<PAGE> 1
As filed with the Commission on April 6, 1995 File No. 33-
- - - - -
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- - - - - - - - -
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- - - - - - - - -
BOSTON EDISON COMPANY
(Exact name of issuer as specified in its charter)
Massachusetts 04-1278810
- ---------------------------------- ------------------
(State or other jurisdiction (IRS Employer
incorporation or organization) Identification No.)
800 Boylston Street
Boston, Massachusetts 02199
----------------------------------------------------------
(Address of principal executive offices, including zip code)
<TABLE>
<CAPTION>
BOSTON EDISON NEGOTIATED SAVINGS PLAN FOR PRODUCTION AND
MAINTENANCE EMPLOYEES (1994 RESTATEMENT)
(Full title of Plan)
<S> <C>
Theodora S. Convisser Copy to:
Boston Edison Company David A. Fine, Esq.
800 Boylston Street Ropes & Gray
Boston, MA 02199 One International Place
(617) 424-2000 Boston, Massachusetts 02110
-----------------------------
(Name, address and telephone
number of agent for service)
</TABLE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
<S> <C> <C> <C> <C>
Title of Amount Proposed Proposed Amount of
Securities to be maximum maximum registration
to be registered(1) offering aggregate fee(2)
registered price per(2) offering
share price(2)
______________________________________________________________________________
Common Stock 400,000 $23.75 $ 9,500,000 $3,276.00
par value $1.00
______________________________________________________________________________
<FN>
(1) To be purchased from time to time for participants in the Plan.
<FN>
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high ($24) and
low ($23 1/2) prices of the Boston Edison Company Common Stock, par value
$1.00, reported on the New York Stock Exchange on March 31, 1995, which date
is within five (5) business days of the date of the filing hereof.
</TABLE>
INTEREST IN PLAN. 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 plan
described herein.
Exhibit Index on Page 4
-1-
<PAGE> 2
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Boston Edison Company (the "Registrant" or the "Company") hereby
incorporates the following documents herein by reference:
(a) The registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1994, filed pursuant to the Securities Exchange Act of 1934
(the "Exchange Act").
(b) The latest annual report of the Boston Edison Negotiated Savings
Plan for Production and Maintenance Employees for the fiscal year ended
December 31 1993, filed pursuant to Section 13(a) or 15(d) of the Exchange
Act.
(c) The description of the Company's Common Stock, $1.00 par value,
contained in the Company's Registration Statement on Form 10 (Registration
No. 1-904) in respect of the Company's Common Stock, filed pursuant to
Section 12 of the Exchange Act.
(d) All other reports filed by the registrant with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act, since the end
of the fiscal year covered by the registrant's annual report referred to above.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The corporation shall to the extent legally permissible, indemnify each
of its directors and officers (including persons who serve at its request as
directors, officers, or trustees of another organization in which it has any
interest, as a shareholder, creditor or otherwise)against all liabilities and
expenses, including amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and counsel fees, reasonably incurred by such
person in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which such person may be
involved or with which such person may be threatened, while in office or
thereafter, by reason of such person's being or having been such a director,
officer or trustee, except with respect to any matter as to which such person
shall have been adjudicated in any proceeding not to have acted in good faith
in the reasonable belief that his or her action was in the best interests of
the corporation; provided, however, that as to any matter disposed of by a
compromise payment by such director or officer, pursuant to a consent decree
or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless such compromise shall be approved as in the
best interests of the corporation after notice that it involves such
indemnification: (a) by a disinterested majority of the directors then in
office, or (b) by a majority of the disinterested directors then in office,
provided that there has been obtained an opinion in writing of independent
legal counsel to the effect that such director or officer appears to have
acted in good faith in the reasonable belief that his or her action was in the
best interests of the corporation; or (c) by the holders of a majority of the
outstanding stock at the time entitled to vote for directors, voting as a
single class, exclusive of any stock owned by any interested director or
officer. Each director or officer of the corporation shall, in the
performance of his or her duties, be fully protected in relying in good faith
upon the books of account of the corporation, reports made to the corporation
by any of its officers or employees or by counsel, accountants, appraisers or
other experts or consultants selected with reasonable care by the directors,
or upon other records of the corporation. Expenses, including counsel
fees, reasonably incurred by any director or officer in connection with the
defense or disposition of any such action, suit or other proceeding may be
paid from time to time by the
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<PAGE> 3
corporation in advance of the final disposition
thereof upon receipt of an undertaking by such director or officer to repay
the amounts so paid by the corporation if it is ultimately determined that
indemnification for such expenses is not authorized under this section.
The right of indemnification hereby provided shall not be exclusive of or
affect any other rights to which any director or officer may be entitled. As
used in this section, the terms" director" and "officer" include their
respective heirs, executors and administrators, and an "interested" director
or officer is one against whom in such capacity the proceedings in question or
another proceeding on the same or similar grounds is then pending.
Nothing contained in this section shall affect any rights to indemnification
to which corporate personnel other than directors and officers may be entitled
by contract or otherwise under law.
Section 67 of Chapter 156B of the Massachusetts General Laws provides
that indemnification of directors and officers may be provided to the extent
specified or authorized by the articles of organization or bylaws.
The Company has purchased two-part policies of insurance covering
directors' and officers' liability and reimbursement of the Company for
indemnification of a director or officer. The policies covering directors'
and officers' liability provide for payment on behalf of a director or officer
of any Loss (defined to include among other things damages, judgments,
settlements, costs and expenses) arising from claims against such director or
officer by reason of any Wrongful Act (as defined) subject to certain
exclusions.
-3-
<PAGE> 4
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Page
Number Number
- ------ ------
<S> <C>
4.1 Boston Edison Negotiated Savings Plan for
Production and Maintenance Employees
(1994 Restatement). 8
4.2 Boston Edison Negotiated Savings Plan
Trust Agreement (filed with the Securities
and Exchange Commission as Exhibit 4.2 to
the Company's Registration Statement on Form S-8,
No. 33-48425, incorporated herein by reference).
4.2.1 Fourth Amendment to Trust Agreement Between
Fidelity Management Trust Company and
Boston Edison Company. 84
24.1 Consent of Coopers & Lybrand L.L.P. 92
25. Power of Attorney. 93
Pursuant to Item 8(b) of Form S-8, the Registrant undertakes that it will
submit or has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify the 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; and (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
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;
---------
-4-
<PAGE> 5
(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
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 Act 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 Act
and will be governed by the final adjudication of such issue.
-5-
<PAGE> 6
SIGNATURES
The Issuer
- ----------
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 authorized this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston and the Commonwealth of Massachusetts, on
this 3rd day of April, 1995.
BOSTON EDISON COMPANY
By: /S/ CHARLES E. PETERS, JR.
--------------------------
CHARLES E. PETERS, JR.
Senior Vice President - Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
PRINCIPAL EXECUTIVE OFFICER:
THOMAS J. MAY, Chairman of the Board
and Chief Executive Officer
PRINCIPAL FINANCIAL OFFICER:
CHARLES E. PETERS, JR., Senior Vice President - Finance
PRINCIPAL ACCOUNTING OFFICER:
ROBERT J. WEAFER, JR., Vice President,
Controller and Chief Accounting Officer
</TABLE>
<TABLE>
<S> <C>
DIRECTORS: By:/S/ CHARLES E. PETERS, JR.
--------------------------
CHARLES E. PETERS, JR.
(as attorney-in-fact and
on his own behalf as
WILLIAM F. CONNELL Principal Financial Officer)
GARY L. COUNTRYMAN
GEORGE W. DAVIS
THOMAS G. DIGNAN, JR. April 3, 1995
CHARLES K. GIFFORD
NELSON S. GIFFORD
KENNETH I. GUSCOTT
MATINA S. HORNER
THOMAS J. MAY
SHERRY H. PENNEY
BERNARD W. REZNICEK
HERBERT ROTH, JR.
STEPHEN J. SWEENEY
PAUL E. TSONGAS
</TABLE>
-6-
<PAGE> 7
The Plan
- --------
Pursuant to the requirements of the Securities Act of 1933, the Boston
Edison Negotiated Savings Plan for Production and Maintenance Employees has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Boston and in the
Commonwealth of Massachusetts, this 3rd day of April, 1995.
BOSTON EDISON NEGOTIATED SAVINGS
PLAN FOR PRODUCTION AND MAINTENANCE
EMPLOYEES
By:/S/ CHARLES E. PETERS, JR.
--------------------------
Plan Administrator
-7-
<PAGE> 8 EXHIBIT 4.1
BOSTON EDISON
NEGOTIATED SAVINGS PLAN
FOR
PRODUCTION AND MAINTENANCE EMPLOYEES
(1994 Restatement)
<PAGE> 9
<TABLE>
BOSTON EDISON NEGOTIATED SAVINGS PLAN
FOR
PRODUCTION AND MAINTENANCE EMPLOYEES
TABLE OF CONTENTS
<CAPTION>
ARTICLE PAGE
<S> <C> <C>
1. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Plan and Trust intended to qualify. . . . . . . . . . . . . . .1
1.2. Purpose of Plan.. . . . . . . . . . . . . . . . . . . . . . . .1
1.3. Amendment and Restatement.. . . . . . . . . . . . . . . . . . .1
2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
2.1. "Administrator" . . . . . . . . . . . . . . . . . . . . . . . .3
2.2. "Affiliated Company". . . . . . . . . . . . . . . . . . . . . .3
2.3. "Annual Addition" . . . . . . . . . . . . . . . . . . . . . . .3
2.4. "Beneficiary" . . . . . . . . . . . . . . . . . . . . . . . . .4
2.5. "Board of Directors" or "Board" . . . . . . . . . . . . . . . .4
2.6. "Code". . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.7. "Company" . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2.8. "Company Stock" . . . . . . . . . . . . . . . . . . . . . . . .4
2.9. "Compensation". . . . . . . . . . . . . . . . . . . . . . . . .4
2.10. "Computation Period" . . . . . . . . . . . . . . . . . . . . .5
2.11. "Elective Contribution". . . . . . . . . . . . . . . . . . . .6
2.12. "Elective Contribution Account". . . . . . . . . . . . . . . .6
2.13. "Eligible Employee". . . . . . . . . . . . . . . . . . . . . .6
2.14. "Employee" . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.15. "Employer" . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.16. "Employment Commencement Date" . . . . . . . . . . . . . . . .6
2.17. "ERISA". . . . . . . . . . . . . . . . . . . . . . . . . . . .6
2.18. "Highly Compensated Employee". . . . . . . . . . . . . . . . .7
2.19. "Hour of Service". . . . . . . . . . . . . . . . . . . . . . .9
2.20. "Limitation Year". . . . . . . . . . . . . . . . . . . . . . 12
2.21. "Matching Contribution". . . . . . . . . . . . . . . . . . . 12
2.22. "Matching Contribution Account". . . . . . . . . . . . . . . 12
2.23. "Member" . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.24. "Participating Employer" . . . . . . . . . . . . . . . . . . 12
2.25. "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.26. "Plan Year". . . . . . . . . . . . . . . . . . . . . . . . . 12
2.27. "Share of the Trust Fund". . . . . . . . . . . . . . . . . . 12
2.28. "Trust". . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.29. "Trust Fund" . . . . . . . . . . . . . . . . . . . . . . . . 13
2.30. "Trustee". . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.31. "Valuation Date" . . . . . . . . . . . . . . . . . . . . . . 13
2.32. "Year of Service". . . . . . . . . . . . . . . . . . . . . . 13
3. ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . 14
3.1. Administrator . . . . . . . . . . . . . . . . . . . . . . . . 14
3.2. Delineation of fiduciary responsibilities . . . . . . . . . . 14
3.3. Appointment of the members of the Committee and
the Pension Management Committee. . . . . . . . . . . . . . . 16
<PAGE> 10
3.4. Organization and operation of the Committee and
the Pension Management Committee. . . . . . . . . . . . . . . 16
3.5. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 17
3.6. Compensation of Committee members . . . . . . . . . . . . . . 18
3.7. Conclusiveness of various documents . . . . . . . . . . . . . 18
3.8. Actions to be uniform . . . . . . . . . . . . . . . . . . . . 18
3.9. Powers and duties of the Committee. . . . . . . . . . . . . . 18
3.10. Accounts and records . . . . . . . . . . . . . . . . . . . . 19
3.11. Employment of specialists. . . . . . . . . . . . . . . . . . 20
3.12. Claims and review procedures . . . . . . . . . . . . . . . . 20
3.13. Costs of administration. . . . . . . . . . . . . . . . . . . 22
4. MEMBERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1. Initial membership. . . . . . . . . . . . . . . . . . . . . . 23
4.2. Notice to Members . . . . . . . . . . . . . . . . . . . . . . 23
4.3. Cessation of membership . . . . . . . . . . . . . . . . . . . 24
4.4. Breaks in membership; changes in enrollment
status. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5. CONTRIBUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
5.1. Elective Contributions. . . . . . . . . . . . . . . . . . . . 26
5.2. Compensation reduction agreements . . . . . . . . . . . . . . 26
5.3. Matching Contributions. . . . . . . . . . . . . . . . . . . . 27
5.4. Reductions in contribution rates. . . . . . . . . . . . . . . 29
5.5. Nondiscrimination requirement . . . . . . . . . . . . . . . . 30
5.6. Maximum amount of contributions . . . . . . . . . . . . . . . 32
5.7. Return of contributions . . . . . . . . . . . . . . . . . . . 33
5.8. Distribution of excess contributions. . . . . . . . . . . . . 33
5.9. Member contributions. . . . . . . . . . . . . . . . . . . . . 34
6. TRUST FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.1. Appointment of Trustee. . . . . . . . . . . . . . . . . . . . 35
6.2. Investment funds within the Trust Fund. . . . . . . . . . . . 35
6.3. Acquisition of Company Stock. . . . . . . . . . . . . . . . . 37
6.4. Investment of contributions and earnings. . . . . . . . . . . 38
6.5. Method of making investment directions. . . . . . . . . . . . 39
7. MEMBERS' ACCOUNTS. . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.1. Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.2. Adjustment of accounts. . . . . . . . . . . . . . . . . . . . 41
7.3. Limitations . . . . . . . . . . . . . . . . . . . . . . . . . 43
8. RIGHTS TO BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . 45
8.1. Termination of employment . . . . . . . . . . . . . . . . . . 45
8.2. Designation of Beneficiary. . . . . . . . . . . . . . . . . . 45
8.3. Election of former vesting schedule . . . . . . . . . . . . . 47
9. DISTRIBUTION OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . 49
9.1. Form of distribution. . . . . . . . . . . . . . . . . . . . . 49
9.2. Time of Distribution; Latest commencement of
benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . 49
9.3. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 52
<PAGE> 11
9.4. Optional Direct Transfer of Eligible
Rollover Distributions. . . . . . . . . . . . . . . . . . . . 52
9.5. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 53
10. WITHDRAWALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
10.1. Hardship withdrawals . . . . . . . . . . . . . . . . . . . . 55
10.2. Withdrawals after age 59 1/2.. . . . . . . . . . . . . . . . 57
10.3. Coordination with loan provisions; miscellaneous . . . . . . 58
11. LOANS TO MEMBERS. . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.1. In general . . . . . . . . . . . . . . . . . . . . . . . . . 59
11.2. General limitations. . . . . . . . . . . . . . . . . . . . . 59
11.3. Additional rules and limitations . . . . . . . . . . . . . . 59
11.4. Formal requirements. . . . . . . . . . . . . . . . . . . . . 60
11.5. Repayment other than in normal course. . . . . . . . . . . . 61
11.6. Loan allocated to Member's account . . . . . . . . . . . . . 63
11.7. Loans to be nondiscriminatory. . . . . . . . . . . . . . . . 63
11.8. Rules and procedures . . . . . . . . . . . . . . . . . . . . 64
12. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . 65
12.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . 65
12.2. Termination. . . . . . . . . . . . . . . . . . . . . . . . . 65
12.3. Distributions upon termination of the Plan . . . . . . . . . 66
12.4. Merger or consolidation of Plan; transfer of
Plan assets. . . . . . . . . . . . . . . . . . . . . . . . . 67
13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
13.1. Voting of Company Stock; related matters . . . . . . . . . . 68
13.2. Limitation of rights . . . . . . . . . . . . . . . . . . . . 68
13.3. Nonalienability of benefits. . . . . . . . . . . . . . . . . 68
13.4. Payment under qualified domestic relations
orders . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
13.5. Information between Administrator and Trustee. . . . . . . . 70
13.6. Governing law. . . . . . . . . . . . . . . . . . . . . . . . 70
13.7. Transfer of Accounts . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
<PAGE> 12
BOSTON EDISON NEGOTIATED SAVINGS PLAN
FOR PRODUCTION AND MAINTENANCE EMPLOYEES
ARTICLE 1. INTRODUCTION
1.1. Plan and Trust intended to qualify. This Plan and its related
Trust are intended to qualify as a profit-sharing plan and trust under
sections 401(a) and 501(a) of the Code, and the cash or deferred arrangement
forming part of the Plan is intended to qualify under section 401(k) of the
Code. The provisions of the Plan and Trust shall be construed and applied
accordingly. Subject to the provisions of Sections 5.7 and 13.4, no part of
the corpus or income of the Trust forming part of the Plan will be used for,
or diverted to, purposes other than for the exclusive benefit of Members,
former Members, and their Beneficiaries and for the payment of administering
the Plan and Trust.
