SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM U5S
ANNUAL REPORT
For the Year Ended December 31, 1996
Filed pursuant to the Public Utility Holding Company Act of 1935
by
GPU, INC. (File No. 30-126)
100 Interpace Parkway, Parsippany, New Jersey 07054
<PAGE>
GPU, INC.
FORM U5S
ANNUAL REPORT FOR THE YEAR ENDED DECEMBER 31, 1996
TABLE OF CONTENTS
Item
No. Title Page
1. System Companies and Investments Therein 1-5
2. Acquisitions or Sales of Utility Assets 6
3. Issue, Sale, Pledge, Guarantee or Assumption
of System Securities 7-9
4. Acquisition, Redemption or Retirement of
System Securities 10-14
5. Investments in Securities of Nonsystem Companies 15
6. Officers and Directors 16-30
7. Contributions and Public Relations 31-32
8. Service, Sales and Construction Contracts 33-36
9. Wholesale Generators and Foreign Utility Companies 37-55
10. Financial Statements and Exhibits:
Consolidating Financial Statements,
Schedules and Notes 56-68
Exhibits 69-102
Signature Page 103
<PAGE>
<TABLE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENTS THEREIN AS OF DECEMBER 31, 1996
<CAPTION>
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
GPU, Inc. (GPU) (formerly General Public Utilities Corporation):
<S> <C> <C> <C> <C>
Jersey Central Power & Light Company (JCP&L)(a) 15,371,270 shs. 100% $1,489,483,141 $1,489,483,141
JCP&L Preferred Capital, Inc. 100 shs. 100 17,079,056 17,079,056
JCP&L Capital L.P. (h) 100 3,866,079 3,866,079
Metropolitan Edison Company (Met-Ed)(a)(b) 859,500 shs. 100 700,517,157 700,517,157
York Haven Power Company 500 shs. 100 13,099,120 13,099,120
Met-Ed Preferred Capital, Inc. 100 shs. 100 13,455,638 13,455,638
Met-Ed Capital L.P. (h) 100 3,092,899 3,092,899
Pennsylvania Electric Company (Penelec)(a)(b) 5,290,596 shs. 100 755,000,781 755,000,781
Nineveh Water Company 5 shs. 100 1,510,939 1,464,904
Waverly Electric Light & Power Company 600 shs. 100 60,000 15,000
Penelec Preferred Capital, Inc. 100 shs. 100 14,109,152 14,109,152
Penelec Capital L.P. (h) 100 3,247,524 3,247,524
GPU Service, Inc. (GPUS) (c) 5,000 shs. 100 (1,805,749) (1,805,749)
GPU Nuclear, Inc. (GPUN) (d) 2,500 shs. 100 50,000 50,000
GPU Generation, Inc. (Genco) (r) 2,500 shs. 100 (77,100) (77,100)
GPU International, Inc. (GPUI) (e)(s) 100 shs. 100 130,618,853 130,618,853
Elmwood Energy Corporation (e) 10 shs. 100 7,686,991 7,686,991
Prime Energy Limited Partnership (e) (i) 50 11,636,249 5,747,567
Camchino Energy Corporation (e) 100 shs. 100 2,523,050 2,523,050
OLS Power Limited Partnership (e) (i) 1 (6,486,680) -
OLS Acquisition Corporation (e) 100 shs. 100 (6,439,575) (6,439,575)
OLS Energy - Berkeley (e) (y) 1,000 shs. 100 (2,592,741) (2,592,741)
OLS Energy - Chino (e) 1,000 shs. 100 (324,712) (324,712)
OLS Energy - Camarillo (e) 1,000 shs. 100 (3,486,398) (3,486,398)
Geddes Cogeneration Corporation (e) 100 shs. 100 18,166,371 18,166,371
Onondaga Cogeneration Limited Partnership (e) (i) 50 31,949,955 18,182,764
EI Selkirk, Inc. (e) 1,000 shs. 100 22,461,658 22,461,658
Selkirk Cogeneration Partners Limited
Partnership (e) (f) (n) 20 (18,810,624) 14,342,545
EI Canada Holding Limited (f) 1,000 shs. 100 (339,804) (339,804)
EI Brooklyn Power Limited (f) 1,000 shs. 100 (428,427) (436,404)
EI Brooklyn Investments Limited (f) 1,000 shs. 100 (411,152) (418,161)
EI Services Canada Limited (f) 1,000 shs. 100 87,499 96,648
Brooklyn Energy Limited Partnership (f) (o) 75 (4,584,912) (419,518)
-1-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1996 (Continued):
<CAPTION>
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
<S> <C> <C> <C> <C>
NCP Energy, Inc. (e) 1,000 shs. 100 6,431,935 6,431,935
Syracuse Orange Partners L.P. (e) (p) 5 20,556,141 28,711
Project Orange Associates L.P. (e) (q) 89 21,931,660 20,601,622
NCP Lake Power, Inc. (e) 1,000 shs. 100 246,427 246,427
NCP Gem, Inc. (e) 1,000 shs. 100 5,147,330 5,147,330
Lake Investment, L.P. (e) (k) 100 3,288,765 3,288,765
Lake Cogen, Ltd. (e) (l) 50 (12,416,466) 3,354,069
NCP Pasco, Inc. (e) 1,000 shs. 100 16,677,805 16,677,805
NCP Dade Power, Inc. (e) 1,000 shs. 100 580,576 580,576
Dade Investment, L.P. (e) (k) 100 15,138,547 15,138,547
Pasco Cogen, Ltd. (e) (i) 50 7,817,002 15,467,603
NCP Ada Power, Inc. (e) (Inactive) 1,000 shs. 100 266,172 266,172
NCP Commerce Power, Inc. (e) 1,000 shs. 100 - -
FPB Cogeneration Partners L.P. (e) (m) 30 (4,798,012) -
Umatilla Groves, Inc. (e) (Inactive) 1,000 shs. 100 - -
NCP Brooklyn Power, Inc. (f) 1,000 shs. 100 - -
NCP Houston Power, Inc. (e) 100 shs. 100 830,927 830,927
NCP Perry, Inc. (e) 100 shs. 100 (52,658) (52,658)
Mid-Georgia Cogeneration, L.P. (e) (k) 100 (81,732) (81,732)
NCP New York, Inc. (e) (Inactive) 1,000 shs. 100 - -
Armstrong Energy Corporation (e) (Inactive) 100 shs. 100 - -
AEC/REF-Fuel, Limited Partnership (e) (j) 100 - -
EI Services, Inc. (f) 100 shs. 100 - -
EI Fuels Corporation (f) 100 shs. 100 - -
GPUI Lake Holdings, Inc. (f) 100 shs. 100 - -
GPU Power, Inc. (GPU Power) (f)(t) 1,000 shs. 100 33,582,374 33,582,374
Guaracachi America, Inc. (f) 100 shs. 100 34,558,578 34,558,578
Empresa Guaracachi S.A. (f) 822,779 shs. 50 86,809,331 43,404,666
EI Barranquilla, Inc. (f) 100 shs. 100 (271,049) (271,049)
Termobarranquilla S.A. (f) 420,592 shs. 29 (1,654,898) (51,648)
Barranquilla Lease Holding, Inc. (f) 100 shs. 100 59,490 59,490
Los Amigos Leasing Company, Ltd. (f) 12,000 shs. 100 51,053 12,000
EI International (f) 100 shs. 100 (50,729) (50,729)
GPU International Latin America, Ltda. (f)(v) 100 shs. 100 (38,878) (38,878)
-2-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1996 (Continued):
<CAPTION>
Number of Common Shares
or Principal Amount % of Issuer Owner's
Name of Company Owned Voting Power Book Value Book Value
<S> <C> <C> <C> <C>
GPU Power Philippines, Inc. (f) (w) 100 shs. 100 100 100
Magellan Utilities Development Corporation (f) 17,264 shs. 13 - -
Hanover Energy Corporation (f) (Inactive) 100 shs. 100 - -
EI Power (China), Inc. (f) (Inactive) 100 shs. 100 - -
China Power Partners, L.P. (f) (Inactive) (i) 50 - -
EI Power (China) I, Inc. (f) (Inactive) 100 shs. 100 - -
Ming Jiang Power Partners, L.P. (f) (Inactive) (i) 50 - -
EI Power (China) II, Inc. (f) (Inactive) 100 shs. 100 - -
Nanjing Power Partners, L.P. (f) (Inactive) (i) 50 - -
EI Power (China) III, Inc. (f) (Inactive) 100 shs. 100 - -
Zhuang He Power Partners, L.P. (f) (Inactive) (i) 50 - -
Austin Cogeneration Corporation (f) 100 shs. 100 - -
Austin Cogeneration Partners, L.P. (f) (k) 100 - -
International Power Advisors, Inc. (f) 100 shs. 100 - -
GPU Electric, Inc. (GPU Electric) (g) (u) 100 shs. 100 67,707,215 67,707,215
Victoria Electric Holdings, Inc. (g) 100 shs. 100 50,619,763 50,619,763
Victoria Electric, Inc. (g) 100 shs. 100 123,449,450 123,449,630
Solaris Power (g) 5,000,000 shs. 50 231,155,816 124,929,953
GPU International Australia Pty Ltd. (g)(x) 10,000,000 shs. 100 959,732 959,732
EI UK Holdings, Inc. (g) 100 shs. 100 18,346,034 18,346,034
Avon Energy Partners Holdings (g) 660,000 shs. 50 1,140,023,289 570,011,644
Avon Energy Partners plc (g) 660,000 shs. 100 2,955,132,193 2,955,132,193
Midlands Electricity plc (g) 392,572,556 shs. 100 2,953,166,912 2,953,166,912
-3-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1996 (Continued):
Notes: (a) The business of these electric utility subsidiaries consists primarily of the generation, transmission,
distribution and sale of electricity.
These utility subsidiaries collectively own all of the common stock of Saxton Nuclear Experimental
Corporation, a Pennsylvania nonprofit corporation organized for nuclear experimental purposes which is
now inactive. The carrying value of the owners' investment has been written down to a nominal value.
(b) Met-Ed and Penelec are exempt as holding companies under Section 3(a) and Rule 2 of the Public Utility
Holding Company Act of 1935 (the Act).
(c) Provides corporate services to the electric utility subsidiaries. Formerly GPU Service Corporation.
(d) Operates, maintains and manages the nuclear units of the electric utility subsidiaries. Formerly GPU
Nuclear Corporation.
(e) These subsidiaries are independent power producers, which participate in some or all aspects of
promoting, developing, financing, constructing, owning, managing and operating nonutility qualifying
facilities.
(f) These subsidiaries are exempt wholesale generators (EWG) under the provisions of Section 32 of the Act.
These subsidiaries participate in some or all aspects of promoting, developing, financing, constructing,
owning, managing and operating generation facilities, both domestically and in foreign countries, the
electric energy from which is sold exclusively at wholesale.
(g) These subsidiaries are foreign utility companies (FUCO) under the provisions of Section 33 of the Act.
These subsidiaries participate in some or all aspects of promoting, developing, financing, constructing,
owning, managing and operating generation, transmission and distribution facilities in foreign countries.
(h) A 100% General Partnership interest.
(i) A 1% General Partnership and a 49% Limited Partnership interest.
(j) A 50% General Partnership interest.
(k) A 1% General Partnership and a 99% Limited Partnership interest.
(l) A 1% General Partnership and a 48.9% Limited Partnership interest.
(m) A 30% General Partnership interest.
-4-<PAGE>
ITEM 1. SYSTEM COMPANIES AND INVESTMENT THEREIN AS OF DECEMBER 31, 1996 (Continued):
(n) A 13.55% preferred equity interest and a 20% common equity interest.
(o) A 75% General Partnership interest.
(p) A 4.9% Limited Partnership interest.
(q) A 89% Limited Partnership interest.
(r) GPU Generation, Inc. (Genco), was formed in 1996 to operate, maintain and repair the nonnuclear
generation facilities of the electric utility subsidiaries as well as construct any new nonnuclear
generation facilities.
(s) Name changed from Energy Initiatives, Inc. to GPU International, Inc. effective August 12, 1996.
(t) Name changed from EI Power, Inc. to GPU Power, Inc. effective August 12, 1996.
(u) Name changed from EI Energy, Inc. to GPU Electric, Inc. effective August 12, 1996.
(v) Name changed from EI Services Colombia Ltda. to GPU International Latin America, Ltda. effective
September 4, 1996.
(w) Name changed from Colombian Installations, Inc. to GPU Power Philippines, Inc. effective August 26, 1996.
(x) Name changed from EI Australia Services Pty Ltd. to GPU International Australia Pty Ltd. effective
October 14, 1996.
(y) Sold in January 1997.
Note: In 1997, GPU formed a new unregulated subsidiary, GPU Advanced Resources, Inc. (Advanced Resources).
Advanced Resources' lines of business are energy service and retail energy sales. Another affiliated
entity, GPU Telcom Services, Inc. has also been formed. It is an exempt telecommunications company that
will focus on telecommunications infrastructure.
-5-<PAGE>
ITEM 2. ACQUISITIONS OR SALES OF UTILITY ASSETS
On April 19, 1996, JCP&L purchased the electrical distribution system that serves the base at Fort Dix, located
in Ocean County, New Jersey. At the date of the purchase, the net book value of this system was $4,836,408. In
lieu of cash payment from JCP&L to Fort Dix, payment for the system will be made through credits to Fort Dix's
electric bill over 10 years. Journal entries to record the transaction were approved by the Federal Energy
Regulatory Commission on August 9, 1996.
-6-<PAGE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES:
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Jersey Central Power & Light Company:
<S> <C> <C> <C> <C> <C> <C>
First Mortgage Bonds
designated Secured
Medium-Term Notes:
6.45% Series D, due 2001 JCP&L $ 40,000,000 11-26-96 $ 39,800,000(a) Rule 52
6.85% Series D, due 2006 JCP&L $ 40,000,000 11-26-96 $ 39,750,000(b) Rule 52
Total First Mortgage Bonds
designated Secured
Medium-Term Notes $ 80,000,000 $ 79,550,000
Performance Guarantees JCP&L $ 6,006,700(c) various n/a Rule 45
Notes: (a) All $40,000,000 p.a., 6.45% Series D, due November 26, 2001, were issued and sold on November 26, 1996, at
face value, pursuant to a Forty-sixth Supplemental Indenture dated April 1, 1993, resulting in proceeds of
$39,800,000, net of underwriters' commissions of $200,000.
(b) All $40,000,000 p.a., 6.85% Series D, due November 27, 2006, were issued and sold on November 26, 1996, at
face value, pursuant to a Forty-sixth Supplemental Indenture dated April 1, 1993, resulting in proceeds of
$39,750,000, net of underwriters' commissions of $250,000.
(c) Represents unused letters of credit for workers compensation insurance ($5,817,000), and miscellaneous surety
bonds ($189,700).
-7-<PAGE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Metropolitan Edison Company:
<S> <C> <C> <C> <C> <C>
Performance Guarantees Met-Ed $13,379,202(a) various n/a Rule 45
Notes: (a) Represents unused letters of credit for workers compensation insurance ($3,125,000), a surety bond related to
an ongoing legal dispute ($6,000,000), a surety bond pursuant to residual waste regulations at the Portland
Generating Station ($1,393,948), a surety bond relating to motor vehicles ($1,000,000), and miscellaneous
surety bonds for various purposes ($1,860,254).
-8-<PAGE>
ITEM 3. ISSUE, SALE, PLEDGE, GUARANTEE OR ASSUMPTION OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal Amount
Name of Company or Stated Value
Name of Issuer Issuing, Selling, Pledged,
and Pledging, Guaranteeing Issued Guaranteed Date of Commission
Title of Issue or Assuming Securities and Sold or Assumed Transaction Proceeds Authorization
(1) (2) (3) (4) (5) (6) (7)
Pennsylvania Electric Company:
<S> <C> <C> <C> <C> <C> <C>
First Mortgage Bonds:
6.80% Series, due 2001 Penelec $ 20,000,000 10-28-96 $ 19,900,000(a) Rule 52
7.02% Series, due 2003 Penelec 20,000,000 10-28-96 19,880,000(b) Rule 52
Total First Mortgage Bonds $ 40,000,000 $ 39,780,000
Performance Guarantees Penelec $10,385,000(c) various n/a Rule 45
Notes: (a) All $20,000,000 p.a., 6.80% Series, due October 29, 2001, were issued and sold on October 28, 1996, at face
value, pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $19,900,000, net of
underwriters' commissions of $100,000.
(b) All $20,000,000 p.a., 7.02% Series, due October 28, 2003, were issued and sold on October 28, 1996, at face
value, pursuant to a Supplemental Indenture dated June 1, 1993, resulting in proceeds of $19,880,000, net of
underwriters' commissions of $120,000.
(c) Represents unused letters of credit for workers compensation insurance ($6,697,000), a surety bond relating to
motor vehicles ($1,000,000), and miscellaneous letters of credit and surety bonds for various purposes
($2,688,000).
-9-<PAGE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES
<CAPTION>
Name of Company Acquiring Authorization
Name of Issuer or Retiring Securities Consideration Disposition or Exemption
<S> <C> <C> <C> <C>
JCP&L:
First Mortgage Bonds JCP&L $ 25,880,282 Retired Rule 42
Cumulative Preferred Stock JCP&L 20,000,000 Redeemed Rule 42
Total $ 45,880,282
Met-Ed:
First Mortgage Bonds Met-Ed $ 15,000,000 Retired Rule 42
Cumulative Preferred Stock Met-Ed 7,506,869 Retired Rule 42
Total $ 22,506,869
Penelec:
First Mortgage Bonds Penelec $ 75,568,576 Retired Rule 42
Cumulative Preferred Stock Penelec 14,070,605 Retired Rule 42
Total $ 89,639,181
NOTE: See pages 11 to 14 for a detailed description of the above transactions.
-10-<PAGE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
<S> <C> <C> <C> <C> <C>
Jersey Central Power &
Light Company
First Mortgage Bonds:
6 1/8% Series, due 1996 JCP&L $ 25,701,000 3-12-96 $ 25,880,282 (a) Rule 42
Cumulative Preferred Stock:
8.48% Series I JCP&L $ 20,000,000 5-01-96 $ 20,000,000 (b) Rule 42
Notes: (a) All $25,701,000 p.a., 6 1/8% Series, due August 1, 1996, were retired on March 12, 1996 pursuant to the
Thirteenth Supplemental Indenture dated August 1, 1966, at a cost of $25,701,000, plus $179,282 accrued
interest.
(b) 8.48% Series I, $20,000,000 (stated value $100 per share) (200,000 shares), were redeemed on May 1, 1996
pursuant to mandatory and optional sinking fund provisions at a cost of $20,000,000.
-11-<PAGE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
<S> <C> <C> <C> <C> <C>
Metropolitan Edison
Company
First Mortgage Bonds:
5 3/4% Series, due 1996 Met-Ed $ 15,000,000 06-01-96 $ 15,000,000 (a) Rule 42
Cumulative Preferred Stock:
3.90% Series Met-Ed $ 5,334,500 12-19-96 $ 3,328,728 (b) Rule 42
4.35% Series Met-Ed $ 1,073,200 12-19-96 $ 773,348 (c) Rule 42
3.85% Series Met-Ed $ 1,992,300 12-19-96 $ 1,270,490 (d) Rule 42
3.80% Series Met-Ed $ 1,014,000 12-19-96 $ 638,211 (e) Rule 42
4.45% Series Met-Ed $ 2,029,700 12-19-96 $ 1,496,092 (f) Rule 42
Total $ 11,443,700 $ 7,506,869
Notes: (a) All $15,000,000 p.a., 5 3/4% Series, due June 1, 1996, were retired on June 1, 1996 pursuant to the
Supplemental Indenture dated June 1, 1966, at a cost of $15,000,000.
(b) 3.90% Series, $5,334,500 (stated value $100 per share) (53,345 shares), were retired on December 19, 1996 at
a cost of $3,328,728.
(c) 4.35% Series, $1,073,200 (stated value $100 per share) (10,732 shares), were retired on December 19, 1996 at
a cost of $773,348.
(d) 3.85% Series, $1,992,300 (stated value $100 per share) (19,923 shares), were retired on December 19, 1996 at
a cost of $1,270,490.
(e) 3.80% Series, $1,014,000 (stated value $100 per share) (10,140 shares), were retired on December 19, 1996 at
a cost of $638,211.
(f) 4.45% Series, $2,029,700 (stated value $100 per share) (20,297 shares), were retired on December 19, 1996 at
a cost of $1,496,092.
-12-<PAGE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
<CAPTION>
Principal
Name of Issuer Name of Company Amount or Stated Value
and Acquiring, Redeeming or Redeemed Date of Commission
Title of Issue Retiring Securities Acquired and Retired Transaction Consideration Authorization
(1) (2) (3) (4) (5) (6) (7)
<S> <C> <C> <C> <C> <C>
Pennsylvania Electric
Company
First Mortgage Bonds:
7.45% Series, due 1996 Penelec $ 30,000,000 10-28-96 $ 30,000,000 (a) Rule 42
6 1/4% Series, due 1996 Penelec 25,000,000 3-12-96 25,568,576 (b) Rule 42
6.80% Series, due 1996 Penelec 20,000,000 12-20-96 20,000,000 (c) Rule 42
Total First Mortgage Bonds $ 75,000,000 $ 75,568,576
Cumulative Preferred Stock:
4.40% Series B Penelec $ 2,713,200 12-19-96 $ 1,992,574 (d) Rule 42
3.70% Series C Penelec $ 4,748,600 12-19-96 $ 2,832,065 (e) Rule 42
4.05% Series D Penelec $ 3,547,700 12-19-96 $ 2,398,600 (f) Rule 42
4.70% Series E Penelec $ 1,463,600 12-19-96 $ 1,148,194 (g) Rule 42
4.50% Series F Penelec $ 2,588,800 12-19-96 $ 1,944,448 (h) Rule 42
4.60% Series G Penelec $ 4,889,600 12-19-96 $ 3,754,724 (i) Rule 42
Total $ 19,951,500 $ 14,070,605
Notes: (a) All $30,000,000 p.a., 7.45% Series, due October 28, 1996, were retired on October 28, 1996 pursuant to the
Supplemental Indenture dated December 1, 1990, at a cost of $30,000,000.
(b) All $25,000,000 p.a., 6 1/4% Series, due November 1, 1996, were retired on March 12, 1996 pursuant to the
Supplemental Indenture dated November 1, 1966, at a cost of $25,000,000, plus $568,576 accrued interest.
(c) All $20,000,000 p.a., 6.80% Series, due December 20, 1996, were retired on December 20, 1996 pursuant to the
Supplemental Indenture dated December 1, 1990, at a cost of $20,000,000.
(d) 4.40% Series B, $2,713,200 (stated value $100 per share) (27,132 shares), were retired on December 19, 1996
at a cost of $1,992,574.
(e) 3.70% Series C, $4,748,600 (stated value $100 per share) (47,486 shares), were retired on December 19, 1996
at a cost of $2,832,065.
-13-<PAGE>
ITEM 4. ACQUISITION, REDEMPTION OR RETIREMENT OF SYSTEM SECURITIES (Continued):
Pennsylvania Electric Company (Continued):
(f) 4.05% Series D, $3,547,700 (stated value $100 per share) (35,477 shares), were retired on December 19, 1996
at a cost of $2,398,600.
(g) 4.70% Series E, $1,463,600 (stated value $100 per share) (14,636 shares), were retired on December 19, 1996
at a cost of $1,148,194.
(h) 4.50% Series F, $2,588,800 (stated value $100 per share) (25,888 shares), were retired on December 19, 1996
at a cost of $1,944,448.
(i) 4.60% Series G, $4,889,600 (stated value $100 per share) (48,896 shares), were retired on December 19, 1996
at a cost of $3,754,724.
-14-<PAGE>
ITEM 5. INVESTMENTS IN SECURITIES OF NONSYSTEM COMPANIES AS OF DECEMBER 31, 1996
<CAPTION>
Equity Securities Nature of Owner's
Name of Issuer Security Owned Shares Owned % of Voting Power Business Book Value
<S> <C> <C> <C> <C> <C>
Polsky Energy Common Nonutility
Corporation Stock 2,800 (1) 9.90% Generation $5,060,387
Develop, manufacture
and market
Ballard Generation Common stationary fuel
Systems Inc. Stock 590,300 (2) 5.71% cell power systems 6,063,600
Develop, manufacture
Ballard Power Common share and market fuel cells
Systems Inc. purchase warrant - - and related systems 97,000
Limited Partnership Investment
Envirotech Interest - 9.90% company 854,830
Waterford
Development Common
Corporation Stock 50 6.25% (3) 5,000
Greater Reading Limited
Development Partnership
Partnership Interest - 5.63% (4) 100,000
(1) Includes 1,894 nonvoting shares.
(2) Includes 290,300 nonvoting shares.
(3) Participation loans to development corporations to assist in the expansion and development of
industrial and commercial activities by providing financial assistance to small, emerging businesses.
(4) A nonprofit business that provides loans to development corporations to assist in the development of
commercial real estate and multi-unit homes in the downtown Reading, Pennsylvania area.
-15-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
GPU GPU GPU GPU
GPU INT'L POWER ELECTRIC (F) GPUS GPUN GENCO
<S> <C> <C> <C> <C> <C> <C> <C>
J. R. Leva (A) (T) CH-D CH-D CH-D CH-D CH-D CB-D CH-D
F. D. Hafer (A) (R) P-D P-D D D
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ D
T. B. Hagen (L)
Hagen & Company, Erie, PA D
H. F. Henderson, Jr.
H. F. Henderson Ind., W. Caldwell, NJ D
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX D
C. A. Rein
Metropolitan Life Insurance Co., New York, NY D
P. R. Roedel
Carpenter Technology Corp., Reading, PA D
B. S. Townsend
Midlands Electricity plc, England D
C. A. H. Trost
10405 Windsor View Dr., Potomac, MD D D
Dr. P. K. Woolf
506 Quaker Rd., Princeton, NJ D
S. K. Cepeda (A) AS AS AS
F. A. Donofrio (A) VP-C SVP-D
J. G. Graham (A) (H) SVP D D D EVP-D VP D
T. G. Howson (A) (U) VP-T VP-T VP-T VP-T
I. H. Jolles (A) (I) SVP D D D EVP-D VP D-VP
M. A. Nalewako (A) S S AS S
-16-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (J) MET-ED PENELEC (K) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
J. R. Leva (A) (T) CB-D CB-D CB-D
F. D. Hafer (A) (R) D D D D D
T. H. Black
Ingersoll-Rand Co., Woodcliff Lake, NJ
T. B. Hagen (L)
Hagen & Company, Erie, PA
H. F. Henderson, Jr.
H. F. Henderson Ind., W. Caldwell, NJ
J. M. Pietruski
Texas Biotechnology Corp., Houston, TX
C. A. Rein
Metropolitan Life Insurance Co., New York, NY
P. R. Roedel
Carpenter Technology Corp., Reading, PA
B. S. Townsend
Midlands Electricity plc, England
C. A. H. Trost
10405 Windsor View Dr., Potomac, MD
Dr. P. K. Woolf
506 Quaker Rd., Princeton, NJ
S. K. Cepeda (A)
F. A. Donofrio (A)
J. G. Graham (A) (H) VP-D VP-D VP-D
T. G. Howson (A) (U) VP-T VP-T VP-T VP-T VP-T T T T
I. H. Jolles (A) (I) VP VP VP
M. A. Nalewako (A) AS AS AS AS AS
-17-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
GPU GPU GPU GPU
GPU INT'L POWER ELECTRIC (F) GPUS GPUN GENCO
<S> <C> <C> <C> <C> <C> <C> <C> <C>
S. H. Somich (A) AT AT AT AT
R. C. Arnold (A) (M) EVP-D D
R. C. Black (A) VP
P. R. Chatman (A) AC AC
F. Dominguez (A) VP
D. Furlong (A) AC
C. A. Mansfield
GPUSC, Washington, DC VP
C. A. Mascari (A) (N) VP
P. C. Mezey (A) D D D SVP
C. Mignon (B) (O) VP
R. J. Postweiler (A) VP
S. C. Thomas (B) VP
S. A. Weiner (C) (P) VP VP VP
D. C. Brauer (C) (S) VP-T VP-T VP-T VP-T
R. J. Guy (C) VP VP VP VP
B. L. Levy (C) (G) P-D P-D P-D P-D D
J. A. McTear (C) VP VP VP VP
-18-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (J) MET-ED PENELEC (K) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C>
S. H. Somich (A) AT VP AT AT
R. C. Arnold (A) (M) D D D
R. C. Black (A)
P. R. Chatman (A) AC AC AC
F. Dominguez (A)
D. Furlong (A)
C. A. Mansfield
GPUSC, Washington, DC
C. A. Mascari (A) (N)
P. C. Mezey (A)
C. Mignon (B) (O)
R. J. Postweiler (A)
S. C. Thomas (B)
S. A. Weiner (C) (P)
D. C. Brauer (C) (S)
R. J. Guy (C)
B. L. Levy (C) (G)
J. A. McTear (C)
-19-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
GPU GPU GPU GPU
GPU INT'L POWER ELECTRIC (F) GPUS GPUN GENCO
<S> <C> <C> <C> <C> <C> <C> <C>
R. J. Neary (C) EVP EVP EVP EVP
W. S. Greengrove (C) S S S S
W. A. Wilson
ICC Technologies, Philadelphia, PA D
M. B. Roche
O.C. NS, Forked River, NJ VP
T. G. Broughton (C) D P-D D
J. D. Townsend
Sedona, AZ D
M. E. Gramlich (A) AS
S. L. Guibord (A) S
R. W. Keaton (C) VP-D
J. Knubel (C) (Q)
TMI-1, Middletown, PA VP
A. H. Rone (C) VP
P. E. Maricondo (C) VP-C
R. S. Renzi (C) AS
J. F. Wilson (C) VP
G. A. Kuehn (C)
E. F. Beglin (D)
-20-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (J) MET-ED PENELEC (K) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C>
R. J. Neary (C)
W. S. Greengrove (C)
W. A. Wilson
ICC Technologies, Philadelphia, PA
M. B. Roche
O.C. NS, Forked River, NJ
T. G. Broughton (C) D
J. D. Townsend
Sedona, AZ
M. E. Gramlich (A)
S. L. Guibord (A) S S S S
R. W. Keaton (C)
J. Knubel (C) (Q)
TMI-1, Middletown, PA
A. H. Rone (C) EVP-D
P. E. Maricondo (C)
R. S. Renzi (C)
J. F. Wilson (C)
G. A. Kuehn (C) VP
E. F. Beglin (D) C
-21-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
GPU GPU GPU GPU
GPU INT'L POWER ELECTRIC (F) GPUS GPUN GENCO
<S> <C> <C> <C>
D. Baldassari (D) D D D
G. E. Persson
Business Dynamics Assoc., Red Bank NJ
S. C. Van Ness
Pico, Mack, Kennedy, Jaffe,
Perrella & Yoskin, Trenton, NJ
S. B. Wiley
Wiley, Malehorn & Sirota, Morristown, NJ
R. S. Cohen (D)
C. R. Fruehling (D)
D. J. Howe (D)
E. J. McCarthy (D)
D. W. Myers (D)
J. J. Westervelt (D)
W. A. Boquist (D)
D. L. O'Brien (D)
R. J. Toole (E) VP-D
-22-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (J) MET-ED PENELEC (K) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
D. Baldassari (D) P-D P-D P-D P-D P-D CB-P-D
G. E. Persson
Business Dynamics Assoc., Red Bank NJ D
S. C. Van Ness
Pico, Mack, Kennedy, Jaffe,
Perrella & Yoskin, Trenton, NJ D
S. B. Wiley
Wiley, Malehorn & Sirota, Morristown, NJ D
R. S. Cohen (D) VP
C. R. Fruehling (D) VP
D. J. Howe (D) VP VP VP
E. J. McCarthy (D) VP
D. W. Myers (D) VP-C-D VP-C-D VP-C-D
J. J. Westervelt (D) VP
W. A. Boquist (D) S-D
D. L. O'Brien (D) VP C C
R. J. Toole (E) VP VP VP P-D VP-D
-23-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
GPU GPU GPU GPU
GPU INT'L POWER ELECTRIC (F) GPUS GPUN GENCO
<S> <C> <C> <C> <C> <C> <C>
R. S. Zechman (D)
J. B. DeAngelo (D)
L. A. Lenhart (B)
V. D. Schimoler, Jr. (D)
D. Weaver (D)
R. L. Wise (E) D D D D D P-D
C. Brooks (E) VP
J. F. Furst (D)
R. J. Vodzack (E) (V) AC
W. C. Matthews (D)
G. R. Repko (D)
C. B. Snyder (D)
J. L. Greco (D)
-24-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
NAMES OF GPU COMPANIES WITH WHICH CONNECTED
<CAPTION>
YORK
HAVEN NINEVEH WAVERLY
POWER WATER ELEC.
