Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
WPL Holdings, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1380265
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
222 West Washington Avenue
P.O. Box 2568
Madison, Wisconsin 53701-2568
(Address of principal executive offices) (Zip Code)
Wisconsin Power and Light Company
Employees' Retirement Savings Plan A and Plan B
(Full title of the plans)
Erroll B. Davis, Jr. Copy to:
President and Chief Executive Officer
WPL Holdings, Inc. Benjamin F. Garmer, III
222 West Washington Avenue Foley & Lardner
P.O. Box 2568 777 East Wisconsin Avenue
Madison, Wisconsin 53701-2568 Milwaukee, Wisconsin 53202
(608) 252-4888 (414) 271-2400
(Name, address and telephone number, including area
code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount Proposed Proposed
Securities to be to be Maximum Maximum Amount of
Registered Registered(1) Offering Aggregate Registratio
Price Offering n Fee
Per Share Price
<S> <C> <C> <C>
Common Stock, $.01 par
value, with
attached Common
Stock Purchase 450,000 shares
Rights . . . . . and rights $29.375(2) $13,218,750(2) $4,559
<FN>
(1) Each share of WPL Holdings, Inc. Common Stock issued will have
attached thereto one Common Stock Purchase Right.
(2) Estimated pursuant to Rule 457(c) and (h) under the Securities
Act of 1933 solely for the purpose of calculating the
registration fee based on the average of the high and low prices
for WPL Holdings, Inc. Common Stock as reported on the New York
Stock Exchange on February 7, 1994. The value attributable to
the Rights is reflected in the price of the Common Stock.
</TABLE>
_________________________________
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by WPL Holdings, Inc. (the
"Company") or the Wisconsin Power and Light Company Employees' Retirement
Savings Plan A and Plan B (the "Plans") with the Commission are hereby
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1992, as amended by the Company's Form 10-K/A dated February
7, 1994.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1993, June 30, 1993 and September 30, 1993.
3. The Company's Current Report on Form 8-K dated February 18,
1993.
4. The description of the Company's Common Stock contained in
Item 4 of the Company's Registration Statement on Form 8-B, dated as of
April 1, 1988, including any amendment or report filed for the purpose of
updating such description.
5. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A, dated February 27, 1989, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company or the Plans
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, after the date of filing of this Registration
Statement and prior to such time as the Company files a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his or her
duties to the Company and such breach or failure constituted: (a) a
willful failure to deal fairly with the Company or its shareowners in
connection with a matter in which the director or officer had a material
conflict of interest; (b) a violation of the criminal law unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was
unlawful; (c) a transaction from which the director or officer derived an
improper personal profit; or (d) willful misconduct. It should be noted
that the Wisconsin Business Corporation Law specifically states that it is
the public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareowners or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled. The general effect
of the foregoing provisions may be to reduce the circumstances which an
officer or director may be required to bear the economic burden of the
foregoing liabilities and expenses.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) Wisconsin Power and Light Company Employees' Retirement
Savings Plan A, as amended to date.
(4.2) Wisconsin Power and Light Company Employees' Retirement
Savings Plan B, as amended to date.
(4.3) Trust Agreement relating to the Wisconsin Power and Light
Company Employees' Retirement Savings Plan A and Plan B, as
amended to date.
(4.4) Rights Agreement, dated as of February 22, 1989, between
WPL Holdings, Inc. and Morgan Shareholder Services Trust
Company (incorporated by reference to Exhibit 4 to WPL
Holdings, Inc.'s Current Report on Form 8-K dated February
27, 1989)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen & Co.
(23.2) Consent of Foley & Lardner (contained in Exhibit (5))
(24) Power of Attorney relating to subsequent amendments
(included on the signature page to this Registration
Statement)
The undersigned Registrant hereby undertakes to submit the
Plans, as amended, to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to continue
the qualification of the Plans under Section 401 of the Internal Revenue
Code of 1986, as amended.
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 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.
(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 herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered
herein, 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.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Madison, and
State of Wisconsin, on this 9th day of February, 1994.
WPL HOLDINGS, INC.
By: /s/ Erroll B. Davis, Jr.
Erroll B. Davis, Jr.
President and
Chief Executive Officer
POWER OF ATTORNEY
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 date indicated. Each person whose signature
appears below constitutes and appoints Erroll B. Davis, Jr. and Edward M.
Gleason, and each of them individually, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
revocation, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-
effective amendments) to this Registration Statement and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ Erroll B. Davis, Jr. President, Chief February 9,
Erroll B. Davis, Jr. Executive Officer and 1994
Director (Principal
Executive Officer)
/s/ Edward M. Gleason Vice President, February 9,
Edward M. Gleason Treasurer and Corporate 1994
Secretary (Principal
Financial Officer)
/s/ Daniel A. Doyle Controller February 9,
Daniel A. Doyle Wisconsin Power and 1994
Light Company
(Principal Accounting
Officer)
/s/ Rockne G. Flowers February 9,
Rockne G. Flowers Director 1994
/s/ Arnold M. Nemirow February 9,
Arnold M. Nemirow Director 1994
/s/ Milton E. Neshek February 9,
Milton E. Neshek Director 1994
/s/ Henry C. Prange February 9,
Henry C. Prange Director 1994
/s/ Judith D. Pyle February 9,
Judith D. Pyle Director 1994
/s/ James R. Underkofler February 9,
James R. Underkofler Director 1994
<PAGE>
The Plans. Pursuant to the requirements of the Securities Act
of 1933, the Wisconsin Power and Light Company Pension and Employee
Benefits Committee, which administers the Plans, has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Madison and State of Wisconsin,
on this 9th day of February, 1994.
WISCONSIN POWER AND LIGHT COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
A AND PLAN B
/s/ Pamela J. Wegner
Pamela J. Wegner
/s/ James W. Bindl
James W. Bindl
/s/ A. J. Amato
A. J. Amato
/s/ Norman E. Boys
Norman E. Boys
/s/ Susan J. Kosmo
Susan J. Kosmo
The foregoing persons are all of the members
of the Wisconsin Power and Light Company
Pension and Employee Benefits Committee
which is the administrator of the Wisconsin
Power and Light Company Employees'
Retirement Savings Plan A and Plan B
<PAGE>
EXHIBIT INDEX
Wisconsin Power and Light Company Employees' Retirement
Savings Plan A and B
Page Number in
Sequentially
Numbered
Registration
Exhibit No. Exhibit Statement
(4.1) Wisconsin Power and Light
Company Employees' Retirement
Savings Plan A, as amended to
date.
(4.2) Wisconsin Power and Light
Company Employees' Retirement
Savings Plan B, as amended to
date.
(4.3) Trust Agreement relating to the
Wisconsin Power and Light
Company Employees' Retirement
Savings Plan A and Plan B, as
amended to date.
(4.4) Rights Agreement, dated as of
February 22, 1989, between WPL
Holdings, Inc. and Morgan
Shareholder Services Trust
Company (incorporated by
reference to Exhibit 4 to WPL
Holdings, Inc.'s Current Report
on Form 8-K dated February 27,
1989)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen & Co.
(23.2) Consent of Foley & Lardner -----
(contained in Exhibit (5))
(24) Power of Attorney relating to
subsequent amendments (included
on the signature page to this -----
Registration Statement)
WISCONSIN POWER AND LIGHT COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN A
Dated: November 24, 1982
Revised as of October 17,1983
Revised as of July 18, 1984
Revised as of October 17, 1984
Revised and Restated as of
July 31, 1986
Revised as of July 1, 1987
Revised as of September 1, 1987
Revised and Restated as of
January 1, 1987 (including
amendments effective
January 1, 1988)
Revised and Restated as of
April 1, 1988
Revised as of October 18, 1989
Revised as of January 1, 1990
Revised as of June 26, 1990
Revised and Restated as of
January 1, 1991
Revised as of April 3, 1992
Revised as of September 11, 1992
Revised as of January 19, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
I Establishment of the Plan . . . . . . . . . . . . 1
1.1 Establishment and Purpose . . . . . . . . . . 1
1.2 Legal Requirements . . . . . . . . . . . . . 1
II Definitions . . . . . . . . . . . . . . . . . . . 2
III Participation . . . . . . . . . . . . . . . . . . 10
3.1 Further Eligibility Requirements. . . . . . . 10
3.2 Participation Requirements. . . . . . . . . . 11
3.3 Duration of Participation . . . . . . . . . . 11
3.4 Transfer Into an Eligible Employee Group. . . 11
3.5 Transfer Out of an Eligible Employee Group. . 11
3.6 Transfer of Accounts. . . . . . . . . . . . . 12
IV Deferred Cash Elections . . . . . . . . . . . . . 13
4.1 Election. . . . . . . . . . . . . . . . . . . 13
4.2 Effect of Election. . . . . . . . . . . . . . 14
4.3 Change of Deferred Cash Election. . . . . . . 15
V Contributions . . . . . . . . . . . . . . . . . . 17
5.1 Deferred Cash Contributions . . . . . . . . . 17
5.2 Involuntary Contributions . . . . . . . . . . 17
5.3 Conditional Acceptance of Involuntary
Contributions . . . . . . . . . . . . . . . . 17
5.4 Company Matching Contributions. . . . . . . . 18
5.5 Actual Deferral Percentage. . . . . . . . . . 19
5.6 Required Test and Adjustment. . . . . . . . . 19
5.7 Form of Contributions . . . . . . . . . . . . 22
5.8 Adjustment to Company Matching Contribution
Accounts. . . . . . . . . . . . . . . . . . . 22
5.9 Aggregation of Discrimination Tests . . . . . 25
5.10 Additional Nondiscrimination Limitation. . . 25
5.11 Rollover Contributions. . . . . . . . . . . 27
VI Accounts. . . . . . . . . . . . . . . . . . . . . 28
6.1 Accounts. . . . . . . . . . . . . . . . . . . 28
6.2 Valuation of Accounts . . . . . . . . . . . . 28
6.3 Allocation of Contributions and Withdrawals . 29
6.4 Allocation of Net Earnings or Losses. . . . . 29
6.5 Allocation of Distributions . . . . . . . . . 30
6.6 Limitation on Allocations . . . . . . . . . . 30
6.7 Combination of Defined Contribution and
Defined Benefit Plans . . . . . . . . . . . . 31
VII Investment of Funds . . . . . . . . . . . . . . . 34
7.1 Investment Funds. . . . . . . . . . . . . . . 34
7.2 Investment of Contributions . . . . . . . . . 35
7.3 Prohibition on Investments. . . . . . . . . . 37
7.4 Special Provisions Re: WPL Holdings, Inc.
Common Stock . . . . . . . . . . . . . . . . 37
7.5 Loans . . . . . . . . . . . . . . . . . . . . 39
VIII Nonforfeiture of Benefits . . . . . . . . . . . . 44
IX Distributions . . . . . . . . . . . . . . . . . . 44
9.1 Distributions as a Result of Termination
prior to Retirement . . . . . . . . . . . . . 44
9.2 Distributions as a Result of Retirement or
Disability. . . . . . . . . . . . . . . . . . 45
9.3 Form of Distribution. . . . . . . . . . . . . 46
9.4 Special Provision for Lump Sum Distribution . 46
9.5 Direct Transfer of Eligible Rollover
Distribution. . . . . . . . . . . . . . . . . 47
9.6 Payments to Beneficiary . . . . . . . . . . . 48
9.7 Provision Regarding Unpaid Loans. . . . . . . 48
X Withdrawals During Employment . . . . . . . . . . 49
10.1 Withdrawals. . . . . . . . . . . . . . . . . 49
10.2 Mandatory Withdrawals. . . . . . . . . . . . 49
10.3 Special Withdrawals. . . . . . . . . . . . . 49
10.4 Minimum Withdrawals. . . . . . . . . . . . . 51
10.5 Payments of Withdrawals. . . . . . . . . . . 52
XI Administration. . . . . . . . . . . . . . . . . . 53
11.1 Plan Administered by Committee . . . . . . . 53
11.2 Indemnity for Liability. . . . . . . . . . . 55
11.3 Appeal from Denial of Claims . . . . . . . . 56
11.4 Distribution to Five-Percent Owners. . . . . 57
XII Amendment and Termination . . . . . . . . . . . . 57
12.1 Amendment. . . . . . . . . . . . . . . . . . 57
12.2 Right to Terminate Plan. . . . . . . . . . . 58
XIII Miscellaneous . . . . . . . . . . . . . . . . . . 58
13.1 Absence of Guarantee . . . . . . . . . . . . 58
13.2 Employment Rights. . . . . . . . . . . . . . 59
13.3 Participant's Interest Not Transferable. . . 59
13.4 Facility of Payment. . . . . . . . . . . . . 59
13.5 Gender and Number. . . . . . . . . . . . . . 60
13.6 Litigation by Participants . . . . . . . . . 60
13.7 Controlling Law. . . . . . . . . . . . . . . 60
13.8 Merger or Consolidation of Plan and Trust
Fund . . . . . . . . . . . . . . . . . . . . 61
XIV Top-Heavy Plan Requirements . . . . . . . . . . . 61
14.1 General Rule . . . . . . . . . . . . . . . . 61
14.2 Vesting Provisions . . . . . . . . . . . . . 61
14.3 Minimum Contribution Provisions. . . . . . . 62
14.4 Limitation on Compensation . . . . . . . . . 64
14.5 Limitation on Contributions. . . . . . . . . 64
14.6 Coordination with Other Plans. . . . . . . . 65
14.7 Top-Heavy Plan Definition. . . . . . . . . . 65
14.8 Key Eligible Employee. . . . . . . . . . . . 70
14.9 Non-Key Eligible Employee. . . . . . . . . . 72
14.10 Company . . . . . . . . . . . . . . . . . . 72
14.11 Collective Bargaining Rules . . . . . . . . 72
14.12 Distributions to Key Eligible Employees . . 73
<PAGE>
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.1 Establishment and Purpose. The Wisconsin Power and Light
Company does hereby establish an employee benefit plan, to be known as the
"Wisconsin Power and Light Company Employees' Retirement Savings Plan A"
(hereinafter called the "Plan"), and to become effective as of the
Effective Date. The purpose of the Plan is to encourage savings and to
provide tax-effective compensation to Eligible Employees of the Wisconsin
Power and Light Company and of companies with which Wisconsin Power and
Light Company is affiliated.
1.2 Legal Requirements. The Plan is intended to constitute a
qualified cash or deferred compensation arrangement within the meaning of
Sections 401(k) and 402(a)(8) of the Internal Revenue Code of 1986, as
amended, (the "Code"). The Trust Agreement providing for the investment
of contributions made hereunder and for the payment of benefits to
Participants, is intended to constitute a qualified trust within the
meanings of Sections 401 and 501(a) of the Code. Accordingly, the
establishment of the Plan and Trust is conditioned upon the initial
determination by the Internal Revenue Service (the "Service") that the
Plan and Trust are qualified arrangements within the meaning of the
aforesaid sections of the Code. In the event the Plan and Trust, or
either of them, are determined by the Service not to so qualify, then the
Wisconsin Power and Light Company, may at any time within one year after
receiving the Notice of Denial of initial qualification from the Service,
either:
(a) amend the Plan and/or the Trust in such manner and to such
extent as may be necessary to obtain the qualification; or
(b) terminate the Plan and Trust.
In the event of termination, the Wisconsin Power and Light Company shall
direct the Trustee to return all contributions made to the Trust, adjusted
for the pro rata share of earnings, market gains or losses which accrued
while such contributions were held by the Trustee, and less the Trustee's
costs and expenses associated with such termination. Upon receipt of such
funds from the Trustee, the Wisconsin Power and Light Company, shall
return all such contributions, adjusted as aforesaid, to the
Participants according to their respective interests hereunder.
ARTICLE II
DEFINITIONS
As used in this Plan, the following terms shall have the meanings
set forth below, unless the context clearly indicates otherwise:
2.1 Account or Accounts is defined in paragraph 6.1.
2.2 Actual Deferral Percentage is defined in paragraph 5.5.
2.3 Administrator means the person or persons appointed by the
Committee to perform the ministerial functions associated with the
administration of the Plan.
2.4 Affiliated Company means any corporation or other entity, the
employees of which, together with the employees of the Companies, are
required by Section 414(b), (c), (m) or (o) of the Internal Revenue Code
to be treated as if they were employed by a single employer.
2.5 Annual Addition is defined in paragraph 6.6.
2.6 Beneficiary shall mean the Spouse, if then living, unless an
alternative Beneficiary is designated by the Participant and such
designation is consented to by the Spouse in accordance with procedures
established by the Committee. In the event the Participant is not married
or has no living Spouse, Beneficiary shall mean any person designated as
such by the Participant on a form supplied by the Administrator to receive
the benefits payable upon the death of the Participant. If no such
designation is in effect at the time of the death of the Participant; or
if no person is so designated with the consent of the Spouse, if so
required hereby, shall survive the Participant, the Beneficiary shall be
the Spouse, if then living; and if the Spouse is not living, then the
surviving children in equal shares; or if the deceased Participant has no
surviving Spouse or children, his estate. A Participant may at any time
change a designated Beneficiary; provided, however, that no such change
shall be effective unless in writing on forms provided by the
Administrator and provided any such designation is consented to by the
Spouse.
2.7 Committee means the Pension and Employee Benefits Committee
appointed by the Board of Directors of the Corporation, such Committee has
the responsibility for the administration of the Plan as provided in
Article XI.
2.8 Company means collectively, unless the context indicates
otherwise, the Corporation and any Affiliated Company to which the Plan
has been extended by the Board of Directors of the Corporation.
2.9 Company Matching Contributions means the contributions made
to the Plan by the Company on behalf of a Participant in accordance with
paragraph 5.4.
2.10 Company Matching Contribution Account means the Account
defined in paragraph 6.1(c).
2.11 Compensation means the gross compensation of a Participant
during the Plan Year, for personal services performed for the Company,
including the amount of contributions made by the Company on behalf of the
Participant pursuant to a salary reduction agreement under any qualified
plan meeting the requirements of Section 401(k) of the Code and under any
cafeteria plan under Section 125 of the Code; but excluding: worker's
compensation payments for work time lost; travel allowances and
reimbursements; moving expense reimbursements; disability benefits paid
pursuant to the Corporation's Disability Plan A; imputed income under the
Code with respect to excess life insurance contributions; income deferred
by any Participant pursuant to any unqualified cash or deferred
compensation arrangement maintained by the Company; and other special
payments designated by the Board of Directors of the Corporation. In
addition to other applicable limitations which may be set forth in the
Plan and notwithstanding any other contrary provision of the Plan,
compensation taken into account under the Plan shall not exceed $150,000,
adjusted for changes in the cost of living as provided in section
401(a)(17) of the Internal Revenue Code, for any Plan Year commencing
after December 31, 1993.
2.12 Compensation Conversion Contributions means Deferred Cash
Contributions and Involuntary Contributions as defined in paragraphs 5.1
and 5.2, respectively.
2.13 Corporation means Wisconsin Power and Light Company or any
successor or successors.
2.14 Deferred Cash Contributions means the contributions made to
the Plan by the Company for a Participant in accordance with the
Participant's Deferred Cash Election under Article IV.
2.15 Deferred Cash Contribution Account means the Account defined
in paragraph 6.1(a).
2.16 Disability means the inability to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment, which impairment is or is anticipated to be total and
permanent in the judgment of the Committee. Any Participant who receives
disability benefits pursuant to the Corporation's Disability Income Plan A
is presumptively disabled for purposes of this Plan.
2.17 Disability Date is the date on which the Participant
becomes disabled or the date the Participant begins to receive disability
benefits pursuant to the Corporation's Disability Income Plan A, whichever
date the Participant so elects.
2.18 Effective Date means January 1, 1983.
2.19 Eligible Employee means any Employee of the Company, who is
compensated on a salary basis for services performed and who satisfies the
further eligibility requirements set forth in Article III, paragraph 3.1
hereof. The term does not include employees who are members of a
collective bargaining unit represented by a bargaining agent or who are
compensated on an hourly basis for services performed.
2.20 Employee means any person who is a permanent full-time or
permanent part-time employee, regularly engaged in providing personal
services to the Company or an Affiliated Company. A permanent part-time
employee is one who renders services to the Company or an Affiliated
Company on a basis equal to at least 50% of the time of a permanent
full-time employee. The term "employee" does not include any temporary or
limited term employees. Notwithstanding the foregoing, any permanent
part-time employee, temporary employee or limited term employee who has
provided personal services to the Company or an Affiliated Company for at
least 1,000 "hours of service" during the preceding twelve months of
employment, shall be considered as an "employee" herein, and shall
continue to be such an "employee" for purposes of this Plan even though he
may perform personal services to the Company or an Affiliated Company of
less than 1,000 hours of service in succeeding twelve month periods of
employment. For purposes of this section, "hours of service" shall mean:
(a) each hour for which such employee is directly or indirectly
paid, or entitled to payment, by the Company or an Affiliated Company
for the performance of duties;
(b) each hour such employee is paid by the Company or an
Affiliated Company for holidays, vacation or other time not worked;
(c) each hour such employee would have normally worked while he
is on disciplinary suspension or on leave-of-absence approved by the
Company or an Affiliated Company due to sickness, accident, military
service, or government service during time of war, or other cause;
provided however, that he returns to active employment with the
Company or Affiliated Company at the expiration of such
leave-of-absence, otherwise no hours of service shall be credited for
such periods;
(d) each hour such employee would have worked while he is
disabled and receiving payments under the terms of the Corporation's
Sick Leave Plan or Disability Income Plan A; and
(e) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Company or Affiliated
Company, provided, however, that no more than 501 hours shall be
credited for payments of back pay for a period of time during which
the employee performed no duties.
When computing hours of service, overtime hours shall be treated as
straight time hours; and there shall be no duplication of credit for hours
which might otherwise be creditable under more than one of the above
listed categories.
2.21 Fund or Trust Fund means the Trust Fund established pursuant
to a Trust Agreement, for purposes of receiving and investing
contributions made pursuant to this Plan and for the purpose of paying
distributions hereunder. Any such Trust shall be qualified under
Section 501(a) of the Code.
2.22 Highly Compensated Employee means for any Plan Year a highly
compensated employee for such Plan Year as defined in Section 414(q) of
the Code.
2.23 Investment Funds means those funds defined in paragraph 7.1
hereof.
2.24 Involuntary Contributions means a Participant's
contributions as determined under paragraph 5.2 hereof.
2.25 Limitation Year shall mean the Plan year.
2.26 Involuntary Contribution Account means the account defined
in paragraph 6.1(b) hereof.
2.27 Participant means an Employee who is Eligible and who has
elected to make a Deferred Cash Election pursuant to paragraph 4.1 hereof.
2.28 Plan means the "Wisconsin Power and Light Company Employees'
Retirement Savings Plan A" as set forth in this document, and as amended
from time to time.
2.29 Plan Quarter means a three-month calendar period.
2.30 Plan Year means a calendar year which begins on January 1
and ends on December 31.
2.31 Required Test and Adjustment means the test and adjustment
as defined in paragraph 5.6 hereof.
2.32 Retirement means the termination of employment with the
Company and Affiliated Companies by reason of retirement.
2.33 Retirement Date means the date on which a Participant
receives retirement benefits pursuant to the Corporation's Retirement
Plan A or other applicable qualified retirement plan.
The Corporation's Retirement Plan A defines Retirement Date as
meaning a Normal, Early or Postponed Retirement Date, which in turn are
defined as follows:
(a) Normal Retirement Date. The Normal Retirement Date of a
Member is the first day of the month coincident with or next following
his 65th birthday.
(b) Early Retirement Date. The Early Retirement Date of a Member
is the first day of any month which;
(1) Follows his 55th birthday and precedes his Normal
Retirement Date; and
(2) Is coincident with the date he retires; provided,
however, that for a Member who was employed by the Company prior
to January 1, 1967, and who received credited service attributable
to employment for the period prior to January 1, 1967, the Early
Retirement Date shall be the first day of any month within
15 years preceding his Normal Retirement Date on which such Member
retires with written notice to the Company.
(c) Postponed Retirement Date. A Member's Postponed Retirement
Date shall be the first day of any month after his Normal Retirement
Date upon which the Member retires.
2.34 Rollover Contributions means a Participant's contributions
as determined under paragraph 5.11 hereof.
2.35 Rollover Contribution Account means the account defined in
paragraph 6.1(d) hereof.
2.36 Spouse means the person who is legally married to the
Participant as of any date of reference.
2.37 Termination Date means the date on which the Participant
ceases to be an Employee, for any reason other than by reason of
Retirement or Disability.
2.38 Trust Agreement means any written agreement establishing a
trust for purposes of receiving, holding, investing, and disposing of the
Trust Fund.
2.39 Trustee means the person acting as Trustee under any Trust
Agreement.
2.40 Valuation Date means the Date that accounts are valued (end
of each calendar month).
ARTICLE III
PARTICIPATION
3.1 Further Eligibility Requirements. An Eligible Employee
shall become entitled to participate in the Plan, effective as of the
March 1, June 1, September 1, or December 1 (whichever is applicable)
following his date of employment by the Company; provided that prior to
that date, he has attained his eighteenth (18th) birthday.
3.2 Participation Requirements. To become a Participant in the
Plan, an Eligible Employee must either:
(a) affirmatively make a Deferred Cash Election under paragraph
4.1 hereof, or
(b) elect to make a Rollover Contribution under paragraph 5.11
hereof.
3.3 Duration of Participation. An Eligible Employee who has
become a Participant shall continue to be a Participant in the Plan, until
the first Valuation Date, on which no balance remains in any of his
Accounts.
3.4 Transfer Into An Eligible Employee Group. An Employee who
would become an Eligible Employee as a result of a promotion or job
transfer within the Company or Affiliated Companies, shall be considered
to be an Eligible Employee, entitled to participate in the Plan
immediately following the date of such promotion or job transfer; provided
the requirements of paragraphs 3.1 and 3.2 are satisfied.
3.5 Transfer Out of an Eligible Employee Group. An Eligible
Employee who subsequently transfers to employment within the Company or
Affiliated Companies so that he is no longer an Eligible Employee, shall
no longer be entitled to make Deferred Cash Elections pursuant to
Article IV hereof, effective as of the date of transfer. Any Deferred
Cash Election in effect at the time of such a Participant's transfer shall
terminate as of the transfer date. Notwithstanding such a transfer and
termination of election, the said Employee shall continue to participate
in the Plan as to contributions previously made, as described in
paragraph 3.6.