1.2. Purpose of Plan. The purpose of the Plan is to provide retirement
income for Eligible Employees through a program of salary-reduction
contributions and matching contributions.
1.3. Amendment and Restatement. This Plan amends, restates and
continues the Plan. Except as otherwise expressly provided herein, the rights
of Members who ceased to be Eligible Employees prior to January 1, 1993 and do
not subsequently become Eligible Employees shall be determined in accordance
with the terms of the Plan as in effect when they ceased to be Employees.
Except as otherwise specifically and expressly provided herein, the
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<PAGE> 13
provisions of the Plan as set forth below will be effective as of:
(a) January 1, 1989 or such earlier date required for a provision
under the applicable provisions of the Code and the regulations
thereunder;
(b) January 1, 1993, in the case of Sections 9.4 and 9.5;
(c) January 1, 1994, in the case of Section 2.9 and those
provisions which pertain to the limitations on Compensation;
(d) July 1, 1994, in the case of Sections 5.2, 5.3, 13.7, and
related provisions of the Plan pertaining to Elective Contributions and
Matching Contributions and benefits attributable thereto;
(e) July 1, 1994, in the case of Sections 6.5(b) and 11.1; and
(f) January 1, 1995, in the case of Sections 3.13, 6.2, 6.4,
6.5(a), and related provisions of the Plan pertaining to investment
funds within the Trust Fund.
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<PAGE> 14
ARTICLE 2. DEFINITIONS
Wherever used herein, the following terms have the following meanings
unless a different meaning is clearly required by context:
2.1. "Administrator" means the Committee appointed in accordance with
Article 3.
2.2. "Affiliated Company" means (i) any corporation (other than the
Company) that is a member of a controlled group of corporations (as defined in
section 414(b) of the Code) with the Company, (ii) any trade or business
(other than the Company), whether or not incorporated, that is under common
control (as defined in section 414(c) of the Code) with the Company, and (iii)
any trade or business (other than the Company) that is a member of an
affiliated service group (as defined in section 414(m) of the Code) of which
the Company is also a member or that is otherwise required to be aggregated
with the Company under the regulations, if any, under section 414(o) of the
Code; provided, that the term "Affiliated Company" shall not include any
corporation or unincorporated trade or business prior to the date on which
such corporation, trade or business satisfies the affiliation or control tests
of (i), (ii) or (iii) above. Solely for purposes of Section 7.3 of the Plan,
sections 414(b) and 414(c) of the Code will be considered modified by section
415(h) of the Code.
2.3. "Annual Addition" means, in the case of any Member, the sum for
any Limitation Year of all Elective Contributions and
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<PAGE> 15
Matching Contributions made for such year and credited to the Member's
accounts under the Plan.
2.4. "Beneficiary" means the person or persons entitled under Article 8
to receive benefits under the Plan upon the death of the Member.
2.5. "Board of Directors" or "Board" means the Board of Directors of the
Company.
2.6. "Code" means the Internal Revenue Code of 1986, as amended from
time to time. Reference to any section or subsection of the Code includes
reference to any comparable or succeeding provision of any legislation which
amends, supplements or replaces such section or subsection.
2.7. "Company" means Boston Edison Company and any successor to all or
a major portion of its assets or business which assumes the obligations of the
Company with the consent of the Trustee.
2.8. "Company Stock" means the common stock of Boston Edison Company.
2.9. "Compensation" means (a) for all purposes of the Plan other than
Section 7.3, all payroll except commissions and bonus and other incentive
awards received by an Eligible Employee from a Participating Employer during
the Plan Year of reference for services rendered while a Member, without
regard to any reduction in such pay made pursuant to a cash or deferred
election under section 401(k) of the Code or a salary reduction election under
section 125 of the Code; and (b) for purposes of Section 7.3, the
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<PAGE> 16
Member's wages, salaries, fees for professional services and other
amounts received (without regard to whether or not an amount is paid in cash)
for personal services actually rendered in the course of employment with the
Company or an Affiliated Company to the extent that the amounts are
includible in gross income, including but not limited to overtime pay,
commissions, bonuses, and other compensation, but excluding any amounts
excluded under the definition of compensation in the Treasury Regulations
promulgated under section 415 of the Code. For each Plan Year on or after
January 1, 1989 and before January 1, 1994, Compensation shall be limited for
all purposes under the Plan to $200,000 (or such larger amount as the
Secretary of the Treasury may determine for such Plan Year under section
401(a)(17) of the Code). For each Plan Year after December 31, 1993,
Compensation shall be limited for all purposes under the Plan to $150,000 (or
such larger amount as the Secretary of the Treasury may determine for such
Plan Year under section 401(a)(17) of the Code). In applying the limitations
in this Section 2.9, the family aggregation rules of Code Section 414(q)(6)
shall apply, except that in applying such rules, the term "family" shall
include only the spouse of the Member and any lineal descendants who have not
attained age 19 before the close of the Plan Year.
2.10. "Computation Period" means (a) the 12-consecutive month period
beginning with the Employee's Employment Commencement Date, or (b) in the case
of an Employee who does not complete 1,000 Hours of Service during his first
Computation
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<PAGE> 17
Period, any Plan Year beginning after his Employment Commencement
Date.
2.11. "Elective Contribution" means, in the case of any Member, a
contribution made for the benefit of the Member under Section 5.1.
2.12. "Elective Contribution Account" means, for any Member, the account
described in Section 7.1 to which Elective Contributions for the Member's
benefit (and earnings attributable thereto) are credited.
2.13. "Eligible Employee" means any Employee employed by a
Participating Employer (other than an individual who is considered an Employee
solely by reason of the leased employee rules of section 414(n) of the Code)
who is a member of the Boston Edison Production and Maintenance Bargaining
Unit, Local 369, UWUA, AFL-CIO.
2.14. "Employee" means any individual employed by the Employer and, to
the extent required by section 414(n) of the Code, any leased employee
performing services for the Employer.
2.15. "Employer" means the Company and all Affiliated Companies.
2.16. "Employment Commencement Date" means the first date on which the
Employee performs an Hour of Service.
2.17. "ERISA" means the Employee Retirement Income Security Act of 1974,
as from time to time amended, and any successor statute or statutes of similar
import.
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2.18. "Highly Compensated Employee" means an Eligible Employee who has
fulfilled the participation requirements of Section 4.1 (without regard to the
requirement that a compensation reduction agreement be in effect) and who is a
"highly compensated employee" within the meaning of Code Section 414(q). The
term Highly Compensated Employee includes highly compensated active Employees
and highly compensated former Employees.
(1) A highly compensated active Employee includes any Employee who
performs service for a Participating Employer during the determination year
and who, during the look- back year: (i) received Compensation from the
Participating Employer in excess of $75,000 (as adjusted pursuant to Code
Section 414(q)(1)); (ii) received Compensation from the Participating
Employer in excess of $50,000 (as adjusted pursuant to Code Section
414(q)(1)) and was a member of the top-paid group for such year; or (iii)
was an officer of the Participating Employer and received Compensation
during such year that is greater than 50 percent of the dollar limitation in
effect under Code Section 415(b)(1)(A).
(2) The term Highly Compensated Employee also includes: (i) an
Employee who is described in paragraph (a) if the term "determination
year" is substituted for the term "look-back year" and the Employee is one
of the 100 Employees who received the most Compensation from the
Participating Employer during the determination year; and (ii) an Employee
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<PAGE> 19
who is a 5 percent owner at any time during the look-back year or
determination year. If no officer has satisfied the compensation
requirement of (a)(iii) above during either a determination year or look-
back year, the highest paid officer for such year shall be treated as a
Highly Compensated Employee. For this purpose, the determination year
shall be the Plan Year. The look-back year shall be the 12-month period
immediately preceding the determination year.
(3) A highly compensated former Employee includes any Employee who
separated (or was deemed to have separated) from service prior to the
determination year, performs no service for the Participating Employer
during the determination year, and was a highly compensated active
Employee for either the separation year or any determination year ending on
or after the Employee's 55th birthday.
(4) If an Employee is, during a determination year or look-back year,
a family member of either a 5 percent owner who is an active or former
Employee or a Highly Compensated Employee who is one of the 10 most Highly
Compensated Employees ranked on the basis of Compensation paid by the
Participating Employer during such year, then the family member and the 5
percent owner or top 10 Highly Compensated Employee shall be aggregated. In
such case, the family member and 5 percent owner or top 10 Highly
Compensated Employee shall be treated as a single Employee receiving
compensation and Plan contributions equal to the sum of such compensation
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<PAGE> 20
and contributions of the family member and 5 percent owner or top-ten
Highly Compensated Employee. For purposes of this Section, family member
includes the spouse, lineal ascendants and descendants of the Employee or
former Employee and the spouses of such lineal ascendants and descendants.
(5) The top paid group shall consist of the top 20 percent of active
Employees, ranked on the basis of Compensation received from the
Participating Employer during the year. The number of officers shall be
limited to the lesser of (i) 50 Employees or (ii) the greater of 3
Employees or 10 percent of Employees. If there is not at least one officer
whose Compensation is in excess of 50 percent of the Code Section
415(b)(i)(A) limit, then the highest paid officer of the Participating
Employer shall be treated as a Highly Compensated Employee. The
determination of who is a Highly Compensated Employee, including the
determinations of the number and identity of Employees in the top-paid
group, the top 100 Employees, the number of Employees treated as officers
and the compensation that is considered, will be made in accordance with
Code Section 414(q).2.19. "Hour of Service" means
(1) each hour for which the Employee is directly or indirectly paid,
or entitled to payment, for the performance of duties for the Employer, each
such hour to be credited to the Employee for the Computation Period in which
the duties were performed;
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<PAGE> 21
(2) each hour for which the Employee is directly or indirectly paid,
or entitled to payment, by the Employer (including payments made or due from
a trust fund or insurer to which the Employer contributes or pays premiums)
on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship has terminated)
due to vacation, holiday, illness, incapacity, disability, layoff, jury
duty, military duty, or leave of absence, each such hour to be credited to
the Employee for the Computation Period in which such period of time occurs,
subject to the following rules:
(i) Hours of Service will not be credited under this paragraph
(2) for a payment which solely reimburses an individual for medically
related expenses, or which is made or due under a plan maintained solely
for the purpose of complying with applicable workmen's compensation,
unemployment compensation or disability insurance laws;
(ii) if the period during which the Employee performs no duties
falls within two or more Computation Periods and if the payment made on
account of such period is not calculated on the basis of units of time,
the Hours of Service credited with respect to such period shall be
allocated between not more than the first two such Computation Periods on
any reasonable
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<PAGE> 22
basis consistently applied with respect to similarly situated Employees;
and
(iii) no more than 501 Hours of Service will be credited under
this paragraph (2) on account of any single continuous period during
which the Employee performs no duties;
(3) each hour not credited under (1) or (2) above for which back pay,
irrespective of mitigation of damages, has been either awarded or agreed to
by the Employer, each such hour to be credited to the Employee for the
Computation Period to which the award or agreement pertains; and
(4) each noncompensated hour while an Eligible Employee during a
period of leave of absence (i) from the Participating Employer for service
in the armed forces of the United States if the Eligible Employee returns to
work for a Participating Employer as an Eligible Employee at a time when he
has reemployment rights under federal law, (ii) which, under the Family and
Medical Leave Act of 1993, is required to be credited for purposes of the
Plan.
