an interpretation,
ruling or information under the Plan shall present the request in writing to the
Committee, which shall respond in writing as soon as practicable.
11.2 If the claim or request is denied, the written notice of denial
shall state:
(a) The reasons for denial, with specific reference to the Plan
provisions on which the denial is based.
(b) A description of any additional materials or information required
and an explanation of why it is necessary.
(c) An explanation of the Plan's claim review procedure.
11.3 The initial notice of denial shall normally be given within 90
days of receipt of the claim. If special circumstances require an extension of
time, the claimant shall be so notified and the time limit shall be 180 days.
11.4 Any person whose claim or request is denied or who has not
received a response within the time period described in 11.3 may request review
by notice in writing to the Committee. The original decision shall be reviewed
by the Committee, which may, but shall not be required to, grant
8
<PAGE>
the claimant a hearing. On review, whether or not there is a hearing, the
claimant may have representation, examine pertinent documents and submit issues
and comments in writing.
11.5 The decision on review shall ordinarily be made within 60 days. If
an extension of time is required for a hearing or other special circumstances,
the claimant shall be so notified and the time limit shall be 120 days. The
decision shall be in writing and shall state the reasons and the relevant plan
provisions. All decisions on review shall be final and bind all parties
concerned.
12. GENERAL PROVISIONS.
12.1 If suit or action is instituted to enforce any rights under this
Plan, the prevailing party may recover from the other party reasonable
attorneys' fees at trial and on any appeal.
12.2 Any notice under this Plan shall be in writing and shall be
effective when actually delivered or, if mailed, when deposited as first class
mail postage prepaid. Mail shall be directed to the Company at the address
stated in this Plan, to the Participant's last known home address shown in the
Company's records, or to such other address as a party may specify by notice to
the other parties. Notices to an Employer or the Committee shall be sent to the
Company's address.
12.3 The rights of a Participant under this Plan are personal. Except
for the limited provisions of Section 7 no interest of a Participant or one
claiming through a Participant may be directly or indirectly assigned,
transferred or encumbered and no such interest shall be subject to seizure by
legal process or in any other way subjected to the claims of any creditor. A
Participant's rights to benefits payable under this Plan are not subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge or
encumbrance. Such rights shall not be subject to the debts, contracts,
liabilities, engagements or torts of the Participant or the Participant's
beneficiary.
12.4 Following termination of membership on the Board of Directors of
the Company or Advisory Boards or employment, a Participant shall not be a
director or an employee of an Employer or an affiliate for any purpose, and
payments under Sections 6 and 7 shall not constitute salary or wages. A
Participant shall receive such payments as retirement benefits, not as
compensation for performance of any substantial services.
12.5 Amounts payable under this Plan shall be an obligation of the
Company and the Trust described in Section 5. If an Employer merges,
consolidates, or otherwise reorganizes or if its business or assets are acquired
by another company, this Plan shall continue with respect to those eligible
individuals who continue in the employ of the successor company. The transition
of Employers shall not be considered a termination of employment for purposes of
this Plan. In such an event, however, a successor corporation may terminate this
Plan as to its Participants on the effective date of the succession by notice to
Participants within 30 days after the succession.
12.6 The Committee may decide that because of the mental or physical
condition of a person entitled to payments, or because of other relevant
factors, it is in the person's best interest to make payments to others for the
benefit of the person entitled to payment. In that event, the Committee may in
its discretion direct that payments be made as follows:
(a) To a parent or spouse or a child of legal age;
(b) To a legal guardian; or
(c) To one furnishing maintenance, support, or hospitalization.
13. EXPENSES.
Costs of administration of the Plan will be paid by the Company.
9
<PAGE>
14. EFFECTIVE DATE.
This Plan shall be effective December 1, 1994.