3.6 Transfer of Accounts. Notwithstanding the provisions of
Sections 3.4 and 3.5, the following provisions shall apply as to the
transfer of Participants' Accounts between this Plan and the Wisconsin
Power and Light Company Employees' Retirement Savings Plan B (the "Other
Plan"). With respect to any Employee who becomes an Eligible Employee for
purposes of this Plan, as a result of a promotion or job transfer within
the Company or Affiliated Companies and who previously participated in the
Other Plan, the Accounts of such Employee in the Other Plan shall be
transferred to this Plan, effective as of the Valuation Date next
following such job transfer or promotion. With respect to any Participant
in this Plan who transfers to employment within the Company or Affiliated
Companies so that he is no longer an Eligible Employee for purposes of
this Plan, but is an Eligible Employee for purposes of the Other Plan, the
Accounts of such Participant shall be transferred to the Other Plan,
effective as of the Valuation Date next following such job transfer, and
such Participant shall be entitled to participate in the Other Plan
subject to the terms thereof.
ARTICLE IV
DEFERRED CASH ELECTIONS
4.1 Election. An Eligible Employee may make a Deferred Cash
Election in an amount from 0% of his Compensation, up to a maximum percent
specified by the Committee, in any multiple of 1%. Deferred Cash
Elections must be in writing on forms provided by the Plan Administrator
and filed with the Plan Administrator at such time as the Committee
determines; provided the same is filed prior to March 1, June 1,
September 1, or December 1 of the Plan Year to which the election relates.
The Committee may limit or reduce the Deferred Cash Election of Highly
Compensated Employees, as provided for in paragraph 5.6 hereof. A
Deferred Cash Election for any Plan Year may only be changed pursuant to
paragraph 4.3 hereof.
Notwithstanding the foregoing provisions of this paragraph 4.1,
the maximum amount that a Participant may elect to have contributed for
any Plan Year pursuant to a Deferred Cash Election shall not exceed
$8,475.00 in 1991 and as adjusted for increases in the cost of living in
accordance with Section 402(g)(5) of the Code for any Plan Year Commencing
after December 31, 1991 reduced by the amount of any contributions made by
the Company for such Plan Year on behalf of the Participant pursuant to a
salary reduction agreement under any other qualified plan under Section
401(k) of the Code maintained by the Company. In the event such
limitation is exceeded for a Plan Year, then, notwithstanding any other
provision of the Plan or law, such excess, to the extent it has been
contributed to the Plan, plus any income and minus any loss allocable
thereto, shall be distributed to the Participant not later than April 15
next following the end of such Plan Year. Excess contributions to be
distributed from a Deferred Cash Contribution Account, plus any income and
minus any loss allocable thereto, shall be distributed from the Investment
Funds in which such Account is invested at the time of distribution pro
rata in accordance with the balance of the Account in each of the
Investment Funds as of the Valuation Date next preceding the date of
distribution but adjusted for any later loan made from the Account, except
that no amount shall be distributed from the Account invested in the
Participant Loan Fund until the balance in the other Investment Funds has
been distributed. For purposes of this paragraph, the income or loss
allocable to the excess contributions to be distributed from a Deferred
Cash Contribution Account for a Plan Year shall be determined by
multiplying the total income or loss of the Account for such Plan Year by
a fraction, the numerator of which is the excess contributions to be
distributed from such account for such Plan Year and the denominator of
which is the balance in such Account as of the end of such Plan Year.
4.2 Effect of Election. An Eligible Employee who has a Deferred
Cash Election in effect for any Plan Year is a Participant in the Plan,
and will have the elected portion of his Compensation deferred in order to
have it contributed to the Plan by the Company on behalf of the
Participant as a Deferred Cash Contribution. A Deferred Cash Election
shall become effective as of the first pay period, commencing on or after
March 1, June 1, September 1, or December 1 (whichever is applicable), of
each Plan Year. Once effective, a Deferred Cash Election shall remain in
effect until the earliest of the following events to occur:
(a) The March 1, June 1, September 1, or December 1 immediately
following receipt by the Company of a written notice from the
Participant terminating his Deferred Cash Election;
(b) The Participant's termination of employment by reason of
death, retirement, or any voluntary or involuntary severance of
employment;
(c) The Disability Date of the Participant;
(d) The Participant's transfer of employment such that he is no
longer an Eligible Employee;
(e) The application of the adjustment defined in paragraph 5.6 or
the limitation provided in paragraph 4.1; or
(f) The Participant's change of his Deferred Cash
Election pursuant to paragraph 4.3 hereof.
(g) The Participant receives a special withdrawal on account of
financial hardship in accordance with paragraph 10.3.
4.3 Change of Deferred Cash Election. A Participant may further
elect to either reduce or increase the amount of his Deferred Cash
Election then in effect, as provided for herein. Any such reduction or
increase shall be subject to the maximum and minimum percentages
established in paragraph 4.1 hereof. Such Participant must notify the
Plan Administrator of such change on enrollment forms provided by the Plan
Administrator at such time as the Committee determines; provided the same
are filed prior to the effective date of such change. Such change shall
become effective as of March 1, June 1, September 1, or December 1 as
provided for in paragraph 4.2. The Committee, upon application by a
Participant, may in its sole discretion authorize a reduction in a
Participant's Deferred Cash Election from the rate then in effect to zero
(0%) to alleviate a hardship; provided that such Participant has
submitted, in writing, an application requesting such reduction and
describing such hardship. The Committee may request the applicant to
provide satisfactory evidence to support such application. Examples of
acceptable hardships include but are not limited to:
(a) A change from active employee status to permanent disability;
(b) A severe financial hardship such as loss of family income or
major illness.
In determining whether or not such a reduction should be
authorized, the Committee shall determine if the reduction is necessary in
light of immediate and necessary financial needs of the Participant.
ARTICLE V
CONTRIBUTIONS
5.1 Deferred Cash Contributions. The Company shall periodically
make Deferred Cash Contributions to this Plan, equal to the amounts
elected by Participants in accordance with Section 4.1 hereof. The
Company shall periodically forward all Deferred Cash Contributions to the
Trustee; provided all such contributions are so forwarded no later than
thirty (30) days after the end of each Plan Year. Company contributions
made pursuant to this Section 5.1 shall be made only out of current or
accumulated earnings and profits. For the purpose of this Plan, current
or accumulated earnings or profits shall mean the net income or profits
determined from the Company's books of account in accordance with
generally accepted accounting principles.
5.2 Involuntary Contributions. The amount by which Deferred Cash
Contributions elected by a Participant must be reduced in order to satisfy
the Required Test and Adjustment as defined in paragraph 5.6 or the
limitations of paragraphs 6.6 or 6.7, shall be considered as an
Involuntary Contribution made on behalf of such a Participant. No
supplemental contributions other than Rollover Contributions under
paragraph 5.11 shall be made by any Participant.
5.3 Conditional Acceptance of Involuntary Contributions.
Involuntary Contributions shall be accepted conditionally. In the event
any limitation set forth in paragraphs 5.6, 6.6, or 6.7 is applicable,
such Involuntary Contributions shall be deemed to have been made by mutual
mistake of fact. Where Involuntary Contributions under paragraph 5.6 are
involved, such Involuntary Contributions shall be returned to the
Participant as provided in paragraph 5.6. As soon as practicable, the
Committee shall cause such amounts as may be allocated to a Participant's
Involuntary Contribution Account as the result of any limitation set forth
in paragraph 6.6 or 6.7, to be returned to said Participant pursuant to
paragraph 10.2 hereof.
5.4 Company Matching Contributions. Subject to the provisions of
paragraphs 5.8 and 5.9, the Company shall make for each pay period
commencing on or after January 1, 1988 Company Matching Contributions for
each of its Participants in an amount equal to 25% of the Deferred Cash
Contributions made on behalf of such Participant under paragraph 5.1 for
such pay period; provided, however, that in no event shall Company
Matching Contributions be made for any pay period on behalf of a
Participant in excess of 25% of 6% of the Participant's Compensation for
such pay period. The Company shall periodically forward all Company
Matching Contributions to the Trustee; provided that all Company Matching
Contributions in respect of a pay period are so forwarded no later than
the time for filing (including extensions thereof) the Company's Federal
income tax return for the tax year in which such pay period occurs.
Company Matching Contributions shall be made only out of current profits
or accumulated earnings.
5.5 Actual Deferral Percentage. The Actual Deferral Percentage
for a specified group of Eligible Employees (as hereinafter described) for
a Plan Year shall be the average of 100 times the result (calculated
separately for each Eligible Employee in such group) obtained by dividing
the amount of Deferred Cash Contributions actually paid to the Plan for
each such Eligible Employee for such Plan Year by the Eligible Employee's
Compensation for the portion of such Plan Year for which Deferred Cash
Contributions were made or could have been made for such Eligible
Employee. For the purposes of this paragraph and the second paragraph of
paragraph 5.8, the term "compensation" means compensation for services
performed for the Company that is currently includable in the Eligible
Employee's gross income and, if elected by the Company, any amounts
contributed by the Company pursuant to a salary reduction agreement and
which is not includable in the gross income of the Eligible Employee under
either Section 125 or 402(a)(8) of the Code. As soon as practicable after
the end of the Plan Year, the Committee shall calculate the Actual
Deferral Percentages for the Plan Year for the group of Eligible Employees
who are Highly Compensated Employees for the Plan Year and for the group
of Eligible Employees who are not Highly Compensated Employees for the
Plan Year.
5.6 Required Test and Adjustment. Notwithstanding the provisions
of paragraphs 4.1 and 5.1, if the Actual Deferral Percentage for the
Eligible Employees who are Highly Compensated Employees for any Plan Year
exceeds, or in the judgment of the Committee is likely to exceed, the
greater of (a) or (b) as follows:
(a) The Actual Deferral Percentage for the Eligible Employees who
are not Highly Compensated Employees for the Plan Year, multiplied by
1.25, or
(b) The Actual Deferral Percentage for the Eligible Employees who
are not Highly Compensated Employees for the Plan Year, multiplied by
2; provided, however, that the Actual Deferral Percentage for the
Eligible Employees who are Highly Compensated Employees for the Plan
Year may not exceed the Actual Deferral Percentage for the Eligible
Employees who are not Highly Compensated Employees by more than two
percentage points;
then amounts contributed, or to be contributed, to the Deferred Cash
Contribution Accounts on behalf of Participants who are Highly Compensated
Employees for such Plan Year shall be reduced at such time and in such
manner as the committee shall determine under rules and regulations
uniformly applied and consistent with the following provisions of this
paragraph so that the Actual Deferral Percentage for the Eligible
Employees who are Highly Compensated Employees for such Plan Year does not
exceed the greater of (a) or (b) above. If during the Plan Year a
Participant who is a Highly Compensated Employee for such Plan Year also
participated in any other plan of the Company which includes a cash or
deferred arrangement qualifying under Section 401(k) of the Code, his
compensation and contributions made pursuant to the cash or deferred
arrangement under such other plan shall be taken into account for purposes
of applying the tests under (a) or (b) above. In order to accomplish the
foregoing, the Committee, in its discretion, may reduce Deferred Cash
Contributions previously made, or adjust the amount of Deferred Cash
Elections authorized pursuant to the provisions of paragraph 4.1 for such
period as may be required and shall do so by making such reductions or
adjustments in the amounts contributed, or to be contributed, to the
Deferred Cash Contributions Accounts on behalf of Participants who are
Highly Compensated Employees for such Plan Year in the order of the
Deferred Cash Elections authorized by Participants who are Highly
Compensated Employees beginning with the highest of such percentages. The
amount by which Deferred Cash Contributions previously made on behalf of a
Participant for a Plan Year is reduced shall be considered to be
Involuntary Contribution and such amount, plus any income and minus anyu
loss allocable thereto, shall be paid, notwithstanding any other provision
of the Plan or law, to the Participant not later than two and one-half
months after the end of such Plan Year. Such distribution shall be made
from the Investment Funds in which the Partcipant's Deferred Cash
Contribution Account is invested at the time of distribution pro rata in
accordance with the balance of such Account in each of the Investment
Funds as the Valuation Date next preceding the date of distribution but
adjusted for any later loan made from the Account, except that no amount
shall be distributed from the Account invested in the Participant Loan
Fund until the balance in the other Investment Funds has been distributed.
For purposes of this paragraph, the income or loss allocable to such
contributions to be distributed from a particular Deferred Cash
Contribution Account for a Plan Year shall be determined by multiplying
the total income or loss of the Account for such Plan Year by a fraction,
the numerator of which is the amount of contributions to be distributed
from such Account for such Plan Year and the denominator of which is the
balance in such Account as of the end of the Plan Year.
5.7 Form of Contributions. All Participant Contribu-tions and
Company Matching Contributions shall be made in cash.
5.8 Adjustment to Company Matching Contribution Accounts.
Notwithstanding the provisions of paragraph 5.4, if the Average
Contribution Percentage for the Eligible Employees who are Highly
Compensated Employees for any Plan year exceeds, or in the judgment of the
Committee is likely to exceed, the greater of (a) or (b) as follows:
(a) The Average Contribution Percentage for the Eligible
Employees who are not Highly Compensated Employees for the Plan Year,
multiplied by 1.25, or
(b) The Average Contribution Percentage for the Eligible
Employees who are not Highly Compensated Employees for the Plan Year,
multiplied by 2; provided, however, that the Average Contribution
Percentage for the Eligible Employees who are Highly Compensated
Employees for the Plan Year may not exceed the Average Contribution
Percentage for the Eligible Employees who are not Highly Compensated
Employees by more than two percentage points; and provided
further that the provisions of this subparagraph (b) shall be
inapplicable to the extent prescribed by Treasury regulations to
prevent the multiple use of this alternative limitation.
The amounts contributed, or to be contributed, to the Company
Matching Contribution Accounts on behalf of Partici-pants who are
Highly Compensated Employees for such Plan Year shall be reduced at
such time and in such manner as the Committee shall determine under
rules and regulations uniformly applied and consistent with the
following provision of this paragraph so that the Average
Contribution Percentage for the Eligible Employees who are Highly
Compensated Employees for such Plan Year does not exceed the greater
of (a) or (b) above. If during the Plan year a Participant who is a
Highly Compensated Employee for such Plan Year also participated in
any other plan of the Company to which employer matching contributions
or employee contributions required to be taken into account herunder
are made, his compensation and such contributions made under such
other plan shall be taken into account for purposes of applying the
tests under (a) or (b) above. In order to accomplish the foregoing,
the Committee, in its discretion, may reduce Company Matching
Contributions previously made, or adjust the amount of such
contributions to be made pursuant to the provisions of paragraph 5.4,
for such period as may be required and shall do so by making such
reductions or adjustments in the amounts contributed, or to be
contributed to Company Matching Contribution Accounts on behalf of
Participants who are Highly Compensated Employees for such Plan Year
in the order of the contribution percentage (determined in accordance
with the last paragraph of this paragraph 5.8) of such Participants
beginning with the highest of such percentages. The amount by which
contributions previously made to a Participant's Company Matching
Contribution Account for a Plan Year are so reduced, plus any income
and minus any loss allocable thereto, shall be paid, notwithstanding
any other provision of the Plan or law, to the Participant not later
than two and one-half months after the end of such Plan Year. In
addition, if reductions in a Participant's Deferred Cash Contributions
are made pursuant to paragraph 5.6, the Committee shall reduce Company
Matching Contributions previously made with respect to any such
contributions pursuant to the provisions of paragraph 5.4 and such
amount, plus any income and minus any loss allocable thereto, shall be
paid to the Participant not later than two and one-half months after
the end of such Plan Year. Such reductions in contributions from the
Participant's Company Matching Contribution Account, plus any income
and minus any loss allocable thereto, shall be made from the Company
Common Stock Fund. For purposes of this paragraph, the income or loss
allocable to contributions for a Plan Year shall be determined by
multiplying the total income or loss of the Company Matching
Contribution Account for such Plan Year by a fraction, the numerator
of which is the amount by which contributions to such Account are to
be reduced for such Plan Year and the denominator of which is the
balance in such Account as of the end of such Plan Year.
For purposes of this paragraph 5.8, "Average Contribution
Percentage" for a specified group of Eligible Employees for a Plan Year
shall be the average of 100 times the result (calculated separately for
each Eligible Employee in such group) obtained by dividing the amount
actually contributed to the Account of each such Eligible Employee under
paragraph 5.4 for such Plan Year by the Eligible Employees' compensation
for the portion of such Plan Year for which Company Matching Contributions
were made or could have been made for such Eligible Employee.
5.9 Agqreqation of Discrimination Tests. The Actual Deferral
Percentage Test described in paragraph 5.6 and the Average Contribution
Percentage Test described in paragraph 5.8 may be aggregated, at the
election of the Company, and applied as provided in Section 401(k) of the
Code and regulations thereunder.
5.10 Additional Nondiscrimination Limitation.
(a) For any Plan Year, if the nondiscrimination requirements in
paragraphs 5.6 and 5.8 are satisfied solely by using the limit set forth
in subparagraph (b) in both paragraphs, then the following requirement
must be satisfied:
The sum of the Actual Deferral Percentage and the Average Contribution
Percentage for Eligible Employees who are Highly Compensated Employees may
not exceed the sum of
(1) One and twenty-five one-hundredths (1.25)
times the greater of
(i) the Actual Deferral Percentage of the Eligible Employees who are
not Highly Compensated Employees, and
(ii) the Average Contribution Percentage of the Eligible Employees
who are not Highly Compensated Employees; and (2) The lesser of (i) Two
(2) times the lesser of the Actual Deferral Percentage and the Average
Contribution Percentage of the Eligible Employees who are not Highly
Compensated Employees, and
(ii) Two percentage points (2%) plus the lesser of the Actual
Deferral Percentage and the Average Contribution Percentage of the
Eligible Employees who are not Highly Compensated Employees.
(b) If the nondiscrimination requirements under subparagraph (a) are
not satisfied, the Actual Deferral Percentages of the Eligible Employees
who are Highly Compensated Employees shall be reduced and Deferred Cash
Contributions shall be distributed in accordance with paragraph 5.6 until
the nondiscrimination requirements under subparagraph (a) are satisfied.
(c) In the event that alternative tests are allowed by Treasury
regulations, such tests may be utilized in place of those described in
subparagraph (a).
5.11 Rollover Contributions. An Eligible Employee may elect to
rollover into the Plan (a "Rollover Contribution") part or all of any
distribution received by him which is either a "qualified total
distribution" as defined in Section 402(a)(5) (E)(i) of the Code, or a
distribution meeting the requirements of Section 408(d)(3)(A)(ii) of the
Code that is attributable to a qualified total distribution. In addition,
a rollover may be made from a "conduit" Individual Retirement Account
(IRA). A "conduit" IRA holds money previously distributed from a
qualified plan. In order to qualify for a rollover, the IRA must hold no
assets other than the amounts previously distributed to such Eligible
Employee from prior qualified plans. However, such a Rollover
Contribution will be allowed only if each of the following conditions is
also met:
(a) The Rollover Contribution is made within 60 days of the date that
the Participant received the final distribution from the former employer
or "conduit" IRA, as the case may be;
(b) The Rollover Contribution is not in excess of the cash and
property received in such distribution, less any part thereof attributable
to employee contributions to such plan; and
(c) The Rollover Contribution is in the form of cash only.
ARTICLE VI
ACCOUNTS
6.1 Accounts. The following Accounts shall be maintained for
each Participant:
(a) Deferred Cash Contribution Account - an account reflecting
the Participant's interest in the Plan, arising from Deferred Cash
Contributions made under paragraph 5.1, as a result of the
Participant's Deferred Cash Election made under paragraph 4.1.
(b) involuntary Contribution Account - an account reflecting the
Participant's interest in the Plan, arising from Involuntary
Contributions as described in paragraphs 5.2.
(c) Company Matching Contribution Account - an account
reflecting the Participant's interest in the Plan, arising from
Company Matching Contributions made under paragraph 5.4.
(d) Rollover Contribution Account - an account reflecting the
Participant's interest in the Plan, arising from Rollover
Contributions made under paragraph 5.11.
6.2 Valuation of Accounts. As of the end of each calendar month
(or more frequently if the Committee so determines) the Account(s) of each
Participant shall be valued, subject to the adjustments described in
paragraphs 6.3 and 6.4 hereof. As of each Valuation Date, the value of
each Account shall be adjusted in accordance with paragraphs 6.3, 6.4 and
6.5. As soon as practicable after the end of each Plan Quarter, the
Trustee shall cause to be delivered to the Participant, a statement
summarizing the activity in the Participant's Account during the previous
quarter and showing the value of investment in the Account, broken down by
Investment Fund(s).
6.3 Allocation of Contributions and Withdrawals. As of each pay
period, Compensation Conversion Contributions and Company Matching
Contributions made by the Company on behalf of each Participant pursuant
to Article V, during the pay period then ending, shall be added to the
proper Account of each such Participant. All distributions pursuant to
paragraphs 4.1, 5.6, and 5.8 and withdrawals made by Participants during
the pay period then ending, shall be deducted from the proper Account of
each such Participant as of that date.
6.4 Allocation of Net Earnings or Losses. As of each Valuation
Date, there shall be determined the net earnings or losses of each of the
Investment Funds, other than the Participant Loan Fund, described in
paragraph 7.1, adjusted for any costs or expenses payable from the Trust
Fund pursuant to the Trust Agreement. Such net earnings or losses
determined as of the Valuation Date, shall be allocated as of that date to
the Account(s) of all Participants in the proportion that each Account
balance invested in such Investment Fund as of the preceding Valuation
Date, adjusted for any withdrawals and distributions described in
paragraph 6.3, Participant loans made from such Investment Fund described
in paragraph 7.5, transfers to the Investment Fund, transfers from other
Investment Funds, Rollover Contributions as described in paragraph 5.11
made to such Investment Fund, and one-half of the Compensation Conversion
Contributions, Company Matching Contributions and interest and loan
repayments on Participant loans made since the last Valuation Date and
invested in such Investment Fund, bears to the total of all such Account
balances in each Investment Fund so adjusted.
6.5 Allocation of Distributions. As of each Valuation Date,
after the allocations under paragraphs 6.3 and 6.4 have been made, any
distributions to be made to a Participant under Article IX shall be
deducted from the proper Accounts of the Participant.
6.6 Limitations on Allocations. For the purpose of this
paragraph, "Annual Addition" means the sum for any year of: 1) Company
contributions, if any; 2) the amount of the employee contributions, if
any; and 3) forfeitures, if any. There shall not be allocated to the
Account(s) of any Participant for any Plan Year, an amount which would
cause his Annual Addition to exceed the lesser of:
(a) $30,000 (or, if greater, 25% of the defined benefit dollar
limitation in effect and under Section 415(b)(1)(A) of the Code for the
Plan Year), or
(b) 25% of the Participant's total taxable compensation for the Plan
Year as reported on Form W2 for that year, total compensation being
limited to $150,000. The $150,000 limit specified in the preceding
sentence shall be adjusted at the same time and in such manner as
permitted under Code Section 401(a)(17).
To the extent the Annual Addition of a Participant exceeds either of the
foregoing limitations, the Committee shall, to the extent necessary to
eliminate such excess, direct the Trustee to allocate all or a portion of
the Participant's Deferred Cash Contributions to such Participant's
Involuntary Contribution Account and then to the extent necessary, Company
Matching Contributions shall be held unallocated in a suspense account for
the Limitation Year and used to reduce Company Matching Contributions for
all Participants for the next Limitation Year (and succeeding Limitation
Years, as necessary). For purposes of this limitation, all defined
benefit plans of the Company and Affiliated Companies, whether or not
terminated, are to be treated as one defined benefit plan and all defined
contribution plans of the Company and Affiliated Companies, whether or not
terminated, are to be treated as one defined contribution plan.
6.7 Combination of Defined Contribution and Defined Benefit
Plans. If at any time a Participant in this Plan participates in a
combination of one or more defined benefit plans maintained by the Company
and Affiliated Companies and one or more defined contribution plans
maintained by the Company and Affiliated Companies, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any
Plan Year may not exceed 1.0. The defined benefit plan fraction for any
Plan Year is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan determined as of the close of the
Plan Year, and the denominator is the lesser of:
(a) The maximum dollar limit for the Plan Year times 1.25 (or if
greater, the Participant~s current accrued benefit under such plan as
of December 31, 1986), or
(b) The percentage-of-compensation limit for such Plan Year
times 1.4.
The defined contribution plan fraction for any Plan Year is a fraction,
the numerator of which is the sum of the Annual Additions to the
Participant's accounts for the Plan Year and all prior Plan Years (except
that employee contributions made for any Plan Year prior to 1987 that were
not treated as an Annual Addition for such year shall not be treated as an
Annual Addition hereunder for any year after 1986) and the denominator of
which is the sum of the lesser of the following amounts determined for
such year and for each prior year of service with the Company and
Affiliated Companies:
(c) The product of 1.25 multiplied by the dollar limitation in
effect for such year (determined without regard to Section 415(c)(6)
of the Code); or
(d) The product of 1.4 multiplied by the percentage-of-
compensation limitation with respect to such Participant under the
Plan for such year.
The numerator of the defined contribution plan fraction shall be adjusted,
where applicable, as prescribed by the Internal Revenue Service. For
purposes of this limitation, all defined benefit plans of the Company and
Affiliated Companies, whether or not terminated, are to be treated as one
defined benefit plan and all defined contribution plans of the Company and
Affiliated Companies, whether or not terminated, are to be treated as one
defined contribution Plan. To the extent that a reduction of benefit is
required, such reductions shall be made first from Wisconsin Power and
Light Company Retirement Plan A, then from this Plan, then from any other
defined contribution plan maintained by the Company.
ARTICLE VII
INVESTMENT OF FUNDS
7.1 Investment Funds. Contributions made under this Plan shall
be deposited in the Trust Fund for purposes of investment. The Trust Fund
may consist of three or more Investment Funds. Investment Funds are not
separate trust funds; but are funds reflecting various types of
investments that the Trustee may from time to time establish upon
direction of the Committee. The Investment Funds may consist of an Equity
Fund, a Fixed Income Fund, a Money Market Fund, a Company Common Stock
Fund, and such other investment funds as shall be designated from time to
time. Each Participant's share in the Trust Fund shall consist of an
undivided interest in the respective assets allocated to one or more of
such Investment Funds; subject however to paragraph 7.2 hereof. Except as
otherwise provided, each Participant's share in each such Investment Fund
as of any Valuation Date shall be that proportion of such Investment Fund
that his Accounts in such Investment Fund as of such date bear to the
total Accounts of all Participants in such Investment Fund as of the
Valuation Date that such share is being determined. Amounts loaned to a
Participant as provided in paragraph 7.5 shall be recorded in and
considered a segregated investment by such Participant in a fund
designated as the Participant Loan Fund.