Hours of Service to be credited to an individual under (1), (2) and (3)
above will be calculated and credited pursuant to paragraphs (b) and (c) of
section 2530.200(b)-2 of the Department of Labor Regulations which are
incorporated herein by reference. Hours of Service to be credited to an
individual during an absence described in (4) above will be determined by the
Administrator with reference to the individual's most recent
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<PAGE> 23
normal work schedule.
2.20. "Limitation Year" means the Plan Year.
2.21. "Matching Contribution" means, in the case of any Member, a
contribution made for the benefit of the Member under Section 5.3.
2.22. "Matching Contribution Account" means, for any Member, the account
described in Section 7.1 to which Matching Contributions for the Member's
benefit (and earnings attributable thereto) are credited.
2.23. "Member" means each Eligible Employee who participates in the Plan
in accordance with Article 4 hereof.
2.24. "Participating Employer" means the Company and any Affiliated
Company which has adopted the Plan with the approval of the Company.
2.25. "Plan" means the Boston Edison Negotiated Savings Plan for
Production and Maintenance Employees (prior to January 1, 1991, the Boston
Edison Negotiated Savings Plan), as set forth herein, together with any and
all amendments and supplements hereto.
2.26. "Plan Year" means the calendar year.
2.27. "Share of the Trust Fund" means, in the case of each Member, that
portion of the Trust's assets which is allocated to the accounts of the Member
in accordance with Article 7 of the Plan.
2.28. "Trust" means the trust or trusts established between the Company
and the Trustee in connection with the Plan.
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2.29. "Trust Fund" means the property held in trust by the Trustee for
the benefit of Members, former Members and their Beneficiaries.
2.30. "Trustee" means the person or persons appointed as Trustee
pursuant to Section 6.1, any successor trustee or trustees, and any additional
trustee or trustees.
2.31. "Valuation Date" means the day of each month when Members'
accounts are adjusted in accordance with Section 7.2.
2.32. "Year of Service" means, with respect to any Employee, a
Computation Period during which the Employee has completed 1,000 or more Hours
of Service.
Pronouns used in the Plan are in the masculine gender but are intended to
include the feminine gender.
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ARTICLE 3. ADMINISTRATION OF THE PLAN
3.1. Administrator. The Plan will be administered by the Retirement
Plans Committee (the "Committee") appointed in accordance with Section 3.3 of
the Plan. The Committee will be the "Plan administrator" as that term is used
in ERISA.
3.2. Delineation of fiduciary responsibilities. The fiduciaries with
respect to the Plan will be the Company, the Executive Personnel Committee of
the Board (the "Executive Personnel Committee"), the Pension Management
Committee, the Committee, and the Trustee. The responsibilities of the
fiduciaries will be allocated as provided herein, and each such fiduciary will
have only those responsibilities and obligations that are specifically imposed
upon it by the Plan. Except as otherwise provided by law, each of the
fiduciaries will be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under the Plan, and will not
be responsible for any act or failure to act of any other fiduciary.
(a) The Company will have the sole power to amend and terminate the
Plan; the sole responsibility to make contributions to the Fund as
provided in Article 5; and such other powers and duties as are herein
specifically provided.
(b) The Trustee will have the sole responsibility for the
administration of the Trust and, to the extent not delegated to one or
more investment managers (within the meaning of section 3(38) of ERISA) or
some other named fiduciary (including, but not limited to, the Executive
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<PAGE> 26
Personnel Committee or the Pension Management Committee),
the management and control of the assets of the Fund.
(c) The Executive Personnel Committee will have the sole
responsibility: to appoint and remove the Trustee and any successor
trustee; to select investment funds; to appoint or remove the members
of the Pension Management Committee and Committee and to review the
operation and performance of such committees; to appoint one or more
investment managers to manage and invest part or all of the assets of
the Trust; and to establish policies, including funding and
investment policies, for the administration of the Plan.
(d) The Pension Management Committee will have the sole
responsibility: to monitor the performance and operations of the Trustee
and any investment manager; to implement the funding and investment
policies established by the Executive Personnel Committee; and to advise
the Executive Personnel Committee with respect to the appointment or
removal of the Trustee and any investment manager, and with respect to the
continuation or alteration of the investment and funding policies of the
Plan.
(e) Except as otherwise specifically provided herein, the general
administration of the Plan and the responsibility for carrying out its
provisions will be vested solely in the Committee. In addition, the
Committee
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will have such powers and responsibilities as are hereinafter specifically
provided.
3.3. Appointment of the members of the Committee and the Pension
Management Committee. The Committee and the Pension Management Committee
shall each consist of not less than three, nor more than seven, individuals
appointed from time to time by the Executive Personnel Committee. The
membership of each committee may include individuals who are not members of
the Plan, and any individual may, if so appointed, serve as a member of both
committees. The Executive Personnel Committee may remove any member of either
committee at any time in its sole discretion, and any member may resign by
delivering to the Executive Personnel Committee his written resignation,
effective upon its delivery or by any later date specified therein. The
remaining member or members of the appropriate committee shall continue to act
until any vacancy in the membership of such committee is filled by action of
the Executive Personnel Committee.
3.4. Organization and operation of the Committee and the Pension
Management Committee. Each of the Committee and the Pension Management
Committee shall appoint from among its members a chairman. The chairman of
each committee, when present, shall preside at meetings of that committee. In
his absence, those present will choose one of their members to act as
chairman. Each committee shall appoint a secretary, who shall keep the
minutes of the meetings and perform such other duties as may be
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assigned to him by that committee. The secretary may, but need not, be a
member of either committee or a Member of the Plan. Each committee shall act
either by majority vote of the members present at a meeting held upon notice
duly given or through a writing without such a meeting by unanimous consent
of the members of each committee then in office, and such action by consent
shall have the same effect for all purposes as if taken by majority vote of
the members present at a meeting held upon notice duly given. Any member of
the Committee who is a Member of the Plan shall not vote on any question
relating exclusively to himself. Either committee may authorize one or more
of its members to execute documents on behalf of that committee.
Any act which the Plan authorizes or requires either committee to do may be
specifically delegated in writing to one or more members of that committee.
3.5. Indemnification. The Company will indemnify and hold harmless each
member of the Executive Personnel Committee, the Pension Management Committee
and the Committee from any and all claims, losses, damages, expenses
(including reasonable counsel fees approved by the Company), and liability
(including any reasonable amount paid in settlement with the Company's
approval) arising from any act or omission of such member, except when the
same is judicially determined to be due to the willful misconduct of such
member.
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<PAGE> 29
3.6. Compensation of Committee members. The members of the Pension
Management Committee and the Committee will serve without compensation with
respect to their positions on each committee.
3.7. Conclusiveness of various documents. The Company and its officers
and the Executive Personnel Committee will be entitled to rely upon all data,
certificates and reports furnished by any accountant, counsel or other expert
appointed, employed or engaged by the Administrator.
3.8. Actions to be uniform. Any discretionary actions to be taken under
the Plan will be nondiscriminatory and uniform with respect to all persons
similarly situated.
3.9. Powers and duties of the Committee. In accordance with Section 3.2,
the Committee will control the general administration of the Plan. The
Committee shall have complete control and discretionary authority to determine
the rights and benefits and all claims, demands and actions arising out of the
provisions of the Plan of any Employee, former Employee, Member, former
Member, Beneficiary, or any other person having or claiming to have any
interest in the Trust or under the Plan. The powers and responsibilities of
the Committee will include but not be limited to the following:
(a) Construe and interpret the Plan in accordance with uniform rules
and regulations consistently applied to all Members, its interpretation
thereof in good faith to be final and conclusive on any Employee, former
Employee, Member, former Member, or Beneficiary;
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<PAGE> 30
(b) Decide the eligibility of any persons to be covered under the
Plan, in accordance with the provisions of the Plan.
(c) Determine the right of any person to a distribution and the
amount to be distributed, in accordance with the provisions of the Plan.
(d) Prescribe such procedures as the Committee deems necessary to be
followed by Members in filing applications for distributions.
(e) Issue instructions to the Trustee in connection with all
distributions which are to be paid in accordance with the provisions of
the Plan.
(f) Require from the Company and Participating Employers and
Employees such information as is necessary to administer the Plan
properly.
(g) Furnish to the Executive Personnel Committee appropriate
periodic reports covering the administration of the Plan.
(h) Receive and review periodic accounts of the Trustee.
3.10. Accounts and records. The Pension Management Committee will
maintain records showing the fiscal operations of the Plan and will keep in
convenient form such data as may be necessary for periodic review of the
Plan's finances.
The Pension Management Committee will prepare annually a report showing
in detail the assets and liabilities of the Plan
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and giving a brief account of the operation of the Plan for the past year.
Such report will be submitted to the Executive Personnel Committee and will
be filed in the office of the secretary of the Pension Management Committee.
3.11. Employment of specialists. The Executive Personnel Committee of
the Board will have the authority to employ Plan advisors such as actuaries,
qualified public accountants, attorneys (who may but need not be attorneys to
the Company) or such other persons as it deems necessary or desirable to
provide advice and services to it, the Pension Management Committee and the
Committee with respect to the performance of any duty assigned to any of such
committees.
3.12. Claims and review procedures.
(a) Claims procedure. If any person believes he is being denied any
rights or benefits under the Plan, such person may file a claim in
writing with the Committee. If any such claim is wholly or partially
denied, the Committee will notify such person of its decision in
writing. Such notification will contain (i) specific reasons for the
denial, (ii) specific reference to pertinent plan provisions, (iii) a
description of any additional material or information necessary for
such person to perfect such claim and an explanation of why such
material or information is necessary and (iv) information as to the steps
to be taken if the person wishes to submit a request for review. Such
notification will be given within 90 days after the
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<PAGE> 32
claim is received by the Committee (or within 180 days, if special
circumstances require an extension of time for processing the claim, and
if written notice of such extension and circumstances is given to such
person within the initial 90 day period). If such notification is not
given within such period, the claim will be considered denied as of the
last day of such period and such person may request a review of his claim.
(b) Review procedure. Within 60 days after the date on which a
person receives written notice of a denied claim (or, if applicable,
within 60 days after the date on which such denial is considered to have
occurred) such person (or his duly authorized representative) may (i) file
a written request with the Committee for a review of his denied claim and
of pertinent documents and (ii) submit written issues and comments to the
Committee. The Committee will notify such person of its decision in
writing. Such notification will be written in a manner calculated to be
understood by such person and will contain specific reasons for the
decision as well as specific references to pertinent Plan provisions. The
decision on review will be made within 60 days after the request for
review is received by the Committee (or within 120 days, if special
circumstances require an extension of time for processing the request,
such as an election by the Committee to hold a hearing, and if written
notice of such extension and circumstances is
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given to such person within the initial 60 day period). If the decision
on review is not made within such period, the claim will be considered
denied.
3.13. Costs of administration. All reasonable costs and expenses
incurred in administering the Plan and Trust will be paid by the Company
unless the Committee directs in writing that they be paid out of the Trust.
Notwithstanding the foregoing, all brokerage fees, commissions, taxes and
expenses incident to transactions involving shares of Company Stock will be
paid from the Member's account. Effective January 1, 1995, all initial set up
and annual maintenance fees and management fees (if any) incident to
transactions involving the Fidelity BrokerageLink as described in Section
6.2(iv) and loan set up fees and processing charges incident to transactions
involving loans made on or after such date under Article 11 will be paid from
the Member's account.
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ARTICLE 4. MEMBERSHIP
4.1. Initial membership. Each Eligible Employee will become a Member on
the earlier of
(a) the January 1 or July 1 that coincides with or next follows the
date on which he has attained age 21 and completed one Year of Service, or
(b) the January 1 that coincides with or next follows the earlier of
(1) the date on which he attains age 35, or (2) the date on which he
completes four Years of Service;
provided that (A) he is an Eligible Employee on such January 1 or July 1, and
- --------
(B) there is in effect on such January 1 or July 1, with respect to such
Eligible Employee, a compensation reduction agreement (within the meaning of
Section 5.2) between the Eligible Employee and his Participating Employer. An
Employee who has satisfied the age and service requirements of (a) or (b)
above, but who has failed to satisfy the requirements of (A) or (B) above,
will become a Member on the first January 1 or July 1 thereafter as of which
the requirements of both (A) and (B) are satisfied. Notwithstanding
satisfaction of the foregoing requirements, no Employee shall become a Member
of the Plan at a time when he is participating in a program of vocational or
cooperative education involving the Company and a college or university or is
otherwise classified by the Company as a temporary Employee.
4.2. Notice to Members. The Administrator will inform each Eligible
Employee who has satisfied the age and service
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requirements of (a) or (b) of Section 4.1 above of his eligibility for
membership in the Plan.
4.3. Cessation of membership. A Member will cease to be a Member as of
the earlier of (a) the date on which he ceases to be an Eligible Employee, or
(b) the date on which the Plan terminates. An individual who ceases to be a
Member under the preceding sentence shall no longer be eligible to share in
contributions under Article 5 (except as otherwise provided in Section 5.3) or
to borrow from the Plan under Article 11 (except that a former Member who
remains a "party in interest", or a deceased former Member's Beneficiary who
has not yet received the Member's Share of the Trust Fund and who is a "party
in interest" as that term is defined in ERISA, shall remain eligible to borrow
under Article 11 to the extent required by ERISA). However, a former Member
shall continue to be treated as a Member for purposes of Article 6 (investment
of accounts), Article 7 (Members' accounts), Articles 8 through 10 (relating
to distributions and withdrawals), Article 12 and 13, and Article 3 (insofar
as it relates to the former Member's continuing interest in the Plan), so long
as any balance remains credited to the Member's accounts hereunder.
4.4. Breaks in membership; changes in enrollment status. If an
individual who has ceased to be a Member pursuant to Section 4.3(a) again
becomes an Eligible Employee, or if an individual who has ceased to be a
member of either the Boston Edison Savings Plan or the Boston Edison
Negotiated Savings Plan
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<PAGE> 36
for Office, Technical & Professional Employees simultaneously or thereafter
becomes an Eligible Employee, he will become (or again become) a Member in
the Plan on the later of (a) the first date on which he again completes an
Hour of Service as an Eligible Employee, and (b) the effective date of a
compensation reduction agreement, entered into pursuant to
this Plan, between the Eligible Employee and his Participating Employer.