JCP&L (J) MET-ED PENELEC (K) CO. CO. CO. SAXTON
<S> <C> <C> <C> <C> <C> <C> <C>
R. S. Zechman (D) VP VP VP D
J. B. DeAngelo (D) D
L. A. Lenhart (B) T
V. D. Schimoler, Jr. (D) C
D. Weaver (D) VP
R. L. Wise (E) P-D
C. Brooks (E)
J. F. Furst (D) D
R. J. Vodzack (E) (V)
W. C. Matthews (D) AS AS AS S S S
G. R. Repko (D) VP VP VP-D VP-D
C. B. Snyder (D) VP VP VP
J. L. Greco (D) D
-25-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
(A) Address is 100 Interpace Parkway, Parsippany, NJ.
(B) Address is Rt. 183 & Van Reed Road, Reading, PA.
(C) Address is One Upper Pond Road, Parsippany, NJ.
(D) Address is 2800 Pottsville Pike, Muhlenberg Township, PA.
(E) Address is 1001 Broad Street, Johnstown, PA.
(F) Includes the following GPU International Group companies: Elmwood Energy Corporation, Camchino Energy
Corporation, OLS Acquisition Corporation, OLS Energy - Berkeley, OLS Energy - Chino, OLS Energy - Camarillo,
Armstrong Energy Corporation, Geddes Cogeneration Corporation, NCP Energy, Inc., NCP Lake Power, Inc., NCP Gem,
Inc., Umatilla Groves, Inc., NCP Dade Power, Inc., NCP Pasco, Inc., NCP Brooklyn Power, Inc., NCP Commerce Power,
Inc., NCP Houston Power, Inc., NCP Perry, Inc., NCP New York, Inc., EI Selkirk, Inc., EI Canada Holding, Ltd., EI
Brooklyn Power, Ltd., EI Services Canada, Ltd., EI Brooklyn Investments, Ltd., EI International, EI Fuels
Corporation, EI Services, Inc., Hanover Energy Corporation, EI Power (China), Inc., EI Power (China) I, Inc., EI
Power (China) II, Inc., EI Power (China) III, Inc., Guaracachi America, Inc., EI Barranquilla, Inc., Barranquilla
Lease Holding, Inc., Los Amigos Leasing Company, Ltd., Austin Cogeneration Corporation, International Power
Advisors, Inc., GPU Power Philippines, Inc., Victoria Electric Holdings, Inc., and Victoria Electric, Inc.
(G) B. L. Levy is also Director of Empresa Guaracachi S.A., Solaris Power, Termobarranquilla S.A., GPU International
Australia Services Pty Ltd, EI UK Holdings, Inc., Avon Energy Partners Holdings, Avon Energy Partners plc, and
Midlands Electricity plc.
(H) J. G. Graham is also Alternate Director of Empresa Guaracachi S.A. and Director of Solaris Power, EI UK Holdings,
Inc., Avon Energy Partners Holdings, Avon Energy Partners plc, and Midlands Electricity plc.
(I) I. H. Jolles is also Director of Empresa Guaracachi S.A. and Solaris Power.
(J) Includes the following companies: JCP&L Preferred Capital, Inc., and JCP&L Capital, L.P.
(K) Includes the following companies: Met-Ed Preferred Capital, Inc., Met-Ed Capital, L.P., Penelec Preferred
Capital, Inc., and Penelec Capital, L.P.
(L) T. B. Hagen was elected Director of GPU effective March 5, 1997.
(M) Effective April 30, 1997, R. C. Arnold resigned from all positions at GPU.
-26-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
(N) C. A. Mascari resigned his position as Vice President - Power Services of GPUS effective March 31, 1997. He was
elected Vice President - Power Services of JCP&L, Met-Ed, and Penelec effective April 1, 1997.
(O) Effective April 30, 1997, C. Mignon resigned from all positions at GPU.
(P) At December 31, 1996, S. A. Weiner was also Vice President of EI Services, Inc. and GPU Power Philippines, Inc.
Effective March 31, 1997, S. A. Weiner resigned from all positions at GPU.
(Q) Effective February 21, 1997, J. Knubel resigned from all positions at GPU.
(R) F. D. Hafer was elected Director of GPU Int'l. effective February 4, 1997.
(S) D. C. Brauer is also Vice President and Treasurer of EI UK Holdings, Inc.
(T) J. R. Leva is also Director of Avon Energy Partners Holdings, Avon Energy Partners plc, and Midlands Electricity
plc.
(U) T. G. Howson is also Vice President of EI UK Holdings, Inc.
(V) R. J. Vodzack is also Chief Accounting Officer of GPU Genco.
(W) The following were elected as officers of Advanced Resources effective March 7, 1997:
D. Baldassari - P
T. G. Howson - VP - T
S. L. Guibord - S
-27-</TABLE>
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
PART I. AS OF DECEMBER 31, 1996
KEY
CH - Chairman
CB - Chairman of the Board
D - Director
P - President
EVP - Executive Vice President
SVP - Senior Vice President
VP - Vice President
C - Comptroller
T - Treasurer
S - Secretary
AS - Assistant Secretary
AT - Assistant Treasurer
AC - Assistant Comptroller
-28-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part II. AS OF DECEMBER 31, 1996
NAME AND LOCATION POSITION HELD APPLICABLE
NAME OF OFFICER OF IN FINANCIAL EXEMPTION
OR DIRECTOR FINANCIAL INSTITUTION INSTITUTION RULE
D. Baldassari First Morris Bank Director 70(f)
Morristown, NJ
F. D. Hafer Sovereign Bancorp, Inc. Director 70(a)
and Sovereign Bank
Reading, PA
C. A. Rein Bank of New York Director 70(b)
New York, NY
S. B. Wiley First Morris Bank Director
Morristown, NJ (Chairman) 70(c)
R. L. Wise U.S. Bancorp, Inc. Director 70(f)
Johnstown, PA
" " U.S. Bancorp Director 70(f)
Trust Company
Johnstown, PA
" " U.S. National Bank Director 70(f)
of Johnstown
Johnstown, PA
-29-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued):
Part III.
Information concerning the compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec is filed as
Exhibit F-1 to this Form U5S.
-30-
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS
Name of Company Account
Name of Beneficiary Purpose Charged Amount
Jersey Central Power & Light Company:
Salary and Expenses - Public
Affairs Activities (2) (3) $805,526
Edison Electric Institute - Dues (1) (3) & (4) 79,578
Edison Electric Institute - Media
Communication Fund (1) (4) 105,895
Int'l Utility Efficiency Partnership (1) (4) 11,144
Alliance for Competitive Electricity (1) (3) 68,054
Utility Water Act Group (1) (4) 4,962
MWW Strategic Communications (2) (3) 147,352
Community Outreach Program (2) (3) 75,098
Monroe Township Municipalization (2) (3) 150,230
Martin Bontempo, Inc. (2) (3) 22,500
Norwescap, Inc. (1) (3) 40,000
O.C.E.A.N., Inc. (1) (3) 60,000
4 Beneficiaries (1) & (2) (3) & (4) 3,572
Company total $1,573,911
Metropolitan Edison Company:
Salary & Expenses - Public
Affairs Activities (2) (3) $543,943
Edison Electric Institute - Dues (1) (3) & (4) 49,416
Edison Electric Institute - Media
Communication Fund (1) (4) 65,485
Int'l Utility Efficiency Partnership (1) (4) 5,329
Alliance for Competitive Electricity (1) (3) 42,180
Utility Water Act Group (1) (4) 2,424
Project Good Neighbor (1) (3) 185,159
12 Beneficiaries (1) & (2) (3) & (4) 15,606
Company total $909,542
Pennsylvania Electric Company:
Salary & Expenses - Public Affairs
Activities (2) (3) $606,346
Edison Electric Institute - Dues (1) (3) & (4) 54,561
Edison Electric Institute - Media
Communication Fund (1) (4) 72,301
Int'l Utility Efficiency Partnership (1) (4) 6,827
Alliance for Competitive Electricity (1) (3) 46,571
Utility Water Act Group (1) (4) 2,735
Project Good Neighbor (1) (3) 137,370
4 Beneficiaries (1) & (2) (3) & (4) 7,221
Company total $933,932
Total for all Companies $3,417,385
-31-
<PAGE>
ITEM 7. CONTRIBUTIONS AND PUBLIC RELATIONS (Continued):
Notes: (1) Contribution or membership fee.
(2) Public relations services.
(3) Income deduction.
(4) Operating expense.
-32-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS
Part I.
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Charges incurred in JCP&L Met-Ed $ 359
connection with the " Penelec 446
Allenhurst Remittance Center
Phillipsburg building costs
allocated to Corporate Plant
Accounting Department JCP&L GPUS 250
Costs associated with the Legal JCP&L GPUN 20
Department for services rendered " GPUS 11
Costs associated with providing JCP&L Met-Ed 342
storm restoration work
MGO building costs allocated to JCP&L Met-Ed 42
Conditioned Power Department
Costs associated with the Cataloging JCP&L Met-Ed 15
Department for services provided " Penelec 11
Costs related to the Insurance & JCP&L Met-Ed 59
Claims Dept. for services provided " Penelec 59
Services provided by JCP&L employee JCP&L Penelec 28
temporarily reassigned to Penelec's
Purchasing Department
Services provided by JCP&L employee JCP&L GPUS 36
temporarily reassigned to GPUS's
Internal Auditing Department
Services provided by JCP&L employee JCP&L GPUI Group 63
working in England on Midlands project
Other JCP&L GPUS 7
" Met-Ed 2
" Penelec 6
Total JCP&L $1,756
-33-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Continued)
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Costs incurred by Reprographics Met-Ed GPUN $ 151
Department for services provided " GPUS 265
" JCP&L 650
" Penelec 276
" Genco 96
" GPUI Group 3
" GPU, Inc. 5
Company Store charges Met-Ed GPUS 13
" JCP&L 5
" Penelec 38
" Genco 3
Costs incurred for the operation Met-Ed JCP&L 160
and maintenance of JCP&L owned
capacitors at TMI & Hosensack
Misc. services provided GPUN/TMI Met-Ed GPUN 34
(includes remote reporting)
Management services related to Met-Ed GPUI Group 90
Solaris Power
Corporate Communications services Met-Ed GPUS 59
Rental of office space Met-Ed GPUS 13
Other Met-Ed GPUN 26
" GPUS 18
" JCP&L 15
" Penelec 39
" Genco 40
" GPUI Group 4
Total Met-Ed $2,003
-34-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Continued)
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Costs associated with GPU Penelec GPUN $ 50
consolidated Accounts " GPUS 22
Payable Department " Met-Ed 50
" JCP&L 90
" Genco 70
Costs associated with GPU Penelec GPUN 17
consolidated Payroll " GPUS 6
Department " Met-Ed 13
" JCP&L 23
" Genco 17
Costs associated with GPU Penelec Met-Ed 25
consolidated Fuels Department " JCP&L 3
Genco 14
Costs associated with providing Penelec Met-Ed 22
specific technical and general " JCP&L 32
engineering services " Genco 20
R&D costs Penelec Met-Ed 4
" JCP&L 4
Costs associated with the Yards Penelec JCP&L 17
Creek penstock coating
Vehicle usage Penelec GPUS 2
" Met-Ed 52
" JCP&L 3
Costs associated with providing Penelec Met-Ed 288
storm restoration work
Costs associated with business Penelec Met-Ed 15
office data verification and
cleanup
Engineering services related to Penelec GPUI Group 29
various GPUI Group projects
Costs associated with the Penelec Genco 301
Electrical Maintenance
Information System
Rental of office space Penelec Genco 2,605
-35-
<PAGE>
ITEM 8. SERVICE, SALES AND CONSTRUCTION CONTRACTS: (Continued)
Part I. (Penelec Continued)
Serving Receiving
Transaction Company Company Compensation
(In Thousands)
Costs associated with the Penelec Genco 61
maintenance of Portland Station
Costs associated with Penelec Genco 88
mobile maintenance
Other Penelec GPUN 20
" Met-Ed 36
" JCP&L 17
Total Penelec $4,016
A Mutual Assistance Agreement, approved by the Pennsylvania Public Utility
Commission by order dated December 15, 1993, between and among Met-Ed,
Penelec, JCP&L, GPUN, GPUS and Genco covering various affiliate transactions
in goods and services remains in effect at year end.
Part II.
None.
Part III.
None.
-36-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Selkirk, Inc. and Selkirk Cogeneration Partners Limited Partnership
Part I.
(a) At December 31, 1996, GPU International, Inc. (GPUI), through its wholly-
owned subsidiary EI Selkirk, Inc., owned a 13.55% preferred interest and
a 20% common interest in Selkirk Cogeneration Partners Limited
Partnership (Selkirk).
Selkirk is a Delaware limited partnership and was formed for the purpose
of constructing, owning and operating two natural gas-fired combined-
cycle cogeneration facilities located in Bethlehem, New York. The
facilities are 79.9 and 26.5 megawatts (MW) each with a combined average
net capacity of 344.9 MW producing steam and electricity.
(b) GPU, Inc. (GPU), indirectly through its wholly-owned subsidiary GPUI, has
invested $20,285,793 in Selkirk.
(c) Ratio of debt to common equity of Selkirk - (21):1
Accumulated losses of Selkirk - $(25,026,123)
(d) None.
Part II.
An organizational chart showing the relationship of GPU International, Inc. to
Selkirk is provided in Exhibit H-1.
Financial statements of Selkirk Cogeneration Partners Limited Partnership as
of and for the year ended December 31, 1996 are provided in Exhibit I-1.
-37-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Canada Holding Limited, EI Brooklyn Power Limited, EI Brooklyn Investments
Limited, EI Services Canada Limited and Brooklyn Energy Limited Partnership
Part I.
(a) At December 31, 1996, GPU International, Inc. (GPUI), through its wholly-
owned subsidiaries EI Canada Holding Limited, EI Brooklyn Power Limited
and EI Brooklyn Investments Limited, owned a 74.1% general partnership
interest and a 1% limited partnership interest in Brooklyn Energy Limited
Partnership (BELP).
BELP, a 24 megawatt wood and oil burning cogeneration facility, is
located in Brooklyn, Nova Scotia, Canada, and commenced commercial
operation in April 1996.
(b) GPU, indirectly through its wholly-owned subsidiary GPUI, capitalized
$204,883 in organizational costs related to its investment in BELP, and
has invested $748,422 in BELP.
GPU has provided a guaranty of up to US $9.7 million of BELP's repayment
obligations with respect to a C $12.9 million letter of credit issued to
BELP's project lenders with any payments by GPU constituting a Canadian
dollar equivalent equity contribution of GPUI to BELP.
(c) Ratio of debt to common equity of BELP - (14):1
Accumulated losses of BELP - $(4,584,927)
(d) GPUI received a $97,000 one-time guaranty fee as consideration for its
arranging of the $9.7 million GPU guaranty of BELP's letter of credit.
EI Services Canada Limited (ESC), a wholly-owned subsidiary of GPUI, has
an operation and maintenance (O&M) contract with BELP. ESC is entitled
to an annual fee of C $300,000 per year.
Part II.
An organizational chart showing the relationship of GPU International, Inc. to
BELP is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
BELP and ESC as of and for the year ended December 31, 1996 are provided in
Exhibit I-1.
-38-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
GPU Power, Inc.
Part I.
(a) At December 31, 1996, GPU, Inc. (GPU) owned 100% of GPU Power, Inc., a
Delaware corporation established to make investments in EWGs, own and/or
operate eligible facilities and to engage in project development
activities for eligible facilities.
(b) GPU has invested $33,000,000 in GPU Power, Inc.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings - $570,379
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to other
EWGs in which it has an interest is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU Power, Inc. as of and for the year ended December 31, 1996 are provided
in Exhibit I-1.
-39-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Guaracachi America, Inc. and Empresa Guaracachi S.A.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary Guaracachi America, Inc., owned 50% of Empresa Guaracachi S.A.
Empresa Guaracachi S.A. is a Bolivian corporation having three facilities
located in Bolivia in and around the cities of Santa Cruz, Sucre and
Potosi. It is an electric generating company having an aggregate
capacity of 216 megawatts.
(b) GPU, through its wholly-owned subsidiary GPU Power, Inc., invested
$47,131,000 in Empresa Guaracachi S.A. The investment was funded by a
capital contribution from GPU of $33,000,000 and borrowings of
$14,131,000.
(c) Ratio of debt to common equity of Empresa Guaracachi S.A. - .682:1
Accumulated earnings of Empresa Guaracachi S.A. - $5,716,030
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Empresa
Guaracachi S.A. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Empresa Guaracachi S.A. as of and for the year ended December 31, 1996 are
provided in Exhibit I-1.
-40-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Barranquilla, Inc. and Termobarranquilla S.A.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary EI Barranquilla, Inc., owned a 29% interest in
Termobarranquilla S.A. Empresa de Servicios Publicos (TEBSA).
TEBSA consists of an existing 240 megawatt gas-fired generating plant
located near Barranquilla, Colombia, and a 750 megawatt gas-fired plant
currently being constructed adjacent to the existing plant. Two of the
planned seven units (approximately 194 MW) were placed into operation
during 1996. Electricity generated by these plants will be sold to
Corporacion Electrica de la Costa Atlantica (Corelca) under a 20-year
contract. Total project costs, including the acquisition of the existing
plant, are approximately $750 million, of which GPU Power, Inc.'s equity
contribution is expected to be approximately $65 million.
(b) As of December 31, 1996, GPU Power Inc. has made capital contributions
totaling $382,583 in TEBSA.
As of October 18, 1995, a guarantee of amounts up to $122,750,000 was
made by GPU for the benefit of the Bankers Trust Company as collateral
agent on behalf of the Equity Bridge Lenders and the Secured Parties in
connection with the Barranquilla, Colombia acquisition.
(c) Ratio of debt to common equity of TEBSA - Not applicable.
Accumulated losses of TEBSA - $(3,555,973)
(d) See GPU International Latin America, Ltda. Item I, Part (d).
Part II.
An organization chart showing the relationship of GPU Power, Inc. to TEBSA is
provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
TEBSA as of and for the year ended December 31, 1996 are provided in Exhibit
I-1.
-41-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Barranquilla Lease Holding, Inc. and Los Amigos Leasing Company, Ltd.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary Barranquilla Lease Holding, Inc., owned a 100% interest in Los
Amigos Leasing Company, Ltd. (Leaseco).
Leaseco, which is a Bermuda corporation, has begun to procure equipment
to be used by and leased to TEBSA. Pursuant to a lease agreement,
Leaseco will deliver certain non-Colombian equipment related to TEBSA,
and TEBSA will make lease payments equal to the interest and principal
payments of Leaseco.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Power, Inc., has
invested $12,000 in Leaseco to capitalize the company.
(c) Ratio of debt to common equity of Leaseco - 4,277:1
Accumulated earnings of Leaseco - $39,053
(d) Pursuant to the lease agreement, Leaseco will deliver certain non-
Colombian equipment related to the project to TEBSA during the
construction period. TEBSA will lease the imported equipment from
Leaseco during an interim lease term during the construction period and
subsequently during a 15 year basic lease term. During the interim lease
term, TEBSA will pay rent to Leaseco to reimburse it for certain
expenses, including interest incurred during construction. During the
basic lease term, TEBSA will make lease payments equal to the interest
and principal payments of Leaseco.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Leaseco
is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Leaseco as of and for the year ended December 31, 1996 are provided in Exhibit
I-1.
-42-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI International and GPU International Latin America, Ltda.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary EI International, owned a 100% interest in GPU International
Latin America, Ltda.
GPU International Latin America, Ltda. has entered into an operation and
maintenance (O&M) agreement with TEBSA to provide management services to
TEBSA over its 20-year contract with Corelca. Fees for these management
services are in accordance with the terms and conditions of the O&M
agreement.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Power, Inc., has
invested $10,000 in GPU International Latin America, Ltda. to capitalize
the company.
GPUI has guaranteed the obligations of GPU Power, Inc.'s subsidiaries,
GPU International Latin America, Ltda. and International Power Advisors,
Inc. (the Operators), under the O&M agreement in the TEBSA project.
Pursuant to the guarantee, GPUI has guaranteed the performance of the
Operators, of which the limit of liability is $5,000,000.
(c) Ratio of debt to common equity of GPU International Latin America, Ltda.
- Not applicable.
Accumulated losses of GPU International Latin America, Ltda. - $(60,872).
(d) See (a) above.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to GPU
International Latin America, Ltda. is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU International Latin America, Ltda. as of and for the year ended December
31, 1996 are provided in Exhibit I-1.
-43-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Hanover Energy Corporation
Part I.
(a) At December 31, 1996, GPU Power, Inc. owned 100% of Hanover Energy
Corporation, a New Jersey corporation established to make future
investments in EWGs.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to Hanover Energy Corporation as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Hanover
Energy Corporation is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-44-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China), Inc. and China Power Partners, L.P.
Part I.
(a) At December 31, 1996, GPU Power, Inc. through its wholly-owned subsidiary
EI Power (China), Inc., owned a 49% limited partnership interest and a 1%
general partnership interest in China Power Partners, L.P.
China Power Partners, L.P. is a Delaware limited partnership established
to make future investments in EWG's in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China), Inc. or China Power Partners, L.P. as
of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to China
Power Partners L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-45-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) I, Inc. and Ming Jiang Power Partners, L.P.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary EI Power (China) I, Inc., owned a 49% limited partnership
interest and a 1% general partnership interest in Ming Jiang Power
Partners, L.P.
Ming Jiang Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWGs in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China) I, Inc. or Ming Jiang Power Partners,
L.P. as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Ming
Jiang Power Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-46-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) II, Inc. and Nanjing Power Partners, L.P.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary EI Power (China) II, Inc., owned a 49% limited partnership
interest and a 1% general partnership interest in Nanjing Power Partners,
L.P.
Nanjing Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWGs in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China) II, Inc. or Nanjing Power Partners,
L.P. as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Nanjing
Power Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-47-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
EI Power (China) III, Inc. and Zhuang He Power Partners, L.P.
Part I.
(a) At December 31, 1996, GPU Power, Inc. through its wholly-owned subsidiary
EI Power (China) III, Inc., owned a 49% limited partnership interest and
a 1% general partnership interest in Zhuang He Power Partners, L.P.
Zhuang He Power Partners, L.P. is a Delaware limited partnership
established to make future investments in EWG's in China.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to EI Power (China) III, Inc. or Zhuang He Power Partners,
L.P. as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Zhuang
He Power Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-48-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
Austin Cogeneration Corporation and Austin Cogeneration Partners, L.P.
Part I.
(a) At December 31, 1996, GPU Power, Inc., through its wholly-owned
subsidiary Austin Cogeneration Corporation, owned a 99% limited
partnership interest and a 1% general partnership interest in Austin
Cogeneration Partners, L.P.
Austin Cogeneration Partners, L.P. is a Delaware limited partnership
established to invest in EWGs and qualifying facilities.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to Austin Cogeneration Corporation or Austin Cogeneration
Partners, L.P. as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to Austin
Cogeneration Partners, L.P. is provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-49-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
International Power Advisors, Inc.
Part I.
(a) At December 31, 1996, GPU Power, Inc. owned 100% of International Power
Advisors, Inc. (IPA), a Delaware corporation established to provide
technical services to EWGs.
IPA has entered into an operation and maintenance (O&M) agreement with
TEBSA to provide technical services and technical assistance in the O&M
of the generating facilities of TEBSA. Fees for these services are in
accordance with the terms and conditions of the O&M agreement.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to IPA as of December 31, 1996.
Accumulated earnings - None.
(d) See (a) above.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to IPA is
provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
-50-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
EXEMPT WHOLESALE GENERATORS (EWG):
GPU Power Philippines, Inc. * (formerly Colombian Installations, Inc.) and
Magellan Utilities Development Corporation
Part I.
(a) At December 31, 1996, GPU Power, Inc. through its wholly-owned
subsidiary, GPU Power Philippines, Inc. (formerly Colombian
Installations, Inc.), a Delaware corporation owned a 13.2% interest in
Magellan Utilities Development Corporation (MUDC).
MUDC, a Philippine corporation, plans to build a 300 MW pulverized coal-
fired power plant which will sell power under a 25-year power purchase
agreement to Manila Electric Company. The plant will be constructed on a
100-acre site located on the south shore of Bantangas Bay, Philippines.
Commercial operation is expected after a three-year construction period.
(b) None.
(c) Ratio of debt to common equity - GPU Power, Inc. has not made equity
contributions to GPU Power Philippines, Inc. as of December 31, 1996.
Accumulated earnings - None.
(d) None.
Part II.
An organizational chart showing the relationship of GPU Power, Inc. to MUDC is
provided in Exhibit H-1.
Exhibit I-1 - Not applicable.
* EWG Application is presently pending with the Federal Energy Regulatory
Commission.
-51-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
FOREIGN UTILITY COMPANIES (FUCO):
GPU Electric, Inc.
Part I.
(a) At December 31, 1996, GPU owned 100% of GPU Electric, Inc., a Delaware
corporation established to make investments in FUCO's, own and/or operate
eligible facilities and to engage in project development activities for
eligible facilities.
(b) GPU has invested $48,000,000 in GPU Electric, Inc.
(c) Ratio of debt to common equity - Not applicable.
Accumulated earnings - $15,712,716
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to
other FUCO's in which it has an interest is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
GPU Electric, Inc. as of and for the year ended December 31, 1996 are provided
in Exhibit I-1.
-52-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
FOREIGN UTILITY COMPANIES (FUCO):
Victoria Electric Holdings, Inc., Victoria Electric, Inc. and Solaris Power
Part I.
(a) At December 31, 1996, GPU Electric, Inc. through its wholly-owned
subsidiary Victoria Electric Holdings, Inc and its wholly-owned
subsidiary Victoria Electric, Inc., owned 50% of Solaris Power (Solaris).
Solaris is an Australian electric distribution company located in and
around Melbourne, Australia, which serves approximately 230,000
customers.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Electric, Inc.,
has invested approximately $112,173,000 in Solaris. The investment was
funded by a capital contribution from GPU of $48,000,000 and borrowings
of approximately $64,173,000.
As of December 31, 1996, GPU has guaranteed amounts not to exceed an
aggregate of Austalian $95 million (US $75 million), outstanding at any
one time. The proceeds of such borrowings were used to fund, in part,
GPU's investment in Solaris.
(c) Ratio of debt to common equity of Solaris - 2.17:1
Accumulated earnings of Solaris - $(33,457)
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to
Solaris is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Solaris as of and for the year ended December 31, 1996 are provided in Exhibit
I-1.
-53-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
FOREIGN UTILITY COMPANIES (FUCO):
EI UK Holdings, Inc., Avon Energy Partners Holdings, Avon Energy Partners plc
and Midlands Electricity plc
Part I.
(a) At December 31, 1996, GPU Electric, Inc. through its wholly-owned
subsidiary EI UK Holdings, Inc. (EIUK), owned a 50% interest in Avon
Energy Partners Holdings which owned 100% of Avon Energy Partners plc,
which in turn, owned 100% of Midlands Electricity plc (Midlands).
Midlands is an English regional electric company which supplies and
distributes electricity to 2.2 million customers in England. Midlands
also owns a generation business that produces electricity both
domestically and internationally, and a gas supply company that provides
natural gas to 8,000 customers in England.
(b) GPU, indirectly through its wholly-owned subsidiary GPU Electric, Inc.,
has invested approximately $568 million in Midlands.
As of December 31, 1996, EIUK has borrowed approximately $586 million,
through a GPU, Inc. guaranteed five-year bank term loan facility, to fund
its investment in Avon Energy Partners Holdings.
(c) Ratio of debt to common equity of Midlands Electricity - .302:1
Accumulated earnings of Midlands Electricity - $26,709,681
(d) None.
Part II:
An organizational chart showing the relationship of GPU Electric, Inc. to
Midlands is provided in Exhibit H-1.
Filed pursuant to request for confidential treatment, financial statements of
Midlands as of and for the year ended December 31, 1996 are provided in
Exhibit I-1.
-54-
<PAGE>
ITEM 9. WHOLESALE GENERATORS AND FOREIGN UTILITY COMPANIES
Part III.
GPU's aggregate investment in EWG's and FUCO's at December 31, 1996, was as
follows:
EWG's: $ 57,288,044
FUCO's: $725,796,779
GPU's aggregate capital investment in domestic public utility subsidiary
companies at December 31, 1996 was approximately $2,943,213,000.
Ratio of GPU's aggregate investment of EWG's and FUCO's to GPU's aggregate
investment in domestic public utility subsidiary companies at December 31,
1996, was as follows:
EWG's: .02:1
FUCO's: .25:1
-55-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS
Page
Consolidating Financial Statements, Schedules and Notes
- Report of Independent Accountants. 57
- Consolidating Financial Statements of GPU, Inc. 58-68
for 1996.
- Combined Notes 1 through 14 to Consolidated Financial
Statements incorporated herein by reference, in Exhibit
A (page 69), in the GPU, Inc. Annual Report on Form 10-K
for 1996 (Item 8 of 10-K).
- Combined Notes 1 through 14 to Consolidated Financial
Statements incorporated herein by reference, in Exhibit
A (page 69), in the Jersey Central Power & Light Company
Annual Report on Form 10-K for 1996 (Item 8 of 10-K).
- Combined Notes 1 through 14 to Consolidated Financial
Statements incorporated herein by reference, in Exhibit
A (page 69), in the Metropolitan Edison Company
Annual Report on Form 10-K for 1996 (Item 8 of 10-K).
- Combined Notes 1 through 14 to Consolidated Financial
Statements incorporated herein by reference, in Exhibit
A (page 69), in the Pennsylvania Electric Company
Annual Report on Form 10-K for 1996 (Item 8 of 10-K).
Exhibits (See page 69)
- Consolidating Financial Statements of Jersey Central Power and Light
Company for 1996.
- Consolidating Financial Statements of Metropolitan Edison Company for
1996.
- Consolidating Financial Statements of Pennsylvania Electric Company for
1996.
-56-
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
GPU, Inc.