7.2 Investment of Contributions. (a) Company Matching
Contributions made on behalf of a Participant pursuant to paragraph 5.4
shall be invested and held solely in the Company Common Stock Fund.
(b) Compensation Conversion Contributions shall be invested in
one or more of the Investment Funds, as may be directed in writing by
the Participant; subject however to the following and to the
provisions of paragraph 7.5:
(1) At the same time as a Participant makes a Deferred Cash
Election pursuant to paragraph 4.1 hereof, the Participant may
further elect that his Deferred Cash Contributions be allocated to
one or more Investment Funds, other than the Participant Loan
Fund, then or thereafter existing.
(2) Quarterly thereafter, a Participant may, in accordance
with rules from time to time promulgated by the Committee, change
any previous election of investment of Compensation Conversion
Contributions in any such Investment Fund. Such change may be
with respect to amounts previously invested in the Investment
Funds, other than the Participant Loan Fund, and to be invested as
a result of future contributions. Such changes shall be effective
as of March 1, June 1, September 1, or December 1 of any Plan
Year. In addition, a Participant who as of September 30, 1987 has
amounts invested in the Company Common Stock Fund or has an
election then in effect to invest future contributions in such
Fund may change effective October 1, 1987 his election with
respect to amounts invested in the Company Common Stock Fund as of
September 30, 1987 and to be invested in such Fund as the result
of future contributions, such change in election to be made prior
to October 1, 1987 in accordance with rules promulgated by the
Committee. Any change under this subparagraph shall be subject to
the limitations, including percentage limitations, specified in
subparagraph (1) above. Notwithstanding anything to the contrary
contained in this subparagraph, no change shall be made which
would be contrary to the provisions of any Investment Fund or
which would subject the fund to penalties or other charges. An
investment election, once in effect, shall continue until changed
as provided above.
(c) Rollover Contributions pursuant to paragraph 5.11 shall be
invested as follows:
(1) initially, the same investment selection as elected for
the Compensation Conversion Contributions shall apply to the
Rollover Contributions if the Eligible Employee is currently
participating in this Plan. Quarterly, thereafter, the
Participant may change the investment allocation under the same
conditions and procedures as outlined in paragraph 7.2(b), or
(2) in one or more of the Investment Funds, as may be directed
in writing by the Participant under the same conditions and
procedures as outlined in paragraph 7.2(b), if the Eligible Employee
is not currently participating in this Plan.
Investment elections shall be subject to the provisions of
paragraph 7.5.
7.3 Prohibition on Investments. Notwithstanding anything to the
contrary contained herein, contributions shall not be invested in
purchasing life insurance policies on the Participant's life, unless the
purchase of such life insurance is incidental in accordance with the
requirements of any applicable statute, rule, regulation or revenue
ruling.
7.4 Special Provisions Re: WPL Holdings. Inc. Common Stock.
A. This Plan is intended to constitute an "eligible individual
account plan" as defined in the Employee Retirement Income Security Act of
1974, as amended from time to time ("ERISA"); and all provisions hereof,
shall be so construed to that effect. Prior to April 1, 1988, funds
comprising the Company Common Stock Fund were invested only in common
stock of Wisconsin Power and Light Company. Pursuant to an Agreement and
Plan of Merger and Reorganization effective April 1, 1988 and Articles of
Merger effective April 1, 1988, WPL Holdings, Inc. became the parent
holding company of Wisconsin Power and Light Company and the outstanding
shares of Wisconsin Power and Light Company common stock, including those
held in the Company Common Stock Fund, were changed and converted on a
share-for-share basis into shares of common stock of WPL Holdings, Inc.
Accordingly, on and after April 1, 1988, the Company Common Stock Fund
shall only be invested in WPL Holdings, Inc. common stock, which stock
constitutes "qualifying employer securities" as defined in ERISA. Such
qualifying employer securities shall be acquired, held and disposed of in
accordance with the terms and provisions of this Plan; subject, however,
to such limitations, if any, as may be provided for in ERISA. Any
dividends received on WPL Holdings, Inc. Common Stock in this fund shall
be periodically reinvested by the Trustee in Common Stock of WPL Holdings,
Inc.
B. Each Participant, who has contributions invested in the Company
Common Stock Fund pursuant to paragraph 7.2 hereof, shall have the right
to direct the Trustee as to the exercise of all voting rights with respect
to the Participant's proportional interest in WPL Holdings, Inc. common
stock held in such Fund. If the Trustee has not received directions as to
the voting of any such WPL Holdings, Inc. stock by the fifth day before
the meeting of shareholders at which such vote is to be taken, then the
Trustee shall vote such non-voted shares in the same proportion as the
voted shares received. There shall be delivered to such Participant all
reports, financial statements, proxies and proxy soliciting material which
are delivered to holders of WPL Holdings, Inc. common stock in connection
with each meeting of stockholders.
C. Purchases of WPL Holdings, Inc. Stock may be made by the Trustee
on the open market or directly from WPL Holdings, Inc. For each
Investment Date, for shares purchased directly from WPL Holdings, Inc.,
the price of all shares purchased under the Plan will be the weighted
average purchase price determined as follows: The price of original issue
shares purchased from the Company will be the average of the high and low
prices, carried to three decimal places, of the Company's Common Stock
reported as New York Stock Exchange - Composite Transactions on the date
of purchase by the Trustee, "the Investment Date" (or, if no trading in
the Company's Common Stock occurs on such Exchange on the Investment Date,
on the next preceding day on which the Common Stock is so traded).
7.5 Loans.
(a) Upon the application of a Participant, the Committee, in
accordance with a uniform and nondiscriminatory policy, may direct the
Trustee to make a loan to such Participant in order to alleviate a
hardship of the Participant. Loans shall be made upon such terms as the
Committee shall specify consistent with the provisions of this paragraph
7.5. The determination of the existence of a hardship shall be made by
the Committee using the criteria for a hardship as set forth in paragraph
10.3 with the exception of 10.3 (a)(3). Solely for the purposes of this
section a loan may be made for the payment of tuition for the next year of
post-secondary education for the participant, his spouse, children or
dependents. Any loan approved by the Committee will be disbursed on such
date as the Committee shall direct provided the Participant is then an
Employee. No loans may be made by the Trustee prior to January 1, 1988.
An application for a loan must be submitted in writing to the Committee
and shall describe the hardship. The Committee may request the
Participant to provide satisfactory evidence to support his application.
A loan application fee, determined by the Committee from time to time on a
uniform and nondiscriminatory basis without regard to the amount of the
loan requested, shall be charged and shall be nonrefundable.
(b) The amount of any loan shall be charged against the Investment
Fund, other than the Participant Loan Fund, in which the Participant's
Deferred Cash Contribution Account and/or Rollover Contribution Account is
invested pro rata in accordance with the balance of such Account(s) in
each of such Investment Funds as of the second preceding Valuation Date
prior to the date the loan is made, except that the Committee may adjust
such allocation in such manner as it deems appropriate if the balance of
the Participant's Account(s) in any Investment Fund is insufficient to
reflect the charge at the time the loan is made. The loan application fee
($50.00) shall be charged against the Participant's Deferred Cash
Contribution Account and/or Rollover Contribution Account and shall be
subtracted from the Investment Fund, other than the Participant Loan fund,
in which such Account(s) has the largest balance as of the second
preceding Valuation Date prior to the date the loan is made.
(c) No loan to any participant, when added to the outstanding balance
of all other loans from the Plan made to the Participant, shall exceed the
smallest of
(1) $50,000, reduced by the excess, if any, of the highest
outstanding balance of all loans from all qualified plans of the
Company and Affiliated Companies, to the Participant during the
one-year period ending on the day before the date on which the loan is
made over the outstanding balance of loans from such plans to the
Participant on the date the loan is made,
(2) 50% of the balance in the Participant's Account, as of the
most recent Valuation Date for which a valuation is available, as
adjusted for any distributions, withdrawals, contributions or loan
payments made after such Valuation Date. The Committee, in its
discretion and upon consideration of developments known to it, may
further limit the amount of any loan it may approve. The Committee
shall not approve a loan of less than $500 and no more than one loan
shall be made to a Participant in any calendar year. No loan may be
made from a Participant's Company Matching Contribution Account or
Involuntary Contribution Account.
(d) The rate of interest on a loan made in any given Plan Year, and
for the duration of such loan, shall be the prevailing rate charged by
commercial lenders + 2% for loans made under similar banking
circumstances, as of the first day of the calendar month in which the loan
is approved.
(e) Any loan to a Participant shall be repaid by the Participant in
such manner as the Committee shall determine, subject to the limitations
of this subparagraph 7.5(e). The Committee shall require that the loan
and interest thereon be repaid bimonthly by payroll deduction over a
period which shall not exceed:
(1) 10 years where the proceeds of the loan are to be applied to
acquire a dwelling unit which within a reasonable time (determined at
the time the loan is made) is to be used as the principal residence of
the Participant, or
(2) five years for all other loans. Each installment shall be
paid by payroll deductions by the Company from the compensation of the
Participant. The Company shall deposit with the Trustee the sums so
deducted or paid. Any loan under the Plan may be prepaid without
penalty. Partial prepayments shall not be permitted. Amounts
received by the Trust Fund as a repayment of a loan to a Participant
or as payment of interest on a loan to a Participant shall be added to
the Participant's Deferred Cash Contribution Account and/or Rollover
Contribution Account on a pro rata basis against which amounts were
withdrawn and allocated to the Investment Funds in accordance with the
Participant's election under paragraph 7.2 with respect to the
investment of future Deferred Cash Contributions and/or Rollover
Contribution Account in effect at the time. Principal amounts
received by the Trust Fund as a repayment of a loan to a Participant
shall be subtracted from the Participant Loan Fund.
(f) Each loan to a Participant shall be evidenced by a Note, payable
to the order of the Trustee, for the amount of the loan including interest
thereon. Each loan shall be secured by a pledge of the borrower's
Account, which pledge shall give the Trustee a security interest in all of
the Participant's then existing and thereafter acquired rights in his
Account. By accepting the loan, the Participant automatically assigns, as
security for the loan, such rights in his Account.
(g) If a loan installment is not fully paid within thirty days
following the bi-weekly due date, the committee shall give written notice
to the Participant (or former Participant). If such loan installment
payment is not made within sixty days thereafter, the Committee may direct
the trustee to apply an amount equal to or less than 50% of the vested
balance in the Participant's Account, to the extent permitted by law and
applicable Internal Revenue Service regulations, by the amount of unpaid
loan balance including interest then due. This amount would be treated as
having been received by the Participant as a distribution under the plan.
The Participant's interest in his/her Account shall be reduced in the
following order:
i) Deferred Cash Contribution and Involuntary Contributions,
ii) Rollover Contributions,
iii) Matching Contributions.
(h) Loans shall be available to all Participants on an equivalent
basis.
(i) The terms of all Participant loans are subject to the review and
approval of the Committee and are subject to appeal by the Participant in
accordance with paragraph 11.3.
ARTICLE VIII
NONFORFEITURE OF BENEFITS
Notwithstanding anything to the contrary contained in this Plan, a
Participant's right to receive distributions from his Account(s) shall at
all times be nonforfeitable.
ARTICLE IX
DISTRIBUTIONS
9.1 Distributions as a Result of Termination prior to Retirement.
(a) If the balance in the Accounts of a Participant determined as
of the Valuation Date immediately following his Termination Date is
less than $3,500.00, the Participant shall receive a distribution
equal to such value in a lump sum. Such distribution shall be made
within forty-five (45) days following such Valuation Date.
(b) If the balance in the Accounts of a Participant determined as
of the Valuation Date immediately following his Termination Date is
$3,500.00 or more, the Participant may make a written election, within
30 days of such Valuation Date, to request distribution of his
Accounts in accordance with Subparagraph 9.1(a).
If a written election is not made, the Participant's Accounts shall
remain invested in the Plan. The Participant shall retain the right
to change investment allocation among the various Investment Funds in
accordance with subparagraph 7.2(b) and 7.2(c). Distribution of a
terminated Participant's Accounts shall be made in a lump sum within
forty-five (45) days after the Valuation Date following receipt of
written notification from the Participant requesting distribution or,
if earlier, the first Valuation Date following the Participant's 65th
birthday.
(c) Any lump sum payment required to be made pursuant to
Section 9.1(a) or (b) hereof, shall be made in cash, except that a
Participant shall be entitled to elect to receive any amount in his
Account which is invested in the Company Stock Fund, in whole shares
of WPL Holdings, Inc. Common Stock. In order to exercise such
election, the Participant shall so notify the Plan Administrator in
writing at least fifteen (15) days prior to the time the distribution
is required to be made under Section 9.1(a) or (b), as the case may
be.
9.2 Distributions as a Result of Retirement or Disability. A
Participant shall receive a distribution equal to the value of his entire
Account (in the manner provided for in paragraph 9.3 hereof), as of any
Valuation Date selected by such participant following his retirement or
Disability date. Such distribution shall be made within forty-five (45)
days following such Valuation Date. In no event, however, shall
distribution of a retired or disabled Participant's Account commence later
than the first Valuation Date following the January 1 after attainment of
age 70-1/2 by the Participant. A participant shall commence distribution
of his Account as of the Valuation Date immediately following the January
1 after attainment of age 70-1/2 whether or not he retires. The preceding
sentence shall not apply in the case of active Participants not separated
from service, who attained age 70-1/2 prior to January 1, 1988 and who at
the time were not five (5) percent owners.
9.3 Form of Distribution. Each Account shall be distributed to a
Participant in a lump sum amount or, in the event the Participant has no
unpaid loans outstanding under the Plan, in annual installments not to
exceed 10 years. At least forty-five (45) days prior to a distribution
under paragraphs 9.1 or 9.2 hereof, the Participant shall notify the
Administrator of his election as to the lump sum or annual payment method.
A failure to so affirmatively notify the Administrator by that date is
deemed to be an election to receive a lump sum payment. Where a
Participant has elected an annual method of payment, any funds from time
to time remaining in his Account shall be valued and adjusted as provided
for in Article VI hereof.
9.4 Special Provision for Lump Sum Distribution. Notwithstanding
anything to the contrary contained in paragraphs 9.1 or 9.2 hereof, in the
event a Participant has elected to receive a distribution in a lump sum
amount, such distribution shall be made within sixty (60) days following
the end of the Plan Year in which the election has been made, unless the
Committee should otherwise determine to make the distribution as provided
for in paragraphs 9.1 or 9.2 above. Such distribution shall be made in
cash, except that a Participant shall be entitled to elect to receive any
amount in his Account which is invested in the Company Common Stock Fund,
in whole shares of WPL Holdings, Inc. Common Stock. In order to exercise
such election, the Participant shall so notify the Plan Administrator in
writing at the same time the Participant gives the Administrator the
notice required under paragraph 9.3 hereof.
9.5 Direct Transfer of Eligible Rollover Distributions.
Effective January 1, 1993, notwithstanding any provision of the Plan to
the contrary that would otherwise limit a Participant's election under
this Section, a Participant 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 Participant in a direct rollover. An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the Participant, 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 Participant or the
joint lives (or joint life expectancies) of the Participant and the
Participant's designated beneficiary, or for a specified period of 10
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 (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities). An eligible retirement plan is 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 Participant's
eligible rollover distribution. However, in the case of an eligible
rollover distribuiton to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement annuity. A
Participant includes an employee or former employee. In addition, 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, are Participants with regard to the interest of the spouse or former
spouse. A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the Participant.
9.6 Payments to Beneficiary. In the event of death of a
Participant (who had not made an election under paragraph 9.3) prior to
distribution in full of his Accounts, any amounts remaining in his
Accounts shall be paid to such Participant's Beneficiary in a lump sum.
The value of such Accounts shall be determined as of the first Valuation
Date following the Participant's date of death. Such distribution shall
be made within forty-five (45) days following such Valuation Date.
9.7 Provision Regarding Unpaid Loans. Notwithstanding the
foregoing provisions of this Article IX, if a distribution under this
Article IX of a Participant's Account is to be made in a lump sum prior to
repayment of any outstanding loan to the Participant under the Plan, then
the unpaid portion of all loans made to the Participant under the Plan,
including accrued interest thereon, shall be deducted from the amount of
his Account balance to be distributed to the Participant in cash or stock
as provided in this Article IX.
ARTICLE X
WITHDRAWALS DURING EMPLOYMENT
10.1 Withdrawals. As of any Valuation Date, a Participant may
make withdrawals from his Account(s) in accordance with this Article.
10.2 Mandatory Withdrawals. A Participant shall be paid such
amounts as may be allocated to his Involuntary Contribution Account
because of the limitations of paragraph 6.6 or 6.7 (exclusive of plan
earnings or subject to required withholdings), as provided for in
paragraph 5.3 hereof.
10.3 Special Withdrawals.
(a) To alleviate a hardship, the Committee, upon application by a
Participant, may authorize a distribution equal to all or a part of
the value of such Participant's Deferred Cash Contribution Account
(determined as of the Valuation Date immediately preceding the
Trustee's receipt of the Committee's authorization of distribution)
less all unpaid loans, including interest accrued thereon, as of the
date of withdrawal made to a Participant from such Account. For
purposes of this paragraph 10.3, the term "hardship" shall mean:
(1) Medical expenses described in Code Section 213(d)
incurred by the Participant, the Participant's Spouse or any
dependents of the Participant;
(2) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3) Payment of tuition for 12 months of post-secondary
education and related educational fees for the Participant, his
Spouse, children or dependents;
(4) The need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence; and
(5) Any other circumstance that the Internal Revenue Service
announces as qualifying as a "hardship" under Code Section 401(k).
(b) Before a special withdrawal is granted in accordance with
this paragraph 10.3, the Participant shall be required to take the
maximum loan available to him under paragraph 7.5. If these amounts
are insufficient to meet the hardship, the Participant shall then be
permitted to make a hardship withdrawal of an amount sufficient to
alleviate the hardship.
(c) The amount necessary to fund the special withdrawal shall be
debited on a prorata basis from the value of the Participant's
Deferred Cash Contribution Account to the extent such debit does not
exceed the Deferred Cash Contributions and earnings on such
contributions accumulated prior to October 1, 1988, and rollover
contibution account.
(d) A request for a special withdrawal under this paragraph 10.3
shall be made on forms prescribed by the Committee. The Committee
shall establish a uniform and nondiscriminatory policy for reviewing
withdrawal applications and any determination made by the Committee
shall be final (but subject to appear under paragraph 11.3).
(e) The provisions of this subparagraph (e) shall apply to a
Participant who receives a special withdrawal that consists in whole
or in part of Deferred Cash Contributions or earnings on those
Contributions and rollover contributions. Notwithstanding paragraphs
4.1 and 4.2, such a Participant shall not be permitted to have
Deferred Cash Contributions made on his behalf to this Plan or any
other plan qualified under Code Section 401(k) maintained by the
Company or an Affiliated Company until after the second December 31
following his receipt of such special withdrawal.
(f) No more than one such special withdrawal may be made in any
Plan Year.
10.4 Minimum Withdrawals. Withdrawals permitted pursuant to
paragraph 10.3, may not be made in amounts of less than two hundred
dollars ($200), unless the maximum amount which may be withdrawn is less
than two hundred dollars ($200), in which case the entire amount may be
withdrawn.
10.5 Payments of Withdrawals. All withdrawals under paragraph 10.3
hereof shall be paid in a single lump sum as soon as practicable after
application for a withdrawal is received and acted upon by the Committee.
Payments of withdrawals to a Participant shall reduce the applicable
Accounts in each Investment Fund, other than the Participant Loan Fund,
proportionately. When a withdrawal has reduced the Account to a zero
balance, any earnings or losses allocated to the Account for the period
between the preceding Valuation Date and the date of withdrawal shall be
credited to or charged against the Participant.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administered by Committee. The Plan shall be
administered by the Pension and Employee Benefits Committee consisting of
such number of persons (not less than three or more than five) who shall
be appointed by and serve at the pleasure of the Board of Directors. No
member of the Committee who is an Employee shall receive compensation for
his services as a member of the Committee. The Pension and Employee
Benefits Committee shall have the duties specified hereunder, including,
but not by way of limitation, the following:
(a) to select investment managers;
(b) to construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment of
any benefits and loans under the Plan;
(c) to prescribe procedures to be followed for the proper and
efficient administration of the Plan;
(d) to prepare and distribute information explaining the Plan to
Participants;
(e) to receive from the Company and from Participants such
information as shall be necessary for the proper administration of the
Plan;
(f) to furnish the Company, upon request, such annual reports with
respect to the administration of the Plan as are reasonable and
appropriate;
(g) to receive from the Trustee or other institutions or
individuals, and to review and keep on file, reports of the financial
condition and of the receipts and disbursements for the Plan;
(h) to employ individuals to assist in the administration of the
Plan;
(i) to keep such accounts and records as necessary or proper in
the performance of its duties under the Plan;
(j) to establish and implement procedures necessary for
determining whether an order is a Qualified Domestic Relations Order
and to administer such procedures and any distributions under such
order in a nondiscriminatory and consistent manner;
(k) to establish and implement procedures necessary to determine
whether or not a request for withdrawal or loan meets the hardship
requirements specified in paragraph 10.3; provided, however, that in
no instance is the Committee required to audit the actual use of such
funds once the Committee has determined that the request met the
conditions specified herein;
(1) to direct the establishment of three or more Investment Funds;
(m) to establish investment policies and objectives for each such
Investment Fund; and
(n) to appoint an Administrator as its agent.
The Committee shall have no power to add to, subtract from or modify any
of the terms of the Plan, or to change or add to any benefits provided by
the Plan, or to waive or fail to apply any requirements of eligibility
under the Plan except as hereinafter provided. The Committee may enact
nonsubstantive amendments to the Plan which are required exclusively for
the purpose of either correcting administrative inefficiencies or of
conforming the Plan with governmental laws, regulations, or requirements.
The Committee may act at a meeting, or by writing without a meeting,
by the vote or written assent of a majority of its members. The Committee
and any other person(s) to whom the Committee may delegate any duty or
power in connection with the administration of the Plan, shall be entitled
to rely conclusively upon, and shall be fully protected in any action
taken in good faith in reliance upon any information, opinions or reports
which shall be furnished to them by any accountant, counsel or other
specialist, to the extent provided by law.
11.2 Indemnity for Liability. The Company shall indemnify the
members of the Committee, and each fiduciary who is an Employee of the
Company, against any and all claims, losses, damages, expenses, including
counsel fees, incurred by said fiduciaries, and any liability including
any amounts paid in settlement with such fiduciary's approval, arising
from the fiduciary's action or failure to act; except when the same is
judicially determined to be attributable to the gross negligence or
willful misconduct of such fiduciary.
11.3 Appeal from Denial of Claims. If any claim for benefits
under the Plan is wholly or partially denied by the Committee, the
claimant shall be given notice in writing of such denial, by registered or
certified mail. Such notice shall be given as soon as reasonable after
the denial; and the notice of denial shall set forth the specific reasons
for such denial, specific reference to pertinent Plan provisions on which
the denial is based, and a description of the Plan's claim review
procedure. The claimant shall be advised that such claimant or a duly
authorized representative of the claimant may request a review by the
entire Committee, of the decision denying the claim. Such request for
review must be in writing and filed with the Committee within 45 days
after such notice of denial has been received by the claimant. Any such
claimant may review pertinent documents and submit issues and comments in
writing within the same 45 day period. If such a request is so filed, a
review shall be made by the Committee within 60 days after receipt of such
request. The claimant may be present at such review, offer additional
evidence, cross-examine witnesses and present arguments to the Committee
to support the claim. The claimant shall be given written notice of the
final decision resulting from such review, which shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the final decision is based.
11.4 Distribution to Five-Percent Owners. For any Plan Year
after the 1984 Plan Year, if a distribution under the Plan is made to a
five-percent owner (as defined in Section 14.8(c)) before such Participant
attains age 59-1/2, the Participant shall be advised by the Administrator
that an additional income tax may be imposed equal to 10% of the portion
of the amount so received which is
(a) includible in the gross income for such taxable year, and
(b) attributable to years in which the Participant was a
five-percent owner, unless such distribution is made on account of
death or disability.
ARTICLE XII
AMENDMENT AND TERMINATION
12.1 Amendment. The Corporation shall have the sole and
exclusive right to amend or modify the Plan at any time and for any
reason, by the action of its Board of Directors. Notwithstanding anything
to the contrary, the Committee shall at all times administer the Plan in
such fashion that the Plan is maintained as a benefit plan meeting the
requirements of the Employee Retirement Income Security Act of 1974
("ERISA") and Sections 401(a), 401(k), and 404(a) of the Code as now in
effect or hereafter amended, or any other applicable provisions of law.
No amendment of the Plan shall cause any part of the Trust Fund or a
Participant's Account(s) to be used for, or diverted to, purposes other
than the exclusive benefit of the Participants or their beneficiaries.
Except to the extent necessary to produce conformity to the laws and
regulations described above, no amendment shall operate, either directly
or indirectly, to deprive any Participant of his nonforfeitable interest
in his Account(s) as it is constituted at the time of the amendment.
12.2 Right to Terminate Plan. The Corporation contemplates that
the plan shall be permanent. Nevertheless, in recognition of the fact
that future conditions and circumstances cannot now be entirely foreseen,
the Corporation reserves unto its Board of Directors the sole and
exclusive right to terminate the Plan for any reason and at any time.
Upon termination of the Plan, the Account(s) of each Participant shall be
distributed to such Participant as a lump sum payment, unless applicable
provisions of the Code or ERISA should otherwise require or permit an
alternative method of payment.
ARTICLE XIII
MISCELLANEOUS
13.1 Absence of Guarantee. Neither the Committee, the Plan
Administrator, the Trustee, the Corporation, nor the Company in any way
guarantees the Fund against loss or depreciation. The Company does not
guarantee any payment to any person. The liability of the Company, the
Trustee, the Corporation, the Plan Administrator, and the Committee to
make any payment under this Plan will be limited to the assets in the Fund
which are available for that purpose.