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ARTICLE 5. CONTRIBUTIONS
5.1. Elective Contributions. On behalf of each Member with whom there is
in effect, for any full pay period, a binding compensation reduction agreement
(within the meaning of Section 5.2) and who is receiving Compensation from a
Participating Employer during such pay period, the Participating Employer from
which the Compensation is received will contribute to the Trust, for such pay
period, an amount equal to the amount by which the Member's Compensation for
such pay period was reduced pursuant to such agreement. Such Elective
Contribution will be paid in cash to the Trustee as soon as the Employer can
reasonably segregate the Elective Contribution from the Employer's general
assets (but in no event later than the latest date permitted under Department
of Labor regulations) and will be credited to the Member's Elective
Contribution Account in accordance with the provisions of Section 7.2.
5.2. Compensation reduction agreements. For purposes of this Article, a
"compensation reduction agreement" is a written agreement between an Eligible
Employee and a Participating Employer which satisfies the requirements of this
Section 5.2. Each such agreement shall provide that the Member's Compensation
will be reduced by a number of whole percentage points between 2 percent and
15 (17 for pay periods commencing on or after July 1, 1994) percent
(inclusive) elected by the Member, and that the Participating Employer will
contribute an equivalent amount to the Trust. Each such agreement shall be in
a form prescribed or
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approved by the Administrator and shall be (i) irrevocable while the
agreement is in effect with respect to Compensation already earned but (ii)
revocable as of any pay period with respect to Compensation not yet earned.
A Member may elect as of any pay period (but not more than once in any
calendar year), with respect to amounts not yet earned, (a) to revoke his
compensation reduction agreement, (b) to increase or decrease the amount by
which his Compensation is to be reduced pursuant to such an agreement, or (c)
if he has revoked his compensation reduction agreement, to enter into a new
compensation reduction agreement. Any such election shall be made by giving
prior written notice to the Administrator on a form prescribed or approved by
the Administrator, and shall be effective as of the first pay period after
receipt by the Administrator that is administratively feasible.
Notwithstanding the foregoing, the Administrator in its sole discretion may,
at any time and with or without notice, permit a change in or a suspension of
the terms of any compensation reduction agreement if it deems such a change
or suspension to be justified by individual circumstances.
5.3. Matching Contributions. For each full pay period beginning on or
after July 1, 1994, each Participating Employer will contribute to the Trust,
for the benefit of each Member employed by the Participating Employer
(including a former Member who ceased to be a Member during or after the end
of the pay period), a Matching Contribution equal to fifty percent (50%) of
the qualifying Elective Contributions made for the benefit of
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such Member for such pay period. For purposes of this Section, "qualifying
Elective Contributions" means Elective Contributions for the benefit of a
Member for a pay period to the extent such Elective Contributions do not
exceed 6 percent of such Member's Compensation from the Participating
Employer for such pay period. If the Elective Contributions on behalf of any
Member are reduced or eliminated during any Plan Year in order to comply with
the limitation described in section 402(g) of the Code as in effect for such
Year (or, in the case of a Member who has made a hardship withdrawal, the
lower limit applicable for such Year under Section 10.1 below), and if any
Elective Contributions made for the benefit of the Member in respect of prior
periods during such Year did not constitute qualifying Elective Contributions
(the "excess Elective Contributions"), the Member shall be treated for
purposes of determining the Matching Contribution under this Section 5.3 as
though Elective Contributions had continued to be made for his benefit in
subsequent pay periods within such Plan Year, at the rate of 6 percent of his
Compensation for each such pay period, until the aggregate of such additional
deemed Elective Contributions equals the Member's excess Elective
Contributions or until the Member ceases to be a Member, if earlier. The
Matching Contributions made for the benefit of a Member for any pay period
will be contributed in cash to the Trust at such time as the Retirement Plans
Committee determines (but in no event later than the time prescribed by law
(including extensions) for filing the Employer's federal income
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tax return for its taxable year in or with which the Plan Year ends), and will
be credited to the Member's Matching Contribution Account in accordance with
the provisions of Section 7.2. In addition, Matching Contributions for a Plan
Year must be made no later than the last day of the 12-month period
immediately following the Plan Year.
5.4. Reductions in contribution rates. The Administrator shall decrease
the amount of Elective Contributions required to be made for the benefit of
any Member if the Administrator, in its sole discretion, deems such a decrease
to be necessary in order to satisfy either the nondiscrimination standard set
forth in Section 5.5 or the requirements of Section 7.3, or both. In the
event of any such decrease in the amount of Elective Contributions, the
affected Member's pay shall be correspondingly increased. If the
Administrator requires a decrease in the rate of Elective Contributions to be
made for purposes of satisfying the nondiscrimination standard set forth in
Section 5.5, such decrease shall be effected by decreasing by increments of
one percentage point (or such smaller increments as the Administrator deems
necessary) the percentage rate of such Contributions made for the benefit of
all those highly compensated Members for whose benefit the highest percentage
rate of such Contributions (determined immediately before each such decrease,
and taking into account prior decreases) would have been made. Any decrease
in the Elective Contributions for a Member will also be effective for purposes
of determining the amount of the Matching
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Contributions to be made for the Member's benefit under Section 5.3. For
purposes of this Section, the term "highly compensated Member" means a Member
who is a Highly Compensated Employee.
5.5. Nondiscrimination requirement.
(a) Elective Contributions and Matching Contributions for any Plan
Year will be deemed to meet the nondiscrimination standard described in
his Section if either of the following tests is satisfied:
(i) The average of the ratios of Elective Contributions plus
Matching Contributions to Compensation (the "deferral ratios") for
all Highly Compensated Employees does not exceed the product of 1.25
and the average of the deferral ratios for all eligible employees
other than Highly Compensated Employees, or
(ii) The excess of the average of the deferral ratios for all
Highly Compensated Employees over that for all other eligible
employees is not more than two percentage points, and the average of
the deferral ratios for all Highly Compensated Employees does not
exceed the product of 2 and the average of the deferral ratios for
all eligible employees other than Highly Compensated Employees.
(b) The Administrator, in its sole discretion, may elect to test
Matching Contributions separately from
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Elective Contributions under this Section. If the Administrator makes
such election, the ratio tests under (a)(i) and (a)(ii) above shall be
applied by reference solely to Elective Contributions (rather than
Elective Contributions plus Matching Contributions), and the Matching
Contributions will be deemed to satisfy the nondiscrimination standard
described in this Section only if either of the following tests is
satisfied:
(i) The average of the ratios of Matching Contributions to
Compensation (the "contribution ratios") for all Highly Compensated
Employees does not exceed the product of 1.25 and the average of the
contribution ratios for all eligible employees other than Highly
Compensated Employees, or
(ii) The excess of the average of the contribution ratios for
all Highly Compensated Employees over that for all other eligible
employees is not more than two percentage points, and the average of
the contribution ratios for all Highly Compensated Employees does not
exceed the product of 2 and the average of the contribution ratios
for all eligible employees other than Highly Compensated Employees.
The test described in (ii) shall be available only to the extent permitted
under regulations promulgated pursuant to section 401(m)(9)(A) of the Code
(relating to multiple use of certain limitations).
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(c) For purposes of this Section, the term "eligible employee" means
those Eligible Employees who have fulfilled the participation
requirements of Section 4.1 (without regard to the requirement that a
compensation reduction agreement be in effect).
(d) This Section shall be construed and applied in accordance with
sections 401(k) and 401(m) of the Code and the regulations thereunder,
which are specifically incorporated by reference herein, including
without limitation the rules relating to plan aggregation and family
aggregation.
5.6. Maximum amount of contributions. In no event will the sum of the
contributions made by a Participating Employer under Sections 5.1 and 5.3 for
any Plan Year be in an amount which would cause the Annual Addition for any
Member to exceed the amount permitted under Section 7.3 or exceed the maximum
amount deductible under the applicable provisions of the Code, including
without limitation amounts deductible under section 404(a)(3)(A) or section
404(a)(3)(B) of the Code. Participating Employer contributions under the Plan
are hereby conditioned on their deductibility under section 404 of the Code.
Notwithstanding any other provision of the Plan, the Elective Contributions
made for the benefit of any Member for any calendar year, when aggregated with
the elective contributions (if any) made for the benefit of such Member for
such year under any other qualified cash or deferred arrangement maintained by
the Employer, shall not exceed
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$7,000 (or such higher limit as may be in
effect for the Plan Year under section 402(g)(1) of the Code).
5.7. Return of contributions. If a contribution by a Participating
Employer to the Trust is
(a) made by reason of a good faith mistake of fact, or
(b) believed by the Participating Employer in good faith to be
deductible under section 404 of the Code, but the deduction is disallowed,
the Trustee shall, upon request by the Participating Employer, return to
the Participating Employer the excess of the amount contributed over the
amount, if any, that would have been contributed had there not occurred a
mistake of fact or a mistake in determining the deduction. If the Trust has
suffered a net loss since the time of the excess contribution, the amount
returned to the Participating Employer shall be reduced by the portion of the
net loss attributable to the excess contribution. In no event shall the
return of a contribution hereunder cause any Member's Share of the Trust Fund
to be reduced to less than it would have been had the mistaken or
nondeductible amount not been contributed. No return of a contribution
hereunder shall be made more than one year after the mistaken payment of the
contribution, or disallowance of the deduction, as the case may be.
5.8. Distribution of excess contributions. If, after all contributions
for a Plan Year have been made, the nondiscrimination requirements of Section
5.5 have not been
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satisfied for the Plan Year, the Administrator shall, as
soon as practicable (but in no event later than the close of the following
Plan Year), determine and distribute the excess Elective Contributions and
Matching Contributions (adjusted for income or loss allocable to such excess)
to Members, in accordance with sections 401(k)(8) and 401(m)(6) of the Code
and the regulations thereunder, to the extent necessary to satisfy Section
5.5. If, on or before March 1 of any year, a Member notifies the
Administrator, in accordance with section 402(g)(2)(A) of the Code and the
regulations thereunder, that all or part of the Elective Contributions made
for his benefit for the preceding year was in excess of the dollar limitation
applicable for such prior year under section 402(g)(1) of the Code (an "excess
deferral"), the Administrator shall make every reasonable effort to cause such
excess deferral (adjusted for allocable income or loss) to be distributed to
the Member no later than the April 15 following such notification. The amount
of any excess deferrals that may be distributed to a Member shall be reduced
by the amount of Elective Contributions distributed under the first sentence
of this Section with respect to the Member for the Plan Year.
5.9. Member contributions. No contributions by a Member shall be
required or permitted under the Plan.
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ARTICLE 6. TRUST FUND
6.1. Appointment of Trustee. The Executive Personnel Committee of the
Board shall appoint one or more individuals or corporations to act as Trustee
under the Plan, and at any time may remove and appoint a successor to any such
person or persons. The Company may enter into a trust agreement with the
Trustee and make such amendments to such trust agreement or such further
agreements as the Company in its sole discretion may deem necessary or
desirable to carry out the Plan.
6.2. Investment funds within the Trust Fund. All contributions to the
Trust and all investments thereunder shall be held by the Trustee in the Trust
Fund. The Trust Fund shall consist of:
(i) One or more "Mutual Funds," as determined by the Executive
Personnel Committee of the Board, each such Fund to consist of (a) shares
of a mutual fund (which may include a money-market type fund) selected by
the Executive Personnel Committee of the Board and (b) all cash held by
the Trustee resulting from the receipt of dividends or other distributions
from such mutual fund, contributions to be invested in such mutual fund,
and sales or redemptions from such mutual fund.
(ii) A "Company Stock Fund," consisting of all Company Stock held by
the Trustee and all cash held by the Trustee resulting from the receipt of
dividends or other distributions on Company Stock held in the Company
Stock
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Fund, and from contributions paid in cash, all of which cash is to
be invested in Company Stock as soon as practicable.
(iii) To the extent provided by Article 11, notes evidencing
indebtedness incurred under said Article.
(iv) As soon as administratively feasible after December 31, 1994,
the "Fidelity BrokerageLink (TM) " consisting of, subject to such
limitations as the Pension Management Committee may direct, (a) securities
and bonds regularly traded on a national or regional securities exchange
or over-the-counter, as the Member elects, (b) securities issued or
guaranteed by the United States or any agency or instrumentality thereof,
as the Member elects, (c) certificates of deposit and other instruments
issued by a bank or similar institution, as the Member elects, (d)
commercial paper, as the Member elects, (e) gold and silver coins, (f)
shares of a mutual fund, as the Member elects, (g) long options, as the
Member elects, and (h) all cash held by the Trustee resulting from the
receipt of dividends or other distributions on investments held in the
Fidelity BrokerageLink and contributions to be invested in the
Fidelity BrokerageLink.
The separate Mutual Funds available within the Trust Fund under (i) above may
be changed from time to time by the Executive Personnel Committee of the
Board in its discretion, to add, replace, or eliminate a Mutual Fund or Funds
with respect to the investment of both existing balances or future
contributions, or
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both. Effective as of August 1, 1990 but subject to the
foregoing sentence, the Mutual Funds available under (i) above shall be the
Fidelity Retirement Government Money Market Fund, the Fidelity Asset Manager
Fund, the Fidelity U.S. Equity Index Fund, and the Fidelity Magellan Fund.
Effective as of January 1, 1995, but subject to the first sentence of this
paragraph, the Mutual Funds available under (i) above shall also include the
Fidelity Intermediate Bond Fund, the Fidelity International Growth and Income
Fund and the Fidelity Disciplined Equity Fund. Any change of Mutual Funds
available under this Section, and the time and manner of such change, shall be
carried out in accordance with such additional rules as the Administrator
shall prescribe. The investment options available within the Trust Fund under
(iv) above may be changed from time to time by the Pension Management
Committee in its discretion, to add, replace, or eliminate an investment
option with respect to the investment of both existing balances or future
contributions, or both. Any change of investment options available within the
Trust Fund under (iv) above, and the time and manner of such change, shall be
carried out in accordance with such additional rules as the Administrator
shall prescribe.