We have audited the consolidated balance sheet of GPU, Inc. and Subsidiary
Companies as of December 31, 1996 and the related consolidated statements of
income, retained earnings, and cash flows for the year then ended. Such
consolidated financial statements are included in the consolidating financial
statements listed in Item 10 of this Form U5S. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of GPU, Inc. and
Subsidiary Companies as of December 31, 1996 and the consolidated results of
their operations and their cash flows for the year then ended in conformity
with generally accepted accounting principles.
Our audit was conducted for the purpose of forming an opinion on the
consolidated financial statements taken as a whole. The supplementary
consolidating information and the financial statement exhibits of the
individual companies listed in Item 10 of this U5S are presented for purposes
of additional analysis rather than to present the financial position, results
of operations, and cash flows of the individual companies, and are not a
required part of the consolidated financial statements. The supplementary
consolidating information and the financial statement exhibits have been
subjected to the auditing procedures applied in the audit of the consolidated
financial statements and, in our opinion, are fairly stated, in all material
respects, in relation to the consolidated financial statements taken as a
whole.
COOPERS & LYBRAND L.L.P.
New York, New York
February 5, 1997
-57-
<PAGE>
<TABLE>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power & Light Edison Electric
ASSETS Consolidated Adjustments GPU, Inc. Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Utility Plant:
In service, at original cost $ 9,646,380 $ 4,528,676 $ 2,297,100 $ 2,738,223
Less, accumulated depreciation 3,704,026 1,811,620 841,398 1,022,553
Net utility plant in service 5,942,354 2,717,056 1,455,702 1,715,670
Construction work in progress 277,440 106,512 98,171 72,757
Other, net 168,029 111,116 31,000 22,910
Net utility plant 6,387,823 2,934,684 1,584,873 1,811,337
Other Property and Investments:
Common stock of subsidiaries - $ 3,175,122(A) $ 3,175,122
GPU International Group investments, net 924,397
Nuclear decommissioning trusts 464,011 278,342 131,475 54,194
Nuclear fuel disposal trust 101,661 101,661
Other, net 51,122 5,534 8,305 11,261 7,271
Total other property and investments 1,541,191 3,175,122 3,180,656 388,308 142,736 61,465
Current Assets:
Cash and temporary cash investments 31,604 7,536 1,321 1,901
Special deposits 47,545 6,939 1,052 2,348
Accounts receivable:
Customers, net 270,844 (477)(E) 135,655 61,522 73,190
Other 91,637 149,056(B,C, 2 33,228 17,368 15,151
Unbilled revenues 114,891 D,E) 56,522 27,019 31,350
Materials and supplies, at average cost or less:
Construction and maintenance 187,130 92,761 39,739 49,007
Fuel 40,207 19,257 11,026 9,924
Deferred income taxes 32,148 22,509 7,073
Prepayments 81,168 21,150 17,254 36,930
Total current assets 897,174 148,579 7,538 389,342 183,954 217,900
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 356,517 126,448 144,782 85,287
Income taxes recoverable through future
rates 527,385 142,726 174,636 210,023
Nonutility generation contract buyout costs 242,481 139,000 86,781 16,700
Unamortized property losses 100,310 94,767 3,113 2,430
Other 426,579 1,110(F) 326,620 53,071 47,998
Total regulatory assets 1,653,272 1,110 829,561 462,383 362,438
Deferred income taxes 332,828 138,903 85,169 67,099
Other 128,931 19,272(G) 258 29,121 13,863 14,826
Total deferred debits and other assets 2,115,031 20,382 258 997,585 561,415 444,363
Total Assets $10,941,219 $ 3,344,083 $ 3,188,452 $ 4,709,919 $ 2,472,978 $ 2,535,065
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from
the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-58-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
GPU GPU GPU GPU
Generation Service Nuclear International GPU Power GPU Electric
ASSETS Inc. Inc. Inc. Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C> <C>
Utility Plant:
In service, at original cost $ 82,343 $ 38
Less, accumulated depreciation 28,455
Net utility plant in service 53,888 38
Construction work in progress
Other, net 3,003
Net utility plant 56,891 38
Other Property and Investments:
Common stock of subsidiaries
GPU International Group investments, net $ 133,328 $ 65,272 $ 725,797
Nuclear decommissioning trusts
Nuclear fuel disposal trust
Other, net $ 455 17,568 728
Total other property and investments 455 17,568 728 133,328 65,272 725,797
Current Assets:
Cash and temporary cash investments 55 9 14 400 11,096 9,272
Special deposits 300 79 498 36,329
Accounts receivable:
Customers, net
Other 83,710 26,014 49,686 9,765 5,279 490
Unbilled revenues
Materials and supplies, at average cost or less:
Construction and maintenance 5,623
Fuel
Deferred income taxes 1,929 637
Prepayments 894 424 3,350 941 225
Total current assets $84,065 26,996 50,622 51,773 23,576 9,987
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs
Income taxes recoverable through future
rates
Nonutility generation contract buyout costs
Unamortized property losses
Other
Total regulatory assets
Deferred income taxes 8,042 10,504 22,050 777 284
Other 523 1,991 1,330 33,141 51,403 1,747
Total deferred debits and other assets 8,565 12,495 23,380 33,918 51,687 1,747
Total Assets $93,085 $ 113,950 $ 74,768 $ 219,019 $ 140,535 $ 737,531
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference
from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the
consolidating financial statements.
-59-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power & Light Edison Electric
LIABILITIES AND CAPITAL Consolidated Adjustments GPU, Inc. Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Capitalization:
Common stock $ 314,458 $ 326,050(A) $ 314,458 $ 153,713 $ 66,273 $ 105,812
Capital surplus 750,569 1,376,919(A,H) 750,569 510,769 370,200 285,486
Retained earnings 2,068,976 1,472,107(A) 2,068,976 825,001 264,044 363,702
Total 3,134,003 3,175,076 3,134,003 1,489,483 700,517 755,000
Less:reacquired common stock, at cost 86,416 86,416
Total common stockholders' equity 3,047,587 3,175,076 3,047,587 1,489,483 700,517 755,000
Cumulative preferred stock:
With mandatory redemption 114,000 114,000
Without mandatory redemption 66,478 37,741 12,056 16,681
Subsidiary-obligated mandatorily
redeemable preferred securities 330,000 125,000 100,000 105,000
Long-term debt 3,177,016 19,272(G) 1,173,091 563,252 656,459
Total capitalization 6,735,081 3,194,348 3,047,587 2,939,315 1,375,825 1,533,140
Current Liabilities:
Securities due within one year 178,583 110,075 40,020 26,010
Notes payable 265,547 75,400 31,800 50,667 107,680
Obligations under capital leases 143,818 96,150 29,964 15,881
Accounts payable 354,819 143,952(B) 1,335 166,019 117,413 73,856
Taxes accrued 25,717 3,209(C) 27 2,063 11,222 11,223
Deferred energy 15,559 15,559
Interest accrued 70,370 1,418(D) 530 28,350 18,279 19,192
Other 282,193 62,161 80,195 45,825 17,224
Total current liabilities 1,336,606 148,579 139,453 530,211 313,390 271,066
Deferred Credits and Other Liabilities:
Deferred income taxes 1,562,979 664,440 401,104 473,268
Unamortized investment tax credits 133,572 59,893 31,584 42,095
Three Mile Island Unit 2 future costs 430,508 107,652 215,204 107,652
Regulatory liabilities 89,815 1,110(F) 33,250 25,981 31,694
Other 652,658 46(H) 1,412 375,158 109,890 76,150
Total deferred credits and other
liabilities 2,869,532 1,156 1,412 1,240,393 783,763 730,859
Total Liabilities and Capital $10,941,219 $ 3,344,083 $ 3,188,452 $ 4,709,919 $ 2,472,978 $ 2,535,065
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from
the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-60-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
GPU GPU GPU GPU
Generation Service Nuclear International GPU Power GPU Electric
LIABILITIES AND CAPITAL Inc. Inc. Inc. Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C> <C>
Capitalization:
Common stock $ 50 $ 50 $ 50 $ 100 $ 1 $ 1
Capital surplus 129,466 32,999 47,999
Retained earnings (127) (1,856) 1,053 583 19,707
Total (77) (1,806) 50 130,619 33,583 67,707
Less:reacquired common stock, at cost
Total common stockholders' equity (77) (1,806) 50 130,619 33,583 67,707
Cumulative preferred stock:
With mandatory redemption
Without mandatory redemption
Subsidiary-obligated mandatorily
redeemable preferred securities
Long-term debt 35,000 62,300 48,865 657,321
Total capitalization (77) 33,194 50 192,919 82,448 725,028
Current Liabilities:
Securities due within one year 2,478
Notes payable
Obligations under capital leases 1,823
Accounts payable 54,672 35,222 37,629 4,723 3,703 4,199
Taxes accrued 3,173 593 625
Deferred energy
Interest accrued 418 184 1,905 2,930
Other 22,189 22,714 24,032 4,719 3,046 88
Total current liabilities 80,034 60,770 62,470 9,442 11,132 7,217
Deferred Credits and Other Liabilities:
Deferred income taxes 8,621 676 10,769 88 4,013
Unamortized investment tax credits
Three Mile Island Unit 2 future costs
Regulatory liabilities
Other 13,128 11,365 11,572 5,889 46,867 1,273
Total deferred credits and other
liabilities 13,128 19,986 12,248 16,658 46,955 5,286
Total Liabilities and Capital $ 93,085 $ 113,950 $ 74,768 $ 219,019 $ 140,535 $ 737,531
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by
reference from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral
part of the consolidating financial statements.
-61-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power & Light Edison Electric
Consolidated Adjustments GPU, Inc. Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 3,918,089 $ 122,504(B,C,H, $ 2,057,918 $ 910,408 $1,019,645
J,L)
Equity in Earnings of Subsidiaries - 312,689(A) $ 312,689
Services Rendered at Cost to Affiliated Companies - 854,063(D,E,F)
Services Rendered to Non-Affiliated Companies - 331,116(D,E,F)
Operating Expenses:
Fuel 371,396 408,661(D,J) 101,357 93,881 176,158
Power purchased and interchanged:
Affiliates - 51,311(C) 27,058 20,724 3,529
Others 1,005,630 589,396 209,831 206,403
Deferral of energy costs, net 19,788 19,441 (448) 795
Other operation and maintenance 1,090,888 803,724(B,C,D,E, 9,512 556,086 249,993 293,868
F,H,J,L)
Depreciation and amortization 400,253 11,440(E,H,J,L) 207,309 98,364 94,580
Taxes, other than income taxes 355,283 25,712(D,E,F) 124 228,885 61,319 64,955
Total operating expenses 3,243,238 1,300,848 9,636 1,729,532 733,664 840,288
Operating income before income taxes 674,851 319,524 303,053 328,386 176,744 179,357
Income taxes 166,572 (7,540)(D,E,F 71,080 49,844 45,648
G,I,K)
Operating Income 508,279 327,064 303,053 257,306 126,900 133,709
Other Income and Deductions:
Allowance for other funds used
during construction 2,249 334(D) 1,536 540 173
Other income/(expense), net 28,151 27,801(D,E,F, 413 7,202 1,220 (825)
H,J,L)
Income taxes (147) (6,923)(G,I,K) (3,357) (489) 99
Total other income and deductions 30,253 21,212 413 5,381 1,271 (553)
Income Before Interest Charges and
Preferred Dividends 538,532 348,276 303,466 262,687 128,171 133,156
Interest Charges and Preferred Dividends:
Interest on long-term debt 184,675 32,678(E,J,L) 89,648 45,373 49,654
Other interest 28,809 1,701(E,F,H) 5,114 11,147 5,436 7,112
Allowance for borrowed funds used during
construction (8,423) (1,493)(D) (5,111) (705) (2,607)
Dividends on subsidiary-obligated mandatorily
redeemable preferred securities 28,888 10,700 9,000 9,188
Preferred stock dividends of subsidiaries 15,519 (15,519)(A)
Gain on preferred stock reacquistion (9,288) 9,288(A)
Total interest charges and
preferred dividends 240,180 26,655 5,114 106,384 59,104 63,347
Minority interest net income - (2,701)(J)
Net Income $ 298,352 $ 318,920 (A) $ 298,352 $ 156,303 $ 69,067 $ 69,809
Earnings Per Average Common Share $ 2.47
Average Common Shares Outstanding 120,743
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from
the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-62-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Income
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU GPU GPU GPU
Generation Service Nuclear International GPU Power GPU Electric
Inc. Inc. Inc. Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $ 16,831 $ 33,917 $ 1,874
Equity in Earnings of Subsidiaries
Services Rendered at Cost to Affiliated Companies $ 311,237 $ 134,497 $ 408,329
Services Rendered to Non-Affiliated Companies 329,783 39 1,294
Operating Expenses:
Fuel 390,488 18,173
Power purchased and interchanged:
Affiliates
Others
Deferral of energy costs, net
Other operation and maintenance 239,548 121,739 399,900 15,253 6,983 1,730
Depreciation and amortization 4,021 902 6,140 377
Taxes, other than income taxes 10,188 6,362 9,162
Total operating expenses 640,224 132,122 409,062 16,155 31,296 2,107
Operating income before income taxes 796 2,414 561 676 2,621 (233)
Income taxes 77 (818) 124 (1,372) 962 (6,513)
Operating Income 719 3,232 437 2,048 1,659 6,280
Other Income and Deductions:
Allowance for other funds used
during construction 334
Other income/(expense), net (2,546) 194 (168) 9,505 4,333 36,624
Income taxes (3,323)
Total other income and deductions (2,212) 194 (168) 6,182 4,333 36,624
Income Before Interest Charges and
Preferred Dividends (1,493) 3,426 269 8,230 5,992 42,904
Interest Charges and Preferred Dividends:
Interest on long-term debt 2,808 2,870 27,000
Other interest 618 269 814
Allowance for borrowed funds used during
construction (1,493)
Dividends on subsidiary-obligated mandatorily
redeemable preferred securities
Preferred stock dividends of subsidiaries
Gain on preferred stock reacquistion
Total interest charges and
preferred dividends (1,493) 3,426 269 814 2,870 27,000
Minority interest net income (2,701)
Net Income $ - $ - $ - $ 7,416 $ 421 $ 15,904
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference from
the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-63-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan Pennsylvania
Companies and Power & Light Edison Electric
Consolidated Adjustments GPU, Inc. Company Company Company
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ 2,004,072 $ 1,392,135 $ 2,004,072 $ 816,770 $ 248,434 $ 327,814
Net income 298,352 318,920 298,352 156,303 69,067 69,809
Cash dividends declared
on common stock (235,731) (235,731)
Cash dividends declared
on common stock of
subsidiary companies - (235,000) (135,000) (60,000) (40,000)
Cash dividends on cumulative
preferred stock - (15,519) (13,072) (944) (1,503)
Gain on preferred stock reacquisition - 9,288 3,722 5,566
Net unrealized gain/(loss) on investments 704 704 704 4,027 2,014
Net foreign currency translation gain/(loss) 3,054 3,054 3,054
Other adjustments, net (1 475) (1,475) (1,475) (262) 2
Balance at end of period $ 2,068,976 $ 1,472,107 $ 2,068,976 $ 825,001 $ 264,044 $ 363,702
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference
from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-64-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Retained Earnings
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU GPU GPU GPU
Generation Service Nuclear International GPU Power GPU Electric
Inc. Inc. Inc. Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of period $ - $ (768) $ - $ (1,037) $ 1,113 $ (191)
Net income 7,416 421 15,904
Cash dividends declared
on common stock
Cash dividends declared
on common stock of
subsidiary companies
Cash dividends on cumulative
preferred stock
Gain on preferred stock reacquistion
Net unrealized gain/(loss) on investments (5,337)
Net foreign currency translation gain/(loss) 11 (951) 3,994
Other adjustments, net (127) (1,088)
Balance at end of period $ (127) $ (1,856) $ - $ 1,053 $ 583 $ 19,707
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference
from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating
financial statements.
-65-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU, Inc. and
Subsidiary Eliminations Jersey Central Metropolitan
Companies and Power & Light Edison
Consolidated Adjustments GPU, Inc. Company Company
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 298,352 $ 318,920(A) $ 298,352 $ 156,303 $ 69,067
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (312,689)(A) (312,689)
Equity in undistributed (earnings) losses of affiliates (33,981)
Depreciation and amortization 422,506 217,225 104,820
Amortization of property under capital leases 55,642 28,339 15,704
Voluntary enhanced retirement programs 122,739 62,909 26,204
Nuclear outage maintenance costs, net (6,078) (15,392) 6,215
Deferred income taxes and investment tax credits, net 57,144 4,056 25,168
Deferred energy costs, net 19,719 19,436 (448)
Accretion income (11,610) (11,610)
Allowance for other funds used during construction (2,249) (1,536) (540)
Changes in working capital:
Receivables 2,893 (1,697)(A) 24,402 6,281
Materials and supplies 6,604 2,624 (1,611)
Special deposits and prepayments (36,294) 6 138 (10,501)
Payables and accrued liabilities (103,221) 2,162(A)(B) 253 (93,952) (33,368)
Due to/from affiliates - 722 20,290 17,863
Nonutility generation contract buyout costs (120,018) (65,000) (43,318)
Other, net (29,479) 5,016(A)(C) 8,057 (6,334) (15,964)
Net cash provided (required) by operating activities 642,669 11,712 (5,299) 341,898 165,572
Investing Activities:
Cash construction expenditures (403,880) (199,823) (76,660)
Contributions to decommissioning trusts (40,324) (18,004) (17,057)
GPU International Group investments (573,587)
Other, net (16,251) (764) (10,253) (1,087)
Net cash (used for) provided by investing activities (1,034,042) (764) (228,080) (94,804)
Financing Activities:
Issuance of long-term debt 743,596 4,272(C) 79,550
Increase (Decrease) in notes payable, net 141,657 3,600 31,000 28,277
Retirement of long-term debt (150,763) (25,710) (15,019)
Capital lease principal payments (56,217) (29,763) (15,171)
Redemption of preferred stock of subsidiaries (42,347) (20,000) (7,820)
Dividends paid on common stock (231,956) (231,956)
Dividends paid on common stock - Internal - 235,000 (135,000) (60,000)
Dividends paid on preferred stock of subsidiaries - (15,984)(A) (13,496) (944)
Cash contributions to subsidiaries - (1,612)
Net cash provided (required) by financing activities 403,970 (11,712) 5,032 (113,419) (70,677)
Effect of exchange rate changes on cash 585
Net increase (decrease) in cash and temporary
cash investments from above activities 13,182 - (1,031) 399 91
Cash and temporary cash investments, beginning of year 18,422 - 8,567 922 1,810
Cash and temporary cash investments, end of year $ 31,604 $ - $ 7,536 $ 1,321 $ 1,901
Supplemental Disclosure:
Interest and preferred dividends paid $ 281,057 $ (15,984)(A) $ 4,870 $ 106,264 $ 59,697
Income taxes paid (refunded) $ 153,599 $ 90,960 $ 39,278
New capital lease obligations incurred $ 34,826 $ 32,694 $ 1,417
Common stock dividends declared but not paid $ 58,493 $ 58,493
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference
from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the
consolidating financial statements.
-66-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania GPU GPU GPU GPU
Electric Generation Service Nuclear International
Company Inc. Inc. Inc. Inc.
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 69,809 $ 7,416
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Equity in undistributed (earnings) losses of affiliates 89,021 1,993
Depreciation and amortization $ 4,021 902
Amortization of property under capital leases 8,733 2,866
Voluntary enhanced retirement programs 33,626
Nuclear outage maintenance costs, net 3,099
Deferred income taxes and investment tax credits, net 19,208 $(8,042) 3,217 $ 1,743 8,613
Deferred energy costs, net 731
Accretion income
Allowance for other funds used during construction (173)
Changes in working capital:
Receivables 7,845 (17,478) (15,560) 954 (2,062)
Materials and supplies 5,591
Special deposits and prepayments (26,232) (300) (544) (408) 658
Payables and accrued liabilities (57,735) 67,618 9,944 (1,268) 2,519
Due to/from affiliates 4,580 (48,954) 8,788 (3,539) (2,033)
Nonutility generation contract buyout costs (11,700)
Other, net (7,746) 12,478 (289) 3,682 (19,911)
Net cash provided (required) by operating activities 138,657 5,322 12,443 1,164 (1,905)
Investing Activities:
Cash construction expenditures (114,672) (4,862) (7,002) (861)
Contributions to decommissioning trusts (5,263)
GPU International Group investments (55,879)
Other, net (684) (455) (6,899) (322) (6,480)
Net cash (used for) provided by investing activities (120,619) (5,317) (13,901) (1,183) (62,359)
Financing Activities:
Issuance of long-term debt 39,513 35,000 62,300
Increase (Decrease) in notes payable, net 80,580 (1,800)
Retirement of long-term debt (75,009) (30,700)
Capital lease principal payments (8,418) (2,865)
Redemption of preferred stock of subsidiaries (14,527)
Dividends paid on common stock
Dividends paid on common stock - Internal (40,000)
Dividends paid on preferred stock of subsidiaries (1,544)
Cash contributions to subsidiaries 50 1,562
Net cash provided (required) by financing activities (19,405) 50 1,435 62,062
Effect of exchange rate changes on cash 10
Net increase (decrease) in cash and temporary
cash investments from above activities (1,367) 55 (23) (19) (2,192)
Cash and temporary cash investments, beginning of year 1,367 32 33 2,592
Cash and temporary cash investments, end of year $ - $ 55 $ 9 $ 14 $ 400
Supplemental Disclosure:
Interest and preferred dividends paid $ 63,162 $ 3,189 $ 269 $ 783
Income taxes paid (refunded) $ 43,098 $ 1,633 $ (1,137) $ (1,396) $ (3,713)
New capital lease obligations incurred $ 715 $
Common stock dividends declared but not paid
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which are incorporated by reference
from the respective annual reports on Form 10-K for the year ended December 31, 1996, are an integral part of the
consolidating financial statements.
-67-
<PAGE>
GPU, Inc. and Subsidiary Companies
Consolidating Statement of Cash Flows
For the Twelve Months Ended December 31, 1996
(In Thousands)
<CAPTION>
GPU Power GPU Electric
Inc. Inc.
<S> <C> <C>
Operating Activities:
Net income $ 421 $ 15,904
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries
Equity in undistributed (earnings) losses of affiliates 277 (36,251)
Depreciation and amortization 6,140 377
Amortization of property under capital leases
Voluntary enhanced retirement programs
Nuclear outage maintenance costs, net
Deferred income taxes and investment tax credits, net (832) 4,013
Deferred energy costs, net
Accretion income
Allowance for other funds used during construction
Changes in working capital:
Receivables (3,144) (42)
Materials and supplies
Special deposits and prepayments 381 508
Payables and accrued liabilities 2,288 2,642
Due to/from affiliates 2,145 138
Nonutility generation contract buyout costs
Other, net (1,890) 3,454
Net cash provided (required) by operating activities 5,786 (9,257)
Investing Activities:
Cash construction expenditures
Contributions to decommissioning trusts
GPU International Group investments (1,535) (516,173)
Other, net 5,382 5,311
Net cash (used for) provided by investing activities 3,847 (510,862)
Financing Activities:
Issuance of long-term debt 4,272 527,233
Increase (Decrease) in notes payable, net
Retirement of long-term debt (2,999) (1,326)
Capital lease principal payments
Redemption of preferred stock of subsidiaries
Dividends paid on common stock
Dividends paid on common stock - Internal
Dividends paid on preferred stock of subsidiaries
Cash contributions to subsidiaries
Net cash provided (required) by financing activities 1,273 525,907
Effect of exchange rate changes on cash 15 560
Net increase (decrease) in cash and temporary
cash investments from above activities 10,921 6,348
Cash and temporary cash investments, beginning of year 175 2,924
Cash and temporary cash investments, end of year $ 11,096 $ 9,272
Supplemental Disclosure:
Interest and preferred dividends paid $ 1,920 $ 24,919
Income taxes paid (refunded) (904) (14,220)
New capital lease obligations incurred
Common stock dividends declared but not paid
The notes to the consolidated financial statements of GPU, JCP&L, Met-Ed and Penelec, which
are incorporated by reference from the respective annual reports on Form 10-K for the year
ended December 31, 1996, are an integral part of the consolidating financial statements.
-68-
</TABLE>
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
A. Annual Reports
The following documents are incorporated by reference:
A-1 GPU, Inc. - Annual Report on Form 10-K for 1996 (File No. 1-6047)
Jersey Central Power & Light Company - Annual Report on Form 10-K for
1996 (File No. 1-3141)
Metropolitan Edison Company - Annual Report on Form 10-K for 1996
(File No. 1-446)
Pennsylvania Electric Company - Annual Report on Form 10-K for 1996
(File No. 1-3522)
B. Certificates of Incorporation, Articles of Incorporation, By-Laws,
Partnership Agreements and Other Organizational Documents
GPU, GPU Genco, GPUS & GPUN
B-1 Articles of Incorporation of GPU, as amended through March 27, 1990 -
incorporated by reference to Exhibit 3-A to GPU's Annual Report on
Form 10-K for 1989, File No. 1-6047.
B-2 Articles of Amendment to Articles of Incorporation of GPU, dated as
of May 5, 1995 - incorporated by reference to Exhibit A-4,
Certificate Pursuant to Rule 24, File No. 70-8569.
B-3 Articles of Incorporation of GPU, Inc. as amended August 1, 1996 -
incorporated by reference to Exhibit 3-A-2 to GPU, Inc.'s Annual
Report on Form 10-K for 1996, File No. 1-6047.
B-4 Articles of Incorporation of GPUS, as amended through April 27, 1994
- incorporated by reference to Exhibit A-1 to Application on Form
U-1, File No. 70-4990.
B-5 Articles of Incorporation of GPUS, as amended August 1, 1996.
B-6 Certificate of Incorporation of GPUN, dated as of September 5, 1980 -
incorporated by reference to Exhibit A-1 to Application on Form U-1,
File No. 70-6443.
B-7 Certificate of Amendment to the Certificate of Incorporation of GPUN
dated August 1, 1996.
B-8 Articles of Incorporation of GPU Genco, dated as of April 11, 1994 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, SEC File No. 70-8409.
B-9 Articles of Incorporation of GPU Genco, as amended August 1, 1996.
B-10 Articles of Incorporation of Saxton Nuclear Experimental Corporation,
dated as of March 29, 1974 - incorporated by reference to Exhibit
B-12 to GPU's Annual Report on Form U5S for the year 1988, File No.
30-126.
B-11 Amended By-Laws of GPU, dated as of June 7, 1990 - incorporated by
reference to Exhibit 3-A to GPU's Annual Report on Form 10-K for
1990, File No. 1-6047.
B-12 Amended By-Laws of GPUS, dated as of April 27, 1994 - incorporated by
reference to Exhibit 3-A to GPU's Annual Report on Form 10-K for
1994, File No. 1-6047.
-69-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPU Genco, GPUS & GPUN
B-13 Amended By-Laws of GPUN, dated as of April 29, 1993 - incorporated by
reference to Exhibit 3-A to GPU's Annual Report on Form 10K for 1993,
File No. 1-6047.
B-14 Amended By-Laws of GPU Genco, dated as of February 12, 1996 -
incorporated by reference to Exhibit A-2(a), Certificate Pursuant to
Rule 24, File No. 70-8409.
B-15 Amended By-Laws of Saxton, dated as of March 30, 1984 - incorporated
by reference to Exhibit A-1(e) to Application on Form U-1, File No.
70-7398.
B-16 Amendment to Section 37 of the By-Laws of Saxton, dated as of August
27, 1987 - incorporated by reference to Exhibit A-2(b), Certificate
Pursuant to Rule 24, File No. 70-7398.
B-17 Generating Station Operating Agreement among JCP&L, Met-Ed, Penelec
and GPU Genco, dated as of March 1, 1996 - incorporated by reference
to Exhibit B, Certificate Pursuant to Rule 24, File No. 70-8409.
JCP&L
B-18 Restated Certificate of Incorporation of JCP&L, dated as of May 26,
1982 - incorporated by reference to Exhibit 3-A to JCP&L's Annual
Report on Form 10-K for 1990, File No. 1-3141.
B-19 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to
Exhibit A-2(a), Certificate Pursuant to Rule 24, File No. 70-7949.
B-20 Certificate of Amendment to Restated Certificate of Incorporation of
JCP&L, dated as of June 19, 1992 - incorporated by reference to
Exhibit A-2(a)(i), Certificate Pursuant to Rule 24, File No. 70-7949.
B-21 Certificate of Incorporation of JCP&L Preferred Capital, Inc., dated
as of February 21, 1995 - incorporated by reference to Exhibit A-1,
Application on Form U-1, File No. 70-8495.
B-22 Amended By-Laws of JCP&L, dated as of May 25, 1993 - incorporated by
reference to Exhibit 3-B to JCP&L's Annual Report on Form 10-K for
1993, File No. 1-3141.
B-23 By-Laws of JCP&L Preferred Capital, Inc., dated as of February 21,
1995 - incorporated by reference to Exhibit A-2, Application on Form
U-1, File No. 70-8495.
B-24 Amended and Restated Limited Partnership Agreement of JCP&L Capital,
L.P., dated as of May 11, 1995 - incorporated by reference to Exhibit
A-5(a), Certificate Pursuant to Rule 24, File No. 70-8495.
B-25 Action Creating Series A Preferred Securities of JCP&L Capital, L.P.,
dated as of May 11, 1995 - incorporated by reference to Exhibit A-
6(a), Certificate Pursuant to Rule 24, File No. 70-8495.
-70-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
B-26 Payment and Guarantee Agreement of JCP&L, dated as of May 18, 1995 -
incorporated by reference to Exhibit B-1(a), Certificate Pursuant to
Rule 24, File No. 70-8495.
Met-Ed
B-27 Restated Articles of Incorporation of Met-Ed, dated as of April 3,
1992 - incorporated by reference to Exhibit B-18 to GPU's Annual
Report on Form U5S for the year 1991, File No. 30-126.
B-28 Articles of Incorporation of York Haven Power Company, dated as of
December 18, 1967 - incorporated by reference to Exhibit B-15 to
GPU's Annual Report on Form U5S for the year 1988, File No. 30-126.
B-29 Certificate of Incorporation of Met-Ed Preferred Capital, Inc., dated
as of May 6, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53673.
B-30 Amended By-Laws of Met-Ed, dated as of July 27, 1995 - incorporated
by reference to Exhibit 3-F to GPU's Annual Report on Form 10-K for
1995, File No. 1-6047.
B-31 Amended By-Laws of York Haven Power Company, dated as of January 1,
1985 - incorporated by reference to Exhibit A-1(d), Application on
Form U-1, File No. 70-7398.
B-32 Amendment to Section 29 of the By-Laws of York Haven Power Company,
dated as of September 8, 1987 - incorporated by reference to Exhibit
A-2(a), Certificate Pursuant to Rule 24, File No. 70-7398.
B-33 By-Laws of Met-Ed Preferred Capital, Inc., dated as of May 6, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1,
File No. 70-8401.
B-34 Amended and Restated Limited Partnership Agreement of Met-Ed Capital,
L.P., dated as of August 16, 1994 - incorporated by reference to
Exhibit A-5(a), Certificate Pursuant to Rule 24, File No. 70-8401.
B-35 Action Creating Series A Preferred Securities of Met-Ed Capital,
L.P., dated as of August 16, 1994 - incorporated by reference to
Exhibit A-6(a), Certificate Pursuant to Rule 24, File No. 70-8401.