13.2 Employment Rights. The Plan shall not constitute a contract
of employment with any Eligible Employee or Participant; and participation
in the Plan will not give any Participant the right to be retained in the
employ of the Company, nor any right or claim to any distribution under
the Plan, unless such claim has specifically accrued under the terms of
the Plan.
13.3 Participant's Interest Not Transferable. Except as may be
required by application of the tax withholding provisions of the Code or
of a State's income tax laws or except as provided in paragraph 7.5 (f),
the interests of Participants and their Beneficiaries under this Plan and
Trust Agreement are not subject to the claims of creditors and may not be
voluntarily or involuntarily sold, transferred, alienated or assigned.
Notwithstanding the preceding sentence, the Plan shall pay benefits to the
person or persons named in a qualified domestic relations order, in
accordance with procedures established by the Committee, in the amount and
to the extent provided in such order. Payment of benefits pursuant to a
Qualified Domestic Relations Order shall not be considered a violation of
the prohibition against assignment and alienation contained in this
paragraph.
13.4 Facility of Payment. When a person entitled to
distributions under the Plan is under legal disability, or, in the
Committee's opinion, is in any way incapacitated so as to be unable to
manage his financial affairs, the Committee may direct the Trustee to pay
such distributions to such person's legal representative; or the Committee
may direct the application of such distributions for the benefit of such
persons. Any payment made in accordance with the preceding sentence shall
be a full and complete discharge of any liability for such payment under
the Plan.
13.5 Gender and Number. Where the context permits, words in the
masculine gender shall include the feminine and neuter genders, the single
shall include the plural, and the plural shall include the singular.
13.6 Litigation by Participants. To the extent permitted by law,
if a legal action begun against the Trustee, the Corporation, the Company,
the Plan Administrator, or the Committee by or on behalf of any person,
results in a decision adverse to that person; or if a legal action arises
because of conflicting claims to a Participant's Account(s), the cost and
expense incurred by the Trustee, the Corporation, the Company, the Plan
Administrator, and the Committee of defending or participating in the
action will be charged, to the extent permitted by law, to the sums, if
any, which were involved in the action or were payable to the Participant
or other person concerned.
13.7 Controlling Law. Except to the extent superseded by laws of
the United States, the laws of Wisconsin shall be controlling in all
matters relating to the Plan.
13.8 Merger or Consolidation of Plan and Trust Fund. Neither the
Plan nor the Trust Fund may be merged or consolidated with, nor may its
assets and liabilities be transferred to, any other plan or trust, unless
each Participant would (if such plan then terminated) be entitled to a
benefit immediately after the merger, consolidation or transfer which is
equal to or greater than the benefit to which such Participant would have
been entitled immediately before the merger, consolidation or transfer (if
the Plan had then terminated).
ARTICLE XIV
TOP-HEAVY PLAN REQUIREMENTS
14.1 General Rule. For any Plan Year for which this Plan is a
"top-heavy plan" as defined in Section 14.7 below, any other provisions of
this Plan to the contrary notwithstanding, this Plan shall be subject to
the following provisions:
(a) The vesting provisions of Section 14.2;
(b) The minimum contribution provisions of Section 14.3;
(c) The limitation on compensation set by
Section 14.4; and
(d) The limitation on contributions set by
Section 14.5
14.2 Vesting Provisions. Each participant who
(a) has completed at least three years of Vesting Service and
(b) has completed an Hour of Service during any Plan Year in which
the Plan is top-heavy, shall have a nonforfeitable right to the
benefit accrued under this Plan derived from Employer contributions
made pursuant to Section 14.3 hereof.
This provision shall apply without regard to contributions or benefits
under Social Security or any other Federal or State law. For purposes of
this section, an "Hour of Service" shall have the same meaning as provided
for in Section 2.20 hereof, and a year of "Vesting Service" shall mean any
Plan Year in which a Participant had in effect a Deferred Cash Election in
an amount greater than 0%.
14.3 Minimum Contribution Provisions. Each Participant who
(a) is an non-key Eligible Employee (as defined in Section 14.9,
and
(b) is employed on the last day of the Plan Year, even if such
individual has failed to complete 1,000 Hours of Service during such
Plan Year, and
(c) was not a Member of the Wisconsin Power & Light Company
Retirement Plan A for Salaried and non-represented Hourly Employees
during such Plan Year, and
(d) has a Deferred Cash Election in effect under Section 4.1
hereof for such Plan Year of less than 3%, shall be entitled to have a
contribution made on his behalf by the Company equal to the difference
between 3% and the said Deferred Cash Election in effect (the "minimum
contribution percentage") as applied to the Participant's
Compensation; subject however, to the provisions of this Article XIV
and further provided that
(e) the Required Test and Adjustment provided for in Sections 4.1
and 5.6 do not eliminate the "top heavy" features of this Plan; and
(f) without such minimum contribution percentage, this Plan would
be a "top-heavy plan" as hereinafter provided. Only if all of the
foregoing conditions precedent exist, shall the minimum contribution
provisions of this Section 14.3 become effective. The minimum
contribution percentage set forth above shall be reduced to the
percentage in any Plan Year to which the percentage at which Deferred
Cash Contributions and Company Matching Contributions are made (or
required to be made) under the Plan for the Plan Year for the key
Eligible Employee for whom such percentage is the highest for such
Plan Year. For this purpose, the percentage with respect to a key
Eligible Employee (as defined in Section 14.8 below) shall be
determined by dividing the contributions made for such key Eligible
Employees by so much of his total Compensation for the Plan Year as
does not exceed $200,000.
Such amount shall be adjusted in the same manner as the amount set
forth in Section 14.4 below.
Contributions taken into account under the immediately preceding
sentence shall include Deferred Cash Contributions under this Plan and
contributions under all other defined contribution plans required to be
included in an aggregation group (as defined in Section 14.7(c) below) but
shall not include any plan required to be included in such aggregation
group if such plan enables a defined contribution plan required to be
included in such group to meet the requirements of the Internal Revenue
Code of 1986, as amended, which prohibit discrimination as to
contributions or benefits in favor of Eligible Employees who are officers,
shareholders, or the highly-compensated or prescribing the minimum
participation standards. Contributions taken into account under this
Section shall not include any contributions under the Social Security Act
or any other Federal or State law.
The contribution determined in accordance with the foregoing
provisions of this paragraph 14.3 shall be reduced to arrive at the amount
of the required minimum contribution under this paragraph 14.3 by the
amount of any Company Matching Contributions made on behalf of the
Participant for such Plan Year.
14.4 Limitation on Compensation. Annual Compensation taken into
account under this Section and under Section 2.11 for purposes of
computing contributions under this Plan shall not exceed the first
$200,000 for any Participant. Such amount shall be adjusted automatically
for each Plan Year to the amount prescribed by the Secretary of the
Treasury or his delegate pursuant to regulations for the calendar year in
which such Plan Year commences.
14.5 Limitation on Contributions. In the event that the Company
also maintains a defined benefit plan providing benefits on behalf of
Participants in this Plan, one of the two following provisions shall
apply:
(a) If for the Plan Year this Plan would not be a "top-heavy plan"
as defined in Section 14.7 below if "90 percent" were substituted for
"60 percent," then Section 14.3 shall apply for such Plan Year as if
amended so that "four percent" were substituted for "three percent."
(b) If for the Plan Year this Plan would continue to be a "top
heavy plan" as defined in Section 14.7 below if "90 percent" were
substituted for "60 percent", then the denominator of both the defined
contribution plan fraction and the defined benefit plan fraction shall
be calculated as set forth in Section 6.7 for the Limitation Year
ending in such plan year by substituting "1.0" for "1.25" in each
place such figure appears, except with respect to any Participant for
whom there are no employer contributions allocated or any accruals for
such Participant under the defined benefit plan.
14.6 Coordination with Other Plans. In the event that another
defined contribution or defined benefit plan maintained by the Company
provides contributions or benefits on behalf of Participants in this Plan,
such other plan shall be treated as part of this Plan pursuant to
applicable principles (such as Rev. Rul. 81-202 or any successor ruling)
in determining whether this Plan satisfies the requirements of
Sections 14.2, 14.3 and 14.4. Such determination shall be made upon the
advice of counsel by the Committee.
14.7 Top-Heavy Plan Definition. This Plan shall be a "top-heavy
plan" for any Plan Year, if, as of the determination date (as defined in
Section 14.7(a)), the aggregate of the Accounts under the Plan for
Participants (including former Participants) who are key Eligible
Employees (as defined below) exceeds 60 percent of the present value of
the aggregate of the Accounts for all Participants, excluding former key
Eligible Employees, or if this Plan is required to be in an aggregation
group (as defined in Section 14.7(b) below) which for such Plan Year is a
top-heavy group (as defined in Section 14.7(d) below).
(a) "Determination date" means for any Plan Year the last day of
the immediately preceding Plan Year except that for the first Plan
Year of this Plan the determination date means the last day of such
Plan Year.
(b) The present value shall be the sum of
(1) the Account balance determined as of the most recent
Valuation Date that is within the twelve-month period ending on
the determination date, and
(2) the adjustment for contributions due as of the
determination date, and as described in the regulations under the
Internal Revenue Code as of 1986, as amended.
(c) "Aggregation group" means the group of qualified plans, if
any, that includes both the group of qualified plans that are required
to be aggregated and the group of qualified plans that are permitted
to be aggregated.
(1) The group of qualified plans that are required to be
aggregated (the "required aggregation group") includes:
(i) Each qualified plan of the Company in which a key
Eligible Employee is a participant, including
collectively-bargained plans, and
(ii) Each other qualified plan, including
collectively-bargained plans of the Company, which enables a plan
in which a key Eligible Employee is a participant to meet the
requirements of the Internal Revenue Code of 1986, as amended,
prohibiting discrimination as to contributions or benefits in
favor of Eligible Employees who are officers, shareholders, or the
highly-compensated or prescribing the minimum participation
standards.
(2) The group of qualified plans that are permitted to be
aggregated (the "permissive aggregation group") includes one or more
plans of the Company that are not part of the required aggregation
group and that the Committee certifies as constituting a plan within
the permissive aggregation group. Such plan or plans may be added to
the permissive aggregation group only if, after the addition, the
aggregation group as a whole continues not to discriminate as to
contributions or benefits in favor of officers, shareholders, or the
highly-compensated and to meet the minimum participation standards
under the Internal Revenue Code of 1986, as amended.
(d) "Top-heavy group" means the aggregation group, if as of the
applicable determination date, the sum of the present value of the
cumulative accrued benefits for key Eligible Employees under all
defined benefit plans included in the aggregation group plus the
aggregate of the accounts of key Eligible Employees under all defined
benefit plans included in the aggregation group plus the aggregate of
the accounts of key Eligible Employees under all defined contribution
plans included in the aggregation group, exceeds 60% of the sum of the
present value of the cumulative accrued benefits for all Eligible
Employees, excluding former key Eligible Employees, under all such
defined benefit plans plus the aggregate accounts, excluding former
key Eligible Employees, for all Eligible Employees under such defined
contribution plans. If the aggregation group that is a top-heavy
group is a required aggregation group, each plan in the group will be
top-heavy. If the aggregation group that is a top-heavy group is a
permissive aggregation group, only those plans that are part of the
required aggregation group will be treated as top-heavy. If the
aggregation group is not a top-heavy group, no plan within such group
will be top-heavy.
(e) In determining whether this Plan constitutes a "top-heavy
plan", the Committee (or its agent) shall make the following
adjustments in connection therewith:
(1) When more than one plan is aggregated, the Committee
shall determine separately for each plan as of each plan's
determination date the present value of the accrued benefit or
account balance. The results shall then be aggregated separately
by adding the results of each plan as of the determination dates
for such plans that fall within the same calendar year.
(2) In determining the present value of the cumulative
accrued benefit or the amount of the account of any Eligible
Employee, such present value or account shall include the amount
in dollar value of the aggregate distributions made to such
Eligible Employee and his Beneficiaries under the applicable plan
during the five-year period ending on the determination date,
unless reflected in the value of the accrued benefit or account
balance as of the most recent valuation date. Such amounts shall
include distributions to Eligible Employees which represented the
entire amount credited to their accounts under the applicable
plan.
(3) Further, in making such determination, such present
value of such Account shall include any rollover contribution (or
similar transfer) as follows:
(i) If the rollover contribution (or similar transfer) is
initiated by the employee and made to or from a plan
maintained by another company, the plan providing the
distribution shall include such distribution in the present
value or such account; and the plan accepting the distribution
shall not include such distribution in the present value or
such account unless the plan accepted it before December 31,
1983.
(ii) If the rollover contribution (or similar transfer) is
not initiated by the employee or made from a plan maintained
by another company, the plan accepting the distribution shall
include such distribution in the present value or such
account, whether the plan accepted the distribution before or
after December 31, 1983; the plan making the distribution
shall not include the distribution in the present value such
account.
(4) Further, in making such determination, in any case, where
an individual is a "non-key Eligible Employee", as defined below, with
respect to an applicable plan but was a key Eligible Employee with
respect to such plan for any prior Plan Year, any accrued benefit and
any account of such employee shall be altogether disregarded. For
this purpose, to the extent that a key Eligible Employee is deemed to
be a key Eligible Employee if he or she met the definition of key
Eligible Employee within any of the four preceding Plan Years, this
provision shall apply following the end of such period of time.
14.8 Key Eligible Employee. "Key Eligible Employee" shall mean
any Employee or former Employee under this Plan who, at any time during
the Plan Year containing the Determination Date (as defined in
subparagraph 14.7(a) or during any of the four preceding Plan Years, is or
was one of the following:
(a) An officer of the Company. Whether an individual is an
officer shall be determined by the Administrator on the basis of all
the facts and circumstances, such as the individual's authority,
duties and term of office, not on the mere fact that the individual
has the title of an officer. For any such Plan Year, there shall be
treated as officers no more than the lesser of:
(1) 50 Employees, or
(2) the greater of three Employees or ten percent of the
Employees.
For this purpose, the officers with the highest annual
Compensation shall be selected.
Further, an Employee will not be considered an officer for a Plan
Year after the 1983 Plan Year if the Employee earns less than 1.5
times the maximum dollar limitation on contributions and other annual
additions to a Participant's Account in a defined contribution plan
under the Internal Revenue Code of 1986, as amended, as in effect for
the calendar year in which the Determination Date falls.
(b) One of the ten Employees owning (or considered as owning,
within the meaning of the constructive ownership rules of the Internal
Revenue Code of 1986, as amended) the largest interests in the
Company. An Employee who has some ownership interest is considered to
be one of the top ten owners unless at least ten other Employees own a
greater interest than that Employee. However, an Employee will not be
considered a top ten owner for a Plan Year after the 1983 Plan Year if
the Employee earns less than the maximum dollar limitation on
contributions and other annual additions to a Participant's Account in
a defined contribution plan under the Internal Revenue Code of 1986,
as amended, as in effect for the calendar year in which the
Determination Date falls.
(c) Any person who owns (or is considered as coming within the
meaning of the constructive ownership rules of the Internal Revenue
Code of 1986, as amended) more than five percent of the outstanding
stock of the Company or stock possessing more than five percent of the
combined total voting power of all stock of the Company.
(d) A one percent owner of the Company having an annual
compensation from the Company of more than $150,000.00, and possessing
more than one percent of the combined total voting power of all stock
of the Company. For purposes of this subparagraph (d), compensation
means a Member's W-2 earnings for the Plan Year.
For purposes of Paragraph 14.8, a Beneficiary of a Key Employee shall be
treated as a Key Employee.
14.9 Non-Key Eligible Employee. The term "non-key Eligible
Employee" means any Eligible Employee (and any beneficiary of an Eligible
Employee) who is not a key Eligible Employee. For purposes of
Section 14.8 the term Non-Key Eligible Employee specifically includes all
former Employees who have not Employee specifically received Compensation
from the Company during the Plan Year including the Determination Date and
the four previous Plan Years.
14.10 Company. The term "Company" means the definition of
Company in Section 2.8 of this Plan; and includes if not already taken
into account, all members of the controlled group of corporations, a trade
or business under common control or affiliated service group, of which the
Company is a part, as required by the Internal Revenue Code of 1986, as
amended.
14.11 Collective Bargaining Rules. The provisions of
Sections 14.2, 14.3 and 14.4 above do not apply with respect to employees
included in a unit of employees covered by a collective bargaining
agreement unless the application of such Section has been agreed upon with
the collective bargaining agent.
14.12 Distributions to Key Eligible Employees. Any other
provision of this Plan to the contrary notwithstanding, distribution of
the entire interest in this Plan of each Participant who is or at any time
has been a key Eligible Employee shall commence no later than the end of
the taxable year of the Participant in which the Participant attains age
70-1/2.
WISCONSIN POWER AND LIGHT COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN B
Dated: May 21, 1984
Revised and Restated as of July 31, 1986
Revised as of July 1, 1987
Revised as of September 1, 1987
Revised and Restated as of January 1, 1988
(including amendments effective July 1, 1988)
Revised and Restated as of April 1, 1988
Revised as of October 18, 1989
Revised as of January 1, 1990
Revised and Restated as of January 1, 1991
Revised as of April 3, 1992
Revised as of September 11, 1992
Revised as of January 19, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE PAGE
I Establishment of the Plan. . . . . . . . . . . . . 1
1.1 Establishment and Purpose . . . . . . . . . . 1
1.2 Legal Requirements . . . . . . . . . . . . . 1
II Definitions. . . . . . . . . . . . . . . . . . . . 2
III Participation. . . . . . . . . . . . . . . . . . . 10
3.1 Further Eligibility Requirements. . . . . . . 10
3.2 Participation Requirements. . . . . . . . . . 11
3.3 Duration of Participation . . . . . . . . . . 11
3.4 Transfer Into an Eligible Employee Group. . . 11
3.5 Transfer Out of an Eligible Employee Group. . 11
3.6 Transfer of Accounts. . . . . . . . . . . . . 12
IV Deferred Cash Elections. . . . . . . . . . . . . . 13
4.1 Election. . . . . . . . . . . . . . . . . . . 13
4.2 Effect of Election. . . . . . . . . . . . . . 14
4.3 Change of Deferred Cash Election. . . . . . . 15
V Contributions. . . . . . . . . . . . . . . . . . . 17
5.1 Deferred Cash Contributions . . . . . . . . . 17
5.2 Involuntary Contributions . . . . . . . . . . 17
5.3 Conditional Acceptance of Involuntary
Contributions . . . . . . . . . . . . . . . . 17
5.4 Company Matching Contributions. . . . . . . . 18
5.5 Actual Deferral Percentage. . . . . . . . . . 19
5.6 Required Test and Adjustment. . . . . . . . . 19
5.7 Form of Contribution. . . . . . . . . . . . . 22
5.8 Adjustment to Company Matching Contribution
Accounts. . . . . . . . . . . . . . . . . . . 22
5.9 Applicability of Code to Required Test and
Adjustment. . . . . . . . . . . . . . . . . . 25
5.10 Rollover Contribution . . . . . . . . . . . . 25
VI Accounts . . . . . . . . . . . . . . . . . . . . . 27
6.1 Accounts. . . . . . . . . . . . . . . . . . . 27
6.2 Valuation of Accounts . . . . . . . . . . . . 27
6.3 Allocation of Contributions and Withdrawals . 28
6.4 Allocation of Net Earnings or Losses. . . . . 28
6.5 Allocation of Distributions . . . . . . . . . 29
6.6 Limitation on Allocations . . . . . . . . . . 29
6.7 Combination of Defined Contribution and
Defined Benefit Plans . . . . . . . . . . . . 30
VII Investment of Funds. . . . . . . . . . . . . . . . 32
7.1 Investment Funds. . . . . . . . . . . . . . . 32
7.2 Investment of Contributions . . . . . . . . . 33
7.3 Prohibition on Investments. . . . . . . . . . 35
7.4 Special Provisions Re: WPL Holdings, Inc.
Common Stock . . . . . . . . . . . . . . . . 36
7.5 Loans . . . . . . . . . . . . . . . . . . . . 38
VIII Nonforfeiture of Benefits. . . . . . . . . . . . . 43
IX Distributions . . . . . . . . . . . . . . . . . . 43
9.1 Distributions as a Result of Termination
Prior to Retirement . . . . . . . . . . . . . 43
9.2 Distributions as a Result of Retirement or
Disability. . . . . . . . . . . . . . . . . . 44
9.3 Form of Distribution. . . . . . . . . . . . . 45
9.4 Special Provision for Lump Sum Distribution . 45
9.5 Direct Transfer of Eligible Rollover
Distribution. . . . . . . . . . . . . . . . . 46
9.6 Payments to Beneficiary . . . . . . . . . . . 47
9.7 Provision Regarding Unpaid Loans . . . . . . 47
X Withdrawals During Employment. . . . . . . . . . . 48
10.1 Withdrawals . . . . . . . . . . . . . . . . . 48
10.2 Mandatory Withdrawals . . . . . . . . . . . . 48
10.3 Special Withdrawals . . . . . . . . . . . . . 48
10.4 Minimum Withdrawals . . . . . . . . . . . . . 50
10.5 Payments of Withdrawals . . . . . . . . . . . 51
XI Administration . . . . . . . . . . . . . . . . . . 52
11.1 Plan Administered by Committee. . . . . . . . 52
11.2 Indemnity for Liability . . . . . . . . . . . 54
11.3 Appeal from Denial of Claims. . . . . . . . . 55
11.4 Distribution to Five-Percent Owners . . . . . 56
XII Amendment and Termination. . . . . . . . . . . . . 56
12.1 Amendment . . . . . . . . . . . . . . . . . . 56
12.2 Right to Terminate Plan . . . . . . . . . . . 57
XIII Miscellaneous. . . . . . . . . . . . . . . . . . . 57
13.1 Absence of Guarantee. . . . . . . . . . . . . 57
13.2 Employment Rights . . . . . . . . . . . . . . 58
13.3 Participant's Interest Not Transferable . . . 58
13.4 Facility of Payment . . . . . . . . . . . . . 58
13.5 Gender and Number . . . . . . . . . . . . . . 59
13.6 Litigation by Participants. . . . . . . . . . 59
13.7 Controlling Law . . . . . . . . . . . . . . . 59
13.8 Merger or Consolidation of Plan and Trust
Fund. . . . . . . . . . . . . . . . . . . . . 60
<PAGE>
ARTICLE I
ESTABLISHMENT OF THE PLAN
1.1 Establishment and Purpose. The Wisconsin Power and Light
Company does hereby establish an employee benefit plan, to be known as the
"Wisconsin Power and Light Company Employees' Retirement Savings Plan B"
(hereinafter called the "Plan"), and to become effective as of the
Effective Date. The purpose of the Plan is to encourage savings and to
provide tax-effective compensation to Eligible Employees of the Wisconsin
Power and Light Company and of companies with which Wisconsin Power and
Light Company is affiliated.
1.2 Legal Requirements. The Plan is intended to constitute a
qualified cash or deferred compensation arrangement within the meaning of
Sections 401(k) and 402(a)(8) of the Internal Revenue Code of 1986, as
amended, (the "Code"). The Trust Agreement providing for the investment
of contributions made hereunder and for the payment of benefits to
Participants, is intended to constitute a qualified trust within the
meanings of Sections 401 and 501(a) of the Code. Accordingly, the
establishment of the Plan and Trust is conditioned upon the initial
determination by the Internal Revenue Service (the "Service") that the
Plan and Trust are qualified arrangements within the meaning of the
aforesaid sections of the Code. In the event the Plan and Trust, or
either of them, are determined by the Service not to so qualify, then the
Wisconsin Power and Light Company, may at any time within one year after
receiving the Notice of Denial of initial qualification from the Service,
either:
(a) amend the Plan and/or the Trust in such manner and to such
extent as may be necessary to obtain the qualification; or
(b) terminate the Plan and Trust.
In the event of termination, the Wisconsin Power and Light Company shall
direct the Trustee to return all contributions made to the Trust, adjusted
for the pro rata share of earnings, market gains or losses which accrued
while such contributions were held by the Trustee, and less the Trustee's
costs and expenses associated with such termination. Upon receipt of such
funds from the Trustee, the Wisconsin Power and Light Company, shall
return all such contributions, adjusted as aforesaid, to the
Participants according to their respective interests hereunder.
ARTICLE II
DEFINITIONS
As used in this Plan, the following terms shall have the
meanings set forth below, unless the context clearly indicates otherwise:
2.1 Account or Accounts is defined in paragraph 6.1.
2.2 Actual Deferral Percentage is defined in paragraph 5.5.
2.3 Administrator means the person or persons appointed by the
Committee to perform the ministerial functions associated with the
administration of the Plan.
2.4 Affiliated Company means any corporation or other entity,
the employees of which, together with the employees of the Companies, are
required by Section 414(b), (c), (m) or (o) of the Internal Revenue Code
to be treated as if they were employed by a single employer.
2.5 Annual Addition is defined in paragraph 6.6.
2.6 Beneficiary shall mean the Spouse, if then living, unless
an alternative Beneficiary is designated by the Participant and such
designation is consented to by the Spouse in accordance with procedures
established by the Committee. In the event the Participant is not married
or has no living Spouse, Beneficiary shall mean any person designated as
such by the Participant on a form supplied by the Administrator to receive
the benefits payable upon the death of the Participant. If no such
designation is in effect at the time of the death of the Participant; or
if no person is so designated with the consent of the Spouse, if so
required hereby, shall survive the Participant, the Beneficiary shall be
the Spouse, if then living; and if the Spouse is not living, then the
surviving children in equal shares; or if the deceased Participant has no
surviving Spouse or children, his estate. A Participant may at any time
change a designated Beneficiary; provided, however, that no such change
shall be effective unless in writing on forms provided by the
Administrator and provided any such designation is consented to by the
Spouse.
2.7 Committee means the Pension and Employee Benefits Committee
appointed by the Board of Directors of the Corporation, such Committee has
the responsibility for the administration of the Plan as provided in
Article XI.
2.8 Company means collectively, unless the context indicates
otherwise, the Corporation and any Affiliated Company to which the Plan
has been extended by the Board of Directors of the Corporation.
2.9 Company Matching Contributions means the contributions made
to the Plan by the Company on behalf of a Participant in accordance with
paragraph 5.4.
2.10 Company Matching Contribution Account means the Account
defined in paragraph 6.1(c).