6.3. Acquisition of Company Stock. The Trustee is authorized to invest
the assets of the Trust Fund, in whole or in part, in Company Stock to the
extent necessary to comply with Section 6.4. Purchases and sales of Company
Stock shall be made in accordance with the terms and conditions set forth in
the
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trust agreement between the Company and the Trustee or, if such agreement
does not specify terms and conditions pertaining to the purchase and sale of
Company Stock, as the Trustee in its sole discretion shall determine.
6.4. Investment of contributions and earnings.
(a) Except as provided under Article 11, all amounts credited to a
Member's Elective Contribution Account shall be invested by the
Trustee, pursuant to the Member's directions as transmitted to the
Trustee by the Administrator, or by the Member directly in accordance
with such procedures as prescribed or approved by the Administrator, in
one or more of the funds described in Section 6.2. Prior to January
1, 1995, subject to the provisions of Section 6.5, each Member may
direct the Administrator to order the Trustee to invest in any such
fund, or may himself, in accordance with such procedures as prescribed or
approved by the Administrator, direct the Trustee to invest in any such
fund, in twenty-five percent (25%) increments, either Elective
Contributions made for the Member's benefit, or the aggregate balance
of the Member's Elective Contribution Account. Effective January 1,
1995, investment directions made by a Member for future Elective
Contributions must be in ten percent (10%) increments, rather than
twenty-five percent (25%) increments. The selection of investment
options is the sole responsibility of each Member, and no employee or
representative of a
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Participating Employer, including the Administrator or the Trustee, is
authorized to make any recommendation to any Member with respect thereto.
(b) All amounts credited to a Member's Matching Contribution Account
shall be invested by the Trustee in the Company Stock Fund described in
Section 6.2(ii). Matching Contribution Accounts may not be invested in
Mutual Funds, in any investment option available within the Fidelity
BrokerageLink described in Section 6.2(iv) or in notes evidencing
indebtedness incurred under Article 11.
6.5. Method of making investment directions.
(a) Each Member will make the investment directions described in
Section 6.4(a) above on a form prescribed or approved by the
Administrator. Such directions must be delivered to the Administrator
at such time or times as the Administrator shall determine, but not
later than the effective date of the Member's compensation reduction
agreement. Upon receipt of a Member's duly executed investment
direction form, the Administrator will transmit such investment
directions to the Trustee. Any such investment directions may be
changed at such time or times as the Administrator shall determine, with
respect to existing account balances or future contributions, or both,
by such notification to the Trustee as prescribed or approved by the
Administrator, specifying a new choice of investment in any of the
funds described in Section 6.2,
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provided that such notification is delivered to the Trustee at such time
or times as the Administrator shall determine.
(b) The Plan may be administered and interpreted in manner
consistent with section 404(c) of ERISA and the regulations thereunder.
For purposes of ERISA section 404(c), the fiduciary who is obligated
to comply with Member investment instructions (except as provided in
such section and the regulations thereunder) shall be the Trustee, and
the fiduciary obligated to provide Members with the materials set forth in
Department of Labor Regulation section 2550.404c-1(b)(2) (i)(B) shall
be the Committee. The Committee shall also provide Members with
written confirmation of their investment instructions to the extent
required. In accordance with Department of Labor Regulation section
2550.404c-1(b)(2)(ii)(B), the Trustee may decline to implement Member
investment instructions which would result in a prohibited transaction
described in ERISA section 406 or section 4975 of the Code or
which would generate income that would be taxable to the Plan.
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ARTICLE 7. MEMBERS' ACCOUNTS
7.1. Accounts. The Trustee shall establish and maintain on its books for
each Member an Elective Contribution Account and a Matching Contribution
Account. In addition to the accounts described in the preceding sentence, the
Trustee shall establish and maintain such sub-accounts as it deems necessary
or desirable to fulfill the provisions of the Plan. Each sub-account
established, as well as the Member's Elective Contribution Account and
Matching Contribution Account, shall show the fair market value of the
investments and other assets held for the Member.
7.2. Adjustment of accounts. With respect to the accounts required by
Section 7.1 and such sub-accounts as are established by the Trustee pursuant
to the authority granted in Section 7.1, the Trustee shall, as of each
Valuation Date,
(a) First, credit each Member's Elective Contribution Account with
the Elective Contributions made for the benefit of the Member for the
monthly period ending on such Valuation Date and credit the Member's
Matching Contribution Account with the Matching Contributions made for his
benefit for such period;
(b) Second, adjust the balances of the sub-accounts as required to
reflect the credits under (a) above and in accordance with the Member's
investment directions as transmitted to the Trustee;
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(c) Third, adjust the balances in each Member's sub-accounts to
reflect the current fair market value of the assets in the Trust Fund
allocable to the sub-accounts;
(d) Fourth, adjust the balances of each Member's Elective
Contribution Account and Matching Contribution Account as required by the
adjustments to the Member's sub-accounts under (c) above;
(e) Fifth, reduce the balances of each Member's accounts (i)
proportionately by the amount of any distribution (other than a
withdrawal under Article 10 or a loan under Article 11) made with
respect to the Member during the monthly period ending on such Valuation
Date, (ii) in accordance with the provisions of Article 10 by the amount
of any withdrawal made thereunder by the Member during such monthly
period, and (iii) by the amount of expenses and losses allocable to
the Member's accounts during such monthly period.
In adjusting sub-accounts under (c) above to reflect the current value of
the assets in the investment fund to which the sub-account refers, the
Trustee will allocate to such sub-accounts, in proportion to the
balances therein immediately prior to such adjustment, an amount equal to
the income and expenses of the investment fund and of the gain and loss
(realized and unrealized) on the assets credited to all such sub-accounts
invested in the investment fund, valued at their fair market value. Any
expenses relating to a specific Member's accounts,
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including without limitation loan set up fees or processing charges incurred
or with respect to a loan under Article 11 or initial set up fees and
management fees (if any) incurred or with respect to the Fidelity
BrokerageLink described in Section 6.2(iv), annual maintenance fees, or
commissions or sales charges with respect to an investment in which the
Member's account participates, may be charged solely to the particular
Member's accounts.
7.3. Limitations. Notwithstanding any other provisions of the Plan, the
Annual Addition to a Member's accounts under the Plan for any Limitation Year,
when added to the annual additions (if any) to his accounts for such year
under all other plans maintained by the Company or any Affiliated Company,
shall not exceed the lesser of (A) the maximum dollar limitation or (B) 25
percent of the Member's Compensation for such Limitation Year from the Company
and all Affiliated Companies. For purposes of this Section, "maximum dollar
limitation" means $30,000 (or such other amount as in effect under Code
section 415(c)(1)(A) for the Limitation Year.
In the case of a Member who also participates in a defined benefit plan
maintained by the Company or an Affiliated Company, if the Annual Addition for
a Limitation Year would cause the sum of the Member's "defined contribution
fraction" (as determined under section 415(e) of the Code and the regulations
promulgated thereunder, including any special transition rules) and his
"defined benefit plan fraction" (as determined under section
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415(e) of the Code and the regulations promulgated thereunder) for such
Limitation Year to exceed 1.0, the Member's projected benefit under such
defined benefit plan will first be reduced, to the extent permitted under the
terms of that plan, so that the sum of said fractions does not exceed 1.0.
If, after all such reductions, the sum of said fractions would still exceed
1.0, the Member's Annual Addition under this Plan will be reduced to the
extent necessary to cause the sum of said fractions to equal 1.0.
If the Administrator determines that the limitations of this Section can
only be satisfied by adjusting amounts already allocated to a Member's
account, and to the extent permitted by section 415 of the Code and the
regulations thereunder, the Administrator shall reduce the Member's account by
the amount necessary to satisfy such limitation and hold the amount in
suspense for allocation in the following year to the Member's account (prior
to any additional contributions for the Member's benefit); but if for any
reason such excess cannot be so allocated (e.g., because the Member terminates
employment), the excess shall be applied toward contributions for the benefit
of the other Members for whom allocations of contributions are made in such
subsequent year.
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ARTICLE 8. RIGHTS TO BENEFITS
8.1. Termination of employment. Each Member will at all times have a
fully vested and nonforfeitable interest in his Share of the Trust Fund. If
the Member ceases to be an Employee for any reason, whether because of
retirement, death or other termination of employment, or if the Member becomes
permanently and totally disabled (within the meaning of section 22(e)(3) of
the Code, as determined by the Administrator), his Share of the Trust Fund,
determined as of the Valuation Date coinciding with or immediately preceding
the date of distribution, will be distributed to him (or, if he dies, to his
Beneficiary) in accordance with Article 9; provided, that distribution upon
termination of employment and prior to the Member's attainment of age 59 1/2
shall be made only if such termination constitutes a "separation from service"
within the meaning of section 401(k)(2)(B)(i)(I) of the Code.
8.2. Designation of Beneficiary. If a Member was married at the time of
his death, he shall be deemed to have named his surviving spouse as his
Beneficiary unless
(i) prior to his death, he designated as his Beneficiary a person
other than his surviving spouse, such designation to be made in
writing at such time and in such manner as the Administrator shall
approve or prescribe; and
(ii) either
(a) his surviving spouse consents in writing to the
designation described in (I) above, either with
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specific reference to the designated Beneficiary or by permitting
designations by the Member without further spousal consent, and
such consent acknowledges the effect of such designation or
permission (with acknowledgment, where applicable, of the specific
non-spouse beneficiary, including any class of beneficiaries or any
contingent beneficiaries) and is witnessed by a Plan
representative or a notary public, or
(b) it is established to the satisfaction of the Administrator
that the consent required under (a) above may not be obtained
because there is no spouse, because the spouse cannot be located,
or because of such other circumstances as the Secretary of
the Treasury may prescribe; or
(c) the Administrator determines that neither (a) nor (b) need
be satisfied with respect to that Member's designation in order to
permit the Plan, under applicable law, to pay the full amount of
the benefits due on account of the Member's death, pursuant to the
provisions of Section 8.1, solely in accordance with such
designation; and
(iii) the non-spouse Beneficiary designated in accordance with the
provisions of this Section survives the Member.
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Any consent by a spouse under (ii)(a) above shall be irrevocable, and any such
consent, or a determination by the Administrator with respect to such spouse
under (ii)(b) above, shall be effective only with respect to such spouse.
A Member who is not married may designate any person as Beneficiary
provided such designation is made in writing at such time and in such manner
as the Administrator shall approve or prescribe. A Member who has designated
a non-spouse as Beneficiary in accordance with the provisions of this Section
may change such designation at any time by giving written notice to the
Administrator, subject to the spousal-consent provisions of (ii) above (if the
Member is married at the time of such change in designation and the spouse's
prior consent did not expressly permit changes in the designation by the
Member) and to such other conditions and requirements, if any, as the
Administrator may prescribe. If a Member dies without a surviving
Beneficiary, the full amount payable upon his death will be paid to his
surviving children, equally; if none survive, to the Member's surviving
parents equally; if neither survives, to the Member's surviving brothers and
sisters, equally, or if none survive, to the Member's executors or
administrators. Any such payment shall fully discharge the liability of the
Plan, the Trust Fund, the Company, the Committee and the Trustee.
8.3. Election of former vesting schedule. If the Plan is amended and if
such amendment directly or indirectly affects the computation of the
nonforfeitable percentage of a Member's right
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to his Share of the Trust Fund, each Member who has completed three Years of
Service as of the end of the election period described below and whose
nonforfeitable percentage at any time after such amendment could be less than
such percentage determined without regard to such amendment, may elect, during
such election period, to have the nonforfeitable percentage of his Share of
the Trust Fund determined without regard to such amendment. The election
period referred to in the preceding sentence will begin on the date such
amendment is adopted and will end on the latest of the following dates:
(i) the date which is 60 days after the date on which such amendment
is adopted;
(ii) the date which is 60 days after the date on which such
amendment becomes effective; or
(iii) the date which is 60 days after the date on which the Member
is issued written notice of such amendment by the Administrator.
An election under this Section 8.3 may be made only by an individual who is a
Member at the time such election is made and once made shall be irrevocable.
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ARTICLE 9. DISTRIBUTION OF BENEFITS
9.1. Form of distribution. Distribution of all benefits will be made in
the form of a single lump-sum payment. Any such payment may include shares of
Company Stock allocated to the Member's accounts if the Member so elects.
9.2. Time of Distribution; Latest commencement of benefits. Payment of
benefits hereunder shall be made as soon as practicable following the event
described in Section 8.1 giving rise to the distribution, but in no event
(except as to payments made upon death) earlier than the date the Member
attains age 65 (or dies) if the value of the Member's Share of the Trust is in
excess of $3,500 unless:
(a) between the 30th and 90th day prior to the date distribution is
to be made, the Administrator notifies the Member in writing
that he may defer distribution until age 65; and
(b) the Member consents to the distribution in writing after the
information described above has been provided to him.
Notwithstanding the foregoing, a distribution under this Article may commence
less than 30 days after the required notification under paragraph (a) above is
given, provided that the Administrator informs the Member that he has a right
to a period of 30 days after receiving the notice to consider whether or not
to elect a distribution and the Member, after receiving the notice,
affirmatively elects to receive the distribution. For
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purposes of this Section, a Member's Share of the Trust Fund will be
considered to be valued in excess of $3,500 if the value of his Share of the
Trust Fund exceeds such amount at the time of the distribution in question or
exceeded such amount at the time of any prior distribution to (or withdrawal
by) the Member under the Plan. Unless a Member otherwise elects in accordance
with section 401(a)(14) of the Code and the Treasury Regulations promulgated
thereunder, payment of benefits to the Member shall commence in all events no
later than the 60th day after the latest of the following: (i) the close of
the Plan Year in which occurs the date on which the Member attains age 65;
(ii) the close of the Plan Year in which occurs the tenth anniversary of the
year in which the Member commenced participation in the Plan; or (iii) the
close of the Plan Year in which the Member terminates his service with the
Company.
Notwithstanding any election or provisions of the Plan to the contrary,
the following minimum distribution rules shall apply:
(i) In the case of a Member who has ceased to be employed by the
Company by December 31 of the year in which he attains age 70 1/2, the
Member's benefit shall be paid in a lump sum not later than by April 1 of
the year following the year in which the Member attains age 70 1/2.