B-36 Payment and Guarantee Agreement of Met-Ed, dated as of August 23,
1994 - incorporated by reference to Exhibit B-1(a), Certificate
Pursuant to Rule 24, File No. 70-8401.
Penelec
B-37 Restated Articles of Incorporation of Penelec, as amended through
March 10, 1992 - incorporated by reference to Exhibit 3-A to
Penelec's Annual Report on Form 10-K for 1991, File No. 1-3522.
B-38 Articles of Incorporation of Nineveh Water Company (formerly Penelec
Water Company), dated as of May 22, 1920 - incorporated by reference
to Exhibit B-36 to GPU's Annual Report on Form U5S for the year 1988,
File No. 30-126.
-71-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
B-39 Certificate of Incorporation of Penelec Preferred Capital, Inc.,
dated as of May 9, 1994 - incorporated by reference to Exhibit 3-C to
Registration Statement on Form S-3, Registration No. 33-53677.
B-40 Amended By-Laws of Penelec, dated as of July 27, 1995 - incorporated
by reference to Exhibit 3-H to GPU's Annual Report on Form 10-K for
1995, File No. 1-6047.
B-41 By-Laws of Nineveh Water Company, dated as of May 22, 1920 -
incorporated by reference to Exhibit A-1(c), Application on Form U-1,
File No. 70-7398.
B-42 Amendment to Article V, Section 6 of the By-Laws of Nineveh Water
Company, dated as of August 27, 1987 - incorporated by reference to
Exhibit A-1 (c), Certificate Pursuant to Rule 24, File No. 70-7398.
B-43 By-Laws of Penelec Preferred Capital, Inc., dated as of May 9, 1994 -
incorporated by reference to Exhibit A-2, Application on Form U-1,
File No. 70-8403.
B-44 Amended and Restated Limited Partnership Agreement of Penelec
Capital, L.P., dated as of June 27, 1994 - incorporated by reference
to Exhibit A-5(a), Certificate Pursuant to Rule 24, File No. 70-8403.
B-45 Action Creating Series A Preferred Securities of Penelec Capital,
L.P., dated as of June 27, 1994 - incorporated by reference to
Exhibit A-6(a), Certificate Pursuant to Rule 24, File No. 70-8403.
B-46 Payment and Guarantee Agreement of Penelec, dated as of July 5, 1994
- incorporated by reference to Exhibit B-1(a), Certificate Pursuant
to Rule 24, File No. 70-8403.
GPU International Group
B-47 Amended and Restated Certificate of Incorporation of EI, dated as of
September 14, 1990 - incorporated by reference to Exhibit B-5 to
GPU's Annual Report on Form U5S for the year 1990, File No. 30-126.
B-48 Certificate of Amendment of Certificate of Incorporation of Energy
Initiatives, Inc., dated as of August 1, 1996 to change the name of
the company to GPU International, Inc.
B-49 Certificate of Incorporation of Elmwood Energy Corporation, dated as
of February 13, 1987 - incorporated by reference to Exhibit B-11 to
GPU's Annual Report on Form U5S for the year 1988, File No. 30-126.
B-50 Certificate of Incorporation of Camchino Energy Corporation, dated as
of April 26, 1989 - incorporated by reference to Exhibit B-7 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-51 Certificate of Incorporation of OLS Acquisition Corporation, dated as
of May 3, 1989 - incorporated by reference to Exhibit B-8 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
-72-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-52 Articles of Incorporation of OLS Energy - Berkeley, dated as of
September 5, 1985 - incorporated by reference to Exhibit B-9 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-53 Articles of Incorporation of OLS Energy - Camarillo, dated as of
August 8, 1984 - incorporated by reference to Exhibit B-10 to GPU's
Annual Report on Form U5S for the year 1989, File No. 30-126.
B-54 Articles of Incorporation of OLS Energy - Chino, dated as of August
8, 1984 - incorporated by reference to Exhibit B-11 to GPU's Annual
Report on Form U5S for the year 1989, File No. 30-126.
B-55 Certificate of Incorporation of Armstrong Energy Corporation, dated
as of July 14, 1988 - incorporated by reference to Exhibit B-14 to
GPU's Annual Report on Form U5S for the year 1989, File No. 30-126.
B-56 Certificate of Incorporation of Geddes Cogeneration Corporation,
dated as of March 23, 1989- incorporated by reference to Exhibit B-16
to GPU's Annual Report on Form U5S for the year 1989, File No. 30-
126.
B-57 Articles of Incorporation of North Canadian Power, Inc., dated as of
November 21, 1989 - incorporated by reference to Exhibit B-13 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-58 Certificate of Amendment of Articles of Incorporation of North
Canadian Power, Inc., dated as of May 18, 1994, to change to name of
the company to NCP Energy, Inc. - incorporated by reference to
Exhibit B-14 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-59 Certificate of Incorporation of NCP Lake Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-15 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-60 Certificate of Incorporation of NCP Gem, Inc., dated as of May 23,
1991 - incorporated by reference to Exhibit B-16 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-61 Certificate of Incorporation of Umatilla Groves, Inc., dated as of
June 17, 1992 - incorporated by reference to Exhibit B-17 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-62 Certificate of Incorporation of NCP Dade Power, Inc., dated as of May
23, 1991 - incorporated by reference to Exhibit B-18 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-63 Certificate of Incorporation of NCP Pasco, Inc., dated as of May 23,
1991 - incorporated by reference to Exhibit B-19 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
-73-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-64 Articles of Incorporation of ADA Management Corporation, dated as of
November 20, 1990 - incorporated by reference to Exhibit B-20 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-65 Certificate of Amendment of Articles of Incorporation of ADA
Management Corporation, dated as of July 31, 1993 to change the name
of the company to Commerce Cogeneration Corporation - incorporated by
reference to Exhibit B-21 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-66 Certificate of Amendment of Articles of Incorporation of Commerce
Cogeneration Corporation, dated as of July 31, 1993 to change the
name of the company to NCP ADA Power, Inc. - incorporated by
reference to Exhibit B-22 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-67 Certificate of Incorporation of NCP Brooklyn Power, Inc., dated as of
July 9, 1993 - incorporated by reference to Exhibit B-23 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-68 Articles of Incorporation of Trigen Power Company, dated as of
December 23, 1988 - incorporated by reference to Exhibit B-24 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-69 Certificate of Amendment of Articles of Incorporation of Trigen Power
Company, dated as of February 21, 1991 to change the name of the
company to ADA Power Company - incorporated by reference to Exhibit
B-25 to GPU's Annual Report on Form U5S for the year 1994, File No.
30-126.
B-70 Certificate of Amendment of Articles of Incorporation of ADA Power
Company, dated as of August 31, 1993 to change the name of the
company to NCP Commerce Power, Inc. - incorporated by reference to
Exhibit B-26 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-71 Certificate of Incorporation of NCP Houston Power, Inc., dated as of
December 1, 1993 - incorporated by reference to Exhibit B-27 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-72 Certificate of Incorporation of NCP Perry, Inc., dated as of December
1, 1993 - incorporated by reference to Exhibit B-28 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-73 Certificate of Incorporation of NCP New York, Inc., dated as of July
9, 1993 - incorporated by reference to Exhibit B-29 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-74 Certificate of Incorporation of EI Selkirk, Inc., dated as of October
31, 1994 - incorporated by reference to Exhibit B-30 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
-74-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-75 Certificate of Incorporation of EI Fuels Corporation, dated as of
August 9, 1990 - incorporated by reference to Exhibit B-17 to GPU's
Annual Report on Form U5S for the year 1993, File No. 30-126
B-76 Certificate of Incorporation of EI Power, Inc., dated as of March 15,
1994 - incorporated by reference to Exhibit B-41 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-77 Certificate of Amendment of Certificate of Incorporation of EI Power,
Inc., dated as of August 1, 1996 to change the name of the company to
GPU Power, Inc.
B-78 Certificate of Incorporation of Bermuda Hundred Energy, Inc., dated
as of July 25, 1989 - incorporated by reference to Exhibit B-12 to
GPU's Annual Report on Form U5S for the year 1989, File No. 30-126.
B-79 Certificate of Amendment to Certificate of Incorporation of Bermuda
Hundred Energy, Inc., dated as of March 16, 1993 - incorporated by
reference to Exhibit B-12-1 to GPU's Annual Report on Form U5S for
the year 1992, File No. 30-126.
B-80 Certificate of Amendment of the Certificate of Incorporation of
Bermuda Hundred Energy, Inc., dated as of March 16, 1993 to change
the name of the corporation to Hanover Energy Corporation -
incorporated by reference to Exhibit B-14 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
B-81 Certificate of Incorporation of EI Power (China), Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-45 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-82 Certificate of Incorporation of EI Power (China) I, Inc., dated as of
September 20, 1994 - incorporated by reference to Exhibit B-46 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-83 Certificate of Incorporation of EI Power (China) II, Inc., dated as
of September 20, 1994 - incorporated by reference to Exhibit B-47 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-84 Certificate of Incorporation of EI Power (China) III, Inc., dated as
of September 20, 1994 - incorporated by reference to Exhibit B-47 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-85 Certificate of Incorporation of Austin Cogeneration Corporation,
dated as of January 27, 1995 - incorporated by reference to Exhibit
B-79 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-86 Certificate of Incorporation of Guaracachi America, Inc., dated as of
July 13, 1995 - incorporated by reference to Exhibit B-80 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
-75-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-87 By-Laws of Incorporation of EI Services Colombia, Ltda. (Public Deed
No. 2798), dated as of August 11, 1995 - incorporated by reference to
Exhibit B-81 to GPU, Inc.'s Annual Report on Form U5S for the year
1995, File No. 30-126.
B-88 Amendment to the By-Laws of Incorporation of EI Services Colombia,
Ltda. dated as of August 9, 1996 to change the name of the company to
GPU International Latin America, Ltda.
B-89 By-Laws of Incorporation of Empresa Guaracachi S.A., effective as of
July 13, 1995 - incorporated by reference to Exhibit B-82 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-90 Certificate of Incorporation of EI Barranquilla, Inc., dated as of
July 10, 1995 - incorporated by reference to Exhibit B-83 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-91 By-Laws of Incorporation of Termobarranquilla S.A. (Public Deed No.
9994), dated as of October 14, 1994 - incorporated by reference to
Exhibit B-84 to GPU, Inc.'s Annual Report on Form U5S for the year
1995, File No. 30-126.
B-92 Certificate of Incorporation of Barranquilla Lease Holding, Inc.,
dated as of August 7, 1995 - incorporated by reference to Exhibit B-
85 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-93 Certificate of Incorporation of Los Amigos Leasing Company, Ltd.,
dated as of August 18, 1995 - incorporated by reference to Exhibit B-
86 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-94 Certificate of Incorporation of International Power Advisors, Inc.,
dated as of August 14, 1995 - incorporated by reference to Exhibit B-
87 to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File
No. 30-126.
B-95 Certificate of Incorporation of Colombian Installations, Inc., dated
as of September 8, 1995 - incorporated by reference to Exhibit B-88
to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-96 Certificate of Amendment of Certificate of Incorporation of Colombian
Installations, Inc., dated as of August 26, 1996 to change the name
of the company to GPU Power Philippines, Inc.
B-97 Certificate of Incorporation of EI Energy, Inc., dated as of October
18, 1995 - incorporated by reference to Exhibit B-89 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-98 Certificate of Amendment of Certificate of Incorporation of EI
Energy, Inc., dated as of August 1, 1996 to change the name of the
company to GPU Electric, Inc.
-76-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-99 Certificate of Incorporation of Victoria Electric, Inc., dated as of
October 18, 1995 - incorporated by reference to Exhibit B-90 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-100 Certificate of Incorporation of EI Services, Inc., dated as of
October 7, 1993 - incorporated by reference to Exhibit B-91 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-101 Certificate of Amendment to Certificate of Incorporation of EI
Services, Inc., dated as of August 7, 1995 - incorporated by
reference to Exhibit B-92 to GPU, Inc.'s Annual Report on Form U5S
for the year 1995, File No. 30-126.
B-102 Certificate of Incorporation of Victoria Electric Holdings, Inc.,
dated as of June 17, 1996.
B-103 Certificate of Incorporation of EI UK Holdings, Inc., dated as of
April 30, 1996.
B-104 Memorandum and Articles of Association of Avon Energy Partners
Holdings, dated as of May 2, 1996.
B-105 Memorandum and Articles of Association of Avon Energy Partners plc,
dated as of April 29, 1996.
B-106 Memorandum of Association of Midlands Electricity plc, dated as of
March 9, 1989.
B-107 Articles of Association of Midlands Electricity plc, adopted on
December 13, 1996.
B-108 Certificate of Filing of Amended Articles of Incorporation of
Magellan Utilities Development Corporation, adopted on March 14,
1994.
B-109 Certificate of Incorporation of GPUI Lake Holdings, Inc., dated
December 30, 1996.
B-110 Amended By-Laws of EI (subsequently renamed GPU International, Inc.),
dated as of May 14, 1993 - incorporated by reference to Exhibit B-27
to GPU's Annual Report on Form U5S for the year 1993, File No. 30-
126.
B-111 Amended By-Laws of Elmwood Energy Corporation, adopted as of May 14,
1992 - incorporated by reference to Exhibit B-26 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-112 By-Laws of Camchino Energy Corporation, adopted as of April 26, 1989
- incorporated by reference to Exhibit B-53 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-113 By-Laws of OLS Acquisition Corporation, adopted as of May 3, 1989 -
incorporated by reference to Exhibit B-54 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
-77-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-114 By-Laws of OLS Energy - Berkeley, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-55 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-115 By-Laws of OLS Energy - Camarillo, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-56 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-116 By-Laws of OLS Energy - Chino, adopted as of August 25, 1989 -
incorporated by reference to Exhibit B-57 to GPU's Annual Report on
Form U5S for the year 1989, File No. 30-126.
B-117 Amended By-Laws of Armstrong Energy Corporation, adopted as of May
14, 1992 - incorporated by reference to Exhibit B-33 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-118 Amended By-Laws of Geddes Cogeneration Corporation, adopted as of May
14, 1992 - incorporated by reference to Exhibit B-34 to GPU's Annual
Report on Form U5S for the year 1992, File No. 30-126.
B-119 By-Laws of North Canadian Power, Inc. (subsequently renamed NCP
Energy, Inc.), adopted as of December 27, 1989 - incorporated by
reference to Exhibit B-70 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-120 By-Laws of NCP Lake Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-71 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-121 By-Laws of NCP Gem, Inc., adopted as of May 23, 1991 - incorporated
by reference to Exhibit B-72 to GPU's Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-122 By-Laws of Umatilla Groves, Inc., adopted as of June 18, 1992 -
incorporated by reference to Exhibit B-73 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-123 By-Laws of NCP Dade Power, Inc., adopted as of May 23, 1991 -
incorporated by reference to Exhibit B-74 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-124 By-Laws of NCP Pasco, Inc., adopted as of May 23, 1991 - incorporated
by reference to Exhibit B-75 to GPU's Annual Report on Form U5S for
the year 1994, File No. 30-126.
B-125 By-Laws of Commerce Cogeneration Corporation, as amended through
October 3, 1992 (formerly known as ADA Management Corporation) -
subsequently renamed NCP ADA Power, Inc. - incorporated by reference
to Exhibit B-76 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
-78-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-126 By-Laws of NCP Brooklyn Power, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-77 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-127 By-Laws of Trigen Power Company (successively renamed ADA Power
Company and NCP Commerce Power, Inc.), adopted as of December 30,
1988 - incorporated by reference to Exhibit B-78 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-128 By-Laws of NCP Houston Power, Inc., adopted as of December 3, 1993 -
incorporated by reference to Exhibit B-79 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-129 By-Laws of NCP Perry, Inc., December 3, 1993 - incorporated by
reference to Exhibit B-80 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-130 By-Laws of NCP New York, Inc., adopted as of July 10, 1993 -
incorporated by reference to Exhibit B-81 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-131 By-Laws of EI Selkirk, Inc., adopted as of November 1, 1994 -
incorporated by reference to Exhibit B-82 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-132 By-Laws of EI Cayman (subsequently renamed EI International), dated
as of June 16, 1993 - incorporated by reference to Exhibit B-87 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-133 By-Laws of EI Fuels Corporation, dated as of May 14, 1993 -
incorporated by reference to Exhibit B-37 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
B-134 By-Laws of EI Power, Inc. (subsequently renamed GPU Power, Inc.),
dated as of May 2, 1994 - incorporated by reference to Exhibit B-89
to GPU's Annual Report on Form U5S for the year 1994, File No. 30-
126.
B-135 Amended By-Laws of Hanover Energy Corporation (formerly Bermuda
Hundred Energy, Inc.), dated as of March 16, 1993 - incorporated by
reference to Exhibit B-32 to GPU's Annual Report on Form U5S for the
year 1992, File No. 30-126.
B-136 By-Laws of EI Power (China), Inc., adopted as of September 22, 1994 -
incorporated by reference to Exhibit B-91 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-137 By-Laws of EI Power (China) I, Inc., adopted as of September 22, 1994
- incorporated by reference to Exhibit B-92 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
-79-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-138 By-Laws of EI Power (China) II, Inc., adopted as of September 22,
1994 - incorporated by reference to Exhibit B-93 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-139 By-Laws of EI Power (China) III, Inc., adopted as of September 22,
1994 - incorporated by reference to Exhibit B-94 to GPU's Annual
Report on Form U5S for the year 1994, File No. 30-126.
B-140 By-Laws of Austin Cogeneration Corporation, adopted as of January 27,
1995 - incorporated by reference to Exhibit B-123 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-141 By-Laws of Guaracachi America, Inc., adopted as of July 13, 1995 -
incorporated by reference to Exhibit B-124 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-142 By-Laws of EI Barranquilla, Inc., adopted as of December 29, 1995 -
incorporated by reference to Exhibit B-125 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-143 By-Laws of Barranquilla Lease Holding, Inc., adopted as of December
29, 1995 - incorporated by reference to Exhibit B-126 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-144 By-Laws of Los Amigos Leasing Company, Ltd., dated as of August 18,
1995 - incorporated by reference to Exhibit B-127 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-145 By-Laws of International Power Advisors, Inc., adopted as of August
16, 1995 - incorporated by reference to Exhibit B-128 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-146 By-Laws of Colombian Installations, Inc., adopted as of September 9,
1995 - incorporated by reference to Exhibit B-129 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-147 By-Laws of EI Energy, Inc. (subsequently renamed GPU Electric, Inc.),
dated as of October 20, 1995 - incorporated by reference to Exhibit
B-130 to GPU, Inc.'s Annual Report on Form U5S for the year 1995,
File No. 30-126.
B-148 By-Laws of Victoria Electric, Inc., adopted as of October 20, 1995 -
incorporated by reference to Exhibit B-131 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
B-149 By-Laws of Victoria Electric Holdings, Inc., adopted as of June 17,
1996.
B-150 By-Laws of EI UK Holdings, Inc., adopted as of April 30, 1996.
B-151 Certificate of Filing of Amended By-Laws of Magellan Utilities
Development Corporation adopted on September 29, 1994.
-80-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-152 By-Laws of GPUI Lake Holdings, Inc., adopted as of December 30, 1996.
B-153 Memorandum of Association of 2322117 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-33 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-154 Certificate of Amendment of the Memorandum of Association of 2322117
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Brooklyn Power Limited - incorporated by
reference to Exhibit B-34 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-155 Memorandum of Association of 2322120 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-35 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-156 Certificate of Amendment of the Memorandum of Association of 2322120
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Services Canada Limited - incorporated by
reference to Exhibit B-36 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-157 Memorandum of Association of 2322133 Nova Scotia Limited, dated as of
December 22, 1993 - incorporated by reference to Exhibit B-31 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-158 Certificate of Amendment of the Memorandum of Association of 2322133
Nova Scotia Limited, dated as of February 17, 1994 to change the name
of the company to EI Canada Holding Limited - incorporated by
reference to Exhibit B-32 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-159 Memorandum of Association of 2285241 Nova Scotia Limited, dated as of
March 3, 1994 - incorporated by reference to Exhibit B-37 to GPU's
Annual Report on Form U5S for the year 1994, File No. 30-126.
B-160 Certificate of Amendment of the Memorandum of Association of 2285241
Nova Scotia Limited, dated as of April 7, 1995 to change the name of
the company to EI Brooklyn Investments Limited - incorporated by
reference to Exhibit B-38 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-161 Memorandum of Association of EI Cayman (subsequently renamed EI
International), dated as of June 16, 1993 - incorporated by
reference to Exhibit B-39 to GPU's Annual Report on Form U5S for the
year 1994, File No. 30-126.
B-162 Memorandum of Association of Solaris Power, dated as of May 11, 1994
- incorporated by reference to Exhibit B-141 to GPU, Inc.'s Annual
Report on Form U5S for the year 1995, File No. 30-126.
-81-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-163 Memorandum of Association of EI Australia Services Pty Ltd,
(subsequently renamed GPU International Australia Pty Ltd), effective
as of October 26, 1995 - incorporated by reference to Exhibit B-142
to GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No.
30-126.
B-164 Articles of Association of 2322133 Nova Scotia Limited (subsequently
renamed EI Canada Holding Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-83 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-165 Articles of Association of 2322117 Nova Scotia Limited (subsequently
renamed EI Brooklyn Power Limited), adopted as of December 22, 1993 -
incorporated by reference to Exhibit B-84 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-166 Articles of Association of 2322120 Nova Scotia Limited (subsequently
renamed EI Services Canada Limited), adopted as of December 22, 1993
- incorporated by reference to Exhibit B-85 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-167 Articles of Association of 2285241 Nova Scotia, Ltd. (subsequently
renamed EI Brooklyn Investment, Limited), adopted as of March 3, 1994
- incorporated by reference to Exhibit B-86 to GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
B-168 Articles of Association of Solaris Power, adopted as of November 22,
1995 - incorporated by reference to Exhibit B-147 to GPU, Inc.'s
Annual Report on Form U5S for the year 1995, File No. 30-126.
B-169 Articles of Association of EI Australia Services Pty Ltd, adopted as
of October 26, 1995 - incorporated by reference to Exhibit B-148 to
GPU, Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-
126.
B-170 Agreement of Limited Partnership of Ada Cogeneration Limited
Partnership, dated as of November 26, 1990, as amended - incorporated
by reference to Exhibit B-6(a)(i)-(iii), Application on Form U-1,
File No. 70-8369.
B-171 Amended and Restated Limited Partnership Agreement of Brooklyn Energy
Limited Partnership, dated as of March 11, 1994 - filed pursuant to
request for confidential treatment - incorporated by reference to
Exhibit B-108 to GPU's Annual Report on Form U5S for the year 1994,
File No. 30-126.
B-172 Agreement of Limited Partnership of FPB Cogeneration Partners Limited
Partnership, dated as of December 30, 1988 - incorporated by
reference to Exhibit B-7(a), Application Form U-1, File No. 70-8369.
-82-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-173 Agreement of Limited Partnership of Lake Cogen, Ltd., dated as of
July 24, 1992 - incorporated by reference to Exhibit B-3(a),
Application on Form U-1, File No. 70-8369.
B-174 First Amendment to Limited Partnership Agreement of Lake Cogen, Ltd.,
dated as of June 13, 1994 - incorporated by reference to Exhibit B-
3(a), Certificate Pursuant to Rule 24, File No. 70-8369.
B-175 Agreement of Limited Partnership of Lake Investment, L.P., dated as
of July 23, 1992 - incorporated by reference to Exhibit B-112 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-176 Amended and Restated Limited Partnership Agreement of Onondaga
Cogeneration Limited Partnership, dated as of June 10, 1992 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7942.
B-177 Limited Partnership Agreement of Pasco Cogen, Ltd., as amended
through July 15, 1993 - incorporated by reference to Exhibit B-
4(a)(i)-(iv), Application on Form U-1, File No. 70-8369.
B-178 Fourth Amendment to Limited Partnership Agreement of Pasco Cogen,
Ltd., dated as of June 13, 1994 - incorporated by reference to
Exhibit B-4(a), Certificate Pursuant to Rule 24, File No. 70-8369.
B-179 Agreement of Limited Partnership of Dade Investment, L.P., dated as
of August 28, 1991 - incorporated by reference to Exhibit B-116 to
GPU's Annual Report on Form U5S for the year 1994, File No. 30-126.
B-180 Amended and Restated Limited Partnership Agreement of Prime Energy
Limited Partnership, dated as of August 7, 1987 - incorporated by
reference to Exhibit A-1, Application on Form U-1, File No. 70-7647.
B-181 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 1198), dated as of February 24, 1995 - incorporated
by reference to Exhibit B-160 to GPU, Inc.'s Annual Report on Form
U5S for the year 1995, File No. 30-126.
B-182 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 6455), dated as of October 4, 1995 - incorporated by
reference to Exhibit B-161 to GPU, Inc.'s Annual Report on Form U5S
for the year 1995, File No. 30-126.
B-183 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 2093), dated as of April 6, 1995 - incorporated by
reference to Exhibit B-162 to GPU, Inc.'s Annual Report on Form U5S
for the year 1995, File No. 30-126.
-83-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU International Group
B-184 Amendment to By-Laws of Incorporation of Termobarranquilla S.A.
(Public Deed No. 5777), dated as of September 5, 1995 - incorporated
by reference to Exhibit B-163 to GPU, Inc.'s Annual Report on Form
U5S for the year 1995, File No. 30-126.
B-185 Certificate of Amendment of Articles of Association of EI Cayman,
dated as of July 10, 1995 to change the name of the company to EI
International - incorporated by reference to Exhibit B-164 to GPU,
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
B-186 Limited Partnership Agreement of Mid-Georgia Cogen, L.P., dated as of
April 15, 1996.
-84-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUS & GPUN
C-1 Credit Agreement between GPUS and First National Bank of Chicago,
dated as of March 27, 1996 - incorporated by reference to Exhibit B-
2, Certificate Pursuant to Rule 24, File No. 70-8793.
C-2 GPU, Inc. Restricted Stock Plan for Outside Directors dated February
6, 1997.
C-3 GPU, Inc. 1990 Stock Plan for Employees of GPU, Inc. and Subsidiaries
as amended and restated to reflect amendments through February 6,
1997.
C-4 Performance Units Agreement Under the 1990 Stock Plan for Employees
of GPU and Subsidiaries - 1996 Agreement.
C-5 Incentive Compensation Plan for Elected Officers of GPU Service,
Inc., dated as of February 6, 1997.
C-6 Incentive Compensation Plan for Elected Officers of GPU Nuclear,
Inc., dated as of February 6, 1997.
C-7 Incentive Compensation Plan for Elected Officers of GPU Generation,
Inc., dated as of February 6, 1997.
C-8 Employee Incentive Compensation Plan of GPU Service, Inc., dated as
of April 1, 1995 - incorporated by reference to Exhibit C-7 to GPU
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
C-9 Employee Incentive Compensation Plan of GPU Nuclear Inc., dated as of
April 1, 1995 - incorporated by reference to Exhibit C-8 to GPU
Inc.'s Annual Report on Form U5S for the year 1995, File No. 30-126.
C-10 GPU Service, Inc. Supplemental and Excess Benefits Plan, dated as of
February 6, 1997.
C-11 GPU Nuclear, Inc. Supplemental and Excess Benefits Plan, dated as of
February 6, 1997.
C-12 GPU Generation, Inc. Supplemental and Excess Benefits Plan, dated as
of February 6, 1997.
C-13 Deferred Remuneration Plan for Outside Directors of GPU, Inc. dated
February 6, 1997.
C-14 Deferred Remuneration Plan for Outside Directors of GPU Nuclear Inc.,
dated as of February 6, 1997.
C-15 Retirement Plan for Outside Directors of GPU, Inc. dated February 6,
1997.
C-16 GPU System Companies Deferred Compensation Plan dated February 6,
1997.
-85-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
GPU, GPUS & GPUN
C-17 GPU System Companies Master Directors' Benefits Protection Trust
dated February 6, 1997.
C-18 GPU System Companies Master Executives' Benefits Protection Trust
dated February 6, 1997.
C-19 Senior Executive Life Insurance Program, dated as of May 3, 1989 -
incorporated by reference to description contained on pages 13-14 of
GPU's 1992 definitive proxy statement, File No. 1-6047.
C-20 Supplemental Extraordinary Medical Expense Plan for Certain GPU
System Officers, as amended through February 28, 1992 - incorporated
by reference to Exhibit 10-M to GPU's Annual Report on Form 10-K for
the year 1992, File No. 1-6047.
JCP&L
Instruments Defining the Rights of Security Holders, Including
Indentures
C-21 Indenture, dated as of March 1, 1946, with United States Trust
Company of New York, Successor Trustee, - incorporated by reference
to JCP&L's Instruments of Indebtedness No. 1 filed as part of
Amendment No. 1 to GPU's Annual Report on Form U5S for the year 1959,
File Nos. 30-126 and 1-3292.
C-22 First Supplemental Indenture, dated as of December 1, 1948 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
2 filed as part of Amendment No. 1 to GPU's Annual Report on Form U5S
for the year 1959, File Nos. 30-126 and 1-3292.
C-23 Second Supplemental Indenture, dated as of April 1, 1953 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
3 filed as part of Amendment No. 1 to GPU's Annual Report on Form U5S
for the year 1959, File Nos. 30-126 and 1-3292.
C-24 Third Supplemental Indenture, dated as of June 1, 1954 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 4 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-25 Fourth Supplemental Indenture, dated as of May 1, 1955 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 5 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-26 Fifth Supplemental Indenture, dated as of August 1, 1956 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
6 filed as part of Amendment No. 1 to GPU's Annual Report on Form U5S
for the year 1959, File Nos. 30-126 and 1-3292.
-86-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-27 Sixth Supplemental Indenture, dated as of July 1, 1957 - incorporated
by reference to JCP&L's Instruments of Indebtedness No. 7 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-28 Seventh Supplemental Indenture, dated as of July 1, 1959 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
9 filed as part of Amendment No. 1 to GPU's Annual Report on Form U5S
for the year 1959, File Nos. 30-126 and 1-3292.
C-29 Eighth Supplemental Indenture, dated as of June 1, 1960 -
incorporated by reference to JCP&L's Instruments of Indebtedness No.
10 filed as part of Amendment No. 1 to GPU's Annual Report on Form
U5S for the year 1959, File Nos. 30-126 and 1-3292.
C-30 Ninth Supplemental Indenture, dated as of November 1, 1962 -
incorporated by reference to Exhibit 2-C, Registration No. 2-20732.
C-31 Tenth Supplemental Indenture, dated as of October 1, 1963 -
incorporated by reference to Exhibit 2-C, Registration No. 2-21645.
C-32 Eleventh Supplemental Indenture, dated as of October 1, 1964 -
incorporated by reference to Exhibit 5-A-3, Registration No. 2-59785.
C-33 Twelfth Supplemental Indenture, dated as of November 1, 1965 -
incorporated by reference to Exhibit 5-A-4, Registration No. 2-59785.
C-34 Thirteenth Supplemental Indenture, dated as of August 1, 1966 -
incorporated by reference to Exhibit 4-C, Registration No. 2-25124.
C-35 Fourteenth Supplemental Indenture, dated as of September 1, 1967 -
incorporated by reference to Exhibit 5-A-6, Registration No. 2-59785.
C-36 Fifteenth Supplemental Indenture, dated as of October 1, 1968 -
incorporated by reference to Exhibit 5-A-7, Registration No. 2-59785.