2.11 Compensation means the gross compensation of a Participant
during the Plan Year, for personal services performed for the Company,
including the amount of contributions made by the Company on behalf of the
Participant pursuant to a salary reduction agreement under any qualified
plan meeting the requirements of Section 401(k) of the Code and under any
cafeteria plan under Section 125 of the Code; but excluding: worker's
compensation payments for work time lost; travel allowances and
reimbursements; moving expense reimbursements; disability benefits paid
pursuant to the Corporation's Disability Plan B; imputed income under the
Code with respect to excess life insurance contributions; income deferred
by any Participant pursuant to any unqualified cash or deferred
compensation arrangement maintained by the Company; and other special
payments designated by the Board of Directors of the Corporation. In
addition to other applicable limitations which may be set forth in the
Plan and notwithstanding any other contrary provision of the Plan,
compensation taken into account under the Plan shall not exceed $150,000,
adjusted for changes in the cost of living as provided in section
401(a)(17) of the Internal Revenue Code, for any Plan Year commencing
after December 31, 1993.
2.12 Compensation Conversion Contributions means Deferred Cash
Contributions and Involuntary Contributions as defined in paragraphs 5.1
and 5.2, respectively.
2.13 Corporation means Wisconsin Power and Light Company or any
successor or successors.
2.14 Deferred Cash Contributions means the contributions made
to the Plan by the Company for a Participant in accordance with the
Participant's Deferred Cash Election under Article IV.
2.15 Deferred Cash Contribution Account means the Account
defined in paragraph 6.1(a).
2.16 Disability means the inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment, which impairment is or is anticipated to be
total and permanent in the judgment of the Committee. Any Participant who
receives disability benefits pursuant to the Corporation's Disability
Income Plan B is presumptively disabled for purposes of this Plan.
2.17 Disability Date is the date on which the Participant
becomes disabled or the date the Participant begins to receive disability
benefits pursuant to the Corporation's Disability Income Plan B, whichever
date the Participant so elects.
2.18 Effective Date means January 1, 1984.
2.19 Eligible Employee means any Employee of the Company, who
is compensated on a hourly basis for services performed and who satisfies
the further eligibility requirements set forth in Article III,
paragraph 3.1 hereof. The term excludes employees who are not members of
the collective bargaining unit represented by Local Union Number 965 of
the International Brotherhood of Electrical Workers or who are compensated
on a salary basis for services performed.
2.20 Employee means any person who is a permanent full-time or
permanent part-time employee, regularly engaged in providing personal
services to the Company or an Affiliated Company. A permanent part-time
employee is one who renders services to the Company or an Affiliated
Company on a basis equal to at least 50% of the time of a permanent
full-time employee. The term "employee" does not include any temporary or
limited term employees. Notwithstanding the foregoing, any permanent
part-time employee, temporary employee or limited term employee who has
provided personal services to the Company or an Affiliated Company for at
least 1,000 "hours of service" during the preceding twelve months of
employment, shall be considered as an "employee" herein, and shall
continue to be such an "employee" for purposes of this Plan even though he
may perform personal services to the Company or an Affiliated Company of
less than 1,000 hours of service in succeeding twelve month periods of
employment. For purposes of this section, "hours of service" shall mean:
(a) each hour for which such employee is directly or indirectly
paid, or entitled to payment, by the Company or an Affiliated
Company for the performance of duties;
(b) each hour such employee is paid by the Company or an
Affiliated Company for holidays, vacation or other time not
worked;
(c) each hour such employee would have normally worked while he
is on disciplinary suspension or on leave-of-absence approved by
the Company or an Affiliated Company due to sickness, accident,
military service, or government service during time of war, or
other cause; provided however, that he returns to active
employment with the Company or Affiliated Company at the
expiration of such leave-of-absence, otherwise no hours of
service shall be credited for such periods;
(d) each hour such employee would have worked while he is
disabled and receiving payments under the terms of the
Corporation's Sick Leave Plan or Disability Income Plan B; and
(e) each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the Company or
Affiliated Company, provided, however, that no more than 501
hours shall be credited for payments of back pay for a period of
time during which the employee performed no duties.
When computing hours of service, overtime hours shall be treated as
straight time hours; and there shall be no duplication of credit for hours
which might otherwise be creditable under more than one of the above
listed categories.
2.21 Fund or Trust Fund means the Trust Fund established
pursuant to a Trust Agreement, for purposes of receiving and investing
contributions made pursuant to this Plan and for the purpose of paying
distributions hereunder. Any such Trust shall be qualified under
Section 501(a) of the Code.
2.22 Highly Compensated Employee means for any Plan Year a
highly compensated employee for such Plan Year as defined in Section
414(q) of the Code.
2.23 Investment Funds means those funds defined in
paragraph 7.1 hereof.
2.24 Involuntary Contributions means a Participant's
contributions as determined under paragraph 5.2 hereof.
2.25 Limitation Year shall mean the Plan year.
2.26 Involuntary Contribution Account means the account defined
in paragraph 6.1(b) hereof.
2.27 Participant means an Employee who is Eligible and who has
elected to make a Deferred Cash Election pursuant to paragraph 4.1 hereof.
2.28 Plan means the "Wisconsin Power and Light Company
Employees' Retirement Savings Plan B" as set forth in this document, and
as amended from time to time.
2.29 Plan Quarter means a three-month calendar period.
2.30 Plan Year means a calendar year which begins on January 1
and ends on December 31.
2.31 Required Test and Adjustment means the test and
adjustment as defined in paragraph 5.6 hereof.
2.32 Retirement means the termination of employment with the
Company and Affiliated Companies by reason of retirement.
2.33 Retirement Date means the date on which a Participant
receives retirement benefits pursuant to the Corporation's Retirement
Plan B or other applicable qualified retirement plan.
The Corporation's Retirement Plan B defines Retirement Date as
meaning a Normal, Early or Postponed Retirement Date, which in turn are
defined as follows:
(a) Normal Retirement Date. The Normal Retirement Date of a
Member is the first day of the month coincident with or next
following his 65th birthday.
(b) Early Retirement Date. The Early Retirement Date of a
Member is the first day of any month which;
(1) Follows his 55th birthday and precedes his Normal
Retirement Date; and
(2) Is coincident with the date he retires; provided, however,
that for a Member who was employed by the Company prior to
January 1, 1967, and who received credited service attributable
to employment for the period prior to January 1, 1967, the Early
Retirement Date shall be the first day of any month within
15 years preceding his Normal Retirement Date on which such
Member retires with written notice to the Company.
(c) Postponed Retirement Date. A Member's Postponed
Retirement Date shall be the first day of any month after his
Normal Retirement Date upon which the Member retires.
2.34 Rollover Contributions means a Participant's contributions
as determined under paragraph 5.11 hereof.
2.35 Rollover Contribution Account means the account defined in
paragraph 6.1(d) hereof.
2.36 Spouse means the person who is legally married to the
Participant as of any date of reference.
2.37 Termination Date means the date on which the Participant
ceases to be an Employee, for any reason other than by reason of
Retirement or Disability.
2.38 Trust Agreement means any written agreement establishing a
trust for purposes of receiving, holding, investing, and disposing of the
Trust Fund.
2.39 Trustee means the person acting as Trustee under any Trust
Agreement.
2.40 Valuation Date means the Date that accounts are valued
(end of each calendar month).
ARTICLE III
PARTICIPATION
3.1 Further Eligibility Requirements. An Eligible Employee
shall become entitled to participate in the Plan, effective as of the
March 1, June 1, September 1, or December 1 (whichever is applicable)
following his date of employment by the Company; provided that prior to
that date, he has attained his eighteenth (18th) birthday.
3.2 Participation Requirements. To become a Participant in
the Plan, an Eligible Employee must either:
(a) affirmatively make a Deferred Cash Election under paragraph
4.1 hereof, or
(b) elect to make a Rollover Contribution under paragraph 5.11
hereof.
3.3 Duration of Participation. An Eligible Employee who has
become a Participant shall continue to be a Participant in the Plan, until
the first Valuation Date, on which no balance remains in any of his
Accounts.
3.4 Transfer Into An Eligible Employee Group. An Employee who
would become an Eligible Employee as a result of a promotion or job
transfer within the Company or Affiliated Companies, shall be considered
to be an Eligible Employee, entitled to participate in the Plan
immediately following the date of such promotion or job
transfer; provided the requirements of paragraphs 3.1 and 3.2 are
satisfied.
3.5 Transfer Out of an Eligible Employee Group. An Eligible
Employee who subsequently transfers to employment within the Company or
Affiliated Companies so that he is no longer an Eligible Employee, shall
no longer be entitled to make Deferred Cash Elections pursuant to
Article IV hereof, effective as of the date of transfer. Any Deferred
Cash Election in effect at the time of such a Participant's transfer shall
terminate as of the transfer date. Notwithstanding such a transfer and
termination of election, the said Employee shall continue to participate
in the Plan as to contributions previously made, as described in
paragraph 3.6.
3.6 Transfer of Accounts. Notwithstanding the provisions of
Sections 3.4 and 3.5, the following provisions shall apply as to the
transfer of Participants' Accounts between this Plan and the Wisconsin
Power and Light Company Employees' Retirement Savings Plan A (the "Other
Plan"). With respect to any Employee who becomes an Eligible Employee for
purposes of this Plan, as a result of a promotion or job transfer within
the Company or Affiliated Companies and who previously participated in the
Other Plan, the Accounts of such Employee in the Other Plan shall be
transferred to this Plan, effective as of the Valuation Date next
following such job transfer or promotion. With respect to any Participant
in this Plan who transfers to employment within the Company or Affiliated
Companies so that he is no longer an Eligible Employee for purposes of
this Plan, but is an Eligible Employee for purposes of the Other Plan, the
Accounts of such Participant shall be transferred to the Other Plan,
effective as of the Valuation Date next following such job transfer, and
such Participant shall be entitled to participate in the Other Plan
subject to the terms thereof.
ARTICLE IV
DEFERRED CASH ELECTIONS
4.1 Election. An Eligible Employee may make a Deferred Cash
Election in an amount from 0% of his Compensation, up to a maximum percent
specified by the Committee, in any multiple of 1%. Deferred Cash
Elections must be in writing on forms provided by the Plan Administrator
and filed with the Plan Administrator at such time as the Committee
determines; provided the same is filed prior to March 1, June 1,
September 1, or December 1 of the Plan Year to which the election relates.
The Committee may limit or reduce the Deferred Cash Election of Highly
Compensated Employees, as provided for in paragraph 5.6 hereof. A
Deferred Cash Election for any Plan Year may only be changed pursuant to
paragraph 4.3 hereof.
Notwithstanding the foregoing provisions of this paragraph 4.1,
the maximum amount that a Participant may elect to have contributed for
any Plan Year pursuant to a Deferred Cash Election shall not exceed
$8,475.00 in 1991 and as adjusted for increases in the cost of living in
accordance with Section 402(g)(5) of the Code for any Plan Year Commencing
after December 31, 1991 reduced by the amount of any contributions made by
the Company for such Plan Year on behalf of the Participant pursuant to a
salary reduction agreement under any other qualified plan under Section
401(k) of the Code maintained by the Company. In the event such
limitation is exceeded for a Plan Year, then, notwithstanding any other
provision of the Plan or law, such excess, to the extent it has been
contributed to the Plan, plus any income and minus any loss allocable
thereto, shall be distributed to the Participant not later than April 15
next following the end of such Plan Year. Excess contributions to be
distributed from a Deferred Cash Contribution Account, plus any income and
minus any loss allocable thereto, shall be distributed from the Investment
Funds in which such Account is invested at the time of distribution pro
rata in accordance with the balance of the Account in each of the
Investment Funds as of the Valuation Date next preceding the date of
distribution but adjusted for any later loan made from the Account, except
that no amount shall be distributed from the Account invested in the
Participant Loan Fund until the balance in the other Investment Funds has
been distributed. For purposes of this paragraph, the income or loss
allocable to the excess contributions to be distributed from a Deferred
Cash Contribution Account for a Plan Year shall be determined by
multiplying the total income or loss of the Account for such Plan Year by
a fraction, the numerator of which is the excess contributions to be
distributed from such account for such Plan Year and the denominator of
which is the balance in such Account as of the end of such Plan Year.
4.2 Effect of Election. An Eligible Employee who has a
Deferred Cash Election in effect for any Plan Year is a Participant in the
Plan, and will have the elected portion of his Compensation deferred in
order to have it contributed to the Plan by the Company on behalf of the
Participant as a Deferred Cash Contribution. A Deferred Cash Election
shall become effective as of the first pay period, commencing on or after
March 1, June 1, September 1, or December 1 (whichever is applicable), of
each Plan Year. Once effective, a Deferred Cash Election shall remain in
effect until the earliest of the following events to occur:
(a)The March 1, June 1, September 1, or December 1 immediately
following receipt by the Company of a written notice from the
Participant terminating his Deferred Cash Election;
(b)The Participant's termination of employment by reason of
death, retirement, or any voluntary or involuntary severance of
employment;
(c)The Disability Date of the Participant;
(d)The Participant's transfer of employment such that he is no
longer an Eligible Employee;
(e)The application of the adjustment defined in paragraph 5.6 or
the limitation provided in paragraph 4.1; or
(f)The Participant's change of his Deferred Cash
Election pursuant to paragraph 4.3 hereof.
(g)The Participant receives a special withdrawal on account of
financial hardship in accordance with paragraph 10.3.
4.3Change of Deferred Cash Election. A Participant may further
elect to either reduce or increase the amount of his Deferred Cash
Election then in effect, as provided for herein. Any such reduction or
increase shall be subject to the maximum and minimum percentages
established in paragraph 4.1 hereof. Such Participant must notify the
Plan Administrator of such change on enrollment forms provided by the Plan
Administrator at such time as the Committee determines; provided the same
are filed prior to the effective date of such change. Such change shall
become effective as of March 1, June 1, September 1, or December 1 as
provided for in paragraph 4.2. The Committee, upon application by a
Participant, may in its sole discretion authorize a reduction in a
Participant's Deferred Cash Election from the rate then in effect to zero
(0%) to alleviate a hardship; provided that such Participant has
submitted, in writing, an application requesting such reduction and
describing such hardship. The Committee may request the applicant to
provide satisfactory evidence to support such application. Examples of
acceptable hardships include but are not limited to:
(a)A change from active employee status to permanent disability;
(b)A severe financial hardship such as loss of family income or
major illness.
In determining whether or not such a reduction should be
authorized, the Committee shall determine if the reduction is necessary in
light of immediate and necessary financial needs of the Participant.
ARTICLE V
CONTRIBUTIONS
5.1 Deferred Cash Contributions. The Company shall
periodically make Deferred Cash Contributions to this Plan, equal to the
amounts elected by Participants in accordance with Section 4.1 hereof.
The Company shall periodically forward all Deferred Cash Contributions to
the Trustee; provided all such contributions are so forwarded no later
than thirty (30) days after the end of each Plan Year. Company
contributions made pursuant to this Section 5.1 shall be made only out of
current or accumulated earnings and profits. For the purpose of this
Plan, current or accumulated earnings or profits shall mean the net income
or profits determined from the Company's books of account in accordance
with generally accepted accounting principles.
5.2 Involuntary Contributions. The amount by which Deferred
Cash Contributions elected by a Participant must be reduced in order to
satisfy the Required Test and Adjustment as defined in paragraph 5.6 or
the limitations of paragraphs 6.6 or 6.7, shall be considered as an
Involuntary Contribution made on behalf of such a Participant. No
supplemental contributions other than Rollover Contributions under
paragraph 5.11 shall be made by any Participant.
5.3 Conditional Acceptance of Involuntary Contributions.
Involuntary Contributions shall be accepted conditionally. In the event
any limitation set forth in paragraphs 5.6, 6.6, or 6.7 is applicable,
such Involuntary Contributions shall be deemed to have been made by mutual
mistake of fact. Where Involuntary Contributions under paragraph 5.6 are
involved, such Involuntary Contributions shall be returned to the
Participant as provided in paragraph 5.6. As soon as practicable, the
Committee shall cause such amounts as may be allocated to a Participant's
Involuntary Contribution Account as the result of any limitation set forth
in paragraph 6.6 or 6.7, to be returned to said Participant pursuant to
paragraph 10.2 hereof.
5.4 Company Matching Contributions. Subject to the provisions
of paragraphs 5.8 and 5.9, the Company shall make for each pay period
commencing on or after January 1, 1994 Company Matching Contributions for
each of its Participants in an amount equal to 25% of the Deferred Cash
Contributions made on behalf of such Participant under paragraph 5.1 for
such pay period; provided, however, that in no event shall Company
Matching Contributions be made for any pay period on behalf of a
Participant in excess of 25% of 6% of the Participant's Compensation for
such pay period. The Company shall periodically forward all Company
Matching Contributions to the Trustee; provided that all Company Matching
Contributions in respect of a pay period are so forwarded no later than
the time for filing (including extensions thereof) the Company's Federal
income tax return for the tax year in which such pay period occurs.
Company Matching Contributions shall be made only out of current profits
or accumulated earnings.
5.5 Actual Deferral Percentage. The Actual Deferral Percentage
for a specified group of Eligible Employees (as hereinafter described) for
a Plan Year shall be the average of 100 times the result (calculated
separately for each Eligible Employee in such group) obtained by dividing
the amount of Deferred Cash Contributions actually paid to the Plan for
each such Eligible Employee for such Plan Year by the Eligible Employee's
Compensation for the portion of such Plan Year for which Deferred Cash
Contributions were made or could have been made for such Eligible
Employee. For the purposes of this paragraph and the second paragraph of
paragraph 5.8, the term "compensation" means compensation for services
performed for the Company that is currently includable in the Eligible
Employee's gross income and, if elected by the Company, any amounts
contributed by the Company pursuant to a salary reduction agreement and
which is not includable in the gross income of the Eligible Employee under
either Section 125 or 402(a)(8) of the Code. As soon as practicable after
the end of the Plan Year, the Committee shall calculate the Actual
Deferral Percentages for the Plan Year for the group of Eligible Employees
who are Highly Compensated Employees for the Plan Year and for the group
of Eligible Employees who are not Highly Compensated Employees for the
Plan Year.
5.6 Required Test and Adjustment. Notwithstanding the
provisions of paragraphs 4.1 and 5.1, if the Actual Deferral Percentage
for the Eligible Employees who are Highly Compensated Employees for any
Plan Year exceeds, or in the judgment of the Committee is likely to
exceed, the greater of (a) or (b) as follows:
(a) The Actual Deferral Percentage for the Eligible Employees
who are not Highly Compensated Employees for the Plan Year,
multiplied by 1.25, or
(b) The Actual Deferral Percentage for the Eligible Employees
who are not Highly Compensated Employees for the Plan Year,
multiplied by 2; provided, however, that the Actual Deferral
Percentage for the Eligible Employees who are Highly Compensated
Employees for the Plan Year may not exceed the Actual Deferral
Percentage for the Eligible Employees who are not Highly
Compensated Employees by more than two percentage points;
then amounts contributed, or to be contributed, to the Deferred Cash
Contribution Accounts on behalf of Participants who are Highly Compensated
Employees for such Plan Year shall be reduced at such time and in such
manner as the committee shall determine under rules and regulations
uniformly applied and consistent with the following provisions of this
paragraph so that the Actual Deferral Percentage for the Eligible
Employees who are Highly Compensated Employees for such Plan Year does not
exceed the greater of (a) or (b) above. If during the Plan Year a
Participant who is a Highly Compensated Employee for such Plan Year also
participated in any other plan of the Company which includes a cash or
deferred arrangement qualifying under Section 401(k) of the Code, his
compensation and contributions made pursuant to the cash or deferred
arrangement under such other plan shall be taken into account for purposes
of applying the tests under (a) or (b) above. In order to accomplish the
foregoing, the Committee, in its discretion, may reduce Deferred Cash
Contributions previously made, or adjust the amount of Deferred Cash
Elections authorized pursuant to the provisions of paragraph 4.1 for such
period as may be required and shall do so by making such reductions or
adjustments in the amounts contributed, or to be contributed, to the
Deferred Cash Contributions Accounts on behalf of Participants who are
Highly Compensated Employees for such Plan Year in the order of the
Deferred Cash Elections authorized by Participants who are Highly
Compensated Employees beginning with the highest of such percentages. The
amount by which Deferred Cash Contributions previously made on behalf of a
Participant for a Plan Year is reduced shall be considered to be
Involuntary Contribution and such amount, plus any income and minus any
loss allocable thereto, shall be paid, notwithstanding any other provision
of the Plan or law, to the Participant not later than two and one-half
months after the end of such Plan Year. Such distribution shall be made
from the Investment Funds in which the Participant's Deferred Cash
Contribution Account is invested at the time of distribution pro rata in
accordance with the balance of such Account in each of the Investment
Funds as the Valuation Date next preceding the date of distribution but
adjusted for any later loan made from the Account, except that no amount
shall be distributed from the Account invested in the Participant Loan
Fund until the balance in the other Investment Funds has been distributed.
For purposes of this paragraph, the income or loss allocable to such
contributions to be distributed from a particular Deferred Cash
Contribution Account for a Plan Year shall be determined by multiplying
the total income or loss of the Account for such Plan Year by a fraction,
the numerator of which is the amount of contributions to be distributed
from such Account for such Plan Year and the denominator of which is the
balance in such Account as of the end of the Plan Year.
5.7 Form of Contributions. All Participant Contribu-tions and
Company Matching Contributions shall be made in cash.
5.8 Adjustment to Company Matching Contribution Accounts.
Notwithstanding the provisions of paragraph 5.4, if the Average
Contribution Percentage for the Eligible Employees who are Highly
Compensated Employees for any Plan year exceeds, or in the judgment of the
Committee is likely to exceed, the greater of (a) or (b) as follows:
(a) The Average Contribution Percentage for the Eligible
Employees who are not Highly Compensated Employees for the Plan
Year, multiplied by 1.25, or
(b) The Average Contribution Percentage for the Eligible
Employees who are not Highly Compensated Employees for the Plan
Year, multiplied by 2; provided, however, that the Average
Contribution Percentage for the Eligible Employees who are
Highly Compensated Employees for the Plan Year may not exceed
the Average Contribution Percentage for the Eligible Employees
who are not Highly Compensated Employees by more than two
percentage points; and provided further that the provisions of
this subparagraph (b) shall be inapplicable to the extent
prescribed by Treasury regulations to prevent the multiple use
of this alternative limitation.
The amounts contributed, or to be contributed, to the Company
Matching Contribution Accounts on behalf of Partici-pants who
are Highly Compensated Employees for such Plan Year shall be
reduced at such time and in such manner as the Committee shall
determine under rules and regulations uniformly applied and
consistent with the following provision of this paragraph so
that the Average
Contribution Percentage for the Eligible Employees who are
Highly Compensated Employees for such Plan Year does not exceed
the greater of (a) or (b) above. If during the Plan year a
Participant who is a Highly Compensated Employee for such Plan
Year also participated in any other plan of the Company to which
employer matching contributions or employee contributions
required to be taken into account hereunder are made, his
compensation and such contributions made under such other plan
shall be taken into account for purposes of applying the tests
under (a) or (b) above. In order to accomplish the foregoing,
the Committee, in its discretion, may reduce Company Matching
Contributions previously made, or adjust the amount of such
contributions to be made pursuant to the provisions of paragraph
5.4, for such period as may be required and shall do so by
making such reductions or adjustments in the amounts
contributed, or to be contributed to Company Matching
Contribution Accounts on behalf of Participants who are Highly
Compensated Employees for such Plan Year in the order of the
contribution percentage (determined in accordance with the last
paragraph of this paragraph 5.8) of such Participants beginning
with the highest of such percentages. The amount by which
contributions previously made to a Participant's Company
Matching Contribution Account for a Plan Year are so reduced,
plus any income and minus any loss allocable thereto, shall be
paid, notwithstanding any other provision of the Plan or law, to
the Participant not later than two and one-half months after the
end of such Plan Year. In addition, if reductions in a
Participant's Deferred Cash Contributions are made pursuant to
paragraph 5.6, the Committee shall reduce Company Matching
Contributions previously made with respect to any such
contributions pursuant to the provisions of paragraph 5.4 and
such amount, plus any income and minus any loss allocable
thereto, shall be paid to the Participant not later than two and
one-half months after the end of such Plan Year. Such
reductions in contributions from the Participant's Company
Matching Contribution Account, plus any income and minus any
loss allocable thereto, shall be made from the Company Common
Stock Fund. For purposes of this paragraph, the income or loss
allocable to contributions for a Plan Year shall be determined
by multiplying the total income or loss of the Company Matching
Contribution Account for such Plan Year by a fraction, the
numerator of which is the amount by which contributions to such
Account are to be reduced for such Plan Year and the denominator
of which is the balance in such Account as of the end of such
Plan Year.
For purposes of this paragraph 5.8, "Average Contribution
Percentage" for a specified group of Eligible Employees for a Plan Year
shall be the average of 100 times the result (calculated separately for
each Eligible Employee in such group) obtained by dividing the amount
actually contributed to the Account of each such Eligible Employee under
paragraph 5.4 for such Plan Year by the Eligible Employees' compensation
for the portion of such Plan Year for which Company Matching Contributions
were made or could have been made for such Eligible Employee.
5.9 Applicability of Code to Required Test and Adjustment.
Notwithstanding any contrary provisions contained in Sections 4.1, 5.5 and
5.6 hereof, the determination of the Actual Deferral Percentage and Actual
Contribution percentage and the application of the Required Test and
Adjustment shall not be made unless required by applicable provisions of
the Code, as amended form time to time.
5.10 Rollover Contributions. An Eligible Employee may elect to
rollover into the Plan (a "Rollover Contribution") part or all of any
distribution received by him which is either a "qualified total
distribution" as defined in Section 402(a)(5) (E)(i) of the Code, or a
distribution meeting the requirements of Section 408(d)(3)(A)(ii) of the
Code that is attributable to a qualified total distribution. In addition,
a rollover may be made from a "conduit" Individual Retirement Account
(IRA). A "conduit" IRA holds money previously distributed from a
qualified plan. In order to qualify for a rollover, the IRA must hold no
assets other than the amounts previously distributed to such Eligible
Employee from prior qualified plans. However, such a Rollover
Contribution will be allowed only if each of the following conditions is
also met:
(a) The Rollover Contribution is made within 60 days of the date that
the Participant received the final distribution from the former employer
or "conduit" IRA, as the case may be;
(b) The Rollover Contribution is not in excess of the cash and
property received in such distribution, less any part thereof attributable
to employee contributions to such plan; and
(c) The Rollover Contribution is in the form of cash only.