(ii) In the case of a Member who remains employed by the Company
after the year in which he attains age 70 1/2 (other than a member who
attained age 70 1/2 before
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January 1, 1988 and who is not a five percent owner), the Member's benefit
shall be paid in a lump sum, or, if the Member elects, in installments
over a period equal to the life expectancy of the Member and his
designated beneficiary, not later than by April 1 of the year following
the year in which the Member attains age 70 1/2, subject however to the
incidental death benefit requirements of section 401(a)(9)(G) of the Code.
In the event of the death of any such Member, his benefit or remaining
benefit shall promptly be paid in a lump sum to his Beneficiary. Nothing
in this paragraph shall be construed as limiting the right of a Member
described in this paragraph to accelerate distributions by means of a
withdrawal under Section 10.2.
(iii) In the case of a Member (other than a five percent owner) who
attained age 70 1/2 before January 1, 1988 and who remains employed by the
Company, the Member's benefit shall be distributed in a lump sum within
sixty (60) days following retirement or death.
(iv) In the case of a Member who dies before receiving payment of
his benefit, distribution of the benefit to his Beneficiary (or to such
other person or entity as is entitled to receive the benefit under Section
8.2) shall be made not later than by (a) the last day of the year in which
occurs the fifth anniversary of the Member's death, or (b) if the Member's
designated Beneficiary is his surviving spouse and payment is made to such
spouse, the later of (1)
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the last day of the year in which occurs the fifth anniversary of the
Member's death, or (2) the date the Member would have attained age 70 1/2.
(v) Distributions will be made under (i), (ii), (iii), and (iv)
above in accordance with section 401(a)(9) of the Code and the regulations
thereunder including Prop. Reg. section 1.401(a)(9)-2. Life expectancies
shall not be recalculated under section 401(a)(9)(D) of the Code.
9.3. Notice to Trustee. The Administrator will notify the Trustee
whenever any Member or Beneficiary is entitled to receive a distribution under
the Plan. In giving such notice, the Administrator will specify the name and
last known address of the person receiving such distribution. Upon receipt of
such notice from the Administrator, the Trustee will, as soon as is reasonably
practicable, distribute such amount.
9.4. Optional Direct Transfer of Eligible Rollover Distributions.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee's election under this Section 9.4, effective January 1,
1993, a distributee may elect, at the time and in the manner prescribed by the
Administrator, to have any portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by the distributee in a
direct rollover. The Administrator shall give a distributee notice of his
right to elect a direct rollover and an explanation of the withholding
consequences of not making the election. Such notice shall be
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given no earlier than 90 days and no less than 30 days before the date of
distribution. The distributee, in his sole discretion, may waive or reduce,
in writing, the right to 30 days' notice.
9.5. Definitions. Except where otherwise expressly noted, for purposes
of Section 9.4:
(a) "eligible rollover distribution" means any distribution of all
or any portion of the balance to the credit of the distributee, except
that an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated
beneficiary, or for a specified period of ten years or more; any
distribution to the extent such distribution is required under section
401(a)(9) of the Code; and the portion of any distribution that is not
includible in gross income.
(b) "eligible retirement plan" means an individual retirement
account described in section 408(a) of the Code, an individual retirement
annuity described in section 408(b) of the Code, an annuity plan described in
section 403(a) of the Code, or a qualified trust described in section 401(a)
of the Code, that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the surviving
spouse, an eligible
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retirement plan is an individual retirement account or individual retirement
annuity.
(c) "distributee" includes an employee, former employee, the
employee's or former employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in section 414(p) of the Code.
(d) "direct rollover" means a payment by the Plan to the eligible
retirement plan specified by the distributee.
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ARTICLE 10. WITHDRAWALS
10.1. Hardship withdrawals. Any Member who suffers a financial hardship,
as defined in this Section, may request a withdrawal from his Share of the
Trust Fund of any sum not in excess of such Share (determined as of the date
on which the withdrawal is made), exclusive of (i) his Matching Contribution
Account, (ii) earnings credited after December 31, 1988 with respect to
Elective Contributions under the Plan, and (iii) earnings credited after
December 31, 1988 with respect to elective contributions under any other
qualified cash or deferred arrangement, which earnings have been transferred
directly to the Plan and are part of the Member's Share of the Trust Fund.
Such request shall be made by written notice to the Administrator setting
forth the amount requested and the facts establishing the existence of such
hardship. Upon receipt of such a request, the Administrator shall determine
whether an immediate and heavy financial need exists; if the Administrator
determines that such a need does exist, it shall further determine what
portion of the amount requested by the Member is required to meet the
financial need created by the hardship, and shall direct the Trustee to
distribute to the Member in a single lump-sum payment the amount so determined
to be required. Any request for a withdrawal under this Section, and the time
and manner of such request, shall be carried out in accordance with such
additional rules as the Administrator shall prescribe. Payment of a hardship
benefit shall be made from the Member's Elective Contribution Account.
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For purposes of this Section, the term "financial hardship" includes any
financial need arising from
(a) payment of tuition for the next 12 months (or such shorter
period as the Administrator deems appropriate) of post-secondary
education of the Member, his spouse or a child or dependent of the
Member,
(b) the purchase (excluding mortgage payments) of a principal
residence for the Member,
(c) medical expenses described in section 213(d) of the Code
incurred by the Member, his spouse, or a dependent (as defined in section
152 of the Code) of the Member, or
(d) the need to prevent the eviction of the Member from his
principal residence or foreclosure on the mortgage of the Member's
principal residence.
For purposes of this Section, a distribution will not be treated as an amount
"required to meet the financial need" of a Member unless
(i) the distribution is not in excess of the amount of the immediate
and heavy financial need of the Member, increased by any federal, state
or local income taxes and penalties which may be reasonably anticipated
to be imposed on such distribution,
(ii) the Member has obtained all distributions (other than hardship
distributions), if any, available under other plans of the Employer, and
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(iii) the Member has obtained all nontaxable loans currently
available under Article 11 and under all other plans of the Employer.
Any Member making a withdrawal under this Section shall be ineligible to have
made for his benefit Elective Contributions under this Plan (or to make or
have made for his benefit, respectively, after-tax employee contributions or
pre-tax elective contributions under any other plan of the Employer) for the
12-month period following the effective date of the withdrawal. In addition,
for the calendar year following the year the hardship withdrawal is effective,
no Elective Contribution shall be made for the benefit of the Member to the
Plan (nor shall any pre-tax elective contribution be made for the Member's
benefit under any other qualified retirement plan of the Employer) in excess
of the applicable limit in effect under section 402(g)(1) of the Code for such
year reduced by the aggregate amount of Elective Contributions for the benefit
of the Member (and elective pre-tax contributions for his benefit under other
qualified retirement plans of the Employer) for the year in which the hardship
withdrawal is effective. A Member will continue to be treated as an eligible
employee for purposes of Section 5.5 during the period in which his Elective
Contributions are suspended.
10.2. Withdrawals after age 59 1/2. Any Member who has attained age
59 1/2 while a Member may request a withdrawal of all or a part of his
nonforfeitable interest in his Share of the Trust Fund (determined as of the
Valuation Date coinciding with
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or immediately following the date of his request), whether or not he has
suffered a financial hardship, by written notice to the Administrator. Upon
receipt by the Administrator of such notice, the Administrator will direct the
Trustee to distribute to the Member in a single lump-sum payment the amount of
the withdrawal. A withdrawal pursuant to this Section 10.2 will not preclude
a Member from requesting thereafter another withdrawal from his Share of the
Trust Fund pursuant to this Section or Section 10.1.
10.3. Coordination with loan provisions; miscellaneous. Notwithstanding
the provisions of Sections 10.1 and 10.2, if, at the time a Member is to
receive an amount from the Trust pursuant to this Article 10, there is
outstanding any amount of principal or accrued but unpaid interest with
respect to a loan made to the Member under Article 11, the total amount to be
withdrawn pursuant to this Article 10 at such time may not exceed an amount
which would cause the value of the Member's Share of the Trust Fund,
determined as of the Valuation Date coinciding with or immediately preceding
the date of withdrawal (but reduced by the amount of the withdrawal), to be
less than the amount of any outstanding indebtedness incurred by the Member
under Article 11.
Amounts withdrawn under this Article shall be obtained, except as
otherwise specified by the Member, from each of the funds described in Section
6.2(i) or Section 6.2(ii) in proportion to the investment therein of the
Member's Elective Contribution Account (in the case of a withdrawal under
Section 10.1) or the Member's entire Share of the Trust Fund (in the case of a
withdrawal under Section 10.2).
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ARTICLE 11. LOANS TO MEMBERS
11.1. In general. Effective July 1, 1994, any Member who has been a
Member for at least twelve months (including for this purpose periods as a
member of any other tax-qualified 401(k) savings plan maintained by the
Company) may, with the consent of the Administrator, obtain a loan from his
Elective Contribution Account, subject to the limitations and provisions of
this Article 11.
11.2. General limitations. The amount of any loan received by a Member
from the Trust plus the aggregate amount of principal and accrued interest
owed by the Member with respect to all prior loans from the Trust or from any
other plan maintained by the Employer which is qualified under section 401(a)
of the Code, determined as of the time the new loan is made, shall not exceed
the lesser of:
(a) $50,000 reduced by the excess (if any) of (i) the highest
outstanding loan balance of the Member during the one-year period ending
on the day before the date on which the loan is made, over (ii) the
outstanding loan balance of the Member on the date on which such loan is
made, or
(b) one-half of the present value of the Member's Elective
Contribution Account.
For purposes of this Section 11.2, the value of a Member's Share of the Trust
Fund will be determined as of the Valuation Date coinciding with or
immediately preceding the date of the loan.
11.3. Additional rules and limitations. The Administrator will determine
the time or times each year when loans will be
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made available to Members, and will formulate such rules and procedures
relating to such loans, consistent with the provisions of this Article 11, as
it deems appropriate. Pursuant to this Section 11.3, the Administrator may,
but need not, (a) limit the number of loans that may be outstanding to any
Member at any time, (b) establish a minimum limitation with respect to the
amount available to be obtained as a loan, (c) establish limitations (which
may be more restrictive than the limitations set forth herein) on the maximum
amount or term of any loan; and (d) require that principal and interest with
respect to any loan be paid, in whole or in part, by means of payroll
deductions. In the absence of any other determination by the Administrator,
the minimum amount of any loan permitted under the Plan will be $1,000.
11.4. Formal requirements. Each loan obtained by a Member from the Trust
must: (a) be evidenced by a note, in form satisfactory to the Administrator,
signed by the Member; (b) bear interest at a reasonable rate as determined by
the Administrator; (c) be secured by up to 50% of the Member's Share of the
Trust Fund and/or by such other security as the Administrator requires; and
(d) be repayable by payroll deduction or other specified manner in
substantially level amounts paid at least quarterly, as determined by the
Administrator. Any loan obtained pursuant to this Article 11 must be repaid
by the date on which distributions by the Trust to the Member or his
Beneficiary commence. The term of any loan may not exceed five years unless
the loan is used to acquire a dwelling unit which is to be used within a
reasonable
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time as the principal residence of the Member. Principal and
interest on a loan obtained pursuant to this Article 11 must be payable in
regular installments of such frequency (but not less frequently than
quarterly) as the Administrator shall prescribe at the time the loan is made.
Loans made hereunder shall be subject to such other reasonable rules as the
Administrator may prescribe. In particular, and without restricting the
generality of the foregoing, the Administrator may require as a condition of
any loan to a married Member hereunder, if the loan is secured by all or part
of the Member's Share of the Trust Fund, that the Member's spouse consent in
advance, in writing, to the loan, to the grant of security interest, and to
any set-off by the Plan with respect to such security interest in the event of
the Member's death prior to repayment in full of the loan or default in
respect of such repayment, such consent (together with the spouse's
acknowledgment of the effect of the Member's grant of the security interest)
to be witnessed by a Plan representative or a notary public.
11.5. Repayment other than in normal course.
(a) If, at the time benefits are to be distributed to the Member or
his Beneficiary pursuant to Article 9 of the Plan, there remains any
unpaid balance of a loan obtained by the Member hereunder, the unpaid
balance of the loan will become immediately due and payable. Such unpaid
balance, together with any accrued but unpaid interest under the note
evidencing the loan, will be deducted from the Member's Share of the Trust
Fund before any distribution of the
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Member's benefits is made. If the unpaid balance of any loan is deducted
from a Member's Share of the Trust Fund under this subsection, the amount
so deducted will be treated as distributed to the Member and applied by
the Member as a payment of the unpaid interest and principal (in that
order) under the note evidencing such loan. If the amount deducted from
the Member's Share of the Trust Fund is not sufficient to repay the full
amount of unpaid principal and interest under the note, the Administrator
will direct the Trustee to exercise its rights with respect to any other
security provided by the Member.
(b) In the event of a default by a Member in making any payment of
principal or interest when due under the note evidencing any loan under
this Article 11, if such default continues for more than 14 days after
written notice of the default is given by the Administrator to the Member,
the unpaid principal of the note will become immediately due and payable
in full. In the case of any loan required to be repaid within not more
than five years under Section 11.4 above, if any amount of principal or
interest due on the loan remains unpaid at the end of such five-year
period, such amount will become immediately due and payable in full
without regard to any notice of default or 14-day waiting period. In
the event of any such default or failure to pay, the Administrator will
direct Trustee to proceed promptly to collect such unpaid principal,
together with any accrued but unpaid interest, by exercising its rights
with respect to
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any security provided by the Member; provided that in no
event will the Administrator direct the Trustee or any person succeeding
to the rights of the Trustee to cause the Member's Share of the Trust Fund
to be applied in satisfaction of such note pursuant to this subsection
prior to the earlier of (i) the Member's attainment of age 59 1/2, or (ii)
the time when distributions can be made with respect to the Member
pursuant to the terms of the Plan.
11.6. Loan allocated to Member's account. The note evidencing a loan to
a Member under this Article 11 will constitute an asset of the Trust allocated
to the account of the Member obtaining the loan and will for purposes of the
Plan be deemed to have a value at any given time equal to the unpaid balance
of the note plus the amount of any accrued but unpaid interest. The cash
required for the loan shall be obtained from each of the funds described in
Section 6.2(i) or Section 6.2(ii) in proportion to the investment therein of
the Member's Elective Contribution Account. Payments made with respect to any
note evidencing a loan hereunder will be invested in the funds described in
Sections 6.2(i), (ii) and (iii) in accordance with the Member's investment
direction at the time such payments are made.