C-37 Sixteenth Supplemental Indenture, dated as of October 1, 1969 -
incorporated by reference to Exhibit 5-A-8, Registration No. 2-59785.
C-38 Seventeenth Supplemental Indenture, dated as of June 1, 1970 -
incorporated by reference to Exhibit 5-A-9, Registration No. 2-59785.
C-39 Eighteenth Supplemental Indenture, dated as of December 1, 1970 -
incorporated by reference to Exhibit 5-A-10, Registration No. 2-
59785.
C-40 Nineteenth Supplemental Indenture, dated as of February 1, 1971 -
incorporated by reference to Exhibit 5-A-11, Registration No. 2-
59785.
-87-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-41 Twentieth Supplemental Indenture, dated as of November 1, 1971 -
incorporated by reference to Exhibit 5-A-12, Registration No. 2-
59875.
C-42 Twenty-first Supplemental Indenture, dated as of August 1, 1972 -
incorporated by reference to Exhibit 5-A-13, Registration No. 2-
59785.
C-43 Twenty-second Supplemental Indenture, dated as of August 1, 1973 -
incorporated by reference to Exhibit 5-A-14, Registration No. 2-
59785.
C-44 Twenty-third Supplemental Indenture, dated as of October 1, 1973 -
incorporated by reference to Exhibit 5-A-15, Registration No. 2-
59785.
C-45 Twenty-fourth Supplemental Indenture, dated as of December 1, 1973 -
incorporated by reference to Exhibit 5-A-16, Registration No. 2-
59785.
C-46 Twenty-fifth Supplemental Indenture, dated as of November 1, 1974 -
incorporated by reference to Exhibit 5-A-17, Registration No. 2-
59785.
C-47 Twenty-sixth Supplemental Indenture, dated as of March 1, 1975 -
incorporated by reference to Exhibit 5-A-18, Registration No. 2-
59785.
C-48 Twenty-seventh Supplemental Indenture, dated as of July 1, 1975 -
incorporated by reference to Exhibit 5-A-19, Registration No. 2-
59785.
C-49 Twenty-eighth Supplemental Indenture, dated as of October 1, 1975 -
incorporated by reference to Exhibit 5-A-20, Registration No. 2-
59785.
C-50 Twenty-ninth Supplemental Indenture, dated as of February 1, 1976 -
incorporated by reference to Exhibit 5-A-21, Registration No. 2-
59785.
C-51 Supplemental Indenture No. 29A, dated as of May 31, 1976 -
incorporated by reference to Exhibit 5-A-22, Registration No. 2-
59785.
C-52 Thirtieth Supplemental Indenture, dated as of June 1, 1976 -
incorporated by reference to Exhibit 5-A-23, Registration No. 2-
59785.
C-53 Thirty-first Supplemental Indenture, dated as of May 1, 1977 -
incorporated by reference to Exhibit 5-A-24, Registration No. 2-
59785.
-88-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-54 Thirty-second Supplemental Indenture, dated as of January 20, 1978 -
incorporated by reference to Exhibit 5-A-25, Registration No. 2-
60438.
C-55 Thirty-third Supplemental Indenture, dated as of January 1, 1979 -
incorporated by reference to Exhibit A-20(b), Certificate Pursuant to
Rule 24, File No. 70-6242.
C-56 Thirty-fourth Supplemental Indenture, dated as of June l, 1979 -
incorporated by reference to Exhibit A-28, Certificate Pursuant to
Rule 24, File No. 70-6290.
C-57 Thirty-sixth Supplemental Indenture, dated as of October 1, 1979 -
incorporated by reference to Exhibit A-30, Certificate Pursuant to
Rule 24, File No. 70-6354.
C-58 Thirty-seventh Supplemental Indenture, dated as of September 1, 1984
- incorporated by reference to Exhibit A-1(cc), Certificate Pursuant
to Rule 24, File No. 70-7001.
C-59 Thirty-eighth Supplemental Indenture, dated as of July 1, 1985 -
incorporated by reference to Exhibit A-1(dd), Certificate Pursuant to
Rule 24, File No. 70-7109.
C-60 Thirty-ninth Supplemental Indenture, dated as of April 1, 1988 -
incorporated by reference to Exhibit A-1(a), Certificate Pursuant to
Rule 24, File No. 70-7263.
C-61 Fortieth Supplemental Indenture, dated as of June 14, 1988 -
incorporated by reference to Exhibit A-1(ff), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-62 Forty-first Supplemental Indenture, dated as of April 1, 1989 -
incorporated by reference to Exhibit A-1(gg), Certificate Pursuant to
Rule 24, File No. 70-7603.
C-63 Forty-second Supplemental Indenture, dated as of July 1, 1989 -
incorporated by reference to Exhibit A-1(hh), Certificate Pursuant to
Rule 24, File No. 70-7603.C-39
C-64 Forty-third Supplemental Indenture, dated as of March 1, 1991 -
incorporated by reference to Exhibit 4-A-35, Registration
No. 33-45314.
C-65 Forty-fourth Supplemental Indenture, dated as of March 1, 1992 -
incorporated by reference to Exhibit 4-A-36, Registration No.
33-49405.
C-66 Forty-fifth Supplemental Indenture, dated as of October 1, 1992 -
incorporated by reference to Exhibit 4-A-37, Registration No.
33-49405.
-89-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-67 Forty-sixth Supplemental Indenture, dated as of April 1, 1993 -
incorporated by reference to Exhibit C-15 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-68 Forty-seventh Supplemental Indenture, dated as of April 10, 1993 -
incorporated by reference to Exhibit C-16 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-69 Forty-eighth Supplemental Indenture, dated as of April 15, 1993 -
incorporated by reference to Exhibit C-17 to GPU's Annual Report on
Form U5S for the year 1992, File No. 30-126.
C-70 Forty-ninth Supplemental Indenture, dated as of October 1, 1993 -
incorporated by reference to Exhibit C-18 to GPU's Annual Report on
Form U5S for the year 1993, File No. 30-126.
C-71 Fiftieth Supplemental Indenture, dated as of August 1, 1994 -
incorporated by reference to Exhibit C-19 of GPU's Annual Report on
Form U5S for the year 1994, File No. 30-126.
C-72 Fifty-first Supplemental Indenture of JCP&L, dated August 15, 1996 -
incorporated by reference to Exhibit 4-A-43 of GPU, Inc.'s Annual
Report on Form 10-K for 1996, File No. 1-6047.
C-73 Subordinated Debenture Indenture, dated as of May 1, 1995 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8495.
Other
C-74 Incentive Compensation Plan for Elected Officers of JCP&L dated
February 6, 1997.
C-75 Employee Incentive Compensation Plan of JCP&L, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-D to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-76 JCP&L Supplemental and Excess Benefits Plan dated February 6, 1997.
C-77 Deferred Remuneration Plan for Outside Directors of JCP&L dated
February 6, 1997.
C-78 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between Oyster Creek Fuel Corp. and JCP&L -
incorporated by reference to Exhibit B-2(a)(i), Certificate Pursuant
to Rule 24, File No. 70-7862.
C-79 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and JCP&L - incorporated
by reference to Exhibit B-2(a)(ii), Certificate Pursuant to Rule 24,
File No. 70-7862.
-90-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
JCP&L
C-80 Letter Agreement, dated as of November 17, 1995, from JCP&L relating
to Oyster Creek Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24, File
No. 70-7862.
C-81 Letter Agreement, dated as of November 17, 1995, from JCP&L relating
to JCP&L TMI-1 Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(ii), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-82 Amended and Restated Trust Agreement, dated as of November 17, 1995,
between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and JCP&L and its
affiliates - incorporated by reference to Exhibit B-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
Met-Ed
Instruments Defining the Rights of Security Holders, Including
Indentures
C-83 Indenture, dated as of November 1, 1944, with United States Trust
Company of New York, Successor Trustee, - incorporated by reference
to Met-Ed's Instruments of Indebtedness No. 1 filed as part of
Amendment No. l to GPU's Annual Report on Form U5S for the year 1959,
File Nos. 30-126 and 1-3292.
C-84 Supplemental Indenture, dated as of February 1, 1947 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 2 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-85 Supplemental Indenture, dated as of May 20, 1947 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 3 filed as part
of Amendment No. 1 to GPU's Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-86 Supplemental Indenture, dated as of September 1, 1947 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 4 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-87 Supplemental Indenture, dated as of September 1, 1948 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 5 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-88 Supplemental Indenture, dated as of October 4, 1949 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 6 filed as part
of Amendment No. 1 to GPU's Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
-91-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-89 Supplemental Indenture, dated as of February 1, 1950 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 7 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-90 Supplemental Indenture, dated as of July 19, 1950 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 8 filed as part
of Amendment No. 1 to GPU's Annual Report on Form U5S for the year
1959, File Nos. 30-126 and 1-3292.
C-91 Supplemental Indenture, dated as of December 1, 1950 - incorporated
by reference to Met-Ed's Instruments of Indebtedness No. 9 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-92 Supplemental Indenture, dated as of March 1, 1952 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 10 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-93 Supplemental Indenture, dated as of May 1, 1953 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 11 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-94 Supplemental Indenture, dated as of July 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 12 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-95 Supplemental Indenture, dated as of October 1, 1954 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 13 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-96 Supplemental Indenture, dated as of June 1, 1957 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 14 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-97 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Met-Ed's Instruments of Indebtedness No. 16 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-98 Supplemental Indenture, dated as of December 1, 1962 - incorporated
by reference to Exhibit 2-E(1), Registration No. 2-59678.
C-99 Supplemental Indenture, dated as of March 20, 1964 - incorporated by
reference to Exhibit 2-E(2), Registration No. 2-59678.
C-100 Supplemental Indenture, dated as of July 1, 1965 - incorporated by
reference to Exhibit 2-E(3), Registration No. 2-59678.
-92-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-101 Supplemental Indenture, dated as of June 1, 1966 - incorporated by
reference to Exhibit 2-B-4, Registration No. 2-24883.
C-102 Supplemental Indenture, dated as of March 22, 1968 - incorporated by
reference to Exhibit 4-C-5, Registration No. 2-29644.
C-103 Supplemental Indenture, dated as of September 1, 1968 - incorporated
by reference to Exhibit 2-E(6), Registration No. 2-59678.
C-104 Supplemental Indenture, dated as of August 1, 1969 - incorporated by
reference to Exhibit 2-E(7), Registration No. 2-59678.
C-105 Supplemental Indenture, dated as of November 1, 1971 - incorporated
by reference to Exhibit 2-E(8), Registration No. 2-59678.
C-106 Supplemental Indenture, dated as of May 1, 1972 - incorporated by
reference to Exhibit 2-E(9), Registration No. 2-59678.
C-107 Supplemental Indenture, dated as of December 1, 1973 - incorporated
by reference to Exhibit 2-E(10), Registration No. 2-59678.
C-108 Supplemental Indenture, dated as of October 30, 1974 - incorporated
by reference to Exhibit 2-E(11), Registration No. 2-59678.
C-109 Supplemental Indenture, dated as of October 31, 1974 - incorporated
by reference to Exhibit 2-E(12), Registration No. 2-59678.
C-110 Supplemental Indenture, dated as of March 20, 1975 - incorporated by
reference to Exhibit 2-E(13), Registration No. 2-59678.
C-111 Supplemental Indenture, dated as of September 25, 1975 - incorporated
by reference to Exhibit 2-E(15), Registration No. 2-59678.
C-112 Supplemental Indenture, dated as of January 12, 1976 - incorporated
by reference to Exhibit 2-E(16), Registration No. 2-59678.
C-113 Supplemental Indenture, dated as of March 1, 1976 - incorporated by
reference to Exhibit 2-E(17), Registration No. 2-59678.
C-114 Supplemental Indenture, dated as of September 28, 1977 - incorporated
by reference to Exhibit 2-E(18), Registration No. 2-62212.
C-115 Supplemental Indenture, dated as of January 1, 1978 - incorporated by
reference to Exhibit 2-E(19), Registration No. 2-62212.
C-116 Supplemental Indenture, dated as of September 1, 1978 - incorporated
by reference to Exhibit 4-A(19), Registration No. 33-48937.
C-117 Supplemental Indenture, dated as of June 1, 1979 - incorporated by
reference to Exhibit 4-A(20), Registration No. 33-48937.
C-118 Supplemental Indenture, dated as of January l, 1980 - incorporated by
reference to Exhibit 4-A(21), Registration No. 33-48937.
-93-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
C-119 Supplemental Indenture, dated as of September 1, 1981 - incorporated
by reference to Exhibit 4-A(22), Registration No. 33-48937.
C-120 Supplemental Indenture, dated as of September 10, 1981 - incorporated
by reference to Exhibit 4-A(23), Registration No. 33-48937.
C-121 Supplemental Indenture, dated as of December 1, 1982 - incorporated
by reference to Exhibit 4-A(24), Registration No. 33-48937.
C-122 Supplemental Indenture, dated as of September 1, 1983 - incorporated
by reference to Exhibit 4-A(25), Registration No. 33-48937.
C-123 Supplemental Indenture dated as of September 1, 1984 - incorporated
by reference to Exhibit 4-A(26), Registration No. 33-48937.
C-124 Supplemental Indenture, dated as of March 1, 1985 - incorporated by
reference to Exhibit 4-A(27), Registration No. 33-48937.
C-125 Supplemental Indenture, dated as of September l, 1985 - incorporated
by reference to Exhibit 4-A(28), Registration No. 33-48937.
C-126 Supplemental Indenture, dated as of June 1, 1988 - incorporated by
reference to Exhibit 4-A(29), Registration No. 33-48937.
C-127 Supplemental Indenture, dated as of April 1, 1990 - incorporated by
reference to Exhibit 4-A(30), Registration No. 33-48937.
C-128 Amendment, dated as of May 22, 1995, to Supplemental Indenture (dated
April 1, 1990) - incorporated by reference to Exhibit 4-A(31),
Registration No. 33-48937.
C-129 Supplemental Indenture, dated as of September 1, 1992 - incorporated
by reference to Exhibit 4-A(32)(a), Registration No. 33-48937.
C-130 Supplemental Indenture, dated as of December 1, 1993 - incorporated
by reference to Exhibit C-58 to GPU's Annual Report on Form U5S for
the year 1993, File No. 30-126.
C-131 Supplemental Indenture, dated as of July 15, 1995 - incorporated by
reference to Exhibit 4-B-35 to GPU's Annual Report on Form 10-K for
the year 1995, File No. 1-6047.
C-132 Subordinated Debenture Indenture, dated as of August 1, 1994 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8401.
C-133 Supplemental Indenture of Met-Ed dated August 15, 1996 - incorporated
by reference to Exhibit 4-B-35 to GPU, Inc.'s Annual Report on Form
10-K for 1996, File No. 1-6047.
-94-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Met-Ed
Other
C-134 Incentive Compensation Plan for Elected Officers of Met-Ed dated
February 6, 1997.
C-135 Employee Incentive Compensation Plan of Met-Ed, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-E to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-136 Met-Ed Supplemental and Excess Benefits Plan dated February 6, 1997.
C-137 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and Met-Ed - incorporated
by reference to Exhibit B-2(a)(iii), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-138 Letter Agreement, dated as of November 17, 1995, from Met-Ed relating
to Met-Ed TMI-1 Nuclear Material Lease Agreement - incorporated by
reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24, File
No. 70-7862.
C-139 Amended and Restated Trust Agreement, dated as of November 17, 1995,
between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and Met-Ed and its
affiliates - incorporated by reference to Exhibit B-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
Penelec
Instruments Defining the Rights of Security Holders, Including
Indentures
C-140 Mortgage and Deed of Trust, dated as of January 1, 1942, with United
States Trust Company of New York, Successor Trustee, - incorporated
by reference to Penelec's Instruments of Indebtedness No. 1 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-141 Supplemental Indenture, dated as of March 7, 1942 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 2 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-142 Supplemental Indenture, dated as of April 28, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 3 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-143 Supplemental Indenture, dated as of August 20, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 4 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
-95-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-144 Supplemental Indenture, dated as of August 30, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 5 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-145 Supplemental Indenture, dated as of August 31, 1943 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 6 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-146 Supplemental Indenture, dated as of April 26, 1944 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 7 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-147 Supplemental Indenture, dated as of April 19, 1945 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 8 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-148 Supplemental Indenture, dated as of October 25, 1945 - incorporated
by reference to Penelec's Instruments of Indebtedness No. 9 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-149 Supplemental Indenture, dated as of June 1, 1946 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 10 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-150 Supplemental Indenture, dated as of November 1, 1949 - incorporated
by reference to Penelec's Instruments of Indebtedness No. 11 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-151 Supplemental Indenture, dated as of October 1, 1951 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 12 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-152 Supplemental Indenture, dated as of August 1, 1952 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 13 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-153 Supplemental Indenture, dated as of June 1, 1953 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 14 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
-96-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-154 Supplemental Indenture, dated as of March 1, 1954 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 15 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-155 Supplemental Indenture, dated as of April 30, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 16 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-156 Supplemental Indenture, dated as of May 1, 1956 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 17 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-157 Supplemental Indenture, dated as of March 1, 1958 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 18 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-158 Supplemental Indenture, dated as of August 1, 1959 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 19 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-159 Supplemental Indenture, dated as of May 1, 1960 - incorporated by
reference to Penelec's Instruments of Indebtedness No. 20 filed as
part of Amendment No. 1 to GPU's Annual Report on Form U5S for the
year 1959, File Nos. 30-126 and 1-3292.
C-160 Supplemental Indenture, dated as of May 1, 1961 - incorporated by
reference to Exhibit 2-D(1), Registration No. 2-61502.
C-161 Supplemental Indenture, dated as of October 1, 1964 - incorporated by
reference to Exhibit 2-D(2), Registration No. 2-61502.
C-162 Supplemental Indenture, dated as of November 1, 1966 - incorporated
by reference to Exhibit 2-D(3), Registration No. 2-61502.
C-163 Supplemental Indenture, dated as of June 1, 1967 - incorporated by
reference to Exhibit 2-D(4), Registration No. 2-61502.
C-164 Supplemental Indenture, dated as of August 1, 1968 - incorporated by
reference to Exhibit 2-D(5), Registration No. 2-61502.
C-165 Supplemental Indenture, dated as of May 1, 1969 - incorporated by
reference to Exhibit 2-D(6), Registration No. 2-61502.
C-166 Supplemental Indenture, dated as of April 1, 1970 - incorporated by
reference to Exhibit 2-D(7), Registration No. 2-61502.
C-167 Supplemental Indenture, dated as of December 1, 1971 - incorporated
by reference to Exhibit 2-D(8), Registration No. 2-61502.
-97-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-168 Supplemental Indenture, dated as of July 1, 1973 - incorporated by
reference to Exhibit 2-D(9), Registration No. 2-61502.
C-169 Supplemental Indenture, dated as of June 1, 1974 - incorporated by
reference to Exhibit 2-D(10), Registration No. 2-61502.
C-170 Supplemental Indenture, dated as of December 1, 1974 - incorporated
by reference to Exhibit 2-D(11), Registration No. 2-61502.
C-171 Supplemental Indenture, dated as of August 1, 1975 - incorporated by
reference to Exhibit 2-D(12), Registration No. 2-61502.
C-172 Supplemental Indenture, dated as of December 1, 1975 - incorporated
by reference to Exhibit 2-D(13), Registration No. 2-61502.
C-173 Supplemental Indenture, dated as of April 1, 1976 - incorporated by
reference to Exhibit 2-D(14), Registration No. 2-61502.
C-174 Supplemental Indenture, dated as of June 1, 1976 - incorporated by
reference to Exhibit 2-D(15), Registration No. 2-61502.
C-175 Supplemental Indenture, dated as of July 1, 1976 - incorporated by
reference to Exhibit 2-D(16), Registration No. 2-61502.
C-176 Supplemental Indenture, dated as of November 1, 1976 - incorporated
by reference to Exhibit 2-D(17), Registration No. 2-61502.
C-177 Supplemental Indenture, dated as of November 30, 1977 - incorporated
by reference to Exhibit 2-D(18), Registration No. 2-61502.
C-178 Supplemental Indenture, dated as of December 1, 1977 - incorporated
by reference to Exhibit 2-D(19), Registration No. 2-61502.
C-179 Supplemental Indenture, dated as of June 1, 1978 - incorporated by
reference to Exhibit 4-A(2), Registration No. 33-49669.
C-180 Supplemental Indenture, dated as of June l, 1979 - incorporated by
reference to Exhibit 4-A(3), Registration No. 33-49669.
C-181 Supplemental Indenture, dated as of September 1, 1984 - incorporated
by reference to Exhibit 4-A(4), Registration No. 33-49669.
C-182 Supplemental Indenture, dated as of December 1, 1985 - incorporated
by reference to Exhibit 4-A(5), Registration No. 33-49669.
C-183 Supplemental Indenture, dated as of December 1, 1986, - incorporated
by reference to Exhibit 4-A(6), Registration No. 33-49669.
C-184 Supplemental Indenture, dated as of May 1, 1989 - incorporated by
reference to Exhibit 4-A(7), Registration No. 33-49669.
C-185 Supplemental Indenture, dated as of December 1, 1990 - incorporated
by reference to Exhibit 4-A(8), Registration No. 33-45312.
-98-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Penelec
C-186 Supplemental Indenture, dated as of March 1, 1992 - incorporated by
reference to Exhibit 4-A(9), Registration No. 33-45312.
C-187 Supplemental Indenture, dated as of June 1, 1993 - incorporated by
reference to Exhibit C-73 to GPU's Annual Report on Form U5S for the
year 1993, File No. 30-126.
C-188 Supplemental Indenture, dated as of November 1, 1995 - incorporated
by reference to Exhibit 4-C-11 to GPU's Annual Report on Form 10-K
for the year 1995, File No. 1-6047.
C-189 Supplemental Indenture of Penelec dated August 15, 1996 -
incorporated by reference to Exhibit 4-C-12 to GPU, Inc.'s Annual
Report on Form 10-K for 1996, File No. 1-6047.
C-190 Subordinated Debenture Indenture, dated as of July 1, 1994 -
incorporated by reference to Exhibit A-8(a), Certificate Pursuant to
Rule 24, File No. 70-8403.
Other
C-191 Incentive Compensation Plan for Elected Officers of Penelec dated
February 6, 1997.
C-192 Employee Incentive Compensation Plan of Penelec, dated as of April 1,
1995 - incorporated by reference to Exhibit 10-F to GPU's Annual
Report on Form 10-K for the year 1995, File No. 1-6047.
C-193 Penelec Supplemental and Excess Benefits Plan dated February 6, 1997.
C-194 Amended and Restated Nuclear Material Lease Agreement, dated as of
November 17, 1995, between TMI-1 Fuel Corp. and Penelec -
incorporated by reference to Exhibit B-2(a)(iv), Certificate Pursuant
to Rule 24, File No. 70-7862.
C-195 Letter Agreement, dated as of November 17, 1995, from Penelec
relating to Penelec Nuclear Material Lease Agreement - incorporated
by reference to Exhibit B-2(b)(i), Certificate Pursuant to Rule 24,
File No. 70-7862.
C-196 Amended and Restated Trust Agreement, dated as of November 17, 1995,
between United States Trust Company of New York, as Owner Trustee,
Lord Fuel Corp., as Trustor and Beneficiary, and Penelec and its
affiliates - incorporated by reference to Exhibit B-3(i), Certificate
Pursuant to Rule 24, File No. 70-7862.
GPU International Group
C-197 Annual Performance Award (APA) Plan of GPU International, Inc. as
amended and restated effective February 6, 1997.
-99-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
D-1 Tax Allocation Agreement as amended through March 31, 1996 -
incorporated by reference to Exhibit D-1 to GPU's Annual Report on
Form U5S for the year 1995, File No. 30-126.
Tax Allocation Agreement - Amendments thereto through December 30,
1996.
E-1 Venture Disclosures - Licensing of Computer Programs to Nonassociated
Companies.
E-2 Venture Disclosures - Fiber Optic System Lease Agreements with
Nonassociated Companies.
E-3 Venture Disclosures - Services to Non-Affiliated Utilities.
E-4 GPU International, Inc. Annual Report to the SEC on Form U-13-60 for
1996.
E-5 GPU Nuclear, Inc. - Policy for the Purchase of Computers for the
Nuclear Science Degree Program - incorporated by reference to Exhibit
E-1 to GPU's Annual Report on Form U5S for the year 1989, File No.
30-126.
E-6 GPU System Accounting Policy regarding Company Credit Card
Agreements, dated April 20, 1993 - incorporated by reference to
Exhibit E-3 to GPU's Annual Report on Form U5S for the year 1992,
File No. 30-126.
E-7 Fiber Optic Cable Lease Agreement, dated as of December 23, 1992,
between GPUS, individually and as agent for JCP&L and Met-Ed, and MCI
Telecommunications Corporation - incorporated by reference to Exhibit
B, Amendment No. 3 to Application on Form U-1, File No. 70-7850.
E-8 First Amendment to Fiber Optic Cable Lease Agreement, dated as of
September 23, 1994, between GPUS, individually and as agent for JCP&L
and Met-Ed, and MCI Telecommunications Corporation - filed pursuant
to request for confidential treatment.
-100-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Schedules Supporting Items of This Report
F-1 Item 6. Part III - Compensation and other related information for
the Officers and Directors of GPU, JCP&L, Met-Ed and Penelec.
F-2 Consolidating Financial Statements of Jersey Central Power & Light
Company for 1996.
Consolidating Financial Statements of Metropolitan Edison Company for
1996.
Consolidating Financial Statements of Pennsylvania Electric Company
for 1996.
Consolidating financial statements for OLS Power Limited Partnership
(OLS Power), which has three operating nonutility generation
projects, have been omitted since as of December 31, 1993, GPU
International, Inc. reduced its investment in OLS Power to zero
through the recording of equity losses.
G-1 Financial Data Schedule (for EDGAR filing only).
GPU, Inc. and Subsidiary Companies
Jersey Central Power & Light Company and Subsidiary Company
Metropolitan Edison Company and Subsidiary Companies
Pennsylvania Electric Company and Subsidiary Companies
H-1 Organizational chart showing the relationship of GPU International,
Inc. to each exempt wholesale generator (EWG) in which it holds an
interest.
Organizational chart showing the relationship of GPU Power, Inc. to
each exempt wholesale generator (EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU Electric, Inc.
to each foreign utility company (FUCO) in which it holds an interest.
-101-
<PAGE>
ITEM 10. FINANCIAL STATEMENTS AND EXHIBITS (Continued):
Exhibits
Schedules Supporting Items of This Report
I-1 Consolidating Financial Statements of GPU International, Inc. for
1996 - filed pursuant to request for confidential treatment.
Consolidating Financial Statements of GPU Power, Inc. for 1996 -
filed pursuant to request for confidential treatment.
Consolidating Financial Statements of GPU Electric, Inc. for 1996 -
filed pursuant to request for confidential treatment.
Financial Statements of Brooklyn Energy Limited Partnership for 1996
- filed pursuant to request for confidential treatment.
Financial Statements of EI Services Canada, Ltd. for 1996 - filed
pursuant to request for confidential treatment.
Financial Statements of Selkirk Cogeneration Partners Limited
Partnership for 1996 - incorporated by reference to Selkirk
Cogeneration Partners Limited Partnership Annual Report on Form 10-K
for the year 1996, File No. 33-83618-01.
Financial Statements of Termobarranquilla S.A. for 1996 - filed
pursuant to request for confidential treatment.
Financial Statements of Los Amigos Leasing Company, Ltd. for 1996 -
filed pursuant to request for confidential treatment.
Financial Statements of Solaris Power for 1996 - filed pursuant to
request for confidential treatment.
Consoldating Financial Statements of EI UK Holdings, Inc. for 1996 -
filed pursuant to request for confidential treatment.
Schedule XIV - Notes to Financial Statements and Schedule of Account
923 - Outside Services Employed of GPU International, Inc.'s Annual
Report to the SEC on Form U-13-60 for 1996 - filed pursuant to
request for confidential treatment.
-102-
<PAGE>
SIGNATURE
The undersigned system company has duly caused this annual report to be
signed on its behalf by the undersigned thereunto duly authorized pursuant to
the requirements of the Public Utility Holding Company Act of 1935.
GPU, INC.
April 29, 1997
By /s/ F. A. Donofrio
F. A. Donofrio, Vice President
and Comptroller
-103-
<PAGE>
Page 1 of 4
Exhibits to be filed with 1996 U5S
B-5 Articles of Incorporation of GPUS, as amended August 1,
1996.
B-7 Certificate of Amendment to the Certificate of
Incorporation of GPUN dated August 1, 1996.
B-9 Articles of Incorporation of GPU Genco, as amended
August 1, 1996.
B-48 Certificate of Amendment of Certificate of
Incorporation of Energy Initiatives, Inc., dated as of
August 1, 1996 to change the name of the company to GPU
International, Inc.
B-77 Certificate of Amendment of Certificate of
Incorporation of EI Power, Inc., dated as of August 1,
1996 to change the name of the company to GPU Power,
Inc.
B-88 Amendment to the By-Laws of Incorporation of EI
Services Colombia, Ltda. dated as of August 9, 1996 to
change the name of the company to GPU International
Latin America, Ltda.
B-96 Certificate of Amendment of Certificate of
Incorporation of Colombian Installations, Inc., dated
as of August 26, 1996 to change the name of the company
to GPU Power Philippines, Inc.
B-98 Certificate of Amendment of Certificate of
Incorporation of EI Energy, Inc., dated as of August 1,
1996 to change the name of the company to GPU Electric,
Inc.
B-102 Certificate of Incorporation of Victoria Electric
Holdings, Inc., dated as of June 17, 1996.
B-103 Certificate of Incorporation of EI UK Holdings, Inc.,
dated as of April 30, 1996.
B-104 Memorandum and Articles of Association of Avon Energy
Partners Holdings, dated as of May 2, 1996.
B-105 Memorandum and Articles of Association of Avon Energy
Partners plc, dated as of April 29, 1996.
B-106 Memorandum of Association of Midlands Electricity plc,
dated as of March 9, 1989.
<PAGE>
Page 2 of 4
Exhibits to be filed with 1996 U5S
B-107 Articles of Association of Midlands Electricity plc,
adopted on December 13, 1996.
B-108 Certificate of Filing of Amended Articles of
Incorporation of Magellan Utilities Development
Corporation, adopted on March 14, 1994.
B-109 Certificate of Incorporation of GPUI Lake Holdings,
Inc., dated December 30, 1996.
B-149 By-Laws of Victoria Electric Holdings, Inc., adopted as
of June 17, 1996.
B-150 By-Laws of EI UK Holdings, Inc., adopted as of April
30, 1996.
B-151 Certificate of Filing of Amended By-Laws of Magellan
Utilities Development Corporation adopted on September
29, 1994.
B-152 By-Laws of GPUI Lake Holdings, Inc., adopted as of
December 30, 1996.
B-186 Limited Partnership Agreement of Mid-Georgia Cogen L.
P. dated as of April 15, 1996.
C-2 GPU, Inc. Restricted Stock Plan for Outside Directors
dated February, 6, 1997.
C-3 GPU, Inc. 1990 Stock Plan for Employees of GPU, Inc.
and Subsidiaries as amended and restated to reflect
amendments through February 6, 1997.
C-4 Performance Units Agreement Under the 1990 Stock Plan
for Employees of GPU and Subsidiaries - 1996 Agreement.
C-5 Incentive Compensation Plan for Elected Officers of GPU
Service, Inc., dated as of February 6, 1997.