ARTICLE VI
ACCOUNTS
6.1 Accounts. The following Accounts shall be maintained for
each Participant:
(a) Deferred Cash Contribution Account - an account
reflecting the Participant's interest in the Plan, arising from
Deferred Cash Contributions made under paragraph 5.1, as a
result of the Participant's Deferred Cash Election made under
paragraph 4.1.
(b) involuntary Contribution Account - an account
reflecting the Participant's interest in the Plan, arising from
Involuntary Contributions as described in paragraphs 5.2.
(c) Company Matching Contribution Account - an account
reflecting the Participant's interest in the Plan, arising from
Company Matching Contributions made under paragraph 5.4.
(d) Rollover Contribution Account - an account reflecting
the Participant's interest in the Plan, arising from Rollover
Contributions made under paragraph 5.11.
6.2 Valuation of Accounts. As of the end of each calendar month
(or more frequently if the Committee so determines) the Account(s) of each
Participant shall be valued, subject to the adjustments described in
paragraphs 6.3 and 6.4 hereof. As of each Valuation Date, the value of
each Account shall be adjusted in accordance with paragraphs 6.3, 6.4 and
6.5. As soon as practicable after the end of each Plan Quarter, the
Trustee shall cause to be delivered to the Participant, a statement
summarizing the activity in the Participant's Account during the previous
quarter and showing the value of investment in the Account, broken down by
Investment Fund(s).
6.3 Allocation of Contributions and Withdrawals. As of each pay
period, Compensation Conversion Contributions and Company Matching
Contributions made by the Company on behalf of each Participant pursuant
to Article V, during the pay period then ending, shall be added to the
proper Account of each such Participant. All distributions pursuant to
paragraphs 4.1, 5.6, and 5.8 and withdrawals made by Participants during
the pay period then ending, shall be deducted from the proper Account of
each such Participant as of that date.
6.4 Allocation of Net Earnings or Losses. As of each Valuation
Date, there shall be determined the net earnings or losses of each of the
Investment Funds, other than the Participant Loan Fund, described in
paragraph 7.1, adjusted for any costs or expenses payable from the Trust
Fund pursuant to the Trust Agreement. Such net earnings or losses
determined as of the Valuation Date, shall be allocated as of that date to
the Account(s) of all Participants in the proportion that each Account
balance invested in such Investment Fund as of the preceding Valuation
Date, adjusted for any withdrawals and distributions described in
paragraph 6.3, Participant loans made from such Investment Fund described
in paragraph 7.5, transfers to the Investment Fund, transfers from other
Investment Funds, Rollover Contributions as described in paragraph 5.11
made to such Investment Fund, and one-half of the Compensation Conversion
Contributions, Company Matching Contributions and interest and loan
repayments on Participant loans made since the last Valuation Date and
invested in such Investment Fund, bears to the total of all such Account
balances in each Investment Fund so adjusted.
6.5 Allocation of Distributions. As of each Valuation Date,
after the allocations under paragraphs 6.3 and 6.4 have been made, any
distributions to be made to a Participant under Article IX shall be
deducted from the proper Accounts of the Participant.
6.6 Limitations on Allocations. For the purpose of this
paragraph, "Annual Addition" means the sum for any year of: 1) Company
contributions, if any; 2) the amount of the employee contributions, if
any; and 3) forfeitures, if any. There shall not be allocated to the
Account(s) of any Participant for any Plan Year, an amount which would
cause his Annual Addition to exceed the lesser of:
(a) $30,000 (or, if greater, 25% of the defined benefit dollar
limitation in effect and under Section 415(b)(1)(A) of the Code for the
Plan Year), or
(b) 25% of the Participant's total taxable compensation for the Plan
Year as reported on Form W2 for that year, total compensation being
limited to $150,000. The $150,000 limit specified in the preceding
sentence shall be adjusted at the same time and in such manner as
permitted under Code Section 401(a)(17).
To the extent the Annual Addition of a Participant exceeds either of the
foregoing limitations, the Committee shall, to the extent necessary to
eliminate such excess, direct the Trustee to allocate all or a portion of
the Participant's Deferred Cash Contributions to such Participant's
Involuntary Contribution Account and then to the extent necessary, Company
Matching Contributions shall be held unallocated in a suspense account for
the Limitation Year and used to reduce Company Matching Contributions for
all Participants for the next Limitation Year (and succeeding Limitation
Years, as necessary). For purposes of this limitation, all defined
benefit plans of the Company and Affiliated Companies, whether or not
terminated, are to be treated as one defined benefit plan and all defined
contribution plans of the Company and Affiliated Companies, whether or not
terminated, are to be treated as one defined contribution plan.
6.7 Combination of Defined Contribution and Defined Benefit
Plans. If at any time a Participant in this Plan participates in a
combination of one or more defined benefit plans maintained by the Company
and Affiliated Companies and one or more defined contribution plans
maintained by the Company and Affiliated Companies, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any
Plan Year may not exceed 1.0. The defined benefit plan fraction for any
Plan Year is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan determined as of the close of the
Plan Year, and the denominator is the lesser of:
(a) The maximum dollar limit for the Plan Year times 1.25
(or if greater, the Participant~s current accrued benefit under
such plan as of December 31, 1986), or
(b) The percentage-of-compensation limit for such Plan
Year times 1.4.
The defined contribution plan fraction for any Plan Year is a fraction,
the numerator of which is the sum of the Annual Additions to the
Participant's accounts for the Plan Year and all prior Plan Years (except
that employee contributions made for any Plan Year prior to 1988 that were
not treated as an Annual Addition for such year shall not be treated as an
Annual Addition hereunder for any year after 1987) and the denominator of
which is the sum of the lesser of the following amounts determined for
such year and for each prior year of service with the Company and
Affiliated Companies:
(c) The product of 1.25 multiplied by the dollar
limitation in effect for such year (determined without regard to
Section 415(c)(6) of the Code); or
(d) The product of 1.4 multiplied by the
percentage-of-compensation limitation with respect to such
Participant under the Plan for such year.
The numerator of the defined contribution plan fraction shall be adjusted,
where applicable, as prescribed by the Internal Revenue Service. For
purposes of this limitation, all qualified defined benefit plans of the
Company and Affiliated Companies, whether or not terminated, are to be
treated as one qualified defined benefit plan and all qualified defined
contribution plans of the Company and Affiliated Companies, whether or not
terminated, are to be treated as one qualified defined contribution plan.
The extent to which Annual Additions under this Plan shall be reduced, as
compared with the extent to which annual benefits under any defined
benefit plans or any other defined contribution plans shall be reduced in
order to achieve compliance with the limitations of Section 415 of the
Internal Revenue Code, shall be determined by the Committee in such manner
as to maximize the aggregate benefits payable to such Participant from all
such plans. If such reduction is under this Plan, the Committee shall
advise affected Participants of any additional limitations on their Annual
Additions required by this paragraph.
ARTICLE VII
INVESTMENT OF FUNDS
7.1 Investment Funds. Contributions made under this Plan shall
be deposited in the Trust Fund for purposes of investment. The Trust Fund
may consist of three or more Investment Funds. Investment Funds are not
separate trust funds; but are funds reflecting various types of
investments that the Trustee may from time to time establish upon
direction of the Committee. The Investment Funds may consist of an Equity
Fund, a Fixed Income Fund, a Money Market Fund, a Company Common Stock
Fund, and such other investment funds as shall be designated from time to
time. Each Participant's share in the Trust Fund shall consist of an
undivided interest in the respective assets allocated to one or more of
such Investment Funds; subject however to paragraph 7.2 hereof. Except as
otherwise provided, each Participant's share in each such Investment Fund
as of any Valuation Date shall be that proportion of such Investment Fund
that his Accounts in such Investment Fund as of such date bear to the
total Accounts of all Participants in such Investment Fund as of the
Valuation Date that such share is being determined. Amounts loaned to a
Participant as provided in paragraph 7.5 shall be recorded in and
considered a segregated investment by such Participant in a fund
designated as the Participant Loan Fund.
7.2 Investment of Contributions. (a) Company Matching
Contributions made on behalf of a Participant pursuant to paragraph 5.4
shall be invested and held solely in the Company Common Stock Fund.
(b) Compensation Conversion Contributions shall be
invested in one or more of the Investment Funds, as may be
directed in writing by the Participant; subject however to the
following and to the provisions of paragraph 7.5:
(1) At the same time as a Participant makes a Deferred
Cash Election pursuant to paragraph 4.1 hereof, the Participant
may further elect that his Deferred Cash Contributions be
allocated to one or more Investment Funds, other than the
Participant Loan Fund, then or thereafter existing.
(2) Quarterly thereafter, a Participant may, in accordance
with rules from time to time promulgated by the Committee,
change any previous election of investment of Compensation
Conversion Contributions in any such Investment Fund. Such
change may be with respect to amounts previously invested in the
Investment Funds, other than the Participant Loan Fund, and to
be invested as a result of future contributions. Such changes
shall be effective as of March 1, June 1, September 1, or
December 1 of any Plan Year. In addition, a Participant who as
of September 30, 1987 has amounts invested in the Company Common
Stock Fund or has an election then in effect to invest future
contributions in such Fund may change effective October 1, 1987
his election with respect to amounts invested in the Company
Common Stock Fund as of September 30, 1987 and to be invested in
such Fund as the result of future contributions, such change in
election to be made prior to October 1, 1987 in accordance with
rules promulgated by the Committee. Any change under this
subparagraph shall be subject to the limitations, including
percentage limitations, specified in subparagraph (1) above.
Notwithstanding anything to the contrary contained in this
subparagraph, no change shall be made which would be contrary to
the provisions of any Investment Fund or which would subject the
fund to penalties or other charges. An investment election,
once in effect, shall continue until changed as provided above.
(c) Rollover Contributions pursuant to paragraph 5.11 shall be
invested as follows:
(1) initially, the same investment selection as elected for the
Compensation Conversion Contributions shall apply to the
Rollover Contributions if the Eligible Employee is currently
participating in this Plan. Quarterly, thereafter, the
Participant may change the investment allocation under the same
conditions and procedures as outlined in paragraph 7.2(b), or
(2) in one or more of the Investment Funds, as may be directed
in writing by the Participant under the same conditions and
procedures as outlined in paragraph 7.2(b), if the Eligible
Employee is not currently participating in this Plan.
Investment elections shall be subject to the provisions of
paragraph 7.5.
7.3 Prohibition on Investments. Notwithstanding anything to
the contrary contained herein, contributions shall not be invested in
purchasing life insurance policies on the Participant's life, unless the
purchase of such life insurance is incidental in accordance with the
requirements of any applicable statute, rule, regulation or revenue
ruling.
7.4 Special Provisions Re: WPL Holdings. Inc. Common Stock.
A. This Plan is intended to constitute an "eligible individual
account plan" as defined in the Employee Retirement Income Security Act of
1974, as amended from time to time ("ERISA"); and all provisions hereof,
shall be so construed to that effect. Prior to April 1, 1988, funds
comprising the Company Common Stock Fund were invested only in common
stock of Wisconsin Power and Light Company. Pursuant to an Agreement and
Plan of Merger and Reorganization effective April 1, 1988 and Articles of
Merger effective April 1, 1988, WPL Holdings, Inc. became the parent
holding company of Wisconsin Power and Light Company and the outstanding
shares of Wisconsin Power and Light Company common stock, including those
held in the Company Common Stock Fund, were changed and converted on a
share-for-share basis into shares of common stock of WPL Holdings, Inc.
Accordingly, on and after April 1, 1988, the Company Common Stock Fund
shall only be invested in WPL Holdings, Inc. common stock, which stock
constitutes "qualifying employer securities" as defined in ERISA. Such
qualifying employer securities shall be acquired, held and disposed of in
accordance with the terms and provisions of this Plan; subject, however,
to such limitations, if any, as may be provided for in ERISA. Any
dividends received on WPL Holdings, Inc. Common Stock in this fund shall
be periodically reinvested by the Trustee in Common Stock of WPL Holdings,
Inc.
B. Each Participant, who has contributions invested in the
Company Common Stock Fund pursuant to paragraph 7.2 hereof, shall have the
right to direct the Trustee as to the exercise of all voting rights with
respect to the Participant's proportional interest in WPL Holdings, Inc.
common stock held in such Fund. If the Trustee has not received
directions as to the voting of any such WPL Holdings, Inc. stock by the
fifth day before the meeting of shareholders at which such vote is to be
taken, then the Trustee shall vote such non-voted shares in the same
proportion as the voted shares received. There shall be delivered to such
Participant all reports, financial statements, proxies and proxy
soliciting material which are delivered to holders of WPL Holdings, Inc.
common stock in connection with each meeting of stockholders.
C. Purchases of WPL Holdings, Inc. Stock may be made by the
Trustee on the open market or directly from WPL Holdings, Inc. For each
Investment Date, for shares purchased directly from WPL Holdings, Inc.,
the price of all shares purchased under the Plan will be the weighted
average purchase price determined as follows: The price of original issue
shares purchased from the Company will be the average of the high and low
prices, carried to three decimal places, of the Company's Common Stock
reported as New York Stock Exchange - Composite Transactions on the date
of purchase by the Trustee, "the Investment Date" (or, if no trading in
the Company's Common Stock occurs on such Exchange on the Investment Date,
on the next preceding day on which the Common Stock is so traded).
7.5 Loans.
(a) Upon the application of a Participant, the Committee, in
accordance with a uniform and nondiscriminatory policy, may direct the
Trustee to make a loan to such Participant in order to alleviate a
hardship of the Participant. Loans shall be made upon such terms as the
Committee shall specify consistent with the provisions of this paragraph
7.5. The determination of the existence of a hardship shall be made by
the Committee using the criteria for a hardship as set forth in paragraph
10.3 with the exception of 10.3 (a)(3). Solely for the purposes of this
section a loan may be made for the payment of tuition for the next year of
post-secondary education for the participant, his spouse, children or
dependents. Any loan approved by the Committee will be disbursed on such
date as the Committee shall direct provided the Participant is then an
Employee. No loans may be made by the Trustee prior to June 1, 1988. An
application for a loan must be submitted in writing to the Committee and
shall describe the hardship. The Committee may request the Participant to
provide satisfactory evidence to support his application. A loan
application fee, determined by the Committee from time to time on a
uniform and nondiscriminatory basis without regard to the amount of the
loan requested, shall be charged and shall be nonrefundable.
(b) The amount of any loan shall be charged against the
Investment Fund, other than the Participant Loan Fund, in which the
Participant's Deferred Cash Contribution Account and/or Rollover
Contribution Account is invested pro rata in accordance with the balance
of such Account(s) in each of such Investment Funds as of the second
preceding Valuation Date prior to the date the loan is made, except that
the Committee may adjust such allocation in such manner as it deems
appropriate if the balance of the Participant's Account(s) in any
Investment Fund is insufficient to reflect the charge at the time the loan
is made. The loan application fee ($50.00) shall be charged against the
Participant's Deferred Cash Contribution Account and/or Rollover
Contribution Account and shall be subtracted from the Investment Fund,
other than the Participant Loan fund, in which such Account(s) has the
largest balance as of the second preceding Valuation Date prior to the
date the loan is made.
(c) No loan to any participant, when added to the outstanding
balance of all other loans from the Plan made to the Participant, shall
exceed the smallest of
(1) $50,000, reduced by the excess, if any, of the highest
outstanding balance of all loans from all qualified plans of the
Company and Affiliated Companies, to the Participant during the
one-year period ending on the day before the date on which the
loan is made over the outstanding balance of loans from such
plans to the Participant on the date the loan is made,
(2) 50% of the balance in the Participant's Account, as of the
most recent Valuation Date for which a valuation is available,
as adjusted for any distributions, withdrawals, contributions or
loan payments made after such Valuation Date. The Committee, in
its discretion and upon consideration of developments known to
it, may further limit the amount of any loan it may approve.
The Committee shall not approve a loan of less than $500 and no
more than one loan shall be made to a Participant in any
calendar year. No loan may be made from a Participant's Company
Matching Contribution Account or Involuntary Contribution
Account.
(d) The rate of interest on a loan made in any given Plan Year,
and for the duration of such loan, shall be the prevailing rate charged by
commercial lenders + 2% for loans made under similar banking
circumstances, as of the first day of the calendar month in which the loan
is approved.
(e) Any loan to a Participant shall be repaid by the
Participant in such manner as the Committee shall determine, subject to
the limitations of this subparagraph 7.5(e). The Committee shall require
that the loan and interest thereon be repaid bimonthly by payroll
deduction over a period which shall not exceed:
(1) 10 years where the proceeds of the loan are to be applied
to acquire a dwelling unit which within a reasonable time
(determined at the time the loan is made) is to be used as the
principal residence of the Participant, or
(2) five years for all other loans. Each installment shall be
paid by payroll deductions by the Company from the compensation
of the Participant. The Company shall deposit with the Trustee
the sums so deducted or paid. Any loan under the Plan may be
prepaid without penalty. Partial prepayments shall not be
permitted. Amounts received by the Trust Fund as a repayment of
a loan to a Participant or as payment of interest on a loan to a
Participant shall be added to the Participant's Deferred Cash
Contribution Account and/or Rollover Contribution Account on a
pro rata basis against which amounts were withdrawn and
allocated to the Investment Funds in accordance with the
Participant's election under paragraph 7.2 with respect to the
investment of future Deferred Cash Contributions and/or Rollover
Contribution Account in effect at the time. Principal amounts
received by the Trust Fund as a repayment of a loan to a
Participant shall be subtracted from the Participant Loan Fund.
(f) Each loan to a Participant shall be evidenced by a Note,
payable to the order of the Trustee, for the amount of the loan including
interest thereon. Each loan shall be secured by a pledge of the
borrower's Account, which pledge shall give the Trustee a security
interest in all of the Participant's then existing and thereafter acquired
rights in his Account. By accepting the loan, the Participant
automatically assigns, as security for the loan, such rights in his
Account.
(g) If a loan installment is not fully paid within thirty days
following the bi-weekly due date, the committee shall give written notice
to the Participant (or former Participant). If such loan installment
payment is not made within sixty days thereafter, the Committee may direct
the trustee to apply an amount equal to or less than 50% of the vested
balance in the Participant's Account, to the extent permitted by law and
applicable Internal Revenue Service regulations, by the amount of unpaid
loan balance including interest then due. This amount would be treated as
having been received by the Participant as a distribution under the plan.
The Participant's interest in his/her Account shall be reduced in the
following order:
i) Deferred Cash Contribution and Involuntary Contributions,
ii) Rollover Contributions,
iii) Matching Contributions.
(h) Loans shall be available to all Participants on an
equivalent basis.
(i) The terms of all Participant loans are subject to the
review and approval of the Committee and are subject to appeal by the
Participant in accordance with paragraph 11.3.
ARTICLE VIII
NONFORFEITURE OF BENEFITS
Notwithstanding anything to the contrary contained in this Plan,
a Participant's right to receive distributions from his Account(s) shall
at all times be nonforfeitable.
ARTICLE IX
DISTRIBUTIONS
9.1 Distributions as a Result of Termination prior to
Retirement.
(a) If the balance in the Accounts of a Participant determined
as of the Valuation Date immediately following his Termination
Date is less than $3,500.00, the Participant shall receive a
distribution equal to such value in a lump sum. Such
distribution shall be made within forty-five (45) days following
such Valuation Date.
(b) If the balance in the Accounts of a Participant determined
as of the Valuation Date immediately following his Termination
Date is $3,500.00 or more, the Participant may make a written
election, within 30 days of such Valuation Date, to request
distribution of his Accounts in accordance with
Subparagraph 9.1(a).
If a written election is not made, the Participant's Accounts
shall remain invested in the Plan. The Participant shall retain
the right to change investment allocation among the various
Investment Funds in accordance with subparagraph 7.2(b) and
7.2(c). Distribution of a terminated Participant's Accounts
shall be made in a lump sum within forty-five (45) days after
the Valuation Date following receipt of written notification
from the Participant requesting distribution or, if earlier, the
first Valuation Date following the Participant's 65th birthday.
(c) Any lump sum payment required to be made pursuant to
Section 9.1(a) or (b) hereof, shall be made in cash, except that
a Participant shall be entitled to elect to receive any amount
in his Account which is invested in the Company Stock Fund, in
whole shares of WPL Holdings, Inc. Common Stock. In order to
exercise such election, the Participant shall so notify the Plan
Administrator in writing at least fifteen (15) days prior to the
time the distribution is required to be made under
Section 9.1(a) or (b), as the case may be.
9.2 Distributions as a Result of Retirement or Disability. A
Participant shall receive a distribution equal to the value of his entire
Account (in the manner provided for in paragraph 9.3 hereof), as of any
Valuation Date selected by such participant following his retirement or
Disability date. Such distribution shall be made within forty-five (45)
days following such Valuation Date. In no event, however, shall
distribution of a retired or disabled Participant's Account commence later
than the first Valuation Date following the January 1 after attainment of
age 70-1/2 by the Participant. A participant shall commence distribution
of his Account as of the Valuation Date immediately following the January
1 after attainment of age 70-1/2 whether or not he retires. The preceding
sentence shall not apply in the case of active Participants not separated
from service, who attained age 70-1/2 prior to January 1, 1988 and who at
the time were not five (5) percent owners.
9.3 Form of Distribution. Each Account shall be distributed to
a Participant in a lump sum amount or, in the event the Participant has no
unpaid loans outstanding under the Plan, in annual installments not to
exceed 10 years. At least forty-five (45) days prior to a distribution
under paragraphs 9.1 or 9.2 hereof, the Participant shall notify the
Administrator of his election as to the lump sum or annual payment method.
A failure to so affirmatively notify the Administrator by that date is
deemed to be an election to receive a lump sum payment. Where a
Participant has elected an annual method of payment, any funds from time
to time remaining in his Account shall be valued and adjusted as provided
for in Article VI hereof.
9.4 Special Provision for Lump Sum Distribution.
Notwithstanding anything to the contrary contained in paragraphs 9.1 or
9.2 hereof, in the event a Participant has elected to receive a
distribution in a lump sum amount, such distribution shall be made within
sixty (60) days following the end of the Plan Year in which the election
has been made, unless the Committee should otherwise determine to make the
distribution as provided for in paragraphs 9.1 or 9.2 above. Such
distribution shall be made in cash, except that a Participant shall be
entitled to elect to receive any amount in his Account which is invested
in the Company Common Stock Fund, in whole shares of WPL Holdings, Inc.
Common Stock. In order to exercise such election, the Participant shall
so notify the Plan Administrator in writing at the same time the
Participant gives the Administrator the notice required under
paragraph 9.3 hereof.
9.5 Direct Transfer of Eligible Rollover Distributions.
Effective January 1, 1993, notwithstanding any provision of the Plan to
the contrary that would otherwise limit a Participant's election under
this Section, a Participant 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 Participant in a direct rollover. An eligible rollover
distribution is any distribution of all or any portion of the balance to
the credit of the Participant, 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 Participant or the
joint lives (or joint life expectancies) of the Participant and the
Participant's designated beneficiary, or for a specified period of 10
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 (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities). An eligible retirement plan is 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 Participant's
eligible rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement annuity. A
Participant includes an employee or former employee. In addition, 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, are Participants with regard to the interest of the spouse or former
spouse. A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the Participant.
9.6 Payments to Beneficiary. In the event of death of a
Participant (who had not made an election under paragraph 9.3) prior to
distribution in full of his Accounts, any amounts remaining in his
Accounts shall be paid to such Participant's Beneficiary in a lump sum.
The value of such Accounts shall be determined as of the first Valuation
Date following the Participant's date of death. Such distribution shall
be made within forty-five (45) days following such Valuation Date.
9.7 Provision Regarding Unpaid Loans. Notwithstanding the
foregoing provisions of this Article IX, if a distribution under this
Article IX of a Participant's Account is to be made in a lump sum prior to
repayment of any outstanding loan to the Participant under the Plan, then
the unpaid portion of all loans made to the Participant under the Plan,
including accrued interest thereon, shall be deducted from the amount of
his Account balance to be distributed to the Participant in cash or stock
as provided in this Article IX.
ARTICLE X
WITHDRAWALS DURING EMPLOYMENT
10.1 Withdrawals. As of any Valuation Date, a Participant may
make withdrawals from his Account(s) in accordance with this Article.
10.2 Mandatory Withdrawals. A Participant shall be paid such
amounts as may be allocated to his Involuntary Contribution Account
because of the limitations of paragraph 6.6 or 6.7 (exclusive of plan
earnings or subject to required withholdings), as provided for in
paragraph 5.3 hereof.
10.3 Special Withdrawals.
(a) To alleviate a hardship, the Committee, upon application by
a Participant, may authorize a distribution equal to all or a
part of the value of such Participant's Deferred Cash
Contribution Account (determined as of the Valuation Date
immediately preceding the Trustee's receipt of the Committee's
authorization of distribution) less all unpaid loans, including
interest accrued thereon, as of the date of withdrawal made to a
Participant from such Account. For purposes of this paragraph
10.3, the term "hardship" shall mean:
(1) Medical expenses described in Code Section 213(d) incurred
by the Participant, the Participant's Spouse or any dependents
of the Participant;
(2) Purchase (excluding mortgage payments) of a principal
residence for the Participant;
(3) Payment of tuition for 12 months of post-secondary
education and related educational fees for the Participant, his
Spouse, children or dependents;
(4) The need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of the
Participant's principal residence; and
(5) Any other circumstance that the Internal Revenue Service
announces as qualifying as a "hardship" under Code Section
401(k).
(b) Before a special withdrawal is granted in accordance with
this paragraph 10.3, the Participant shall be required to take
the maximum loan available to him under paragraph 7.5. If these
amounts are insufficient to meet the hardship, the Participant
shall then be permitted to make a hardship withdrawal of an
amount sufficient to alleviate the hardship.
(c) The amount necessary to fund the special withdrawal shall
be debited on a pro rata basis from the value of the
Participant's Deferred Cash Contribution Account to the extent
such debit does not exceed the Deferred Cash Contributions and
earnings on such contributions accumulated prior to October 1,
1988, and rollover contribution account.