11.7. Loans to be nondiscriminatory. Loans will be made available under
this Article 11 to all Members on a reasonable equivalent basis, except that
the Administrator may make reasonable distinctions based upon creditworthiness
and may
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otherwise limit the availability of loans in accordance with the
provisions of this Article 11.
11.8. Rules and procedures. The Administrator shall promulgate such
rules and procedures, not inconsistent with the express provisions of this
Article, as it deems necessary to carry out the purposes of this Article. All
such rules and procedures shall be deemed a part of the Plan for purposes of
section 2550.408b-1(d) of the Department of Labor regulations.
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ARTICLE 12. AMENDMENT AND TERMINATION
12.1. Amendment. The Company reserves the power at any time or times to
amend the provisions of the Plan and Trust to any extent and in any manner
that it may deem advisable by delivery to the Trustee of a written instrument,
executed by any officer of the Company authorized to sign by vote of the Board
of Directors, providing for such amendment. Upon the delivery of such
instrument to the Trustee, such instrument will become effective in accordance
with its terms as to all Members and all persons having or claiming any
interest hereunder; provided, however, that the Company will not have the
power:
(a) to amend the Plan and Trust in such manner as would cause or
permit any part of the assets of the Trust to be diverted to purposes
other than for the exclusive benefit of Members, former Members, and their
Beneficiaries (except as permitted by Section 5.7), unless such amendment
is permitted by law, governmental regulation or ruling;
(b) to amend the Plan or Trust retroactively in such a manner as
would reduce the accrued benefit of any Member in violation of section
411(d)(6) of the Code; or
(c) to amend the Plan or Trust in such manner as would increase the
duties or liabilities of the Trustee or affect its fee for services
hereunder, unless the Trustee consents thereto in writing.
12.2. Termination. The Company has established the Plan and the Trust
with the bona fide intention and expectation that contributions will be
continued indefinitely, but the Company
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will have no obligation or liability whatsoever to maintain the Plan for any
given length of time and may discontinue contributions under the Plan or
terminate the Plan at any time by delivery to the Trustee of a written notice
signed by any officer of the Company authorized to sign by vote of the Board
of Directors, without any liability whatsoever for any such discontinuance or
termination. The Plan will be deemed terminated (a) if and when the Company
is judicially declared bankrupt, (b) if and when the Company is a party to a
merger in which it is not the surviving corporation or sells all or
substantially all of its assets, unless the surviving corporation or the
purchaser adopts the Plan by an instrument in writing delivered to the
Trustee within 60 days after the merger or sale, or (c) upon dissolution of
the Company.
12.3. Distributions upon termination of the Plan. Upon termination or
partial termination of the Plan as to Members employed by a Participating
Employer or complete discontinuance of contributions thereunder, each affected
Member will continue to have a fully vested and nonforfeitable interest in his
Share of the Trust Fund. The Trustee shall determine each Member's Share of
the Trust Fund and, to the extent consistent with the provisions of section
401(k) of the Code relating to distributions upon plan termination, shall
distribute each such share in a lump sum payment as soon as practicable
following Plan termination. However, even if consistent with section 401(k)
of the Code, no such distribution of a Share of the Trust Fund having a value
in excess of $3,500 (determined as of the date of
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distribution or at such other time or times as may be required by section
411(a)(11) of the Code) shall be made earlier than the date the Member attains
age 65 (or dies) unless either (a) the Member consents to the distribution, or
(b) the Employer maintains no other defined contribution plan. If the
Employer is unable to make a distribution under section 401(k) of the Code or
the preceding sentence by reason of the existence of another defined
contribution plan, it may cause the Member's Share of the Trust Fund to be
transferred to such other defined contribution plan. Upon the completion of
such distribution to all Members, the Trust will terminate, the Trustee will
be relieved from all liability under the Trust, and no Member or other person
will have any claims thereunder, except as required by applicable law.
12.4. Merger or consolidation of Plan; transfer of Plan assets. In case of
any merger or consolidation of the Plan with, or transfer of assets and
liabilities of the Plan to, any other plan, provision must be made so that
each Member would, if the Plan then terminated, receive a benefit immediately
after the merger, consolidation or transfer which is equal to or greater than
the benefit he would have been entitled to receive immediately before the
merger, consolidation or transfer if the Plan had then terminated.
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ARTICLE 13. MISCELLANEOUS
13.1. Voting of Company Stock; related matters. The Trustee shall vote
all shares of Company Stock held in the Trust Fund, or in the case of a tender
or exchange offer in respect of such shares shall respond to such offer, in
accordance with the procedures set forth in the trust agreement between the
Company and the Trustee; provided, that if such agreement contains no
procedures for the voting of such shares or for responding to tender or
exchange offers in respect thereof, as the case may be, the Trustee shall act
in its sole discretion.
13.2. Limitation of rights. Neither the establishment of the Plan and
the Trust, nor any amendment thereof, nor the creation of any fund or account,
nor the payment of any benefits, will be construed as giving to any Member or
other person any legal or equitable right against a Participating Employer,
Administrator or Trustee, except as provided herein, and in no event will the
terms of employment or service of any Member be modified or in any way be
affected hereby. It is a condition of the Plan, and each Member expressly
agrees by his participation herein, that each Member will look solely to the
assets held in the Trust for the payment of any benefit to which he is
entitled under the Plan.
13.3. Nonalienability of benefits. The benefits provided hereunder will
not be subject to alienation, assignment, garnishment, attachment, execution
or levy of any kind, and any attempt to cause such benefits to be so subjected
will not be recognized, except to such extent as may be required by law;
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provided, however, that the foregoing shall not apply to the creation,
- -------- -------
assignment or recognition of a right to any benefit payable with respect to a
Member pursuant to a qualified domestic relations order; and further provided,
--- ------- ---------
that this Section 13.3 shall not be construed as limiting the right of a
Member (i) to obtain a loan from the Trust pursuant to Article 11 or (ii) to
cause any such loan to be secured by a portion of his Share of the Trust Fund.
13.4. Payment under qualified domestic relations orders. Notwithstanding
any provisions of the Plan to the contrary, if there is entered any qualified
domestic relations order that affects the payment of benefits hereunder, such
benefits shall be paid in accordance with the applicable requirements of such
order. For purposes of this Section and Section 13.3, "qualified domestic
relations order" means any judgment, decree or order (including approval of a
property settlement agreement) which
(a) relates to the provision of child support, alimony payments, or
marital property rights to a spouse, former spouse, child or other
dependent of a Member;
(b) is made pursuant to a State domestic relations law (including a
community property law);
(c) constitutes a "qualified domestic relations order" within the
meaning of Code section 414(p) and ERISA section 206(d)(3)(B), as added by
the Retirement Equity Act of 1984; and
(d) is entered on or after January 1, 1985.
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Notwithstanding the foregoing, any other judgment, decree or order which
satisfies the requirements of (a) and (b) above and which is entered prior to
January 1, 1985 may also be treated as a qualified domestic relations order in
the discretion of the Administrator. A domestic relations order shall not
fail to constitute a qualified domestic relations order with respect to the
Plan solely by reason of the fact that it requires a lump sum payment to an
alternate payee of all of the portion of a Member's benefit to which the
alternate payee is entitled under the order prior to the date the Member would
be eligible for a distribution under the Plan. The Administrator shall
establish reasonable procedures to determine whether an order or other decree
is a qualified domestic relations order, and to administer distributions under
such orders.
13.5. Information between Administrator and Trustee. The Administrator
will furnish to the Trustee, and the Trustee will furnish to the
Administrator, such information relating to the Plan and Trust as may be
required under the Code and any regulations issued or forms adopted by the
Treasury Department thereunder or under the provisions of ERISA and any
regulations issued or forms adopted by the Labor Department thereunder.
13.6. Governing law. The Plan and Trust will be construed, administered
and enforced according to the laws of the Commonwealth of Massachusetts to the
extent such laws are not inconsistent with and preempted by ERISA.
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13.7. Transfer of Accounts.
(a) If an individual who has ceased to be a member of the Boston
Edison Savings Plan or the Boston Edison Negotiated Savings Plan for
Office, Technical & Professional Employees becomes a Member in the Plan
and his accounts, if any, under the other plan are transferred to the
Trust from the trust associated with said plan, then upon such transfer
the transferred amount, to the extent attributable to the Member's
elective contribution account under the other plan, shall be allocated to
the Member's Elective Contribution Account hereunder, and to the extent
attributable to his matching contribution account (if any) under the other
plan shall be allocated to his Matching Contribution Account hereunder,
and in each case shall be treated for all purposes of this Plan in the
same manner as other amounts allocated to those respective accounts.
(b) If an individual ceases to be an Eligible Employee and
thereafter becomes a member in the Boston Edison Savings Plan or the
Boston Edison Negotiated Savings Plan for Office, Technical & Professional
Employees, then upon becoming such a member the Administrator shall direct
the Trustee to transfer the balance of such individual's Share of the
Trust Fund, if any, to the trust associated with said plan. Any amounts
transferred pursuant to this subsection (b) shall be allocated in
accordance with the provisions of the transferee plan.
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IN WITNESS WHEREOF, Boston Edison Company has caused this instrument to
be signed by its duly authorized officer this 30th day of January, 1995.
BOSTON EDISON COMPANY
By /S/ MARC S. ALPERT
-----------------------------
Marc S. Alpert
Vice President and Treasurer
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<PAGE> 84 EXHIBIT 4.2.1
FOURTH AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
BOSTON EDISON COMPANY
THIS FOURTH AMENDMENT, dated as of the 1st day of January, 1995, by and
between Fidelity Management Trust Company (the "Trustee") and Boston Edison
Company (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated October 1, 1986, with regard to the Boston Edison Negotiated
Savings Plan for Production and Maintenance Employees (the "Plan"); and
* WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof,
NOW THEREFORE, in consideration of the above premises the Trustee and
the Sponsor hereby amend the trust agreement by:
(1) Amending and restating Section 4(d), in its entirety, to read as
follows:
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be made
via the Boston Edison Company Common Stock Fund (the 'Stock Fund")
which shall consist of shares of Sponsor Stock and short-term
liquid investments, including Fidelity Institutional Cash
Portfolios: Money Market Portfolio: Class A or such other Mutual
Fund or commingled money market pool as agreed to by the Sponsor and
Trustee, necessary to satisfy the Fund's cash needs for transfers
and payments. A cash target range of 80 to 120 basis points shall
be maintained in the Stock Fund. Such target range may be changed
as agreed to in writing by the Sponsor and the Trustee. The
Trustee is responsible for ensuring that the actual cash held in
the Stock Fund falls within the agreed upon range over time. Each
participant's proportional interest in the Stock Fund shall be
measured in units of participation, rather than shares of Sponsor
Stock. Such units shall represent a proportionate interest in all
of the assets of the Stock Fund, which includes shares of Sponsor
Stock, short-term investments and at times, receivables for
dividends and/or Sponsor Stock sold and payables for Sponsor Stock
purchased. A Net Asset Value ("NAV') per unit will be determined
daily for each unit outstanding of the Stock Fund. The return
earned by the Stock Fund will represent a combination of the
dividends paid on the shares of Sponsor Stock held by the Stock
Fund, gains or losses realized on sales of Sponsor Stock,
appreciation or depreciation in the market price of those shares
owned, and interest on the short-term investments held by the Stock
Fund. Dividends received by the Stock Fund are reinvested in
additional shares of Sponsor Stock. Investments in Sponsor Stock
shall be subject to the following limitations:
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(i) Acquisition Limit. Pursuant to the Plan, the Trust may be
invested in Sponsor Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named Fiduciary
shall continually monitor the suitability under the fiduciary duty
rules of section 404(a)(1) of ERISA (as modified by section
404(a)(2) of ERISA) of acquiring and holding Sponsor Stock. The
Trustee shall not be liable for any loss, or by reason of any
breach, which arises from the directions of the Named Fiduciary with
respect to the acquisition and holding of Sponsor Stock, unless it
is clear on their face that the actions to be taken under those
directions would be prohibited by the foregoing fiduciary duty rules
or would be contrary to the terms of the Plan or this Agreement.
(iii) Execution of Purchases and Sales. (A) Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on
the open market on the date on which the Trustee receives from the
Sponsor in good order all information and documentation necessary
to accurately effect such purchases and sales (or, in the case of
purchases, the subsequent date on which the Trustee has received a
wire transfer of the funds necessary to make such purchases).
Exchanges of Sponsor Stock shall be made in accordance with the
Telephone Exchange Guidelines attached hereto as Schedule "G". Such
general rules shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number
of shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such day
as a result of market conditions; or
(3) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other
regulatory body from purchasing or selling any or all of the shares
required to be purchased or sold on such day.
In the event of the occurrence of the circumstances described in
(1), (2), or (3) above, the Trustee shall purchase or sell such
shares as soon as possible thereafter and shall determine the price
of such purchases or sales to be the average purchase or sales price
of all such shares purchased or sold, respectively. The Trustee may
follow directions from the Named Fiduciary to deviate from the above
purchase and sale procedures provided that such direction is made in
writing by the Named Fiduciary.
(B) Use of an Affiliated Broker. The Sponsor hereby
authorizes the Trustee to use Fidelity Brokerage Services, Inc.
("FBSI") to provide brokerage
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<PAGE> 86
services in connection with any
purchase or sale of Sponsor Stock in accordance with directions from
Plan participants. FBSI shall execute such directions directly
or through its affiliate, National Financial Services Company
("NFSC"). The provision of brokerage services shall be subject to
the following:
(1) As consideration for such brokerage services, the
Sponsor agrees that FBSI shall be entitled to remuneration under
this authorization provision in the amount of three and one-half
cents ($.035) commission on each share of Sponsor Stock. Any change
in such remuneration may be made only by a signed agreement between
Sponsor and Trustee.
(2) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86-128, the Trustee
will provide the Sponsor with the following documents: (1) a
description of FBSI's brokerage placement practices; (2) a copy of
PTCE 86-128; and (3) a form by which the Sponsor may terminate this
authorization to use a broker affiliated with the Trustee. The
Trustee will provide the Sponsor with this termination form
annually, as well as an annual report which summarizes all
securities transaction-related charges incurred by the Plan, and
the Plan's annualized turnover rate.
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions,
shall, upon consumption of such transaction, become the successor
broker in accordance with the terms of this authorization
provision.