C-6 Incentive Compensation Plan for Elected Officers of GPU
Nuclear, Inc., dated as of February 6, 1997.
C-7 Incentive Compensation Plan for Elected Officers of GPU
Generation, Inc., dated as of February 6, 1997.
C-10 GPU Service, Inc. Supplemental and Excess Benefits
Plan, dated as of February 6, 1997.
C-11 GPU Nuclear, Inc. Supplemental and Excess Benefits
Plan, dated as of February 6, 1997.
C-12 GPU Generation, Inc. Supplemental and Excess Benefits
Plan, dated as of February 6, 1997.
C-13 Deferred Remuneration Plan for Outside Directors of
GPU, Inc. dated February 6, 1997.
C-14 Deferred Remuneration Plan for Outside Directors of GPU
Nuclear Inc., dated as of February 6, 1997.
C-15 Retirement Plan for Outside Directors of GPU, Inc.
dated February 6, 1997.
<PAGE>
Page 3 of 4
Exhibits to be filed with 1996 U5S
C-16 GPU System Companies Deferred Compensation Plan dated
February 6, 1997.
C-17 GPU System Companies Master Directors' Benefits
Protection Trust dated February 6, 1997.
C-18 GPU System Companies Master Executives' Benefits
Protection Trust dated February 6, 1997.
C-74 Incentive Compensation Plan for Elected Officers of
JCP&L dated February 6, 1997.
C-76 JCP&L Supplemental and Excess Benefits Plan dated
February 6, 1997.
C-77 Deferred Remuneration Plan for Outside Directors of
JCP&L dated February 6, 1997.
C-134 Incentive Compensation Plan for Elected Officers of
Met-Ed dated February 6, 1997.
C-136 Met-Ed Supplemental and Excess Benefits Plan dated
February 6, 1997.
C-191 Incentive Compensation Plan for Elected Officers of
Penelec dated February 6, 1997.
C-193 Penelec Supplemental and Excess Benefits Plan dated
February 6, 1997.
C-197 Annual Performance Award (APA) Plan of GPU
International, Inc. as amended and restated effective
February 6, 1997.
D-1 Tax Allocation Agreement - Amendments thereto through
December 30, 1996.
E-1 Venture Disclosures - Licensing of Computer Programs to
Nonassociated Companies.
E-2 Venture Disclosures - Fiber Optic System Lease
Agreements with Nonassociated Companies.
E-3 Venture Disclosures - Services to Non-Affiliated
Utilities.
E-4 GPU International, Inc. Annual Report to the SEC on
Form U-13-60 for 1996.
F-1 Item 6. Part III - Compensation and other related
information for the Officers and Directors of GPU,
JCP&L, Met-Ed and Penelec.
<PAGE>
Page 4 of 4
Exhibits to be filed with 1996 U5S
F-2 Consolidating Financial Statements of Jersey Central
Power and Light Company for 1996.
Consolidating Financial Statements of Metropolitan
Edison Company for 1996.
Consolidating Financial Statements of Pennsylvania
Electric Company for 1996.
Consolidating financial statements for OLS Power
Limited Partnership (OLS Power), which has three
operating nonutility generation projects, have been
omitted since as of December 31, 1993, GPU
International, Inc. reduced its investment in OLS Power
to zero through the recording of equity losses.
G-1 Financial Data Schedule (for EDGAR filing only).
GPU, Inc. and Subsidiary Companies
Jersey Central Power & Light Company
Metropolitan Edison Company and Subsidiary Companies
Pennsylvania Electric Company and Subsidiary Companies
H-1 Organizational chart showing the relationship of GPU
International, Inc. to each exempt wholesale generator
(EWG) in which it holds an interest.
Organizational chart showing the relationship of GPU
Power, Inc. to each exempt wholesale generator (EWG) in
which it holds an interest.
Organizational chart showing the relationship of GPU
Electric, Inc. to each foreign utility company (FUCO)
in which it holds an interest.
<PAGE>
Exhibit B-5
Articles of Incorporation
(as amended August 1, 1996)
__________
In compliance with the requirements of the Business
Corporation Law, approved on the 5th day of May, A.D., 1933, P.L.
364, as amended, the undersigned who is a person of full age,
desiring that he may be incorporated as a business corporation
does hereby certify:
First: The name of the Corporation is:
GPU Service, Inc.
Second: The location and post office address of the
Corporation's initial registered office in this Commonwealth
is 2800 Pottsville Pike, Muhlenberg Township, Reading, Berks
County.
Third: The purposes of the Corporation are as follows:
To conduct and carry on, to the extent permitted by
law, the business of providing services in matters relating
to the ownership, maintenance, operation, management or
control of public utility and other corporations, companies,
associations, partnerships, organizations and other
businesses;
To purchase or otherwise acquire, hold, own sell, lease
or otherwise dispose of real property, improved or
unimproved, personal property, tangible or intangible,
including without limitation, stocks, bonds, and other
securities, patents, licenses, goods, wares and merchandise
of every description which the Corporation may use in its
business;
To have unlimited power to engage in and to do any
lawful act concerning any and all lawful business for which
corporations may be incorporated under the Business
Corporation Law of Pennsylvania under the provisions of
which the Corporation is incorporated.
Fourth: The duration of the Corporation is perpetual.
Fifth: The aggregate number of shares which the
Corporation shall have authority to issue is Five Thousand
(5,000) shares of common stock of the par value of Ten
Dollars ($10) per share.
Sixth: The name and address of the incorporator and the
number and class of shares subscribed by him are:<PAGE>
2
W. G. Kuhns 10 shares of common stock
11 Stonehurst Drive ($10 par value)
Tenafly, New Jersey
Seventh: The number of directors of the Corporation shall
be not less than three nor more than nine. The number of
directors within said minimum and maximum limits which shall
constitute the Board of Directors shall be specified in the
By-Laws of the Corporation.
IN TESTIMONY WHEREOF, the undersigned corporation has caused
these Articles of Amendment to be signed by a duly authorized
officer thereof this 31st day of July, 1996.
/s/ J. R. Leva
Approved and filed in the Department of State on August 1, 1996.
Secretary of the Commonwealth<PAGE>
Exhibit B-7
CERTIFICATE OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
GPU NUCLEAR CORPORATION
The undersigned corporation, organized under the laws
of the State of New Jersey, in accordance with N.J.S.A. 14A:9-
2(4), hereby certifies as follows:
FIRST: The name of the corporation is GPU Nuclear
Corporation.
SECOND: Article First of the corporation's
Certificate of Incorporation is amended to read in its entirety
as follows:
"FIRST: The name of the corporation (hereinafter
sometimes called the "corporation") is GPU
Nuclear, Inc."
THIRD: The foregoing amendment to the Certificate of
Incorporation was adopted by the sole holder of the common stock
of the corporation on the lst day of August, 1996.
FOURTH: The number of shares entitled to vote on the
amendment was 2,500.
FIFTH: The number of shares voting for the amendment
was 2,500 and no shares were voted against the amendment.
SIXTH: The amendment shall be effective as of August
1, 1996 at 5 p.m.
IN WITNESS WHEREOF, the undersigned corporation has
caused this Certificate of Amendment to be signed by a duly
authorized officer thereof this 1st day of August, 1996.
GPU NUCLEAR CORPORATION
By:____________________
Name: James R. Leva
Title: Chairman of the Board<PAGE>
Exhibit B-9
GPU GENERATION, INC.
_______________
ARTICLES OF INCORPORATION
(as amended August 1, 1996)
I. The name of the Corporation is GPU GENERATION, INC.
II. The location and post office address of the registered
office of the Corporation in the Commonwealth of Pennsylvania is:
c/o Pennsylvania Electric Company
1001 Broad Street
Johnstown, Cambria County, Pennsylvania 15907
III. The purposes for which the Corporation is incorporated
are as follows:
A. The engaging in all lawful business for which
corporations may be incorporated under the Pennsylvania Business
Corporation Law of 1988, as amended.
B. Without limiting the generality of the
foregoing, the undertaking of responsibility for the safe
operation, maintenance, repair, rehabilitation, design,
construction, start-up and testing of non-nuclear electric
generating stations and plants used for the production,
generation, manufacture, transmission, transportation,
distribution, furnishing and supply of electricity, on behalf of
and by contract with the owners and/or operators of such stations
and plants.
IV. The Corporation is incorporated under the provisions of
the Business Corporation Law of 1988.
V. The term of existence of the Corporation shall be
perpetual.
VI. The aggregate number of shares which the Corporation
shall have the authority to issue is two thousand five hundred
(2,500) shares of the par value of $20.00 per share, all of which
shall be designated "Common Shares".
VII. The name and address of the sole incorporator is James
R. Leva, 100 Interpace Parkway, Parsippany, New Jersey 07054.
VIII. The number of directors shall not be less than three
nor more than twelve. The number of directors within said
minimum and maximum limits which shall constitute the Board of
Directors shall be specified in the By-Laws of the Corporation.<PAGE>
Exhibit B-48
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ENERGY INITIATIVES, INC.
ENERGY INITIATIVES, INC., a Delaware corporation, hereby
certifies as follows:
FIRST: The Board of Directors of said corporation duly
adopted a resolution setting forth and declaring advisable the
amendment of Article First of the Amended and Restated
Certificate of Incorporation of said corporation so that, as
amended, said Article shall read as follows:
"FIRST: The name of the corporation (hereinafter
called the "Corporation") is GPU International, Inc."
SECOND: Written consent to the foregoing amendment has
been given by the holder of all the outstanding stock entitled to
vote thereon in accordance with the provision of Section 228 of
the General Corporation Law of the State of Delaware; and such
amendment has been duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned corporation has
caused this certificate to be signed by Bruce L. Levy, its
President, on the 1st day of August, 1996.
ENERGY INITIATIVES, INC.
By:
Name: Bruce L. Levy
Title: President
ATTEST:
By:
Name: Wendy S. Greengrove
Title: Secretary<PAGE>
ENERGY INITIATIVES, INC.
CONSENT
The undersigned, being the holder of record of all of the
outstanding capital stock of ENERGY INITIATIVES, INC., hereby
consents to the adoption of the following resolution pursuant to
Section 228 of the Delaware General Corporation Law:
RESOLVED, That the proposed amendment to the
certificate of incorporation of the Corporation which
changes the name of the Corporation to GPU
International, Inc., is hereby approved.
GENERAL PUBLIC UTILITIES CORPORATION
By
James R. Leva, Chairman
Dated: August 1, 1996<PAGE>
Exhibit B-77
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EI POWER, INC.
EI POWER, INC., a Delaware corporation, hereby certifies as
follows:
FIRST: The Board of Directors of said corporation duly
adopted a resolution setting forth and declaring advisable the
amendment of Article First of the Certificate of Incorporation of
said corporation so that, as amended, said Article shall read as
follows:
"FIRST: The name of the corporation (hereinafter
called the "Corporation") is GPU Power, Inc."
SECOND: Written consent to the foregoing amendment has
been given by the holder of all the outstanding stock entitled to
vote thereon in accordance with the provision of Section 228 of
the General Corporation Law of the State of Delaware; and such
amendment has been duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned corporation has
caused this certificate to be signed by Bruce L. Levy, its
President, on the 1st day of August, 1996.
EI POWER, INC.
By:
Name: Bruce L. Levy
Title: President
ATTEST:
By:
Name: Wendy S. Greengrove
Title: Secretary<PAGE>
EI POWER, INC.
CONSENT
The undersigned, being the holder of record of all of the
outstanding capital stock of EI POWER, INC., hereby consents to
the adoption of the following resolution pursuant to Section 228
of the Delaware General Corporation Law:
RESOLVED, that the proposed amendment to the
certificate of incorporation of the Corporation which changes
the name of the Corporation to GPU Power, Inc., is hereby
approved.
GENERAL PUBLIC UTILITIES CORPORATION
By
James R. Leva, Chairman
Dated: August 1, 1996<PAGE>
Exhibit B-88
MINUTE No. 3
EXTRAORDINARY MEETING
OF THE BOARD OF PARTNERS
EI SERVICES COLOMBIA, LTDA.
In Santafe de Bogota, D.C., at 8:00 a.m. of August 9, 1996 there
was an extraordinary meeting of the Board of Partners of EI
Services Colombia Ltda., in the company's offices at Calle 98 No.
22-64 Off. 810, with no previous notice of the meeting because
all the shares of the capital were present and duly represented,
as per the Article 182 of Commerce Code, and Article Nineth of
Social by-laws.
ATTENDENCE
Following partners were present and duly represented:
Partner No. of Shares % Represented by
EI INTERNATIONAL 105.083 52 Luis G. Martinez
EI POWER, INC. 95.947 48 Luis G. Martinez
Total of Shares 201.030 100
represented
Additionally, Luis Tellez, Legal Representative and Claudia
Cespedes invited attended the meeting.
PRESIDENCE AND SECRETARY
According to the by-laws, the meeting was directed by the Legal
Representative, Mr. Luis E. Tellez; and Claudia Cespedes acted as
Secretary by unanimous decision of the attendants.
The President submitted the Agenda of the meeting. The Agenda
was adopted unanimously:
AGENDA
1. Quorum
2. Election of Officers of the meeting
3. Amendment to by-laws in reference to change of name of the
society
4. Authorization to Legal Representative
5. Approval of the Minute<PAGE>
The proceedings were as follows:
1. QUORUM
The Secretary informed that 201.030 shares were present and
duly represented, e.i., 100% of the capital of the Society;
with this quorum the Board can deliberate and decide.
As per request of the President, the Secretary set down in
the Minute the following:
a. The partners related in first point are registered in
the Book of Partners.
b. People who acted as attendants are empowered to
deliberate and decide, for crediting, as by-laws and
law, their representation.
c. The power mentioned were given in a legal way,
presented to the attendants and these are kept in the
Society files.
2. ELECTION OF OFFICERS OF THE MEETING
The President ask to pass to the next item because the
elections had already been held.
3. AMENDMENT OF BY-LAWS OF THE SOCIETY IN REFERENCE TO THE NAME
OF THE SOCIETY
The President proposed to the attendants to change the name
of the company, as per the changes within the companies of
Energy Initaitives at a world-wide level and the
confirmation received from the Headquarters, for the name of
"GPU INTERNATIONAL LATIN AMERICA LTDA."
The Board of Partners approved unanimously the change of the
name. Therefore, from now on, the Article First of Social
By-laws will be:
ARTICLE FIRST.: NAME AND NATURE. - The Society will be
commerical of limited responsiblity, colombian, will act
under the name of GPU INTERNATIONAL LATIN AMERICA LTDA."
4. AUTHORIZATIONS TO LEGAL REPRESENTATIVE
Board of Partners authorized Mr. Luis Tellez, Legal
Representative, to appear in order to solemnize by Public
Deed the ammendment to by-laws related to the change of the
name.
5. APPROVAL OF THE MINUTE
After having gone through the Agenda, the Present of the
meeting ordered a recess of thirty (30) minutes while the
minute was prepared.
After the recess, the attendants present were the same that
at the begining of the meeting, the quorum was taken and<PAGE>
verified that 100% of shares were represented. Then, the
Minute was read and unanimously approved by those present.
The President declared the session closed at 9:00 a.m. on August
9, 1996.
LUIS EDUARDO TELLEZ CLAUDIA B. CESPEDES M.
President Secretary
I, the Secretary of EI Services Colombia Ltda., certify that this
copy of the Minute No. 3 is textually taken from the Book of
Minutes of the Society. Certified at the 9th day of August,
1996.
Secretary<PAGE>
Exhibit B-96
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLOMBIAN INSTALLATIONS, INC.
COLOMBIAN INSTALLATIONS, INC., a corporation organized and
existing under and by virtue of the general corporation Law of
the State of Delaware, DOES HEREBY CERTIFY:
FIRST: The Sole Director of said corporation duly adopted
a resolution setting forth and declaring advisable that Article
First of the Certificate of Incorporation be amended to read as
follows:
"FIRST: The name of the corporation (hereinafter
called the :Corporation") shall be GPU Power Philippines,
Inc."
SECOND: Written consent to the foregoing amendment has
been given by the holder of all the outstanding stock entitled to
vote thereon in accordance with the provision of Section 228 of
the General Corporation Law of the State of Delaware; and such
amendment has been duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said corporation has caused this
Certificate to be signed by Richard J. Guy, its Vice President,
on the 26th of August, 1996.
COLOMBIAN INSTALLATIONS, INC.
By:
Name: Richard J. Guy
Title: Vice President
ATTEST:
By:
Name: John A. McTear
Title: Vice President<PAGE>
COLOMBIAN INSTALLATIONS, INC.
CONSENT
The undersigned, being the holder of record of all of the
outstanding capital stock of COLOMBIAN INSTALLATIONS, INC.,
hereby consents to the adoption of the following resolution
pursuant to Section 228 of the Delaware General Corporation Law:
RESOLVED, That the proposed amendment to the
certificate ofincorporation of the Corporation which changes the
name of the Corporation to GPU Power Philippines, Inc., is hereby
approved.
GPU POWER, INC.
By:
Bruce L. Levy, President
Dated: August 26, 1996<PAGE>
Exhibit B-98
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
EI ENERGY, INC.
EI ENERGY, INC., a Delaware corporation, hereby certifies as
follows:
FIRST: The Board of Directors of said corporation duly
adopted a resolution setting forth and declaring advisable the
amendment of Article First of the Certificate of Incorporation of
said corporation so that, as amended, said Article shall read as
follows:
"FIRST: The name of the corporation (hereinafter
called the "Corporation") is GPU Electric, Inc."
SECOND: Written consent to the foregoing amendment has
been given by the holder of all the outstanding stock entitled to
vote thereon in accordance with the provision of Section 228 of
the General Corporation Law of the State of Delaware; and such
amendment has been duly adopted in accordance with the provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the undersigned corporation has
caused this certificate to be signed by Bruce L. Levy, its
President, on the 1st day of August, 1996.
EI ENERGY, INC.
By:
Name: Bruce L. Levy
Title: President
ATTEST:
By:
Name: Wendy S. Greengrove
Title: Secretary<PAGE>
EI ENERGY, INC.
CONSENT
The undersigned, being the holder of record of all of the
outstanding capital stock of EI ENERGY, INC., hereby consents to
the adoption of the following resolution pursuant to Section 228
of the Delaware General Corporation Law:
RESOLVED, That the proposed amendment to the
certificate of incorporation of the Corporation which changes
the name of the Corporation to GPU Electric, Inc., is hereby
approved.
GENERAL PUBLIC UTILITIES CORPORATION
By
James R. Leva, Chairman
Dated: August 1, 1996<PAGE>
Exhibit B-102
CERTIFICATE OF INCORPORATION
OF
VICTORIA ELECTRIC HOLDINGS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Victoria Electric Holdings, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 1013 Centre Road, City of Wilmington, 19805 County
of New Castle. The name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Michael S. Shenberg c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.
SEVENTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.<PAGE>
EIGHTH: Elections of directors need not be by written
ballot except and to the extent provided in the by-laws of the
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this 17th
day of June, 1996.
Michael S. Shenberg
Sole Incorporator<PAGE>
Exhibit B-103
CERTIFICATE OF INCORPORATION
OF
EI UK HOLDINGS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is EI UK Holdings, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 1013 Centre Road, City of Wilmington, County of
New Castle, 19805 and the name of the registered agent of the
corporation in the State of Delaware at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the incorporator
are as follows:
NAME MAILING ADDRESS
Gerald A. Lee c/o Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: As of the date hereof, the corporation has received
no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th
day of April, 1996.
Gerald A. Lee
Sole Incorporator<PAGE>
Exhibit B-104
THE COMPANIES ACT 1985
AN UNLIMITED COMPANY HAVING A SHARE CAPITAL
MEMORANDUM
and
ARTICLES OF ASSOCIATION
of
AVON ENERGY PARTNERS HOLDINGS
<PAGE>
The Companies Act 1985
An Unlimited Company Having A Share Capital
Memorandum of Association
of
AVON ENERGY PARTNERS HOLDINGS
1 The Company's name is "Avon Energy Partners Holdings*".
2 The Company's registered office is to be situate in England
and Wales.
3 The Company's objects are:
3.1
3.1.1 To carry on the business of a holding company in
all its branches and for that purpose to acquire
and hold either in the name of the Company, or in
that of any nominee or trustee, shares, stocks,
debentures, debenture stock, bonds, notes,
obligations and securities issued or guaranteed by
any company, corporation or undertaking wherever
incorporated or carrying on business and to co-
ordinate the policy management and administration
of any companies, corporations or undertakings in
which the Company is a member or participant or
which are controlled by or associated with the
Company in any manner;
3.1.2 To carry on all or any of the businesses of
general merchants and traders, cash and credit
traders, manufacturers' agents and
representatives, insurance brokers and
consultants, estate and advertising agents,
mortgage brokers, financial agents, advisers,
managers and administrators, hire purchase and
general financiers, brokers and agents, commission
agents, importers and exporters, manufacturers,
retailers, wholesalers, buyers, sellers,
distributors and shippers of, and dealers in, all
products, goods, wares, merchandise and produce of
every description and to participate in,
undertake, perform and carry on all kinds of
commercial, industrial, trading and financial
operations and enterprises.
3.2 To carry on any other business or activity of any nature
whatsoever which may seem to the Directors to be capable
_________________________________
*. The name of the company was on the 8th day of May 1996
changed from Fiordcrown.
2
<PAGE>
of being conveniently or advantageously carried on in
connection or conjunction with any business of the Company
hereinbefore or hereinafter authorised or to be expedient
with a view directly or indirectly to enhancing the value of
or to rendering profitable or more profitable any of the
Company's assets or utilising its skills, know-how or
expertise.
3.3 To subscribe, underwrite, purchase, or otherwise acquire,
and to hold, dispose of, and deal with, any shares or other
securities or investments of any nature whatsoever, and any
options or rights in respect thereof or interests therein,
and to buy and sell foreign exchange.
3.4 To draw, make, accept, endorse, discount, negotiate,
execute, and issue, and to buy, sell and deal with bills of
exchange, promissory notes, and other negotiable or
transferable instruments or securities.
3.5 To purchase, or otherwise acquire for any estate or interest
any property (real or personal) or assets or any
concessions, licences, grants, patents, trade marks,
copyrights or other exclusive or non-exclusive rights of any
kind and to hold, develop and turn to account and deal with
the same in such manner as may be thought fit and to make
experiments and tests and to carry on all kinds of research
work.
3.6 To build, construct, alter, remove, replace, equip, execute,
carry out, improve, work, develop, administer, maintain,
manage or control buildings, structures of facilities of all
kinds, whether for the purposes of the Company or for sale,
letting or hire to or in return for any consideration from
any company, firm or person, and to contribute to or assist
in or carry out any part of any such operation.
3.7 To amalgamate or enter into partnership or any joint venture
or profit/loss-sharing arrangement or other association with
any company, firm, person or body.
3.8 To purchase or otherwise acquire and undertake all or any
part of the business, property and liabilities of any
company, firm, person or body carrying on any business which
the Company is authorised to carry on or possessed of any
property suitable for the purposes of the Company.
3.9 To promote, or join in the promotion of, any company,
whether or not having objects similar to those of the
Company.
3.10 To borrow and raise money and to secure or discharge any
debt or obligation of or binding on the Company in such
manner as may be thought fit and in particular by mortgages
and charges upon all or any part of the undertaking,
property and assets (present and future) and
3
<PAGE>
the uncalled capital of the Company, or by the creation and
issue of debentures, debenture stock or other securities of
any description.
3.11 To advance, lend or deposit money or give credit to or with
any company, firm or person on such terms as may be thought
fit and with or without security.
3.12 To guarantee or give indemnities or provide security,
whether by personal covenant or by mortgage or charge upon
all or any part of the undertaking, property and assets
(present and future) and the uncalled capital of the
Company, or by all or any such methods, for the performance
of any contracts or obligations, and the payment of capital
or principal (together with any premium) and dividends or
interest on any shares, debentures or other securities, of
any person, firm or company including (without limiting the
generality of the foregoing) any company which is for the
time being a holding company of the Company or another
subsidiary of any such holding company or is associated with
the Company in business.
3.13 To issue any securities which the Company has power to issue
for any other purpose by way of security or indemnity or in
satisfaction of any liability undertaken or agreed to be
undertaken by the Company.
3.14 To sell, lease, grant licences, easements and other rights
over, and in any other manner deal with or dispose of, the
undertaking, property, assets, rights and effects of the
Company or any part thereof for such consideration as may be
thought fit, and in particular for shares or other
securities, whether fully or partly paid up.
3.15 To procure the registration, recognition or incorporation of
the Company in or under the laws of any territory outside
England.
3.16 To subscribe or guarantee money for any national,
charitable, benevolent, public, general or useful object or
for any purpose which may be considered likely directly or
indirectly to further the interests of the Company or of its
members.
3.17 To establish and maintain or contribute to any pension or
superannuation funds for the benefit of, and to give or
procure the giving of donations, gratuities, pensions,
allowances or emoluments to, any individuals who are or were
at any time in the employment or service of the Company or
of any company which is its holding company or is a
subsidiary of the Company or any such holding company or
otherwise is allied to or associated with the Company or any
of the predecessors of the Company or any other such company
as aforesaid, or who are or were at any time directors or
officers of the Company or of any
4
<PAGE>
such other company, and the wives, widows, families and
dependants of any such individuals; to establish and
subsidise or subscribe to any institutions, associations,
clubs or funds which may be considered likely to benefit any
such persons or to further the interests of the Company or
of any such other company; and to make payments for or
towards the insurance of any such persons.
3.18 To establish and maintain, and to contribute to, any scheme
for encouraging or facilitating the holding of shares or
debentures in the Company by or for the benefit of its
employees or former employees, or those of its subsidiary or
holding company or subsidiary of its holding company, or by
or for the benefit of such other persons as may for the time
being be permitted by law, or any scheme for sharing profits
with its employees or those of its subsidiary and/or
associated companies, and (so far as for the time being
permitted by law) to lend money to employees of the Company
or of any company which is its holding company or is a
subsidiary of the Company or any such holding company or
otherwise is allied to or associated with the Company with a
view to enabling them to acquire shares in the Company or
its holding company.
3.19
3.19.1 To purchase and maintain insurance for or for the
benefit of any persons who are or were at any time
directors, officers or employees or auditors of
the Company, or of any other company which is its
holding company or in which the Company or such
holding company or any of the predecessors of the
Company or of such holding company has any
interest whether direct or indirect or which is in
any way allied to or associated with the Company,
or of any subsidiary undertaking of the Company or
of any such other company, or who are or were at
any time trustees of any pension fund in which any
employees of the Company or of any such other
company or subsidiary undertaking are interested,
including (without prejudice to the generality of
the foregoing) insurance against any liability
incurred by such persons in respect of any act or
omission in the actual or purported execution
and/or discharge of their duties and/or in the
exercise or purported exercise of their powers
and/or otherwise in relation to the Company or any
such other company, subsidiary undertaking or
pension fund and
3.19.2 to such extent as may be permitted by law
otherwise to indemnify or to exempt any such
person against or from any such liability; for the
purposes of this clause "holding company"
5
<PAGE>
and "subsidiary undertaking" shall have the same
meanings as in the Companies Act 1985 as amended
by the Companies Act 1989.
3.20 To distribute among members of the Company in specie or
otherwise, by way of dividend or bonus or by way of
reduction of capital, all or any of the property or assets
of the Company, or any proceeds of sale or other disposal of
any property or assets of the Company, with and subject to
any incident authorised, and consent required, by law.
3.21 To do all or any of the things and matters aforesaid in any
part of the world, and either as principals, agents,
contractors, trustees or otherwise, and by or through
trustees, agents, subsidiary companies or otherwise, and
either alone or in conjunction with others.
3.22 To do all such other things as may be considered to be
incidental or conducive to any of the above objects.
And it is hereby declared that the objects of the Company as
specified in each of the foregoing paragraphs of this Clause
(except only if and so far as otherwise expressly provided
in any paragraph) shall be separate and distinct objects of
the Company and shall not be in any way limited by reference
to any other paragraph or the order in which the same occur
or the name of the Company.
We, the Subscriber to this Memorandum of Association wish to be
formed into a Company pursuant to this Memorandum; and we agree
to take the number of Share shown opposite our respective name.
Number of Shares
taken by each
Name and Address of Subscriber Subscriber
James E Rogers One
For: M E Holdings Inc
139 East Fourth St
Cincinnati, Ohio 45202
Dated 2 May 1996
Witness to the above Signature:
David John Sonter
Level 4
Barrington House
59-67 Gresham Street
London, EC2V 7JA
Solicitor
Bruce Levy One
For: EI Energy Inc.
One Upper Pond Rd
Parsippany, NJ 070121
6
<PAGE>
Dated 2 May 1996
Witness to the above Signature:
David John Sonter
Level 4
Barrington House
59-67 Gresham Street
London, EC2V 7JA
Solicitor
Total Shares taken: Two
The Companies Act 1985
An Unlimited Company Having A Share Capital
ARTICLES OF ASSOCIATION
OF
AVON ENERGY PARTNERS HOLDINGS
(Adopted by Resolution in Writing of all the Members
of the Company passed on the 7th day of May 1996)
Preliminary
1 The regulations contained in Table A in The Companies
(Tables A to F) Regulations 1985 (as amended so as to affect
companies first registered on the date of incorporation of
the Company) shall, except as hereinafter provided and so
far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other
regulations or Articles of Association. References herein to
regulations are to regulations in the said Table A unless
otherwise stated.
Share Capital
2 The share capital of the Company is 660,000,000 divided into
660,000,000 Ordinary Shares of 1 each, which shall be
identical in all respects and rank pari passu save as
described in the next sentence. Of the issued share capital
145,200,000 Ordinary Shares shall be designated as
"Restricted Shares" and shall be subject to the restrictions
on transfer set out in Article 6**.
_______________________________
**. As altered by Resolutions in Writing of all the Members
passed on the 21st day of June 1996 and the 19th day of
September 1996
7
<PAGE>
3
3.1 Subject to Section 80 of the Act and to Article 6, all
unissued shares shall be at the disposal of the Directors
and they may allot, grant options over or otherwise dispose
of them to such persons, at such times, and on such terms as
they think proper.
3.2
3.2.1 Pursuant to and in accordance with Section 80 of
the Act, the Directors shall be generally and
unconditionally authorised to exercise during the
period of five years from the date of the adoption
of this Article all the powers of the Company to
allot relevant securities up to an aggregate
nominal amount of 660,000,000**;
3.2.2 by such authority the Directors may make offers or
agreements which would or might require the
allotment of relevant securities after the expiry
of such period;
3.2.3 words and expressions defined in or for the
purposes of the said Section 80 shall bear the
same meanings in this Article.
3.3 Any allotment made pursuant to Article 3.2 may be made as if
Section 89(1) of the Act did not apply.
4 The Company may by special resolution, but subject to
Article 6:
4.1 increase the share capital by such sum to be divided into
shares of such amount as the resolution may prescribe;
4.2 consolidate and divide all or any of its share capital into
shares of a larger amount than its existing shares;
4.3 subdivide its shares, or any of them, into shares of a
smaller amount than its existing shares;
4.4 cancel any shares which at the date of the passing of the
resolution have not been taken or agreed to be taken by any
person;
4.5 reduce its share capital and any share premium account in
any way.
Regulations 32 and 34 shall not apply to the Company.