(d) A request for a special withdrawal under this paragraph
10.3 shall be made on forms prescribed by the Committee. The
Committee shall establish a uniform and nondiscriminatory policy
for reviewing withdrawal applications and any determination made
by the Committee shall be final (but subject to appear under
paragraph 11.3).
(e) The provisions of this subparagraph (e) shall apply to a
Participant who receives a special withdrawal that consists in
whole or in part of Deferred Cash Contributions or earnings on
those Contributions and rollover contributions. Notwithstanding
paragraphs 4.1 and 4.2, such a Participant shall not be
permitted to have Deferred Cash Contributions made on his behalf
to this Plan or any other plan qualified under Code Section
401(k) maintained by the Company or an Affiliated Company until
after the second December 31 following his receipt of such
special withdrawal.
(f) No more than one such special withdrawal may be made in any
Plan Year.
10.4 Minimum Withdrawals. Withdrawals permitted pursuant to
paragraph 10.3, may not be made in amounts of less than two hundred
dollars ($200), unless the maximum amount which may be withdrawn is less
than two hundred dollars ($200), in which case the entire amount may be
withdrawn.
10.5 Payments of Withdrawals. All withdrawals under
paragraph 10.3 hereof shall be paid in a single lump sum as soon as
practicable after application for a withdrawal is received and acted upon
by the Committee. Payments of withdrawals to a Participant shall reduce
the applicable Accounts in each Investment Fund, other than the
Participant Loan Fund, proportionately. When a withdrawal has reduced the
Account to a zero balance, any earnings or losses allocated to the Account
for the period between the preceding Valuation Date and the date of
withdrawal shall be credited to or charged against the Participant.
ARTICLE XI
ADMINISTRATION
11.1 Plan Administered by Committee. The Plan shall be
administered by the Pension and Employee Benefits Committee consisting of
such number of persons (not less than three or more than five) who shall
be appointed by and serve at the pleasure of the Board of Directors. No
member of the Committee who is an Employee shall receive compensation for
his services as a member of the Committee. The Pension and Employee
Benefits Committee shall have the duties specified hereunder, including,
but not by way of limitation, the following:
(a)to select investment managers;
(b)to construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment
of any benefits and loans under the Plan;
(c)to prescribe procedures to be followed for the proper and
efficient administration of the Plan;
(d)to prepare and distribute information explaining the Plan to
Participants;
(e)to receive from the Company and from Participants such
information as shall be necessary for the proper administration
of the Plan;
(f)to furnish the Company, upon request, such annual reports
with respect to the administration of the Plan as are reasonable
and appropriate;
(g)to receive from the Trustee or other institutions or
individuals, and to review and keep on file, reports of the
financial condition and of the receipts and disbursements for
the Plan;
(h)to employ individuals to assist in the administration of the
Plan;
(i)to keep such accounts and records as necessary or proper in
the performance of its duties under the Plan;
(j)to establish and implement procedures necessary for
determining whether an order is a Qualified Domestic Relations
Order and to administer such procedures and any distributions
under such order in a nondiscriminatory and consistent manner;
(k)to establish and implement procedures necessary to determine
whether or not a request for withdrawal or loan meets the
hardship requirements specified in paragraph 10.3; provided,
however, that in no instance is the Committee required to audit
the actual use of such funds once the Committee has determined
that the request met the conditions specified herein;
(1)to direct the establishment of three or more Investment
Funds;
(m)to establish investment policies and objectives for each such
Investment Fund; and
(n)to appoint an Administrator as its agent.
The Committee shall have no power to add to, subtract from or modify any
of the terms of the Plan, or to change or add to any benefits provided by
the Plan, or to waive or fail to apply any requirements of eligibility
under the Plan except as hereinafter provided. The Committee may enact
nonsubstantive amendments to the Plan which are required exclusively for
the purpose of either correcting administrative inefficiencies or of
conforming the Plan with governmental laws, regulations, or requirements.
The Committee may act at a meeting, or by writing without a
meeting, by the vote or written assent of a majority of its members. The
Committee and any other person(s) to whom the Committee may delegate any
duty or power in connection with the administration of the Plan, shall be
entitled to rely conclusively upon, and shall be fully protected in any
action taken in good faith in reliance upon any information, opinions or
reports which shall be furnished to them by any accountant, counsel or
other specialist, to the extent provided by law.
11.2 Indemnity for Liability. The Company shall indemnify the
members of the Committee, and each fiduciary who is an Employee of the
Company, against any and all claims, losses, damages, expenses, including
counsel fees, incurred by said fiduciaries, and any liability including
any amounts paid in settlement with such fiduciary's approval, arising
from the fiduciary's action or failure to act; except when the same is
judicially determined to be attributable to the gross negligence or
willful misconduct of such fiduciary.
11.3 Appeal from Denial of Claims. If any claim for benefits
under the Plan is wholly or partially denied by the Committee, the
claimant shall be given notice in writing of such denial, by registered or
certified mail. Such notice shall be given as soon as reasonable after
the denial; and the notice of denial shall set forth the specific reasons
for such denial, specific reference to pertinent Plan provisions on which
the denial is based, and a description of the Plan's claim review
procedure. The claimant shall be advised that such claimant or a duly
authorized representative of the claimant may request a review by the
entire Committee, of the decision denying the claim. Such request for
review must be in writing and filed with the Committee within 45 days
after such notice of denial has been received by the claimant. Any such
claimant may review pertinent documents and submit issues and comments in
writing within the same 45 day period. If such a request is so filed, a
review shall be made by the Committee within 60 days after receipt of such
request. The claimant may be present at such review, offer additional
evidence, cross-examine witnesses and present arguments to the Committee
to support the claim. The claimant shall be given written notice of the
final decision resulting from such review, which shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the final decision is based.
11.4 Distribution to Five-Percent Owners. For any Plan Year
after the 1984 Plan Year, if a distribution under the Plan is made to a
five-percent owner (as defined in Section 14.8(c)) before such Participant
attains age 59-1/2, the Participant shall be advised by the Administrator
that an additional income tax may be imposed equal to 10% of the portion
of the amount so received which is
(a) includible in the gross income for such taxable year, and
(b) attributable to years in which the Participant was a
five-percent owner, unless such distribution is made on account
of death or disability.
ARTICLE XII
AMENDMENT AND TERMINATION
12.1 Amendment. The Corporation shall have the sole and
exclusive right to amend or modify the Plan at any time and for any
reason, by the action of its Board of Directors. Notwithstanding anything
to the contrary, the Committee shall at all times administer the Plan in
such fashion that the Plan is maintained as a benefit plan meeting the
requirements of the Employee Retirement Income Security Act of 1974
("ERISA") and Sections 401(a), 401(k), and 404(a) of the Code as now in
effect or hereafter amended, or any other applicable provisions of law.
No amendment of the Plan shall cause any part of the Trust Fund or a
Participant's Account(s) to be used for, or diverted to, purposes other
than the exclusive benefit of the Participants or their beneficiaries.
Except to the extent necessary to produce conformity to the laws and
regulations described above, no amendment shall operate, either directly
or indirectly, to deprive any Participant of his nonforfeitable interest
in his Account(s) as it is constituted at the time of the amendment.
12.2 Right to Terminate Plan. The Corporation contemplates
that the plan shall be permanent. Nevertheless, in recognition of the
fact that future conditions and circumstances cannot now be entirely
foreseen, the Corporation reserves unto its Board of Directors the sole
and exclusive right to terminate the Plan for any reason and at any time.
Upon termination of the Plan, the Account(s) of each Participant shall be
distributed to such Participant as a lump sum payment, unless applicable
provisions of the Code or ERISA should otherwise require or permit an
alternative method of payment.
ARTICLE XIII
MISCELLANEOUS
13.1 Absence of Guarantee. Neither the Committee, the Plan
Administrator, the Trustee, the Corporation, nor the Company in any way
guarantees the Fund against loss or depreciation. The Company does not
guarantee any payment to any person. The liability of the Company, the
Trustee, the Corporation, the Plan Administrator, and the Committee to
make any payment under this Plan will be limited to the assets in the Fund
which are available for that purpose.
13.2 Employment Rights. The Plan shall not constitute a
contract of employment with any Eligible Employee or Participant; and
participation in the Plan will not give any Participant the right to be
retained in the employ of the Company, nor any right or claim to any
distribution under the Plan, unless such claim has specifically accrued
under the terms of the Plan.
13.3 Participant's Interest Not Transferable. Except as may be
required by application of the tax withholding provisions of the Code or
of a State's income tax laws or except as provided in paragraph 7.5 (f),
the interests of Participants and their Beneficiaries under this Plan and
Trust Agreement are not subject to the claims of creditors and may not be
voluntarily or involuntarily sold, transferred, alienated or assigned.
Notwithstanding the preceding sentence, the Plan shall pay benefits to the
person or persons named in a qualified domestic relations order, in
accordance with procedures established by the Committee, in the amount and
to the extent provided in such order. Payment of benefits pursuant to a
Qualified Domestic Relations Order shall not be considered a violation of
the prohibition against assignment and alienation contained in this
paragraph.
13.4 Facility of Payment. When a person entitled to
distributions under the Plan is under legal disability, or, in the
Committee's opinion, is in any way incapacitated so as to be unable to
manage his financial affairs, the Committee may direct the Trustee to pay
such distributions to such person's legal representative; or the Committee
may direct the application of such distributions for the benefit of such
persons. Any payment made in accordance with the preceding sentence shall
be a full and complete discharge of any liability for such payment under
the Plan.
13.5 Gender and Number. Where the context permits, words in
the masculine gender shall include the feminine and neuter genders, the
single shall include the plural, and the plural shall include the
singular.
13.6 Litigation by Participants. To the extent permitted by
law, if a legal action begun against the Trustee, the Corporation, the
Company, the Plan Administrator, or the Committee by or on behalf of any
person, results in a decision adverse to that person; or if a legal action
arises because of conflicting claims to a Participant's Account(s), the
cost and expense incurred by the Trustee, the Corporation, the Company,
the Plan Administrator, and the Committee of defending or participating in
the action will be charged, to the extent permitted by law, to the sums,
if any, which were involved in the action or were payable to the
Participant or other person concerned.
13.7 Controlling Law. Except to the extent superseded by laws
of the United States, the laws of Wisconsin shall be controlling in all
matters relating to the Plan.
13.8 Merger or Consolidation of Plan and Trust Fund. Neither
the Plan nor the Trust Fund may be merged or consolidated with, nor may
its assets and liabilities be transferred to, any other plan or trust,
unless each Participant would (if such plan then terminated) be entitled
to a benefit immediately after the merger, consolidation or transfer which
is equal to or greater than the benefit to which such Participant would
have been entitled immediately before the merger, consolidation or
transfer (if the Plan had then terminated).
TRUST AGREEMENT
Re: Wisconsin Power and Light Company Employees'
Long Range Savings and Investment Plan
<PAGE>
TABLE OF CONTENTS
SECTION 1 - CREATION OF TRUST . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 - CONTRIBUTIONS TO THE TRUST FUND . . . . . . . . . . . . . 2
SECTION 3 - DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . . . 2
SECTION 4 - INVESTMENT OF THE TRUST FUND . . . . . . . . . . . . . . 3
SECTION 5 - INVESTMENT ADVISORS . . . . . . . . . . . . . . . . . . . 4
SECTION 6 - COMMINGLING OF FUNDS . . . . . . . . . . . . . . . . . . 5
SECTION 7 - POWERS OF TRUSTEE. . . . . . . . . . . . . . . . . . . . 6
SECTION 8 - PAYMENT OF COMPENSATION, EXPENSES AND TAXES;
DISTRIBUTIONS FROM TRUST FUND . . . . . . . . . . . . . . . . . 9
SECTION 9 - PROTECTION OF TRUSTEE . . . . . . . . . . . . . . . . . . 11
SECTION 10 - ACCOUNTING . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 11 - RESIGNATION, REMOVAL, AND SUCCESSOR TRUSTEE . . . . . . 15
SECTION 12 - RELIANCE . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 14 - TERMINATION . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 15 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 17
15.01. Non-Alienation of Benefits . . . . . . . . . . . . . . . . 17
15.02. Construction of Trust . . . . . . . . . . . . . . . . . . . 18
15.03. Number and Headings . . . . . . . . . . . . . . . . . . . . 18
15.06. Protection of Persons Dealing with Trustee . . . . . . . . 18
15.07. Tax Exemption of Trust . . . . . . . . . . . . . . . . . . 19
15.08. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 16 - INTERNAL REVENUE SERVICE APPROVAL . . . . . . . . . . . 19
<PAGE>
TRUST AGREEMENT
THIS TRUST AGREEMENT made and entered into this 24th day of
November, 1982, by and between the Wisconsin Power and Light Company, a
Wisconsin corporation (hereinafter referred to as the "Company"), and
First Wisconsin Trust Company, a Wisconsin banking corporation
(hereinafter referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company has established a qualified cash or
deferred compensation plan within the meaning of Sections 401(k) and
402(a)(8) of the Internal Revenue Code of 1954, as amended, and known as
the "Wisconsin Power and Light Company Long Range Savings and Investment
Plan," for the benefit of the participants and their beneficiaries as
therein defined (a copy of such Plan, as it may be amended from time to
time, shall be identified by the Company and filed with the Trustee for
purposes of reference only; and such Plan, as it may be amended, shall be
called the "Plan"); and
WHEREAS, it is necessary to provide for the investment of
contributions made pursuant to the Plan and for the orderly administration
of the Plan.
NOW THEREFORE, the Company and the Trustee do hereby agree as
follows:
SECTION 1 - CREATION OF TRUST.
1.01. The Company hereby creates and establishes a qualified
trust within the meaning of Sections 402 and 501(a) of the Internal
Revenue Code of 1954, as amended, (the "Code"), to be known as the
"Wisconsin Power & Light Company Long Range Savings and Investment Trust"
(hereinafter called the "Trust") in order to implement and carry out the
purposes of the Plan. The terms defined in the Plan are similarly defined
for the purpose of this Trust, unless the context clearly indicates
otherwise. Such Trust shall consist of such sums of money and such
property as shall from time to time be paid or delivered to the Trustee,
and the earnings and profits thereon.
1.02. The Trustee is hereby designated as Trustee to
receive, hold, invest, administer and distribute the Trust Fund (as
hereinafter defined) in accordance with the provisions of the Trust. The
rights, powers, titles, duties, discretion, and immunities of the Trustee
shall be governed by this Agreement. Except as hereinafter otherwise
provided, title to such assets of the Trust Fund shall at all times be
vested in the Trustee, subject to the right of the Trustee to hold title
in bearer form or in the name of a nominee, and the interest of other
persons in the assets of the Trust Fund shall be only the right to have
such assets received, held, invested, administered, and distributed in
accordance with the provisions of the Trust and Plan.
1.03. The Trustee hereby accepts the Trust subject to all of
the terms and conditions of this Trust Agreement, and agrees to hold and
administer the Trust Fund and to execute the Trust in accordance with the
provision hereof. The Trustee shall have no responsibility for the
administration of the Plan.
SECTION 2 - CONTRIBUTIONS TO THE TRUST FUND. Subject to the
provisions of the Plan, the Company will periodically contribute to the
Trust Fund, cash and other property acceptable to the Trustee. All
contributions to the trust Fund received by the Trustee from the Company
shall constitute one common fund and may be commingled as hereinafter
provided. Unless the context clearly implies or indicates to the
contrary, the term "Trust Fund" comprises all property of every kind and
nature held by the Trustee in accordance with this Trust. The Trustee
shall have no duty to compel any payment to be made to it by the Company
and shall be accountable only for cash and other property actually
received by it. The Trust Fund shall be held by the Trustee in trust; and
dealt with in accordance with this Agreement.
SECTION 3 - DUTIES OF TRUSTEE. It shall be the duty of the
Trustee (a) to hold, to invest and to reinvest the Trust Fund and (b) to
pay moneys to or on the written order of the Company, including when the
Company shall so order, payments to the Plan Participants and their
beneficiaries. Such orders need not specify the application to be made of
moneys so ordered, and the Trustee shall not be responsible in any way
respecting such application or for the administration of the Plan. The
Trustee shall be under no duty to enforce payment of any contribution to
the Trust Fund and shall not be responsible for the adequacy of the Trust
Fund to meet and discharge liabilities under the Plan.
SECTION 4 - INVESTMENT OF THE TRUST FUND.
4.01. The Trustee shall invest and reinvest the principal
and income of the Trust Fund and keep the Trust Fund invested, without
distinction between principal and income, in any and all common stocks,
preferred stocks, bonds, notes, debentures, mortgages, equipment trust
certificates, investment trust certificates, mutual fund investments,
money market funds, real and personal property wherever situated, and in
such other property, investments and securities of any kind, class or
character as the Trustee may deem suitable for the Trust Fund; and such
investment and reinvestment shall not be restricted to properties and
securities authorized for investment by trustees under any present or
future law. However, insurance policies or annuity contracts shall be
purchased by the Trustee only at the direction of the Company from
insurance corporations chosen by the Company. The Trustee in its
discretion may keep such portion of the Trust Fund in cash or cash
balances as the Trustee may from time to time deem to be in the best
interests of the Trust Fund and the persons interested therein. No
investment shall be made which is contrary to the applicable provisions of
ERISA, as amended, and the duly promulgated regulations interpreting or
implementing such Act.
4.02. The Company may direct the Trustee to establish one or
more separate funds (herein "investment funds") for purposes of investing
the Trust Fund, pursuant to subparagraph 4.01 above. Such separate funds
shall not be considered as separate trust funds; but shall be established
solely to facilitate investment of the Trust Fund and administration of
the Plan. The Company may designate that all or a portion of the
contributions received by the Trustee pursuant to Section 2 hereof, be
allocated to one or more investment funds; and the Company does hereby
retain the right to direct, from time to time, the Trustee to change such
allocations between investment funds.
SECTION 5 - INVESTMENT ADVISORS. Notwithstanding any other
provision of this Trust Agreement, the Company may from time to time
appoint one or more independent professional Investment Advisor(s) with
respect to the total or any portion of the Trust Fund. For purposes of
this Agreement, the Company may appoint itself as an Investment Advisor;
and in such event, all provisions of this Agreement applicable to such
Investment Advisor shall be likewise applicable to the Company. The
Trustee shall not be required to be a party to any agreement appointing an
investment Advisor except in the case where the Company requests the
Trustee to enter into an agency and custody agreement with any Investment
Advisor which will also be the depository and custodian of the Trust Fund
assets allocated to its management; provided further that the terms and
conditions of appointment, authority, retention, and removal of the
Investment Advisor shall be the sole responsibility of the Company. The
Investment Advisor shall have and exercise all of the investment powers
reserved to the Trustee under Section 4 during the period of such
appointment. Upon receipt of written notice from the Company of the
appointment of such Investment Advisor, the Trustee shall perform such
custodian and ministerial acts relating to investments as may be required
to carry out the directions of the Investment Advisor and the
administration of such portion of the Trust Fund for which an Investment
Advisor is appointed, but shall be relieved of all responsibility for
investment or failure to invest in accordance with Section 4 for such
portion of the Trust Fund during the period of such appointment; except
that the Trustee may invest and reinvest income and principal cash in U.S.
treasury bills, commercial paper, money market certificates or other
short-term investments, including, (subject to the provisions of Section
6.01 hereof respecting commingled funds) an interest in any such fund that
is created and maintained by the Trustee from time to time for the
collective short-term investment of the cash reserves in trusts for
employee benefit plans qualified under the applicable provisions of the
Code, pending receipt of directions as to the investment or disposition of
such cash. The charges and expenses of the Investment Advisor shall
constitute proper charges and expenses of the Trust and shall be paid as
provided in Section 8 hereof. The Trustee shall have no duty to review or
recommend the sale, retention or other disposition of any asset purchased
or retained at the direction of the Investment Advisor, nor shall the
Trustee have any personal liability or responsibility for any loss to or
depreciation of such portion of the Trust Fund for which an Investment
Advisor is appointed, occasioned by reason of the purchase, sale or
retention of any asset in accordance with the direction of the Investment
Advisor, or by reason of not having sold such asset so purchased or
retained in the absence of any direction from the Investment Advisor, to
make such sale. All directions given to the Trustee by the Investment
Advisor, including Broker's confirmations, shall be given in writing or
given orally and immediately confirmed in writing.
SECTION 6 - COMMINGLING OF FUNDS.
Section 6.01. Notwithstanding any other provision of this Trust
to the contrary, the Trustee may, if authorized by the Company, invest
from time to time any part or all of the assets of this Trust in any
collective investment fund or funds (hereinafter called "Commingled
Funds") including common and group trust funds, which consist exclusively
of assets of exempt pension and profit sharing trusts and individual
retirement accounts, qualified and tax exempt under Sections 401(a) and
501(a) of the Internal Revenue Code of 1954, as amended, including any
such fund or funds presently in existence or hereafter established;
notwithstanding that the Trustee of the fund or funds is the Trustee, an
investment advisor, or is otherwise a party in interest of the plans
funded thereby. The assets so transferred by the Trustee and so invested
shall be subject to all of the provisions of the instruments establishing
such Commingled Funds as they may be amended from time to time. The
combining of money and other assets of the Trust with money and other
assets of other qualifying trusts in such Commingled Funds is specifically
authorized. To the extent the equitable share of this Trust Fund are in
the Commingled Funds, the Commingled Funds shall be part of the plans
pursuant to which this Trust is administered.
SECTION 6.02. Notwithstanding Section 6.01 hereof to the
contrary, the Trustee shall not invest the assets of this Trust in any
Commingled Funds, to the extent such commingling of trust assets for
investment purposes would not be permitted or allowed under the Code, as
amended from time to time.
SECTION 6.03. In the annual written account filed by the
Trustee pursuant to Section 10, the Trustee shall include a statement of
all transfers to and receipts from the Commingled Funds and a copy of the
latest annual report of the Commingled Funds. In the final written
account filed by the Trustee pursuant to Section 10 (relating to the
removal or resignation of the Trustee), the Trustee shall include a
statement of all transfers to and receipts from the Commingled Funds and a
copy of the report of the Commingled Funds for the period from the close
of the last fiscal year of the Commingled Funds to the date that the
equitable share of this Trust is transferred to this Trust from the
Commingled Funds. The Trustee shall not be required to file any further
accounts in respect of any part of the Fund held in the Commingled Funds.
The Company shall have the right, upon thirty days' notice to the Trustee,
to direct the Trustee from time to time to withdraw all or any part of the
equitable share of this Trust in the Commingled Funds as of the Valuation
Date of the Commingled Funds next succeeding the expiration of such thirty
day period and, in such event, the Trustee shall arrange for the transfer
to it of such equitable share or part thereof in accordance with the
provisions of the Commingled Funds.
SECTION 7 - POWERS OF TRUSTEE. The Trustee shall have all
powers necessary for the performance of its duties under this Agreement
and for the implementation of the purposes of this Trust. Without
limiting the foregoing, the Trustee shall have all power and authority as
may be provided for by law; and the Trustee shall have the following power
and authority with respect to the assets of the Trust Fund, which power
and authority may be subject to the direction and control of an Investment
Advisor so appointed in accordance with Section 5 hereof:
(a) to purchase, or subscribe for, any securities or other
property.
(b) to sell, exchange, convey, transfer or otherwise dispose of
any property held by it, by private contract or at public auction,
and no person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expendiency or propriety of any such sale or other disposition;
(c) to make commitments either alone or in company with others
to purchase at any future date any property, investments, or
securities set forth under Section 4 hereof;
(d) to purchase part interests in real property or in mortgages
on real property, wherever situated, with the right to take title in
its name individually or as Trustee or in the name of a nominee
either alone or jointly with the holders of other part interests
therein or their nominees;
(e) to lease to others for any term without regard to the
duration of this Trust any real property or part interest in real
property held by it;
(f) to delegate to a manager or the holder or holders of a
majority interest in any real property or mortgage on real property
the management and operation of any part interest in such real
property or mortgage held by the Trustee and the authority to sell
such real property or mortgage or otherwise carry out the decisions
of such manager or holder or holders of such majority interest;
(g) to vote upon any stocks, bonds or other securities; to give
general or special proxies or powers of attorney with or without
power of substitution; to exercise any conversion privileges,
subscription rights or other options and to make any payments
incidental thereto; to consent to or otherwise participate in
corporate reorganizations or other changes affecting corporate
securities and to delegate discretionary powers and to pay any
assessments or charges in connection therewith, and generally to
exercise any of the powers of an owner with respect to stocks, bonds,
securities or other property held in the Trust Fund;
(h) to make, execute, acknowledge and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
(i) to cause any investments of the Trust Fund in its custody
to be registered in, or transferred into, its name as Trustee or
other name of its nominees or to retain them unregistered or in form
permitting transferability by delivery, or combine certificates
representing such investments with certificates of the same issue
held by the Trustee in other fiduciary capacities, or deposit or
arrange for the deposit of such securities in a qualified central
depository even though, when deposited, such securities may be merged
and held in bulk in the name of the nominee of such depository with
other securities deposited therein by and other person, or deposit or
arrange for the deposit of any securities issued by the United States
Government, or any agency or instrumentality thereof, with a federal
reserve bank; but the books and records of the Trustee shall at all
times show that all such investments are part of the Trust Fund;
(j) to employ suitable agents and counsel and to pay their
reasonable expenses and compensation; (The Trustee shall not be
liable for any neglect, omission or wrongdoing of such agents or
counsel; provided the Trustee did not breach a fiduciary obligation,
duty or responsibility in the selection and supervision of the agent
or counsel.)
(k) from time to time, to borrow money from the Company or
others for the purpose of this Trust on such terms and conditions as
the Trustee, in its absolute discretion may deem advisable.
(l) to keep any portion of the Trust Fund in cash without
liability for interest; provided, however, that such cash is not held
by the Trustee for a period in excess of three (3) days. Cash
received or held by the Trustee in excess of three (3) days shall be
deposited by the Trustee in savings deposit accounts or other short
term investment which bear a reasonable rate of interest.
SECTION 8 - PAYMENT OF COMPENSATION, EXPENSES AND TAXES;
DISTRIBUTIONS FROM TRUST FUND.
8.01. The expenses incurred by the Trustee in the
performance of its duties, including fees for regular legal services
rendered to the Trustee; such fees for unusual legal services as may be
agreed upon in writing from time to time between the Company and the
Trustee; and all other proper charges and disbursements of the Trustee
shall be paid from the Trust Fund, unless paid by the Company. The
Trustee shall receive reasonable compensation for the services performed
by Trustee hereunder, in such amount as the Company and the Trustee may
from time to time agree. Such compensation shall be paid from the Trust
Fund, unless paid by the Company. All taxes of any and all kinds
whatsoever that may be levied or assessed under existing or future laws
upon or in respect of the Trust Fund or the income thereof shall be paid
from the Trust Fund.