(4) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The Sponsor
reserves the right to terminate this authorization upon sixty (60)
days written notice to FBSI (or its successor) and the Trustee, in
accordance with Section 10 of this Agreement.
(iv) Securities Law Reports. The Named Fiduciary shall be
responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Sponsor
Stock, including, without limitation, any reports required under
section 13 or 16 of the Securities Exchange Act of 1934, and shall
immediately notify the Trustee in writing of any requirement to stop
purchases or sales of Sponsor Stock pending the filing of any report.
The Trustee shall provide to the Named Fiduciary such information on
the Trust's ownership of Sponsor Stock as the Named Fiduciary may
reasonably request in order to comply with Federal or state
securities laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement the provisions of this Section shall
govern the voting and tendering of Sponsor Stock. The Sponsor, after
consultation with the Trustee, shall provide and pay for all
printing, mailing, tabulation and other costs associated with the
voting and tendering of Sponsor Stock.
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<PAGE> 87
(A) Voting.
(1) When the issuer of the Sponsor Stock
prepares for any annual or special meeting, the Sponsor shall notify
the Trustee thirty (30) days in advance of the intended record date
whether the Trustee or the Sponsor's stock transfer agent shall be
responsible for mailing proxy solicitation materials to Plan
participants and shall cause a copy of all materials to be sent to
the Trustee. Based on these materials the Trustee shall prepare a
voting instruction form. At the time of mailing of notice of each
annual or special stockholders' meeting of the issuer of the Sponsor
Stock, the Sponsor shall cause a copy of the notice and all proxy
solicitation materials to be sent to each Plan participant with an
interest in Sponsor Stock held in the Trust, together with the
foregoing voting instruction form to be returned to the Trustee or
its designee. The form shall show the proportional interest in the
number of full and fractional shares of Sponsor Stock credited to the
participant's accounts held in the Stock Fund. The Sponsor shall
. provide the Trustee with a copy of any materials provided to the
participants and shall certify to the Trustee that the materials have
been mailed or otherwise sent to participants.
(2) Each participant with an interest in the
Stock Fund shall have the right to direct the Trustee as to the
manner in which the Trustee is to vote (including not to vote) that
number of shares of Sponsor Stock reflecting such participant's
proportional interest in the Stock Fund (both vested and unvested).
Directions from a participant to the Trustee concerning the voting of
Sponsor Stock shall be communicated in writing, or by mailgram or
similar means. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person. Upon its receipt of the
directions, the Trustee shall vote the shares of Sponsor Stock
reflecting the participant's proportional interest in the Stock Fund
as directed by the participant. The Trustee shall vote shares of
Sponsor Stock reflecting a participant's proportional interest in the
Stock Fund for which it has received no direction from the
participant in the same proportion on each issue as it votes those
shares for which it has received voting directions from participants.
(3) The Trustee shall vote that number of shares
of Sponsor Stock not credited to participants' accounts in the same
proportion on each issue as it votes those shares credited to
participants' accounts for which it received voting directions from
participants.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the Sponsor
shall notify each Plan participant with an interest in such Sponsor
Stock of the tender offer and utilize its best efforts to timely
distribute or cause to be distributed to the participant the same
information that is distributed to shareholders of the issuer of
Sponsor Stock in connection with the tender offer, and, after
consulting with the Trustee, shall
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<PAGE> 88
provide and pay for a means by which the participant may direct the
Trustee whether or not to tender he Sponsor Stock reflecting such
participant's proportional interest in the Stock Fund (both vested
and unvested). The Sponsor shall provide the Trustee with a copy of
any material provided to the participants and shall certify to the
Trustee that the materials have been mailed or otherwise sent to
participants.
(2) Each participant shall have the right to
direct the Trustee to tender or not to tender some or all of the
shares of Sponsor Stock reflecting such participant's proportional
interest in the Stock Fund (both vested and unvested). Directions
from a participant to the Trustee concerning the tender of Sponsor
Stock shall be communicated in writing, or by mailgram or such
similar means as is agreed upon by the Trustee and the Sponsor under
the preceding paragraph. These directions shall be held in
confidence by the Trustee and shall not be divulged to the Sponsor,
or any officer or employee thereof, or any other person except to the
extent that the consequences of such directions are reflected in
reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's services hereunder. The
Trustee shall tender or not tender shares of Sponsor Stock as
directed by the participant. The Trustee shall not tender shares of
Sponsor Stock reflecting a participant's proportional interest in the
Stock Fund for which it has received no direction from the
participant.
(3) The Trustee shall tender that number of
shares of Sponsor Stock not credited to participants' accounts in the
same proportion as the total number of shares of Sponsor Stock
credited to participants' accounts for which it has received
instructions from Participants.
(4) A participant who has directed the Trustee
to tender some or all of the shares of Sponsor Stock reflecting the
participant's proportional interest in the Stock Fund may, at any
time prior to the tender offer withdrawal date, direct the Trustee to
withdraw some or all of the tendered shares reflecting the
participant's proportional interest, and the Trustee shall withdraw
the directed number of shares from the tender offer prior to the
tender offer withdrawal deadline. Prior to the withdrawal deadline,
if any shares of Sponsor Stock not credited to participants'
accounts have been tendered, the Trustee shall redetermine the number
of shares of Sponsor Stock that would be tendered under Section
4(e)(v)(B)(3) if the date of the foregoing withdrawal were the date
of determination, and withdraw from the tender offer the number of
shares of Sponsor Stock not credited to participants' accounts
necessary to reduce the amount of tendered Sponsor Stock not
credited to participants' reduce the amount of tendered Sponsor Stock
not credited to participants' accounts to the amount so redetermined.
A participant shall not be limited as to the number of directions to
tender or withdraw that the participant may give to the Trustee.
(5) A direction by a participant to the Trustee to
tender shares of Sponsor Stock reflecting the participant's
proportional interest in the
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<PAGE> 89
Stock Fund shall not be considered a written election under the Plan
by the participant to withdraw, or have distributed, any or all of
his withdrawable shares. The Trustee shall credit to each
proportional interest of the participant from which the tendered
shares were taken the proceeds received by the Trustee in exchange
for the shares of Sponsor Stock tendered from that interest. Pending
receipt of directions (through the Administrator) from the
participant or the Named Fiduciary, as provided in the Plan, as to
which of the remaining investment options the proceeds should be
invested in the Trustee shall invest the proceeds in the Mutual Fund
described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section, the
number of shares of Sponsor Stock deemed "credited" or "reflected"
to a participant's proportional interest shall be determined as
of the last preceding valuation date. The trade date is the date the
transaction is valued.
(vii) General. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares
previously tendered, in the case of Sponsor Stock credited to a
participant's proportional interest in the Stock Fund, the Trustee
shall follow the directions of the participant and if no such
directions are received, the directions of the Named Fiduciary. The
Trustee shall have no duty to solicit directions from participants.
With respect to all rights other than the right to vote and the
right to tender, in the case of Sponsor Stock not credited to
participants' accounts, the Trustee shall follow the directions of
the Named Fiduciary.
(viii) Conversion. All provisions in this Section 4(d) shall
also apply, to any securities received as a result of a conversion of
Sponsor Stock.
(2) Amending and restating Section 4(g), in its entirety, to read as
follows:
(g) Notes. The Administrator shall act as the Trustee's agent for
the purpose of holding all trust investments in participant loan
notes and related documentation and as such shall (i) hold physical
custody of and keep safe the notes and other loan documents, (ii)
collect and remit all principal and interest payments to the
Trustee, (iii) keep the proceeds of such loans separate from the
other assets of the Administrator and clearly identify such assets
as Plan assets and (iv) cancel and surrender the notes and other
loan documentation when a loan has been paid in full. To originate
a participant loan, the Plan participant shall notify the Trustee of
the request by use of the Telephone Exchange System. The Trustee
shall determine, based on the current value of the Plan
participant's account, the amount available for the loan. The Plan
participant shall then direct the Trustee regarding the amount to be
borrowed and the term or period for repayment. Based on the most
recent interest rate supplied by the Sponsor in accordance with the
terms of the Plan, the Trustee shall advise the Plan participant of
such interest rate, as well as the installment payment amounts. The
Trustee shall forward the loan document to the Plan participant for
execution and submission for approval to the
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<PAGE> 90
Administrator. The Administrator shall have the responsibility for
approving the loan, via remote access, and instructing the Trustee
of such approval. The Trustee shall send the loan proceeds to the
Administrator or to the Plan participant in accordance with the
directions from the Administrator. In all cases, such approval by
the Administrator shall be made within 30 days of the Plan
participant's initial request (the origination date).
(3) Amending the "investment options" portions of Schedules "A" and "C"
to reflect the addition of the following funds:
Fidelity Intermediate Bond Fund
Fidelity International Growth & Income Fund
Fidelity Disciplined Equity Fund
(4) Amending and restating the first, third, and fourth bullets under
the "Processing" section of Schedule "A" to read as follows:
o Weekly processing of contribution data.
o Participants may initiate the in-service and hardship withdrawal
process via telephone as directed and approved by the Sponsor.
o Weekly processing of transfers between the Boston Edison Savings
Plan, the Boston Edison Negotiated Savings Plan for Production
and Maintenance Employees, and the Boston Edison Negotiated
Savings Plan for Office, Technical and Professional Employees.
(5) Amending Schedule "B" to reflect the Loans by Phone and Withdrawals
by Phone Fees as follows:
Loan Fees Establishment fee of $35.00 per loan account,
annual fee of $15.00 per loan account.
Withdrawal Fees $15.00 per in-service withdrawal.
(6) Amending and restating the "Company Stock" section of Schedule "G",
Telephone Exchange Procedures, to read as follows:
EXCHANGES BETWEEN MUTUAL FUNDS AND BOSTON EDISON COMPANY COMMON
STOCK FUND (THE "STOCK FUND")
Participants may call on any business day to exchange between the
mutual funds and the Stock Fund. If the request is received before
4:00 p.m. (ET), it will receive that day's trade date. Calls
received after 4:00 p.m. (ET) will be processed on a next day basis.
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<PAGE> 91
EXCHANGE RESTRICTIONS
It is the intention of the Trustee to maintain a sufficient
liquidity reserve in the Stock Fund to meet exchange, redemption or
withdrawal requests. However, if there is insufficient liquidity in
the Stock Fund to allow for same day exchanges, the Trustee will be
required to sell shares of Sponsor Stock to meet the exchange
requests. If this occurs, the subsequent exchange into other Plan
investment options will take place five (5) business days later.
This allows for settlement of the stock trade at the custodian
and the corresponding transfer to Fidelity.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Fourth
Amendment to be executed by their duly authorized officers effective as of the
day and year first above written.
BOSTON EDISON COMPANY FIDELITY MANAGEMENT TRUST
COMPANY
By /S/ MARC S. ALPERT 12/19/94 By /S/ CHRISTINA LODDO EPSTEIN 1/4/95
- ------------------------------- --------------------------------------
Date Date
Vice President and Treasurer Vice President
<PAGE> 92
EXHIBIT 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Boston Edison Company (the "Company") on Form S-8 of:
1. Our report dated January 26, 1995, on our audits of the financial
statements of Boston Edison Company as of December 31, 1994 and 1993, and
for each of the three years in the period ended December 31, 1994, 1993
and 1992, which report is included in the Annual Report on Form 10-K of
Boston Edison Company.
2. Our report dated June 24, 1994 on our audits of the statements of
net assets available for benefits including the schedules of investments of
the Boston Edison Negotiated Savings Plan for Production and Maintenance
Employees (the "Plan") as of December 31, 1993 and 1992 and the related
statements of changes in net assets available for benefits for each of the
three years in the period ended December 31, 1993, which report is included in
the 1993 Annual Report on Form 11-K of the Plan.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 5, 1995
<PAGE> 93
EXHIBIT 25
POWER OF ATTORNEY
We, the undersigned officers and directors of Boston Edison Company (the
"Company"), hereby severally constitute Thomas J. May, Charles E. Peters, Jr.,
and each of them singly, our true and lawful attorneys, with full power to
them and each of them to sign for us, and in our names in the capacities
indicated below, the registration statement and any and all amendments
thereto filed or to be filed with the Securities and Exchange Commission
for the purpose of registering the Common Stock of the Company to be
issued pursuant to the Boston Edison Negotiated Savings Plan for Production
and Maintenance Employees together with interests under such Plan, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys to said registration statement and any and all amendments thereto.
WITNESS our hands and common seal on the respective dates set forth below.
/S/ THOMAS J. MAY Chairman of the Board,
- ----------------- Chief Executive
THOMAS J. MAY Officer and Director March 23, 1995
/S/ CHARLES E. PETERS, JR. Senior Vice President March 23, 1995
- ------------------------- Finance
CHARLES E. PETERS, JR.
/S/ ROBERT J. WEAFER Vice President,
- -------------------- Controller and Chief
ROBERT J. WEAFER, JR. Accounting Officer March 23, 1995
/S/ WILLIAM F. CONNELL Director March 23, 1995
- ----------------------
WILLIAM F. CONNELL
/S/ GARY L. COUNTRYMAN Director March 23, 1995
- ----------------------
GARY L. COUNTRYMAN
/S/ GEORGE W. DAVIS Director March 23, 1995
- -------------------
GEORGE W. DAVIS
- -------------------- Director March 23, 1995
THOMAS G. DIGNAN, JR.
- ------------------ Director March 23, 1995
CHARLES K. GIFFORD
/S/ NELSON S. GIFFORD Director March 23, 1995
- ---------------------
NELSON S. GIFFORD
/S/ KENNETH I. GUSCOTT Director March 23, 1995
- ----------------------
KENNETH I. GUSCOTT
<PAGE> 94
- ---------------- Director
MATINA S. HORNER
/S/ THOMAS J. MAY Director March 23, 1995
- -----------------
THOMAS J. MAY
/S/ SHERRY H. PENNY Director March 23, 1995
- -------------------
SHERRY H. PENNEY
/S/ BERNARD W. REZNICEK Director March 23, 1995
- -----------------------
BERNARD W. REZNICEK
/S/ HERBERT ROTH, JR. Director March 23, 1995
- --------------------
HERBERT ROTH, JR.
- ------------------ Director
STEPHEN J. SWEENEY
- --------------- Director
PAUL E. TSONGAS