Adopted: November 9, 1994
<TABLE>
<S> <C> <C>
PACIFICORP
By: MICHAEL J. PITTMAN
-----------------------------------------
Executed: November 30, 1994
AMENDMENT NO. 1 EXECUTED AS FOLLOWS EFFECTIVE JANUARY 1, 1995:
COMPANY
PACIFICORP
By: MICHAEL J. PITTMAN
-----------------------------------------
Executed: February 7, 1995
AMENDMENT NO. 2 EXECUTED AS FOLLOWS EFFECTIVE JANUARY 1, 1996:
COMPANY
PACIFICORP
By: MICHAEL J. PITTMAN
-----------------------------------------
Executed: May 27, 1996
AMENDMENT NO. 3 EXECUTED AS FOLLOWS EFFECTIVE JANUARY 1, 1999:
Adopted: November 18, 1998
COMPANY
PACIFICORP
By: KEITH MCKENNON
-----------------------------------------
Executed: November 20, 1998
AMENDMENT NO. 4 EXECUTED AS FOLLOWS EFFECTIVE JANUARY 1, 1999:
Adopted: February 9, 1999
COMPANY
PACIFICORP
By: KEITH MCKENNON
-----------------------------------------
Executed: November 2, 1999
AMENDMENT NO. 5 EXECUTED AS FOLLOWS EFFECTIVE AS PROVIDED BY THE AMENDMENT:
Adopted: November 9, 1999
COMPANY
PACIFICORP
By: RICHARD T. O'BRIEN
-----------------------------------------
Executed: November 24, 1999
</TABLE>
10
<PAGE>
EXHIBIT 5
SHEPHERD & WEDDERBURN WS
3 December 1999
Scottish Power plc
1 Atlantic Quay
Glasgow G2 8SP
United Kingdom
Dear Sirs
SCOTTISH POWER PLC (THE "COMPANY")
FORM S-8 REGISTRATION STATEMENT (THE "REGISTRATION STATEMENT")
We have acted as Scottish counsel to the Company, a public limited company
incorporated under the laws of Scotland, in connection with the filing of the
Registration Statement under the U.S. Securities Act of 1933, as amended,
covering 35,717,000 ordinary shares in the Company (the "Shares") to be issued
from time to time pursuant to the PacifiCorp Stock Incentive Plan, the
PacifiCorp K Plus Employee Savings and Stock Ownership Plan and the PacifiCorp
Compensation Reduction Plan (collectively the "Plan"). We have reviewed the
corporate action of the Company in connection with this matter and have examined
those documents, corporate records and other instruments we deemed necessary for
the purposes of the opinion.
For the purposes of this opinion we have assumed the genuineness of all
signatures, stamps and seals on and the authenticity and completeness of all
documents supplied to us as originals, and the conformity to originals of
documents supplied to us as certified, photostatic or faxed copies.
Based on the foregoing, we are of the option that:
1. The Company is a corporation duly organised and validly existing under the
laws of Scotland.
2. The Shares have been duly authorised by all necessary corporate action and,
when issued in accordance with the terms and conditions of the Plan and the
requisite resolutions of the Company's board of directors, and, with respect
to any newly issued Shares, upon obtaining any necessary regulatory
approvals, the Shares will be validly issued, fully paid and non-assessable.
Our opinion is given only on the basis of and in respect of Scots law in effect
and as interpreted and applied by the Scottish courts as at the date of this
opinion. We do not purport to be qualified to comment or pass an opinion upon,
and we express no opinion as to, the laws of any jurisdiction other than those
of Scotland as are in effect as at the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. This opinion may not be relied upon for any other
purpose or relied upon by or disclosed to any other person without our prior
written consent.
Yours faithfully
/S/ SHEPHERD & WEDDERBURN WS
Shepherd & Wedderburn WS
<PAGE>
EXHIBIT 15
[LOGO]
<TABLE>
<S> <C>
PRICEWATERHOUSECOOPERS
KINTYRE HOUSE
209 WEST GEORGE STREET
GLASGOW G2 2L W
TELEPHONE +44 (D) 141 248 2644
FACSIMILE +44 (D) 141 242 7481
DIRECT FAX +44 (D) 141 242 7482
</TABLE>
Securities and Exchange Commission
450 Fifth Street, NW
Washington DC 20549
USA
December 1, 1999
Commissioners:
We are aware that our report dated November 3, 1999 on our review of interim
financial information of Scottish Power plc (the "Company") as of and for the
period ended September 30, 1999 and included in the Company's interim report on
Form 6-K for the six months then ended is incorporated by reference in its
Registration Statement dated December 1, 1999.