8.02. If the Trust is terminated, the Trustee may reserve in
the Trust Fund with the direction or approval of the Company, such
reasonable amount or amounts as it may deem necessary to provide for the
payment of any of its expenses due or payable and the amount of any
compensation thereunder due it, and any sums chargeable against the Trust
Fund for which it may be liable; but if the amount reserved by the Trustee
is insufficient for such purpose, the Trustee shall be entitled to
reimbursement for such deficiencies from the Company.
8.03. At such time or times as the Company directs, the Trustee
shall pay or provide such benefits as may be required by any Plan, return
such supplemental employee contributions as may be requested, permit such
withdrawals as are permitted by the Plan, and to make such other
distributions as may be provided for in the Plan. The Trustee shall make
distributions of such funds as the Company shall direct in writing, or as
such persons as the Company shall appoint for such purpose shall direct in
writing; provided however, that no distribution, except a distribution of
benefits in the ordinary course of business of the Plan, shall be made to
the Company or to any person authorized to communicate directions of the
Company to the Trustee. The Trustee shall not be further accountable for
such funds, or have any duty, responsibility, or liability to see to the
application of such funds in accordance with the directions of the Company
or persons appointed by the Company to give such directions or to
ascertain that the application of such funds complies with the Plan.
8.04. The Trustee may withhold from any distribution it is
directed to make such sum as the Trustee reasonably estimates to be
necessary to cover any taxes for which the Trust may be liable, which are,
or may be, assessed with regard to such distribution. Upon discharge or
settlement of such tax liability, the Trustee shall distribute the balance
of such sum, if any, to the distributee from whom distribution was
withheld or, if such distributee from whom distribution was withheld or,
if such distributee is then deceased, to the beneficiary of the
distributee from whose share it was withheld, as the Company shall direct.
Prior to the making of any distribution out of the Trust, the Trustee may
require such releases or other documents from any taxing authority, or may
require such indemnity and surety bond, as the Trustee shall deem
reasonably necessary for its protection.
SECTION 9 - PROTECTION OF TRUSTEE
9.01. The Trustee shall be fully protected in relying upon
any written communications of an officer or agent of the Company and in
continuing to rely upon such written communication until a subsequent
written communication is filed with the Trustee. The Trustee shall be
fully protected in acting upon any instrument, written communication or
paper believed by it to be genuine and to be signed by the proper person
or persons, and the Trustee shall be under no duty to make any
investigation or inquiry as to any statement contained in any such
writing, but may accept the same as conclusive evidence of the truth and
accuracy of the statements. The Trustee may require the Company to
provide specimen signatures and the name of those individuals who are
authorized to communicate written directions to the Trustee.
9.02. The Trustee shall be under no duty to determine
whether any contribution has been voted by the Board of Directors of the
Company or authorized by any Plan participant; nor shall it have any duty
or responsibility to collect any sum so voted or authorized; its
responsibility being expressly limited to written communications, and
receipt and proper disbursement of contributions actually received by it.
9.03. The Trustee shall not be obligated to inquire as to
whether any payee of funds or any distributee of benefits designated by
the Company is entitled thereto or as to whether any payment, allocation
or distribution directed or authorized by the Company is proper or within
the terms of the Plan and this Trust, or has been computed properly, or as
to the manner of making the same, and shall be accountable only to the
Company for any payment, allocation or distribution made by the Trustee in
good faith on the order or direction of the Company. The Trustee shall
not be liable or responsible for any payment made by it in good faith
without actual notice or knowledge of the changed condition or status of
the payee or distributee.
9.04. The Trustee shall have no power, authority, or duty
with respect to the determination of rights and interests of any person in
and to the Trust Fund or under the Plan or to question or to examine the
determination of any right or interest.
9.05. The Trustee shall not be liable for the making,
retention, or sale of any investment or reinvestment made by it as herein
provided nor for any loss to or diminution of the Trust Fund, except due
to its own negligence, willful misconduct, or lack of good faith. The
Trustee may from time to time consult with legal counsel, who may be
counsel to the Company, or in the employ of the Company, in respect to any
of its rights, duties and obligations hereunder; and in such event, shall
be fully protected in acting or refraining from acting in accordance with
the advice of such counsel.
9.06. The Company agrees to indemnify the Trustee for any
loss, expense, cost or liability it incurs or suffers resulting from or
incident to any breach of fiduciary duty by the Trustee relating to any
sale or investment made, or act done, pursuant to direction by the
Investment Advisor or related to the retention of or failure to take any
action with respect to any investment made, or act done, pursuant to
direction by or in the absence of further directions by the Investment
Advisor; and to indemnify the Trust Fund and the Trustee against any
liability resulting from or incident to any interest in a benefit from the
Trust Fund which may be asserted by any person or persons under the
community property or other laws of any state where the Trustee has acted
in good faith in reliance on a written direction of the Company.
9.07. The Trustee shall discharge its duties with respect to
the Trust solely in the interest of the participants in the Plan, and
their designated beneficiaries and with the care, skill, prudence, and
diligence under the circumstances then prevailing that prudent persons
acting in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims.
9.08. No "fiduciary" or "named fiduciary" (as such term are
defined in Sections 3(21) and 402(a)(2), respectively, of the Employee
Retirement Security Act of 1974 (the "Act" or "ERISA" or any successor
statutory provision) under this Agreement shall be liable for an act or
omission of another person in carrying out any fiduciary responsibility
where such fiduciary responsibility is or may be allocated to such other
person by this Agreement or pursuant to a procedure established in this
Agreement except to the extent that:
(a) such fiduciary or named fiduciary participating knowingly
undertook to conceal, an act or omission of such other person,
knowing such act or omission to be a breach of fiduciary
responsibility;
(b) such fiduciary or named fiduciary, by his failure to comply
with Section 404(a)(1) of the Act (or any successor statutory
provision) in the administration of his specific responsibilities
which give rise to his status as a fiduciary or named fiduciary, has
enabled such other person to commit a breach of fiduciary
responsibility;
(c) such fiduciary or named fiduciary has knowledge of a breach
of fiduciary responsibility by such other person, unless he makes
reasonable efforts under the circumstances to remedy the breach; or
(d) such named fiduciary has violated his duties under Section
404(a)(1) of the Act (or any successor statutory provision):
(i) with respect to the allocation of fiduciary
responsibilities among named fiduciaries or the designation
of persons other than named fiduciaries to carry out
fiduciary responsibilities under this Agreement;
(ii) with respect to the establishment or implementation of
procedures for allocating fiduciary responsibilities among
named fiduciaries or for designating persons other than
named fiduciaries to carry out fiduciary responsibilities
under this Agreement; or
(iii) in continuing the allocation of fiduciary
responsibilities among named fiduciaries or the
designation of persons other than named fiduciaries to
carry out fiduciary responsibilities under this
Agreement.
Notwithstanding the provisions of the immediately preceding
paragraph, if one or more Investment Advisors have been appointed by the
Company as referred to in Section 5 of this Agreement, the Trustee shall
not be liable for the acts or omissions of any such Investment Advisor or
be under any obligation to invest or otherwise manage any asset of the
Trust which is subject to the management of an Investment Advisor, unless
the Trustee participated knowingly in, or knowingly undertook to conceal,
an act or omission of such Investment Advisor, knowing such act or
omission to be a breach of fiduciary responsibility. Except for its own
actions as manager of the Trust Fund, the Trustee shall not be liable for
any loss or lack of income sustained by reason of the purchase, retention
or sale of any investment made by an Investment Advisor or pursuant to
direction of an Investment Advisor or for the carrying out on the
direction of an Investment Advisor and the Trustee shall not be liable by
reason of its taking any action at the direction of an Investment Advisor
or refraining from taking any action because of the failure of an
Investment Advisor to give such direction. Subject to the foregoing
provisions, the Trustee shall not be liable if the assets held in the
Trust Fund at any time are insufficient to pay all liabilities then
outstanding of the Trust or of any Plan. Anything in this Agreement to
the contrary notwithstanding, no provision of this Agreement shall be so
construed as to violate the requirements of Part 4 of the Act (or any
successor statutory provisions).
SECTION 10 - ACCOUNTING. The Trustee shall keep accurate and
detailed accounts of all investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records relating
thereto shall be open to inspection and audit at all reasonable times by
any person designated by the Company. Within ninety (90) days following
the close of each fiscal year, (or more frequently if requested by the
Company) and within ninety (90) days after the removal or resignation of
the Trustee as provided in Section 11 hereof, the Trustee shall file with
the Company a written account setting forth all investments, receipts,
disbursements and other transactions affected by it during each such
fiscal year or during the period from the close of the last fiscal year to
the date of such request or such removal or resignation. Upon the
expiration of one hundred eighty (180) days from the date of filing such
annual or other account, the Trustee shall be forever released and
discharged from all liability and accountability to anyone with respect to
the propriety of its acts and transactions shown in such account, except
with respect to any such acts or transactions as to which the Company
shall within such one hundred eighty (180) day period file with the
Trustee written objections. Nothing contained in this Section shall
relieve the Trustee from responsibility or liability for any
responsibility or obligation or duty under ERISA.
SECTION 11 - RESIGNATION, REMOVAL, AND SUCCESSOR TRUSTEE. The
Trustee may be removed by the Company at any time and for any reason, upon
sixty (60) days' notice in writing to the Trustee. The Trustee may resign
at any time upon sixty (60) days' notice in writing to the Company. Upon
such removal or resignation of the Trustee, the Company shall appoint a
successor Trustee who shall have the same powers and duties as those
conferred upon the Trustee hereunder and, upon acceptance of such
appointment by the successor Trustee, the Trustee shall assign, transfer
and pay over to such successor Trustee the funds and properties then
constituting the Trust Fund. The Trustee is authorized, however, to
reserve such sum of money, as to the extent it may deem advisable, for
payment of its fees and expenses in connection with the settlement of its
account or otherwise, and any balance of such reserve remaining after the
payment of such fees and expenses shall be paid over to the successor
Trustee. No successor Trustee shall be personally liable for any act or
failure to act of any predecessor Trustee; and, with the approval of the
Company, a successor Trustee may accept the account rendered and the
property delivered to it by a predecessor Trustee as a full and complete
discharge to such predecessor Trustee without incurring any liability or
responsibility for so doing.
SECTION 12 - RELIANCE. Any action required or authorized to be
taken by the Company pursuant to any of the provisions of this Agreement
shall be in accordance with, or by representatives authorized by, a
resolution of the Board of Directors of the Company. The Company shall
furnish the Trustee, from time to time, with certified copies of the
resolutions of the Board of Directors of the Company pertaining to actions
taken or to be taken by the Company pursuant to any provisions of this
Agreement or pertaining to representatives authorized to take actions for
the Company pursuant to any provisions of this Agreement.
SECTION 13 - AMENDMENT.
13.01. Subject to the provisions of 13.02, the Company
reserves the right at any time and from time to time, by action of its
Board of Directors, to amend, in whole or in part, any or all of the
provisions of this Agreement or to terminate this Trust, by notice thereof
in writing delivered to the Trustee; provided however, that no such
amendment which affects the rights, duties, or responsibilities of the
Trustee may be made without its consent.
13.02. No amendment shall authorize or permit any part of the
Trust Fund, other than such part as is required to pay taxes and
administration expenses, to be used for or diverted to purposes other than
for the exclusive benefit of the Plan Participants or their designated
beneficiaries. No amendment shall cause any reduction in the vested
portion of any participant's proportionate interest in the Trust Fund, or
cause or permit any portion of the Trust Fund to revert to or become the
property of the Company.
SECTION 14 - TERMINATION
14.01. Subject to the provisions of ERISA, the Trust shall be
terminated upon the first occurrence of the following:
(a) Sixty days after receipt from the Company by the Trustee of
written notice of such termination.
(b) The date the Company shall be judicially declared bankrupt
or insolvent.
(c) The effective date of the dissolution, merger,
consolidation, or reorganization of the Company or the sale by the
Company of all or substantially all of its assets, unless provision
for continuing this Trust is made by the Company, its successor or
purchaser.
(d) In case no funds be left for administration in the Trust.
14.02. On termination of this Trust as provided for above,
the Company shall have full responsibility for determination of the
distribution of the Trust Fund in accordance with the provisions of the
Plan and the Trustee shall dispose of the Trust Fund pursuant to written
directions of the Company. The Trustee may in its discretion first
require Internal Revenue Service approval of the termination before making
a distribution under this Section.
SECTION 15 - MISCELLANEOUS.
15.01. Non-Alienation of Benefits. Benefits or other sums
payable from the Trust Fund shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution or levy of any kind, either voluntary or
involuntary, including any liability which is for alimony or other payment
for the support of a spouse or former spouse, or any relative of a
Participant prior to actually being received by the person entitled to the
benefit or sums under the terms of the Plan. Any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge or otherwise
dispose of any right to benefits payable shall be void. Neither this
Trust Fund nor the Trustee shall in any manner be liable for or be subject
to the debts, contracts, liabilities, engagements or torts of any person
entitled to benefits. If the terms of this Section are contrary to the
law governing in a particular circumstance, then, as to that circumstance,
any payment shall be exempt to the maximum extent permitted by law.
15.02. Construction of Trust. This Trust shall be construed
according to the laws of the State of Wisconsin, where not superseded by
ERISA or other applicable Federal law.
15.03. Number and Headings. Wherever any words are used in
the singular form they shall be construed as though they were used in the
plural form in all cases where they would so apply. Headings of sections
and subsections of this Trust are written for convenience or reference.
They constitute no part of this Trust and are not to be considered in its
construction.
15.04. Diversion of Trust Fund Prohibited. At no time
(either by operation of law, natural termination of the Trust or of a
Plan, amendment, revocation of the Trust or the Plan, the happening of any
contingency, collateral agreement, or otherwise) shall any part of the
Trust Fund (other than such part as is required to pay expenses, taxes,
and charges in accordance with Section 8 or such part as results from
erroneous computation) be used for, or diverted to, purposes other than
for the exclusive benefit of the participants in the Plan and their
designated beneficiaries. Under no circumstances shall any part of the
Trust Fund ever revert or be repaid to the Company, either directly or
indirectly.
15.05. Legal Actions. The Company shall have the authority
to enforce the Trust on behalf of any and all persons having or claiming
any interest in the Trust Fund. In any legal action or equitable
proceeding pertaining to the Trust or Trust Fund or any interest therein
or the administration thereof, or for instructions to the Trustee, only
the Company and the Trustee shall be necessary parties.
15.06. Protection of Persons Dealing with Trustee. With
exception of the Company, no person dealing with the Trustee shall be
required or entitled to see to the application of any money paid or
property delivered to the Trustee or to determine whether or not the
Trustee is acting pursuant to the authority granted to it hereunder or
authorization or directions herein required.
15.07. Tax Exemption of Trust. The Trust is hereby
designated as constituting part of the Plan which was adopted by the
Company; and is intended to be a qualified and tax exempt trust within the
meaning of Section 401 and Section 401(a) of the Code.
15.08. Counterparts. The Trust may be executed in any number
of counterparts, each of which shall be deemed to be an original, and no
other counterpart need be produced.
SECTION 16 - INTERNAL REVENUE SERVICE APPROVAL. This Trust
shall become effective upon its execution by the parties hereto and shall
continue until terminated as provided for herein. Notwithstanding the
foregoing, in the event the Internal Revenue Service should determine that
the Plan does not constitute a qualified cash or deferred compensation
plan within the meaning of Sections 401(k) and 402(a)(8) of the Code, as
amended, or that this Trust is not qualified within the meaning of Section
501(a) of the Code, as amended, and in the further event the Company
determines to terminate the Plan or this Trust or both, as a result
thereof, then in such events, this Trust shall terminate; and the Trustee
shall pay over to the Company, the entire Trust Fund (less expenses and
compensation provided for in Section 8) for distribution to Plan
Participants as provided for in the Plan.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Trust Agreement to be executed by their duly authorized officers the day
and year first written above.
Witnesses: WISCONSIN POWER AND LIGHT COMPANY
___________________________ By: /s/________________________________
___________________________ Attest: /s/___________________________
(Corporate Seal)
FIRST WISCONSIN TRUST COMPANY
/s/________________________ By: /s/______________________________
/s/________________________ Attest: /s/_________________________
(Corporate Seal)
<PAGE>
AMENDMENT #1 TO TRUST AGREEMENT
THIS AGREEMENT made and entered into this 30th day of July,
1984, by and between the Wisconsin Power and Light Company, a Wisconsin
corporation (hereinafter referred to as the "Company"), and First
Wisconsin Trust Company, a Wisconsin banking corporation (hereinafter
referred to as the "Trustee").
WITNESSETH:
WHEREAS, the Company and Trustee have heretofore entered into
that certain Trust Agreement made and entered into on November 24, 1982,
which Trust Agreement relates to the investment of contributions made
pursuant to the terms and provisions of a qualified cash or deferred
compensation plan within the meaning of Sections 401(k) and 402(a)(8) of
the Internal Revenue Code of 1954, as amended; and
WHEREAS, the Company has established another qualified cash or
deferred compensation plan within the meaning of the aforesaid Internal
Revenue Code sections and desires to provide for the investment of
contributions made pursuant to this plan for the orderly administration of
said plan; and
WHEREAS, the said Trust Agreement made as of November 24, 1982,
reserves to the Company the right to amend the same.
NOW THEREFORE, the Company and the Trustee do hereby agree to
the amendment of the former Trust Agreement, effective as hereinafter
provided, as follows:
1. The first "Whereas" clause appearing in the recitals to the
former Trust Agreement is hereby deleted and the following substituted
therefor:
WHEREAS, the Company has established qualified cash or deferred
compensation plans within the meaning of Sections 401(k) and
402(a)(8) of the Internal Revenue Code of 1954, as amended,
which plans are known as the "Wisconsin Power and Light Company
Long Range Savings and Investment Plan A" and the "Wisconsin
Power and Light Company Long Range Savings and Investment Plan
B" for the benefit of participants and their beneficiaries as
therein defined (a copy of such Plans as they may be amended
from time to time shall be identified by the Company and filed
with the Trustee for purposes of reference only; and such Plans,
as they may be amended, shall hereafter be called collectively,
the "Plan"); and
2. Whenever the term "Plan" is used in the former Trust
Agreement, such term shall include the aforedescribed Plans A and B, it
being the intent of the parties that the said Trust Agreement be construed
in accordance with and subject to the provisions of each of these said
plans.
3. This Amendment #1 shall become effective upon its execution
by the parties hereto and shall continue until terminated as provided in
the former Trust Agreement. Notwithstanding the foregoing, in the event
the Internal Revenue Service should determine that the said Plan B does
not constitute a qualified cash or deferred compensation plan within the
meaning of Section 401(k) and 402(a)(8) of the Code, as amended, or that
the Trust Agreement, as amended hereby, shall not qualify within the
meaning of Section 501(a) of the Code, as amended; and in the further
event the Company determines to terminate Plan B or this Amendment, or
both, as a result thereof, then in such events, this Amendment #1 shall
terminate, and the Trustee shall pay over to the Company, that portion of
the Trust Fund (less expenses and compensation provided for in Section 8
of the Trust Agreement) allocable to the said Plan B, and shall disburse
the same to Plan Participants as provided for in said Plan B.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Amendment #1 to be executed by their duly authorized officers the day and
year first written above.
Signed and Sealed in the WISCONSIN POWER AND LIGHT
Presence of: COMPANY
______________________________ By: /s/ Edward M.Gleason
______________________________ Attest:/s/ Thomas A. Landgraf
FIRST WISCONSIN TRUST COMPANY
____________________________ By: /s/ James D. Huntz
Vice President
____________________________ Attest:/s/ Shirley B. Klenke
Asst. Secretary
<PAGE>
RESOLUTION OF THE
BOARD OF DIRECTORS
OF
WISCONSIN POWER AND LIGHT COMPANY
Re: Removal of Trustees and
Appointment of Successor Trustees
WHEREAS, the Wisconsin Power and Light Company (the "Company")
has entered into the following described trust agreements with the
following described trustees:
(a) Restated Trust Agreement, dated June 7, 1978, by and
between the Company and the First Trust Saint Paul relating
to the Company's Retirement Plans A and B (herein the
"Retirement Trust").
(b) Trust Agreement, dated November 24, 1982, and amended on
July 30, 1984, by and between the Company and the First
Trust Saint Paul, relating to the Company's Long Range
Savings and Investment Plans A and B (herein the "Savings
Trust").
(c) Trust Agreement, dated December 28, 1981, and amended
January 1, 1983, by and between the Company and the First
Trust Saint Paul, relating to the establishment of the
Wisconsin Power and Light Company Employees' Benefit Trust
(herein the "Benefit Trust"); and
WHEREAS, the Company desires to remove the aforesaid Trustees
and to appoint successor Trustees thereto.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the
Company as follows:
1. RESOLVED that First Trust Saint Paul be and hereby is
removed as Trustee of the Trust Fund created pursuant to
the Retirement Trust; and that Marshall & Ilsley Trust
Company, located in Milwaukee, Wisconsin be and hereby is
appointed the successor Trustee thereto, all pursuant to
Section 11 of the Retirement Trust.
2. RESOLVED that First Trust Saint Paul be and hereby is
removed as Trustee of the Trust Fund created pursuant to
the Savings Trust; and that Marshall & Ilsley Trust Company
located in Milwaukee, Wisconsin be and hereby is appointed
the successor Trustee thereto, all pursuant to Section 11
of the Savings Trust.
3. RESOLVED that First Trust Saint Paul be and hereby is
removed as Trustee of the Trust Fund created pursuant to
the Benefit Trust; and that Marshall & Ilsley Trust Company
located in Milwaukee, Wisconsin be and is hereby appointed
the successor Trustee thereto, all pursuant to Article X of
the Benefit Trust.
4. RESOLVED that the successor Trustees so appointed hereby
shall have the same powers and duties as those conferred
upon the predecessor Trustees pursuant to the aforesaid
trust agreements; and that upon acceptance of such
appointment by the successor Trustees, the predecessor
Trustees shall assign, transfer and pay over to the
successor Trustees the funds, properties and assets now
constituting the respective Trust Funds.
5. RESOLVED that the officers of the Company be and hereby are
authorized and directed to give such notices, to enter into
such agreements containing such terms and conditions as
they deem appropriate, and to take such actions as may be
reasonable and necessary to effectuate the foregoing
resolutions, all in accordance with applicable law.
Adopted: August 26, 1987.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I, Thomas A. Landgraf, do hereby certify that I am the duly
elected and acting Secretary of the Wisconsin Power and Light Company, a
Wisconsin corporation, organized under the laws of the State, and that I
have access to the corporate records of said Company, and as such
Secretary, I do further certify that the above and foregoing Resolution
was duly adopted at a meeting of the Board of Directors held August 26,
1987.
IN WITNESS WHEREOF I have hereunto set my hand and affixed the
corporate seal of said Company this 11th day of September, 1987.
/s/ Thomas A. Landgraf
Thomas A. Landgraf, Secretary
<PAGE>
ACCEPTANCE OF APPOINTMENT AS SUCCESSOR TRUSTEE
To: BOARD OF DIRECTORS OF WISCONSIN POWER & LIGHT COMPANY
WHEREAS, we have been notified of our appointment as successor
trustee under the agreement establishing the Wisconsin Power and Light
Company Employees' Long Range Savings and Investment Trust; and
WHEREAS, we have had an opportunity to review the agreements
setting forth the Plan and Trust, copies of which, as amended to date,
having been furnished us with the notice of our appointment;
WE HEREBY ACCEPT our appointment as Successor Trustee.
MARSHALL & ILSLEY TRUST COMPANY
By: /s/______________________________
Dated: 9/24/87
By: /s/______________________________
February 9, 1994
WPL Holdings, Inc.
222 West Washington Avenue
Madison, Wisconsin 53703
Gentlemen:
We have acted as counsel for WPL Holdings, Inc., a Wisconsin
corporation (the "Company"), in conjunction with the preparation of a Form
S-8 Registration Statement (the "Registration Statement") to be filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), relating to
450,000 shares of the Company's Common Stock, $.01 par value (the "Common
Stock"), rights to purchase shares of Common Stock accompanying each share
of Common Stock (the "Rights"), and interests in the Wisconsin Power and
Light Company Employees' Retirement Savings Plan A and Plan B, both as
amended to date (the "Plans"), which may be issued or acquired pursuant to
the Plans. The terms of the Rights are as set forth in that certain
Rights Agreement, dated as of February 22, 1989, by and between the
Company and Morgan Shareholder Services Trust Company (the "Rights
Agreement").
We have examined: (a) the Plans; (b) the Registration
Statement; (c) the Company's Restated Articles of Incorporation and
Restated By-laws, as amended to date; (d) resolutions of the Company's
Board of Directors relating to the Plans and the issuance of securities
thereunder; (e) the Rights Agreement; and (f) such other proceedings,
documents and records as we deemed necessary for purposes of giving this
opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws
of the State of Wisconsin.
2. It is presently contemplated that the shares of Common Stock
to be acquired by the Plans will either be purchased in the open market or
purchased directly from the Company. To the extent the shares of Common
Stock acquired by the Plans shall constitute shares issued by and
purchased directly from the Company, such shares of Common Stock, when
issued pursuant to the terms and conditions of the Plan, and as
contemplated in the Registration Statement, will be validly issued, fully
paid and nonassessable, except with respect to wage claims of, or other
debts owing to, employees of the Company for services performed, but not
exceeding six months' service in any one case, as provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law and as such
section may be interpreted by a court of law.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the references to our firm therein. In
giving our consent, we do not admit that we are "experts" within the
meaning of Section 11 of the Securities Act or within the category of
persons whose consent is required by Section 7 of said Act.
Very truly yours,
FOLEY & LARDNER
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February
5, 1993 included and incorporated by reference in WPL Holdings, Inc.'s
Form 10-K for the year ended December 31, 1992, and our reports dated
April 23, 1993 incorporated by reference in WPL Holdings, Inc.'s Form 10-
K/A for the year ended December 31, 1992, and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
Milwaukee, Wisconsin
February 9, 1994.