Redeemable Shares and Purchase of Shares by the Company
5 In addition to and without prejudice to the powers in Clause
4 above, but subject to Article 6, the Company may:
8
<PAGE>
5.1 issue shares which are to be redeemed or liable to be
redeemed at the option of the Company or the holder thereof
except that no redeemable shares may be issued at any time
when there are no issued shares of the Company which are not
redeemable;
5.2 purchase its own shares, including its own redeemable
shares, subject to the terms of the purchase being
authorised by a Special Resolution in general meeting.
Regulations 3 and 35 shall not apply.
Transfer of Shares
6 Restricted Shares shall not be directly or indirectly sold,
assigned, transferred, pledged, hypothecated or otherwise
disposed of (collectively a "Transfer") without the prior
written consent of the member(s) (other than the transferor)
holding a majority of the shares in the capital of the
Company not subject to the proposed Transfer. Such consent
may be withheld at the sole and absolute discretion of each
member. Notwithstanding any other provision of these
Articles of Association to the contrary, the Restricted
Shares shall at all times represent more than 20 per cent.
of all interests in the capital and items of income, gain,
loss, deduction and credit of the Company. Share
certificates representing the Restricted Shares shall be
stamped or otherwise imprinted with a legend stating that
the shares evidenced by such certificates are subject to
restrictions on transfer.
Proceedings at General Meetings
7 In the case of a corporation a resolution in writing may be
signed on its behalf by a Director or the Secretary thereof
or by its duly appointed attorney or duly authorised
representative. Regulation 53 shall be extended accordingly.
Regulation 53 (as so extended) shall apply mutatis mutandis
to resolutions in writing of any class of members of the
Company.
8 An instrument appointing a proxy (and, where it is signed on
behalf of the appointor by an attorney, the letter or power
of attorney or a duly certified copy thereof) must either be
delivered at such place or one of such places (if any) as
may be specified for that purpose in or by way of note to
the notice convening the meeting (or, if no place is so
specified, at the registered office) before the time
appointed for holding the meeting or adjourned meeting or be
delivered to the Secretary (or the Chairperson of the
meeting) on the day and at the place of, but in any event
before the time appointed for holding, the meeting or
adjourned meeting. The instrument shall, unless the contrary
9
<PAGE>
is stated thereon, be valid as well for any adjournment of
the meeting as for the meeting to which it relates. An
instrument of proxy relating to more than one meeting
(including any adjournment thereof) having once been so
delivered for the purposes of any meeting shall not require
again to be delivered for the purposes of any subsequent
meeting to which it relates. Regulation 62 shall not apply.
9 The members shall be deemed to meet together if, being in
separate locations, they are nonetheless linked by
conference telephone or other communication equipment which
allows those participating to hear and speak to each other.
Such a meeting shall be deemed to take place where the
largest group of those participating is assembled or, if
there is no such group, where the Chairperson of the meeting
then is.
10 The last sentence of Regulation 112 shall not apply.
Alternate Directors
11 An alternate Director shall be entitled to receive notices
of meetings of the Directors and of any committee of the
Directors of which his appointor is a member and shall be
entitled to attend and vote as a Director and be counted in
the quorum at any such meeting at which his appointor is not
personally present and generally at such meeting to perform
all functions of his appointor as a Director and for the
purposes of the proceedings at such meeting the provisions
of these Articles shall apply as if he were a Director. If
he shall be himself a Director or shall attend any such
meeting as an alternate for more than one Director, his
voting rights shall be cumulative. The signature of the
alternate to any resolution in writing of the Directors
shall be as effective as the signature of his appointor.
Regulations 66 and 69 shall not apply.
12 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified
to the same extent mutatis mutandis as if he were a Director
but he shall not be entitled to receive from the Company in
respect of his appointment as alternate Director any
remuneration except only such part (if any) of the
remuneration otherwise payable to his appointor as such
appointor may by notice in writing to the Company from time
to time direct.
Delegation of Directors' Powers
13 In addition to the powers to delegate contained in
Regulation 72, the Directors may delegate any of their
powers or discretions (including without prejudice to the
10
<PAGE>
generality of the foregoing all powers and discretions whose
exercise involves or may involve the payment of remuneration
to or the conferring of any other benefit on all or any of
the Directors) to committees consisting of one or more
Directors and (if thought fit) one or more other named
person or persons to be co-opted as hereinafter provided.
Insofar as any such power or discretion is delegated to a
committee, any reference in these Articles to the exercise
by the Directors of the power or discretion so delegated
shall be read and construed as if it were a reference to the
exercise thereof by such committee. Any committee so formed
shall in the exercise of the powers so delegated conform to
any regulations which may from time to time be imposed by
the Directors. Any such regulations may provide for or
authorise the co-option to the committee of persons other
than Directors and may provide for members who are not
Directors to have voting rights as members of the committee.
Regulation 72 shall be modified accordingly.
Appointment and Retirement of Directors
14 The Directors shall not be subject to retirement by
rotation. Regulations 73 to 75 and the second and third
sentences of Regulation 79 shall not apply, and other
references in the said Table A to retirement by rotation
shall be disregarded.
Disqualification and Removal of Directors
15 The office of a Director shall be vacated in any of the
events specified in Regulation 81 and also if he shall in
writing offer to resign and the Directors shall resolve to
accept such offer or if he shall be removed from office by
notice in writing signed by all his co-Directors (being at
least two in number) but so that if he holds an appointment
to an executive office which thereby automatically
determines such removal shall be deemed an act of the
Company and shall have effect without prejudice to any claim
for damages for breach of any contract of service between
him and the Company.
Remuneration of Directors
16 Any Director who serves on any committee, or who otherwise
performs services which in the opinion of the Directors are
outside the scope of the ordinary duties of a Director, may
be paid such extra remuneration by way of salary, commission
or otherwise or may receive such other benefits as the
Directors may determine. Regulation 82 shall be extended
accordingly.
11
<PAGE>
Proceedings of Directors
17
17.1 The Directors shall take whatever steps they deem necessary
or desirable to ensure that all of the Directors are kept
fully informed, in a prompt manner, of the business of and
decisions of any committee of the Directors. Without
limitation, the agenda, the minutes and any papers
circulated with them for each committee meeting shall be
circulated to all the Directors at the same time as they are
issued to the committee members.
17.2 The Directors, and any committee of Directors, shall be
deemed to meet together if, being in separate locations,
they are nonetheless linked by conference telephone or other
communication equipment which allows those participating to
hear and speak to each other. Such a meeting shall be deemed
to take place where the largest group of those participating
is assembled or, if there is no such group, where the
Chairperson of the meeting then is.
17.3 On any matter in which a Director is in any way interested
he may nevertheless vote and be taken into account for the
purposes of a quorum and (save as otherwise agreed) may
retain for his own absolute use and benefit all profits and
advantages directly or indirectly accruing to him thereunder
or in consequence thereof. Regulations 94 to 98 shall not
apply.
17.4 The third and fifth sentences of Regulation 88 shall not
apply.
Indemnity
18
18.1 Subject to the provisions of and so far as may be permitted
by law, every Director, Secretary or other officer of the
Company shall be entitled to be indemnified by the Company
out of its own funds against and/or exempted by the Company
from all costs, charges, losses, expenses and liabilities
incurred by him in the actual or purported execution and/or
discharge of his duties and/or the exercise or purported
exercise of his powers and/or otherwise in relation to or in
connection with his duties, powers or office including
(without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings,
civil or criminal, which relate to anything done or omitted
or alleged to have been done or omitted by him as an officer
or employee of the Company and in which judgment is given in
his favour (or the proceedings are otherwise disposed of
without any finding or admission of any material breach of
duty on his part) or in which he is acquitted or in
connection with any application under any statute for relief
12
<PAGE>
from liability in respect of any such act or omission in
which relief is granted to him by the Court. Regulation 118
shall not apply.
18.2 Without prejudice to the provisions of Regulation 87 and to
Article 18.1, the Directors shall have the power to purchase
and maintain insurance for or for the benefit of any persons
who are or were at any time Directors, officers or employees
of any Relevant Company (as defined in Article 18.3) or who
are or were at any time trustees of any pension fund or
employees' share scheme in which employees of any Relevant
Company are interested, including (without prejudice to the
generality of the foregoing) insurance against any liability
incurred by such persons in respect of any act or omission
in the actual or purported execution and/or discharge of
their duties and/or in the exercise or purported exercise of
their powers and/or otherwise in relation to their duties,
powers or offices in relation to any Relevant Company, or
any such pension fund or employees' share scheme.
18.3 For the purpose of Article 18.2, "Relevant Company" shall
mean the Company, any holding company of the Company or any
other body, whether or not incorporated, in which the
Company or such holding company or any of the predecessors
of the Company or of such holding company has or had any
interest whether direct or indirect or which is in any way
allied to or associated with the Company, or any subsidiary
undertaking of the Company or of any such other body.
Name and Address of Subscriber
James E Rogers
For: M E Holdings Inc
139 East Fourth St
Cincinnati, Ohio
45202
Dated 2 May 1996
Witness to the above Signature:
David John Sonter
Level 4
Barrington House
59-67 Gresham Street
London, EC2V 7JA
Solicitor
13
<PAGE>
Bruce Levy
For: EI Energy Inc.
One Upper Pond Rd
Parsippany, NJ
07054
Dated 2 May 1996
Witness to the above Signature:
David John Sonter
Level 4
Barrington House
59-67 Gresham Street
London, EC2V 7JA
Solicitor
14
<PAGE>
Exhibit B-105
THE COMPANIES ACT 1985
COMPANY LIMITED BY SHARES
MEMORANDUM
and
ARTICLES OF ASSOCIATION
of
AVON ENERGY PARTNERS PLC
<PAGE>
THE COMPANIES ACT 1985
COMPANIES LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
AVON ENERGY PARTNERS PLC
1 The Company's name is "Avon Energy Partners PLC*".
2 The Company is to be a public company.
3 The Company's registered office is to be situate in England
and Wales.
4 The Company's objects are:
4.1
4.1.1 To carry on the business of a holding company in
all its branches and for that purpose to acquire
and hold either in the name of the Company, or in
that of any nominee or trustee, shares, stocks,
debentures, debenture stock, bonds, notes,
obligations and securities issued or guaranteed by
any company, corporation or undertaking wherever
incorporated or carrying on business and to co-
ordinate the policy management and administration
of any companies, corporations or undertakings in
which the Company is a member or participant or
which are controlled by or associated with the
Company in any manner.
4.1.2 To carry on all or any of the businesses of
general merchants and traders, cash and credit
traders, manufacturers' agents and
representatives, insurance brokers and
consultants, estate and advertising agents,
mortgage brokers, financial agents, advisers,
managers and administrators, hire purchase and
general financiers, brokers and agents, commission
agents, importers and exporters, manufacturers,
retailers, wholesalers, buyers, sellers,
distributors and shippers of, and dealers in, all
products, goods, wares, merchandise and produce of
every description and to participate in,
undertake, perform and carry on all kinds of
commercial, industrial, trading and financial
operations and enterprises.
___________________________
*. The name of the company was on the 3rd day of May 1996
changed from Hackplimco (No. Thirty Five) Public Limited
Company.
1
<PAGE>
4.2 To carry on any other business or activity of any nature
whatsoever which may seem to the Directors to be capable of
being conveniently or advantageously carried on in
connection or conjunction with any business of the Company
hereinbefore or hereinafter authorised or to be expedient
with a view directly or indirectly to enhancing the value of
or to rendering profitable or more profitable any of the
Company's assets or utilising its skills, know-how or
expertise.
4.3 To subscribe, underwrite, purchase, or otherwise acquire,
and to hold, dispose of, and deal with, any shares or other
securities or investments of any nature whatsoever, and any
options or rights in respect thereof or interests therein,
and to buy and sell foreign exchange.
4.4 To draw, make, accept, endorse, discount, negotiate,
execute, and issue, and to buy, sell and deal with bills of
exchange, promissory notes, and other negotiable or
transferable instruments or securities.
4.5 To purchase, or otherwise acquire for any estate or
interest, any property (real or personal) or assets or any
concessions, licences, grants, patents, trade marks,
copyrights or other exclusive or non-exclusive rights of any
kind and to hold, develop and turn to account and deal with
the same in such manner as may be thought fit and to make
experiments and tests and to carry on all kinds of research
work.
4.6 To build, construct, alter, remove, replace, equip, execute,
carry out, improve, work, develop, administer, maintain,
manage or control buildings, structures or facilities of all
kinds, whether for the purposes of the Company or for sale,
letting or hire to or in return for any consideration from
any company, firm or person, and to contribute to or assist
in or carry out any part of any such operation.
4.7 To amalgamate or enter into partnership or any joint venture
or profit/loss-sharing arrangement or other association with
any company, firm, person or body.
4.8 To purchase or otherwise acquire and undertake all or any
part of the business, property and liabilities of any
company, firm, person or body carrying on any business which
the Company is authorised to carry on or possessed of any
property suitable for the purposes of the Company.
4.9 To promote, or join in the promotion of, any company,
whether or not having objects similar to those of the
Company.
4.10 To borrow and raise money and to secure or discharge any
debt or obligation of or binding on the Company in such
manner as may be thought fit and in particular by mortgage
2<PAGE>
and charges upon all or any part of the undertaking,
property and assets (present and future) and the uncalled
capital of the Company, or by the creation and issue of
debentures, debenture stock or other securities of any
description.
4.11 To advance, lend or deposit money or give credit to or with
any company, firm or person on such terms as may be thought
fit and with or without security.
4.12 To guarantee or give indemnities or provide security,
whether by personal covenant or by mortgage or charge upon
all or any part of the undertaking, property and assets
(present and future) and the uncalled capital of the
Company, or by all or any such methods, for the performance
of any contracts or obligations, and the payment of capital
or principal (together with any premium) and dividends or
interest on any shares, debentures or other securities, of
any person, firm or company including (without limiting the
generality of the foregoing) any company which is for the
time being a holding company of the Company or another
subsidiary of any such holding company or is associated with
the Company in business.
4.13 To issue any securities which the Company has power to issue
for any other purpose by way of security or indemnity or in
satisfaction of any liability undertaken or agreed to be
undertaken by the Company.
4.14 To sell, lease, grant licences, easements and other rights
over, and in any other manner deal with or dispose of, the
undertaking, property, assets, rights and effects of the
Company or any part thereof for such consideration as may be
thought fit, and in particular for shares or other
securities, whether fully or partly paid up.
4.15 To procure the registration, recognition or incorporation of
the Company in or under the laws of any territory outside
England.
4.16 To subscribe or guarantee money for any national,
charitable, benevolent, public, general or useful object or
for any purpose which may be considered likely directly or
indirectly to further the interests of the Company or of its
members.
4.17 To establish and maintain or contribute to any pension or
superannuation funds for the benefit of, and to give or
procure the giving of donations, gratuities, pensions,
allowances or emoluments to, any individuals who are or were
at any time in the employment or service of the Company or
of any company which is its holding company or is a
subsidiary of the Company or any such holding company or
otherwise is allied to or associated with the Company or any
of the predecessors of the Company or any other such company
3<PAGE>
as aforesaid, or who are or were at any time directors or
officers of the Company or of any such other company, and
the wives, widows, families and dependants of any such
individuals; to establish and subsidise or subscribe to any
institutions, associations, clubs or funds which may be
considered likely to benefit any such persons or to further
the interests of the Company or of any such other company;
and to make payments for or towards the insurance of any
such persons.
4.18 To establish and maintain, and to contribute to, any scheme
for encouraging or facilitating the holding of shares or
debentures in the Company by or for the benefit of its
employees or former employees, or those of its subsidiary or
holding company or subsidiary of its holding company, or by
or for the benefit of such other persons as may for the time
being be permitted by law, or any scheme for sharing profits
with its employees or those of its subsidiary and/or
associated companies, and (so far as for the time being
permitted by law) to lend money to employees of the Company
or of any company which is its holding company or is a
subsidiary of the Company or any such holding company or
otherwise is allied to or associated with the Company with a
view to enabling them to acquire shares in the Company or
its holding company.
4.19
4.19.1 To purchase and maintain insurance for or for the
benefit of any persons who are or were at any time
directors, officers or employees or auditors of
the Company, or of any other company which is its
holding company or in which the Company or such
holding company or any of the predecessors of the
Company or of such holding company has any
interest whether direct or indirect or which is in
any way allied to or associated with the Company,
or of any subsidiary undertaking of the Company or
of any such other company, or who are or were at
any time trustees of any pension fund in which any
employees of the Company or of any such other
company or subsidiary undertaking are interested,
including (without prejudice to the generality of
the foregoing) insurance against any liability
incurred by such persons in respect of any act or
omission in the actual or purported execution
and/or discharge of their duties and/or in the
exercise or purported exercise of their powers
and/or otherwise in relation to the Company or any
such other company, subsidiary undertaking or
pension fund and
4.19.2 to such extent as may be permitted by law
otherwise to indemnify or to exempt any such
person against or from any such liability; for the
4<PAGE>
purposes of this clause "holding company" and
"subsidiary undertaking" shall have the same
meanings as in the Companies Act 1985 as amended
by the Companies Act 1989.
4.20 To distribute among members of the Company in specie or
otherwise, by way of dividend or bonus or by way of
reduction of capital, all or any of the property or assets
of the Company, or any proceeds of sale or other disposal of
any property or assets of the Company, with and subject to
any incident authorised, and consent required, by law.
4.21 To do all or any of the things and matters aforesaid in any
part of the world, and either as principals, agents,
contractors, trustees or otherwise, and by or through
trustees, agents, subsidiary companies or otherwise, and
either alone or in conjunction with others.
4.22 To do all such other things as may be considered to be
incidental or conducive to any of the above objects.
And it is hereby declared that the objects of the Company as
specified in each of the foregoing paragraphs of this Clause
(except only if and so far as otherwise expressly provided
in any paragraph) shall be separate and distinct objects of
the Company and shall not be in any way limited by reference
to any other paragraph or the order in which the same occur
or the name of the Company.
5 The liability of the members is limited.
6 The Company's share capital is 50,000 pounds divided into
50,000 shares of 1 pound each**.
______________________________
**. By Resolution in Writing of all the Members passed on the
21st day of June 1996 the share capital of the company was
increased to 600,000,000 pounds divided into 600,000,000
Ordinary shares of 1 pound each.
By Resolution in Writing of all the Members passed on the
19th day of September 1996 the share capital of the company
was further increased to 660,000,000 pounds divided into
660,000,000 Ordinary Shares of 1 pound each.
By Resolution in Writing of all the Members passed on the
3rd day of March 1997 the share capital of the company was
further increased to 1,760,000,000 pounds divided into
1,760,000,000 Ordinary Shares of 1 pound each.
5<PAGE>
We, the Subscribers to this Memorandum of Association wish to be
formed into a Company pursuant to this Memorandum; and we agree
to take the number of Shares shown opposite our respective names.
Names and Addresses of Subscribers Number of Shares taken
by each Subscriber
1 Hackwood Directors Limited One
Barrington House
59-67 Gresham Street
London EC2V 7JA
Richard Ashmore
For and on behalf of
Hackwood Directors Limited
2 Hackwood Secretaries Limited One
Barrington House
59-67 Gresham Street
London EC2V 7JA
Richard Ashmore
For and on behalf of
Hackwood Secretaries Limited
Total Shares Taken: Two
DATED 29 April 1996
Witness to the above Signatures:-
C E Doe
Barrington House,
59-67 Gresham Street,
London EC2V 7JA.
6<PAGE>
THE COMPANIES ACT 1985
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
AVON ENERGY PARTNERS PLC
(Adopted by Resolution in Writing of all the Members of
the Company passed on the 7th day of May 1996)
PRELIMINARY
1 The regulations contained in Table A in The Companies
(Tables A to F) Regulations 1985 (as amended so as to affect
companies first registered on the date of incorporation of
the Company) shall, except as hereinafter provided and so
far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other
regulations or Articles of Association. References herein to
regulations are to regulations in the said Table A unless
otherwise stated.
SHARE CAPITAL
2 The share capital of the Company is 660,000,000 pounds
divided into 660,000,000 Ordinary Shares of 1 pound each***.
3
3.1 Subject to Section 80 of the Act, all unissued shares shall
be at the disposal of the Directors and they may allot,
grant options over or otherwise dispose of them to such
persons, at such times, and on such terms as they think
proper.
3.2
3.2.1 Pursuant to and in accordance with Section 80 of
the Act the Directors shall be generally and
unconditionally authorised to exercise during the
period of five years from the date of adoption of
this Article all the powers of the Company to
allot relevant securities up to an aggregate
nominal amount of 660,000,000 pounds***;
________________________
***. As altered by Resolutions in Writing of all the Members
passed on the 21st day of June 1996 and the 19th day of
September 1996.
By Resolution in Writing of all the Members passed on the
3rd day of March 1997 the authorised share capital of the
company was increased to 1,760,000,000 pounds divided into
1,760,000,000 shares of 1 pound each.
7<PAGE>
3.2.2 by such authority the Directors may make offers or
agreements which would or might require the
allotment of relevant securities after the expiry
of such period;
3.2.3 words and expressions defined in or for the
purposes of the said Section 80 shall bear the
same meanings in this Article.
3.3 Any allotment made pursuant to Article 3.2 may be made as if
Section 89(1) of the Act did not apply.
PROCEEDINGS AT GENERAL MEETINGS
4 In the case of a corporation a resolution in writing may be
signed on its behalf by a Director or the Secretary thereof
or by its duly appointed attorney or duly authorised
representative. Regulation 53 shall be extended accordingly.
Regulation 53 (as so extended) shall apply mutatis mutandis
to resolutions in writing of any class of members of the
Company.
5 The members shall be deemed to meet together if, being in
separate locations, they are nonetheless linked by
conference telephone or other communication equipment which
allows those participating to hear and speak to each other.
Such a meeting shall be deemed to take place where the
largest group of those participating is assembled, or, if
there is no such group, where the Chairperson of the meeting
then is.
6 An instrument appointing a proxy (and, where it is signed on
behalf of the appointor by an attorney, the letter or power
of attorney or a duly certified copy thereof) must either be
delivered at such place or one of such places (if any) as
may be specified for that purpose in or by way of note to
the notice convening the meeting (or, if no place is so
specified, at the registered office) before the time
appointed for holding the meeting or adjourned meeting or be
delivered to the Secretary (or the Chairperson of the
meeting) on the day and at the place of, but in any event
before the time appointed for holding, the meeting or
adjourned meeting. The instrument may be in the form of a
facsimile or other machine made copy and shall, unless the
contrary is stated thereon, be valid as well for any
adjournment of the meeting as for the meeting to which it
relates. An instrument of proxy relating to more than one
meeting (including any adjournment thereof) having once been
so delivered for the purposes of any meeting shall not
require again to be delivered for the purposes of any
subsequent meeting to which it relates. Regulation 62 shall
not apply.
7 The last sentence of Regulation 112 shall not apply.
8<PAGE>
ALTERNATE DIRECTORS
8 An alternate Director shall be entitled to receive notices
of meetings of the Directors and of any committee of the
Directors of which his appointor is a member and shall be
entitled to attend and vote as a Director and be counted in
the quorum at any such meeting at which his appointor is not
personally present and generally at such meeting to perform
all functions of his appointor as a Director and for the
purposes of the proceedings at such meeting the provisions
of these Articles shall apply as if he were a Director. If
he shall be himself a Director or shall attend any such
meeting as an alternate for more than one Director, his
voting rights shall be cumulative. The signature of the
alternate to any resolution in writing of the Directors
shall be as effective as the signature of his appointor.
Regulations 66 and 69 shall not apply.
9 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified
to the same extent mutatis mutandis as if he were a Director
but he shall not be entitled to receive from the Company in
respect of his appointment as alternate Director any
remuneration except only such part (if any) of the
remuneration otherwise payable to his appointor as such
appointor may by notice in writing to the Company from time
to time direct.
DELEGATION OF DIRECTORS' POWERS
10 In addition to the powers to delegate contained in
Regulation 72, the Directors may delegate any of their
powers or discretions (including without prejudice to the
generality of the foregoing all powers and discretions whose
exercise involves or may involve the payment of remuneration
to or the conferring of any other benefit on all or any of
the Directors) to committees consisting of one or more
Directors and (if thought fit) one or more other named
persons or persons to be co-opted as hereinafter provided.
Insofar as any such power or discretion is delegated to a
committee, any reference in these Articles to the exercise
by the Directors of the power or discretion so delegated
shall be read and construed as if it were a reference to the
exercise thereof by such committee. Any committee so formed
shall in the exercise of the powers so delegated conform to
any regulations which may from time to time be imposed by
the Directors. Any such regulations may provide for or
authorise the co-option to the committee of persons other
than Directors and may provide for members who are not
Directors to have voting rights as members of the committee.
Regulation 72 shall be modified accordingly.
9<PAGE>
APPOINTMENT AND RETIREMENT OF DIRECTORS
11 The Directors shall not be subject to retirement by
rotation. Regulations 73 to 75 and the second and third
sentences of Regulation 79 shall not apply, and other
references in the said Table A to retirement by rotation
shall be disregarded.
DISQUALIFICATION AND REMOVAL OF DIRECTOR
12 The office of a Director shall be vacated in any of the
events specified in Regulation 81 and also if he shall in
writing offer to resign and the Directors shall resolve to
accept such offer or if he shall be removed from office by
notice in writing signed by all his co-Directors (being at
least two in number) but so that if he holds an appointment
to an executive office which thereby automatically
determines such removal shall be deemed an act of the
Company and shall have effect without prejudice to any claim
for damages for breach of any contract of service between
him and the Company.
REMUNERATION OF DIRECTORS
13 Any Director who serves on any committee, or who otherwise
performs services which in the opinion of the Directors are
outside the scope of the ordinary duties of a Director, may
be paid such extra remuneration by way of salary, commission
or otherwise or may receive such other benefits as the
Directors may determine. Regulation 82 shall be extended
accordingly.
PROCEEDINGS OF DIRECTORS
14 The Directors shall take whatever steps they deem necessary
or desirable to ensure that all of the Directors are kept
fully informed, in a prompt manner, of the business of and
decisions of any committee of the Directors. Without
limitation, the agenda, the minutes and any papers
circulated with them for each committee meeting shall be
circulated to all the Directors at the same time as they are
issued to the committee members.
15 The Directors, and any committee of Directors, shall be
deemed to meet together if, being in separate locations,
they are nonetheless linked by conference telephone or other
communication equipment which allows those participating to
hear and speak to each other. Such a meeting shall be deemed
to take place where the largest group of those participating
is assembled or, if there is no such group, where the
Chairperson of the meeting then is.
10<PAGE>
16 On any matter in which a Director is in any way interested
he may nevertheless vote and be taken into account for the
purposes of a quorum and (save as otherwise agreed) may
retain for his own absolute use and benefit all profits and
advantages directly or indirectly accruing to him thereunder
or in consequence thereof. Regulations 94 to 98 shall not
apply.
17 The third and fifth sentences of Regulation 88 shall not
apply.
INDEMNITY
18
18.1 Subject to the provisions of and so far as may be permitted
by law, every Director, Secretary or other officer of the
Company shall be entitled to be indemnified by the Company
out of its own funds against and/or exempted by the Company
from all costs, charges, losses, expenses and liabilities
incurred by him in the actual or purported execution and/or
discharge of his duties and/or the exercise or purported
exercise of his powers and/or otherwise in relation to or in
connection with his duties, powers or office including
(without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings,
civil or criminal, which relate to anything done or omitted
or alleged to have been done or omitted by him as an officer
or employee of the Company and in which judgment is given in
his favour (or the proceedings are otherwise disposed of
without any finding or admission of any material breach of
duty on his part) or in which he is acquitted or in
connection with any application under any statute for relief
from liability in respect of any such act or omission in
which relief is granted to him by the Court. Regulation 118
shall not apply.
18.2 Without prejudice to Regulation 87 and to Article 18.1 the
Directors shall have power to purchase and maintain
insurance for or for the benefit of any persons who are or
were at any time Directors, officers or employees of any
Relevant Company (as defined in Article 18.3) or who are or
were at any time trustees of any pension fund or employees'
share scheme in which employees of any Relevant Company are
interested, including (without prejudice to the generality
of the foregoing) insurance against any liability incurred
by such persons in respect of any act or omission in the
actual or purported execution and/or discharge of their
duties and/or in the exercise or purported exercise of their
powers and/or otherwise in relation to their duties, powers
or offices in relation to any Relevant Company, or any such
pension fund or employees' share scheme.
11<PAGE>
18.3 For the purpose of Article 18.2, "Relevant Company" shall
mean the Company, any holding company of the Company or any
other body, whether or not incorporated, in which the
Company or such holding company or any of the predecessors
of the Company or of such holding company has or had any
interest whether direct or indirect or which is in any way
allied to or associated with the Company, or any subsidiary
undertaking of the Company or of such other body.
NAMES AND ADDRESSES OF SUBSCRIBERS
Hackwood Directors Limited
Barrington House,
59-67 Gresham Street,
London EC2V 7JA.
Richard Ashmore
For and on behalf of
Hackwood Directors Limited
Hackwood Secretaries Limited
Barrington House,
59-67 Gresham Street,
London EC2V 7JA.
Richard Ashmore
For and on behalf of
Hackwood Secretaries Limited
DATED 29 April 1996
WITNESS to the above Signatures:-
C E Doe
Barrington House,
59-67 Gresham Street,
London EC2V 7JA.
12<PAGE>
Exhibit B-106
COMPANY NUMBER 2366928
The Companies Act 1985
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
MIDLANDS ELECTRICITY PLC
Incorporated on 1st day of April 1989
The Articles of Association were amended by Special Resolutions
passed at the Annual General Meeting held on 11 August 1993,
3 August 1994, 2 August 1995 and by Written Resolution passed on
13 December 1996.
On 5 January 1996, shareholders approved the sub-division of the
share capital of the Company from 150,000,000 pounds divided into
300,000,000 ordinary shares of 50 pence each to 150,000,000
pounds ordinary shares of 25 pence each. The effective date of
the sub-division is 13 January 1996.<PAGE>
THE COMPANIES ACT 1985
A PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
MIDLANDS ELECTRICITY plc
1. The Company's name is "Midlands Electricity plc".
2. The Company is to be a public company.
3. The Company's registered office is to be situated in England
and Wales.
4. The Company's objects are:-
(1) To acquire or take over the property, rights and
liabilities of the Midlands Electricity Board (an Area
Board established and constituted under the Electricity
Act 1947 as amended by the Electricity Act 1957)
pursuant to the Electricity Act 1989 and to carry on,
expand and extend the businesses and activities of such
board or any part or parts of them (including, without
limitation, the business of a public electricity
supplier).
(2) To acquire and hold an interest in shares and other
securities in the successor to or owner, whether
directly or indirectly, of the property, rights and
liabilities of the Central Electricity Generating Board
vested in the company known as The National Grid
Company plc by Section 66(5) of the Electricity Act
1989 by virtue of the allocation set out in the
Transfer Scheme made by the Central Electricity
Generating Board pursuant to Section 66(1) of that Act.
(3) To carry on all or any of the businesses of purchasing,
importing, generating, transmitting, transforming,
converting, distributing, supplying, exporting and
dealing in electricity and all other forms of energy
and products or services associated therewith and of
promoting the conservation and efficient use of
electricity and all other forms of energy.
(4) To do anything which a public electricity supplier is
empowered or required to do under or by virtue of or
under a licence or other authorisation granted under
the Electricity Act 1989 or any statutory instrument
made thereunder or any statutory modification or re-
enactment thereof.