Very truly yours,
/s/ PricewaterhouseCoopers
PRICEWATERHOUSECOOPERS IS THE SUCCESSOR PARTNERSHIP TO THE UK FIRMS OF PRICE
WATERHOUSE AND COOPERS & LYBRAND. THE PRINCIPAL PLACE OF BUSINESS OF
PRICEWATERHOUSECOOPERS AND ITS ASSOCIATE PARTNERSHIPS, AND OF COOPERS & LYBRAND,
IS 1 EMBANKMENT PLACE, LONDON WC2N 6NN. THE PRINCIPAL PLACE OF BUSINESS OF PRICE
WATERHOUSE IS SOUTHWARK TOWERS, 92 LONDON BRIDGE STREET, LONDON SEI 98Y. LISTS
OF THE PARTNERS' NAMES ARE AVAILABLE FOR INSPECTION AT THESE PLACES.
ALL PARTNERS IN THE ASSOCIATE PARTNERSHIPS ARE AUTHORIZED TO CONDUCT BUSINESS AS
AGENTS OF, AND ALL CONTRACTS FOR SERVICES TO CLIENTS ARE WITH,
PRICEWATERHOUSECOOPERS. PRICEWATERHOUSECOOPERS IS AUTHORIZED BY THE INSTITUTE OF
CHARTERED ACCOUNTANTS IN ENGLAND AND WALES TO CARRY ON INVESTMENT BUSINESS.
<PAGE>
EXHIBIT 23(A)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 15, 1999 relating to the
financial statements of Scottish Power plc, which appears in Scottish Power
plc's Annual Report on Form 20-F for the year ended March 31, 1999.
/s/ PricewaterhouseCoopers
Glasgow, Scotland
December 1, 1999
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned constitutes and appoints
each of Andrew Mitchell or Alan V. Richardson or Richard T. O'Brien the
undersigned's true and lawful attorneys and agents, with full power of
substitution and resubstitution for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement under the Securities Act of 1933, prepared in connection
with the PacifiCorp Stock Incentive Plan, the PacifiCorp K Plus Plan and the
PacifiCorp Compensation Reduction Plan, and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto each said attorney and agent full power and
authority to do any and all acts and things necessary or advisable to be done,
as fully and to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that each said attorney and agent,
or his substitute, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<C> <S> <C>
/s/ CHARLES MURRAY STUART
CBE Chairman of the Board and
- ------------------------------ Director
Charles Murray Stuart CBE
/s/ IAN ROBINSON Chief Executive Officer
- ------------------------------ and Director (Principal
Ian Robinson Executive Officer)
/s/ IAN SIMON MACGREGOR Deputy Chief Executive and
RUSSELL Finance Director
- ------------------------------ (Principal Financial and
Ian Simon MacGregor Russell Accounting Officer)
/s/ KENNETH LESLIE VOWLES
- ------------------------------
Kenneth Leslie Vowles
/s/ CHARLES MILLER SMITH
- ------------------------------
Charles Miller Smith
/s/ CHARLES BERRY
- ------------------------------
Charles Berry
/s/ ALAN RICHARDSON
- ------------------------------
Alan Richardson
/s/ EWEN CAMERON STEWART
MACPHERSON
- ------------------------------
Ewen Cameron Stewart
Macpherson
</TABLE>
<PAGE>
<TABLE>
<C> <S> <C>
/s/ JOHN PARNABY CBE
- ------------------------------
John Parnaby CBE
- ------------------------------
Peter Gregson
/s/ MAIR BARNES
- ------------------------------
Mair Barnes
</TABLE>