(5) To carry on all or any of the businesses of
wholesalers, retailers, traders, suppliers,
distributors, designers, developers, manufacturers,
installers, fitters, testers, repairers, maintainers,
contractors, constructors, operators, users,<PAGE>
inspectors, reconditioners, servicers, improvers,
alterers, protectors, removers, hirers, replacers,
importers and exporters of, and dealers in, electrical
appliances, systems products and services used for
energy conservation and efficiency, domestic,
commercial, agricultural, industrial, household and
general equipment, furniture, fixtures, fittings and
devices, and all other kinds of goods, equipment,
machinery, materials and installations.
(6) To locate, establish, construct, equip, operate, use,
manage and maintain power stations (including, without
limitation to the generality of the foregoing, combined
heat and power stations), transforming, switching,
conversion, transmission and distribution facilities,
cables, overhead lines, substations, switching
stations, tunnels, cable bridges, link boxes,
telecommunications stations, masts, aerials and dishes,
fibre optic circuits, satellites and satellite
microwave connections, heat pumps, plant and equipment
used for combined heat and power schemes, offices,
computer centres, shops, dispensing machines for pre-
payment cards and other devices, showrooms, depots,
factories, workshops, works, plants, refineries,
printing facilities, warehouses and other storage
facilities (including but not limited to facilities for
storage and disposal of products and waste), training,
education and display centres, stands and show-houses,
museums, testing premises, laboratories, research
stations, compressor stations, vehicle parks,
terminals, transport facilities, roads, grounds
landscaped and planted for screening or other amenity
purposes, structures, installations and facilities of
all kinds, whether for the purposes of the Company or
for sale or let on hire to, or in return for any
consideration from, any person and to purchase or
otherwise acquire, lease, charter and take, licence or
hire any of the same and to sell, lease, licence, let
on hire or otherwise dispose of any of the same or
share any of the same with another party.
(7) To carry on all or any of the businesses of exploring
for, mining, prospecting for, extracting, recovering
and dealing in coal and other minerals, petroleum, oil
and other hydrocarbons, metals, natural and other gases
and chemicals and other products derived from or
connected with any of them.
(8) To acquire (whether by purchase, lease, concession,
grant, hire or otherwise), establish, develop, exploit,
operate and maintain land, any estates in land, claims,
licences, concessions, wells, mines, drilling and
mining rights, exploration and production rights and
rights and interests of all descriptions in or relating
to the same, which may seem to the Company capable or
possibly capable of affording or facilitating the
purchase, transmission, transformation, conversion,<PAGE>
supply, distribution, generation, development,
production or manufacture of electricity or any other
form of energy or the supply of coal or other minerals,
petroleum, oil or other hydrocarbons, metals or natural
and other gases and chemicals and other products
derived from or connected with any of them.
(9) To carry on all or any of the businesses of designers,
developers, manufacturers, constructors, installers,
fitters, layers, operators, users, inspectors, testers,
maintainers, repairers, reconditioners, servicers,
improvers, enlargers, alterers, protectors, coaters,
replacers, removers, hirers, suppliers, distributors,
importers and exporters of and dealers in cables,
wires, meters, pylons, tracks, rails, pipelines and any
other plant, apparatus, equipment, systems and things
used in connection with the transmission,
transformation, conversion, supply, distribution,
control and generation of electricity or any other
forms of energy or with exploring, prospecting and
dealing in coal and other minerals, petroleum, oil and
other hydrocarbons, metals, natural and other gases and
chemicals and other products derived from or connected
with any of them, tools, machinery, engineering and
other equipment, plants, components, accessories and
supplies of every description.
(10) For the purposes of electricity supply, distribution
and communication, to install in, on, above or under
any premises or place and to operate, use, inspect,
maintain, repair, replace and remove cables, lines,
ducts, transformers, switchgear (remotely controlled
and otherwise, and including time switches), fuses,
circuit breakers, electricity service equipment, meters
and other devices for measuring or controlling the
quantity or quality of electricity supplied, prepayment
and debt payment devices, items provided to afford
access to, support, encase, insulate, protect from
damage or tampering, the above-mentioned items, or to
protect people and property from injury or damage, or
to comply with any legal obligation and for other
purposes associated with the supply of electricity and
to install all such things and apparatus and items for
the purposes of supplying, measuring and controlling
light, heat, steam, hot water, air conditioning and
refrigeration and for associated purposes, including
payment for these facilities.
(11) To provide or procure the provision of such facilities
and services as may be necessary or desirable to
forecast electricity/energy demand and to satisfy such
demand.
(12) To acquire, (whether by purchase, lease, concession,
grant, hire or otherwise), charter, lease, take or let
on hire, operate, use, employ or turn to account,
build, equip, service, repair, maintain, supply, and<PAGE>
deal in motor vehicles, railway locomotives, wagons,
trucks and vessels and craft of any description,
whether by land, air or water and any other means of
transport and engineering plant and machinery, and
parts and accessories of all kinds of any of the same
and to carry on the businesses of storage contractors,
freight contractors, carriers by land water and air of
freight and passengers, forwarding agents, shipping
agents and agents of any other kind.
(13) To carry on as principal, agent or sub-contractor all
or any of the businesses of running, operating,
managing, supplying and dealing in systems for the
conveyance by any means of sounds, visual images,
signals, and services, facilities and equipment
ancillary to or for use in connection with such
systems.
(14) To carry on all or any of the businesses of running,
operating, managing, supplying and dealing in data
processing and information retrieval systems,
computers, computer programmes and software, computer
bureaux and data bases, meter reading and credit
checking and to provide services, facilities and
equipment ancillary to or for use in connection with
the same.
(15) To carry on business as inventors, researchers and
developers, to conduct, promote and commission research
and development in connection with the businesses and
activities of the Company and its subsidiaries, to
establish and maintain research stations, laboratories,
workshops, testing and proving grounds and sites,
facilities and establishments and installations and to
exploit and turn to account the results of any research
and development carried out by or for it.
(16) To invent, design, develop, construct, manufacture,
produce, erect, assemble, test, alter, install,
maintain, repair, renovate, refurbish, recondition,
utilise, operate, manage, purchase, sell, hire, hire-
out, import, export, supply and otherwise deal in all
kinds of equipment, apparatus, plant, machinery,
appliances, articles, furniture, things, accessories,
components, fittings, tools, materials, substances,
products, systems, computers, computer programmes and
software which are required or likely to be required by
the Company for the purposes of or in connection with
any of its businesses or by other persons or which in
the opinion of the Company may be conveniently or
advantageously dealt with by the Company in connection
or association with any of its objects or the objects
of any of its subsidiaries.
(17) To carry on all or any of the businesses of
consultants, advisers and suppliers of management,
personnel and training services, whether generally or<PAGE>
in respect of one of more of the types of business or
activity which the Company has power to carry on, and
to provide training and educational courses,
instruction and materials, of every description for
employees of the Company and for other persons.
(18) To appoint and to enter into agreements or arrangements
with any person to represent all or any of the Company,
its subsidiaries, the electricity industry or any part
thereof, or any other organisation or person at
meetings of local, national and international
organisations and bodies concerned with activities
connected or associated with any of the businesses or
activities of the Company and its subsidiaries, to
provide services of all kinds to such organisations and
bodies and to negotiate and enter into local, national
and international agreements and standards relating to
matters of concern or interest to the Company or its
subsidiaries or persons represented by or having
dealings with the Company or its subsidiaries.
(19) To carry on all or any of the businesses of and provide
services associated with, engineers (including without
limitation electrical, mechanical, heating,
ventilation, civil, chemical, telecommunications and
gas engineers), mechanics, technicians, draftsmen,
designers, surveyors, architects, builders, decorators,
caterers, kitchen installers and shopfitters.
(20) To establish, design, acquire, produce, transmit,
broadcast, publish, print and reproduce in any form
whatsoever (including, without prejudice to the
generality of the foregoing, visual or audible form and
forms capable of being used by or in connection with
computers), and to accept, buy, sell and supply and
otherwise deal in brochures, manuals, journals and
periodicals, magazines, newspapers, books, pictures,
photographs, stationery and other documents, sound and
visual recordings, tapes, films and programmes for
radio, television, cinema and other means of
communication, (including, without prejudice to the
generality of the foregoing, any forms of
advertisement, publicity and promotional material for
the Company or its subsidiaries).
(21) To carry on all or any of the businesses of
manufacturers, wholesalers, retailers and traders,
whether generally or in relation to particular goods or
commodities, and to develop, produce and undertake
advertising, publicity and promotional campaigns and
competitions for itself and other persons, to
undertake, promote and sponsor any product, service,
event, individual or publication which in the opinion
of the Company will promote advance or publicise any
activity of the Company or any of its subsidiaries and
generally to carry on the businesses of public
relations agents, publicity consultants and marketing<PAGE>
agents.
(22) To carry on all or any of the businesses of bankers,
financiers, factors, debt collectors, dealers in
securities, underwriters, insurers, brokers of any
kind, developers of and dealers in property.
(23) To borrow or raise money or secure or discharge any
debt or obligation (whether of the Company or of any
other person) in such manner as the Company thinks fit
and in particular (but without prejudice to the
generality of the foregoing) by the creation or issue,
upon such terms as to priority or otherwise as the
Company thinks fit, of securities of any kind or
mortgages or charges (fixed or floating) founded or
based upon all or any part of the undertaking,
property, assets and rights (present and future) of the
Company, including its uncalled capital, or without any
such security; and to receive money on deposit and
advance payments with or without allowance of interest
thereon.
(24) To enter into any guarantee, contract of indemnity or
suretyship and in particular (without prejudice to the
generality of the foregoing) to guarantee, support or
secure, with or without consideration, whether by
personal obligation or by mortgaging or charging all or
any part of the undertaking, property and assets
(present and future) and uncalled capital of the
Company or by both such methods or in any other manner,
the performance of any contracts, obligations or
commitments of, and the repayment or payment of the
principal amounts of and any premiums, interest,
dividends and other moneys payable on or in respect of
any securities or liabilities of, any person, including
(without prejudice to the generality of the foregoing)
any company which is a subsidiary or a holding company
of the Company or another subsidiary of a holding
company of the Company or otherwise associated with the
Company and whether or not any consideration or
advantage is received by the Company.
(25) To accept securities of any person or any property or
interest therein of whatsoever nature in payment or
part payment for any services rendered or for any sale
or supply made to, or debt owing from, any such person.
(26) To insure by any means the Company shall think fit any
property, asset, matter or interest and against any
potential liability or loss of the Company or of any
other person and the life or health of any person for
the benefit of the Company.
(27) To enter into and carry into effect any arrangement for
a partnership or joint working or joint venture in
business or for the sharing of profits or for
amalgamation with any other person.<PAGE>
(28) To acquire by any means and hold and deal with any real
or personal property or rights whatsoever, whether or
not for the purposes of or in connection with any of
the foregoing activities, and without prejudice to the
generality of the foregoing to purchase, take on lease
or in exchange, take options over, hire or otherwise
acquire and hold and deal with any real property and
any estate or interest in such property, including
without limitation any lands, buildings, installations,
structures, servitudes, easements, rights, privileges
and concessions and wayleaves and to use, exploit and
develop the same.
(29) To carry on business as land and estate owners,
builders, house and estate agents, to build, construct,
maintain, alter, enlarge, pull down and remove or
replace any buildings, factories, offices, works,
wharfs, roads, railways, tramways, machinery, engines,
walls, fences, banks, dams, sluices or water courses
and to clear sites for the same and to work, manage and
control the same and to carry on any other business
which may seem to the Company capable of being
conveniently carried on in connection with the above or
calculated directly or indirectly to enhance the value
of or render more profitable any of the Company's
property.
(30) To apply for and take out, purchase or otherwise
acquire any patents, patent rights, inventions, secret
processes, designs, copyrights, trade marks, service
marks, commercial names and designations, know-how,
formulae, licences, concessions and the like (and any
interest in any of them) and any exclusive or non-
exclusive or limited right to use, and any secret or
other information as to, any invention or secret
process of any kind and to use, exercise, develop, and
grant licences in respect of, and otherwise turn to
account and deal with, the property, rights and
information so acquired.
(31) To acquire by any means the whole or any part of the
assets, and to undertake the whole or any part of the
liabilities, of any person carrying on or proposing to
carry on any business which the Company is authorised
to carry on or which can be carried on in connection
therewith, and to acquire an interest in, amalgamate or
enter into partnership or into any arrangement for
sharing profits, or for co-operation, or for mutual
assistance, with any such person and to give or accept,
for any of the acts or things aforesaid or property
acquired, such consideration as the Company thinks fit,
including without limitation, any shares, whether fully
or partly paid up, debentures, or other securities or
rights.
(32) To subscribe for, underwrite, purchase or otherwise
acquire, and to hold, and deal with, any shares,<PAGE>
stocks, debentures, bonds, notes and other securities,
obligations and other investments of any nature
whatsoever and any options or rights in respect of
them; and otherwise to invest and deal with the money
and assets of the Company.
(33) To advance, lend or deposit money, and to give credit
or financial accommodation to any person on such terms
as may be thought fit by the Company and to render
advice to any such person.
(34) To draw, make, accept, endorse, discount, negotiate,
execute and issue promissory notes, bills of exchange,
bills of lading, warrants, debentures and other
negotiable or transferable instruments.
*(35) Subject to such terms and conditions as may be thought
fit, to undertake interest rate and currency swaps,
options (including traded options), swap option
contracts, forward exchange contracts, futures
contracts or other financial instruments including
hedging agreements of any kind all or any of which may
be on a fixed and/or floating rate basis and/or in
respect of Sterling (and any other currencies or basket
of currencies including but not limited to European
Currency Units (as the same may from time to time be
designated or constituted)) or commodities of any kind
and in the case of such swaps, options, swap option
contracts, forward exchange contracts, futures
contracts or other financial instruments including
hedging agreements of any kind they may be undertaken
by the Company on a speculative basis or otherwise.
* Sub-clause (35) was added by Special Resolution of the
Company passed on 20th November 1990.
(36) To apply for, promote and obtain any Act of Parliament,
charter, privilege, concession, licence or
authorisation of any government, state, department or
other authority (international, national, local,
municipal or otherwise) for enabling the Company to
carry any of its objects into effect or for extending
any of the Company's powers or for effecting any
modification of the Company's constitution, or for any
other purpose which may seem expedient, and to oppose
any actions, steps, proceedings or applications which
may seem calculated directly or indirectly to prejudice
the interests of the Company or of its members.
(37) To enter into any arrangements with any governments,
states, departments or authorities (international,
national, local, municipal or otherwise), or any
corporations, companies or persons, that may seem
conducive to the Company's objects or any of them, and
to obtain from any such government, state, department,
authority, corporation, company or person, any
charters, contracts, decrees, rights, privileges and<PAGE>
concessions which the Company may think desirable, and
to carry out, exercise, comply with and exploit, any
such charters, contracts, decrees, rights, privileges
and concessions.
(38) To do all or any of the following, namely:-
(A) to establish, provide, carry on, maintain, manage,
support, purchase and contribute to any pension,
superannuation, retirement, redundancy, injury,
death benefit or insurance funds, trusts, schemes
or policies for the benefit of, and to give or
procure the giving of pensions, annuities,
allowances, gratuities, donations, emoluments,
benefits of any description (whether in kind or
otherwise), incentives, bonuses, assistance
(whether financial or otherwise) and accommodation
and to provide and maintain living accommodation,
in all cases in such manner and on such terms as
the Company thinks fit to, and to make payments
for or towards the insurance of:-
(i) any individuals who are or were at any time in the
employment of, or directors or officers of (or
held comparable or equivalent office in), or acted
as consultants or advisers to or agents for:-
(a) the Company or any company which is or was
its holding company or is or was a subsidiary
of the Company or any such holding company;
or
(b) any person to whose business the Company or
any subsidiary of the Company is, in whole or
in part, a successor directly or indirectly;
or
(c) any person otherwise allied to or associated
with the Company;
(ii) any other individuals whose service has been of
benefit to the Company or who are or were at any
time members or eligible to be members of any
scheme established under section 54 of the
Electricity Act 1947 or who the Company considers
have a moral claim on the Company; and
(iii) the spouses, widows, widowers, families and
dependants of any such individuals as aforesaid;
and
(B) to establish, provide, carry on, maintain, manage,
support and provide financial assistance to
welfare, sports and social facilities,
associations, clubs, funds and institutions which
the Company considers likely to benefit or further
the interests of any of the aforementioned<PAGE>
individuals, spouses, widows, widowers, families
and dependants.
(39) To establish, maintain, manage, support and contribute
to any schemes for the acquisition of shares in the
Company or any holding company by or for the benefit of
any individuals who are or were at any time in the
employment of, or directors or officers of, the Company
or any company which is or was its holding company or
is or was a subsidiary of the Company or any such
holding company or any other company or former company
connected or associated in any way with the Company or
with the whole or any part of its undertaking, and to
lend money to any such individuals to enable them to
acquire shares in the Company or in its holding company
and to establish, maintain, manage and support
(financially or otherwise) any schemes for sharing
profits of the Company or any other such company as
aforesaid with any such individuals.
(40) To subscribe or contribute (in cash or in kind) to, and
to promote or sponsor, any charitable, benevolent or
useful object of a public character or any object which
may in the opinion of the Company be likely directly or
indirectly to further the interests of the Company, its
employees or its members.
(41) To pay and discharge all or any expenses, costs and
disbursements, to pay commissions and to remunerate any
person for services rendered or to be rendered, in
connection with the formation, registration, promotion
and flotation of the Company and any company promoted
by the Company and of and incidental to any
negotiations between promoters preliminary to the
formation of the Company and the underwriting or
placing or issue at any time of any securities of the
Company or of any other person and also all costs and
expenses of and incidental to the acquisition by the
Company of any property or assets and of and incidental
to the accomplishment of all or any formalities which
the Company may think necessary or proper in connection
with any of the matters aforesaid.
(42) To cease carrying on or wind up any business or
activity of the Company and to cancel any registration
of and to wind up or procure the dissolution of the
Company in any state or territory.
(43) To issue, allot and grant options over securities of
the Company for cash or otherwise or in payment or part
payment for any real or personal property or rights
therein purchased or otherwise acquired by the Company
or any services rendered to, or at the request of, or
for the benefit of, the Company or as security for, or
indemnity for, or towards satisfaction of, any
liability or obligation undertaken or agreed to be
undertaken by or for the benefit of the Company, or in<PAGE>
consideration of any obligation (even if valued at less
than the nominal value of such securities) or for any
other purpose.
(44) To procure the Company to be registered or recognised
in any part of the world.
(45) To promote or concur in promoting any other company for
the purpose of acquiring all or any of the property or
undertaking any of the liabilities of the Company, or
both, or of undertaking any business or operations
which may appear likely to assist or benefit the
Company, and to place or guarantee the placing of,
underwrite, subscribe for, or otherwise acquire all or
any part of the shares, debentures, obligations or
other securities of any such company.
(46) To dispose by any means of the whole or any part of the
assets of the Company or of any interest therein.
(47) To distribute in specie or otherwise by way of
dividends or bonus or reduction of capital all or any
of the property or assets of the Company among its
members, and particularly, but without prejudice to the
generality of the foregoing, securities of any other
company formed to take over the whole or any part of
the assets or liabilities of the Company or any
proceeds of sale or other disposal of any property or
assets of the Company.
(48) To do all or any of the above things in any part of the
world, and either as principal, agent, trustee,
contractor or otherwise, and either alone or in
conjunction with others, and either by or through
agents, trustees, sub-contractors, subsidiaries or
otherwise.
(49) To carry on any other businesses or activities which
the directors consider is, or may be, capable of being
carried on directly or indirectly for the benefit of
the Company.
(50) To do all such other things as may be deemed, or as the
Company considers, incidental or conducive to the
attainment of the above objects or any of them.
AND IT IS HEREBY DECLARED that in this clause:-
(a) unless the context otherwise requires, words in the
singular include the plural and vice versa;
(b) unless the context otherwise requires, a reference to a
person includes a reference to a company, and a
reference to a person or company includes a reference
to a firm, partnership, corporation, government or
other authority (municipal, local or otherwise),<PAGE>
undertaking, organisation, association, statutory,
public or other body and any other legal entity,
whether resident, domiciled or situated in the United
Kingdom or elsewhere;
(c) references to "other" and "otherwise" shall not be
construed ejusdem generis where a wider construction is
possible;
(d) the words "and" and "or" shall mean "and/or";
(e) the words "associated companies" shall mean any two or
more companies if one has control of the other or
others, or any person has control of both or all of
them;
(f) the words "subsidiary" (except in paragraph (h) below)
and "holding company" have the same meaning as in
section 736 of the Companies Act 1985 or any statutory
modification or re-enactment of it;
(g) the words "securities" shall include any fully, partly
or nil paid or no par value share, stock, unit,
debenture or loan stock, deposit receipt, bill, note,
warrant, coupon, right to subscribe or convert, or
similar right or obligation;
(h) the objects specified in each of the foregoing
paragraphs of this clause shall be separate and
distinct objects of the Company and accordingly shall
not be in any way limited or restricted (except so far
as otherwise expressly stated in any paragraph) by
reference to or inference from the terms of any other
paragraph or the order in which the paragraphs occur or
the name of the Company, and none of the paragraphs
shall be deemed merely subsidiary or incidental to any
other paragraph.
5. The liability of the members is limited.
*6. The share capital of the Company is 50,000 pounds,
divided into 50,000 shares of 1 pound each.
WE, the subscribers to this memorandum of association, wish to be
formed into a company pursuant to this memorandum and we agree to
take the number of shares shown opposite our respective names.
Names and addresses Number of shares
of subscribers taken by each
subscriber
Mark Andrew Higson One
2 Stayleys Road
Borough Green
Kent TN15 8RR<PAGE>
David Frederick Pascho One
25 Derwent Road
Whitton
Twickenham
Middlesex TW2 7HQ
Dated 9th March 1989
Witness to the above signatures:- B G Johnson
161 Wessex Drive
Erith
Kent
DA8 3AH
Civil Servant
*On 20 November 1990 the authorised share capital of the
Company was amended to 150,000,000.00 pounds, divided into
300,000,000 ordinary shares of 50 pence and subsequently on
13 January 1996 a sub-division of shares took place and the
authorised share capital was amended to 150,000,000.00
pounds, divided into 600,000,000 ordinary shares of 25
pence.<PAGE>
Exhibit B-107
THE COMPANIES ACT 1985
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
Adopted by Written Resolution passed on 13 December 1996
of
Midlands Electricity plc
PRELIMINARY
1 The regulations contained in Table A in The Companies
(Tables A to F) Regulations 1985 (as amended so as to affect
companies first registered on the date of the adoption of
these Articles) shall, except as hereinafter provided and so
far as not inconsistent with the provisions of these
Articles, apply to the Company to the exclusion of all other
regulations or Articles of Association. References herein
to regulations are to regulations in the said Table A unless
otherwise stated.
SHARE CAPITAL
2 The share capital of the Company at the date of the adoption
of these Articles is 150,000,000 pounds divided into
600,000,000 Ordinary Shares of 25p each..
3.1 Subject to Section 80 of the Act, all unissued shares shall
be at the disposal of the Directors and they may allot,
grant options over or otherwise dispose of them to such
persons, at such times, and on such terms as they think
proper.
3.2
(a) Pursuant to and in accordance with Section 80 of the
Act, the Directors shall be generally and
unconditionally authorised to exercise during the
period of five years from the date of adoption of these
Articles all the powers of the Company to allot
relevant securities up to an aggregate nominal amount
of 150,000,000 pounds; and
(b) by such authority the Directors may make offers or
agreements which would or might require the allotment
of relevant securities after the expiry of such period.<PAGE>
3.3 Section 89(1) of the Act shall not apply to the allotment by
the Company of equity securities.
3.4 Words and expressions defined in or for the purposes of the
said Section 80 or the said Section 89 shall bear the same
meanings in this Article.
PROCEEDINGS AT GENERAL MEETINGS
4 In the case of a corporation a resolution in writing may be
signed on its behalf by a Director or the Secretary thereof
or by its duly appointed attorney or duly authorised
representative. Regulation 53 shall be extended
accordingly. Regulation 53 (as so extended) shall apply
mutatis mutandis to resolutions in writing of any class of
members of the Company.
5 The members shall be deemed to meet together if, being in
separate locations, they are nontheless linked by conference
telephone or other communication equipment which allows
those participating to hear and speak and speak to each
other. Such a meeting shall be deemed to take place where
the largest group of those participating is assembled, or,
if there is no such group, where the Chairman of the meeting
then is.
6 An instrument appointing a proxy (and, where it is signed on
behalf of the appointor by an attorney, the letter or power
of attorney or a duly certified copy thereof) must either be
delivered at such place or one of such places (if any) as
may be specified for that purpose in or by way of note to
the notice convening the meeting (or, if no place is so
specified, at the registered office) before the time
appointed for holding the meeting or adjourned meeting or
(in the case of a poll taken otherwise than at or on the
same day as the meeting or adjourned meeting) for the taking
of the poll at which it is to be used or be delivered to the
Secretary (or the chairman of the meeting) on the day and at
the place of, but in any event before the time appointed for
holding, the meeting or adjourned meeting or poll. The
instrument may be in the form of a facsimile or other
machine-made copy and shall, unless the contrary is stated
thereon, be valid as well for any adjournment of the meeting
as for the meeting to which it relates. An instrument of
proxy relating to more than one meeting (including any
adjournment thereof) having once been so delivered for the
purposes of any meeting shall not require again to be
delivered for the purposes of any subsequent meeting to
which it relates. Regulation 62 shall not apply.
7 The last sentence of Regulation 112 shall not apply.<PAGE>
ALTERNATE DIRECTORS
8.1 Any 'A' Director or 'B' Director (other than an alternate
Director of an 'A' Director or 'B' Director) may appoint any
other Director or any other person willing to act to be an
alternate Director and may remove from office an alternate
Director so appointed by him. Any 'C' Director (other than
an alternate of a 'C' Director) may appoint any other
Director, or any other person approved by resolution of the
Directors and willing to act, to be an alternate Director
and may remove from office an alternate Director so
appointed by him. Regulation 65 shall not apply.
8.2 If he is himself a Director or if he is an alternate for an
'A' Director or a 'B' Director, an alternate Director shall
be entitled to receive notices of meetings of the Directors
and of any committee of the Directors of which his appointor
is a member and shall be entitled to attend and vote as an
'A' Director (if his appointor is an 'A' Director), as a 'B'
Director (if his appointor is a 'B' Director) or as a 'C'
Director (if his appointor is a 'C' Director) and be counted
in the quorum at any such meeting at which his appointor is
not personally present (if his appointor is either an 'A'
Director or a 'B' Director) and generally at such meeting to
perform all functions of his appointor as a Director and for
the purposes of the proceedings at such meeting the
provisions of these Articles shall apply as if he were an
'A' Director (if his appointor is an 'A' Director), a 'B'
Director (if his appointor is a 'B' Director) or a 'C'
Director (if his appointor is a 'C' Director). If he shall
be himself an 'A', 'B' or 'C' Director or shall attend any
such meeting as an alternate for more than one 'A', 'B' or
'C' Director, his voting rights shall be cumulative. The
signature of the alternate Director to any resolution in
writing of the Directors shall be as effective as the
signature of his appointor. If he is an alternate for a 'C'
Director, and he is not himself a Director, an alternate
director shall not be entitled to receive notices of
meetings of the Directors or of any committee of the
Directors and shall not be entitled to attend and vote at
any such meeting. Regulations 66 and 69 shall not apply.
8.3 An alternate Director shall be entitled to contract and be
interested in and benefit from contracts or arrangements or
transactions and to be repaid expenses and to be indemnified
to the same extent mutatis mutandis as if he were a Director
but he shall not be entitled to receive from the Company in
respect of his appointment as alternate Director any
remuneration except only such part (if any) of the
remuneration otherwise payable to his appointor as such
appointor may by notice in writing to the Company from time
to time direct.<PAGE>
DELEGATION OF DIRECTORS' POWERS
9 In addition to the powers to delegate contained in
Regulation 72, the Directors may delegate any of their
powers or discretions (including without prejudice to the
generality of the foregoing all powers and discretions whose
exercise involves or may involve the payment of remuneration
to or the conferring of any other benefit on all or any of
the Directors) to committees consisting of one or more
Directors and (if thought fit) one or more other named
person or persons to be coopted as hereinafter provided.
Insofar as any such power or discretion is delegated to a
committee, any reference in these Articles to the exercise
by the Directors of the power or discretion so delegated
shall be read and construed as if it were a reference to the
exercise thereof by such committee. Any committee so formed
shall in the exercise of the powers so delegated conform to
any regulations which may from time to time be imposed by
the Directors. Any such regulations may provide for or
authorise the co-option to the committee of persons other
than Directors and may provide for members who are not
Directors to have voting rights as members of the committee
but so that (a) the number of members who are not Directors
shall be less than one-half of the total number of members
of the committee and (b) no resolution of the committee
shall be effective unless passed by a majority including at
least one member of the committee who is an 'A' Director and
one member of the committee who is a 'B' Director.
Regulation 72 shall be modified accordingly.
APPOINTMENT AND RETIREMENT OF DIRECTORS
10 The Directors shall not be subject to retirement by
rotation. Regulations 73 to 75 and the second and third
sentences of Regulation 79 shall not apply, and other
references in the said Table A to retirement by rotation
shall be disregarded.
11 Any Director who reaches the age of 70 shall be required to
vacate office.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
12 The office of a Director shall be vacated in any of the
events specified in Regulation 81 and also if he shall in
writing offer to resign and the Directors shall resolve to
accept such offer or if the Director is a 'C' Director he
shall be removed from office by notice in writing signed by
all the 'A' Directors and the 'B' Directors from time to
time (being at least two in number), but so that if he holds
an appointment to an executive office which thereby
automatically determines such removal shall be deemed an act
of the Company and shall have effect without prejudice to
any claim for damages for breach of any contract of service
between him and the Company.<PAGE>
REMUNERATION OF DIRECTORS
13 Any Director who serves on any committee, or who otherwise
performs services which in the opinion of the Directors are
outside the scope of the ordinary duties of a Director, may
be paid such extra remuneration by way of salary, commission
or otherwise or may receive such other benefits as the
Directors may determine. Regulation 82 shall be extended
accordingly.
PROCEEDINGS OF DIRECTORS
14 The Board of Directors shall consist of 'A' Directors, 'B'
Directors and 'C' Directors. 'A' Directors and 'B'
Directors shall be the Directors either (i) designated as
such by any member holding, or any members together holding,
shares carrying not less than 90 per cent of the votes which
may for the time being be cast at a general meeting or (ii)
appointed pursuant to Article 21. All other Directors shall
be known as 'C' Directors.
15 Subject to the provisions of the Articles, the Directors may
regulate their proceedings as they think fit. A Director
may, and the secretary at the request of a Director shall,
call a meeting of the Directors. Unless otherwise agreed by
one 'A' Director and one 'B' Director at least 14 days
notice of any meeting of the Board of Directors shall be
given to each of the Directors specifying the time and place
of the proposed meeting and sufficient details of the
business proposed to be conducted at that meeting to enable
the Directors to understand the significance of any relevant
resolutions. A Director who is also an alternate director
shall be entitled in the absence of his appointor to a
separate vote on behalf of his appointor in addition to his
own (if his appointor is entitled to a vote). Regulation 88
shall not apply.
16 Each Director shall be entitled to one vote on any questions
arising at a meeting. All decisions of Directors shall be
validly decided by a majority of votes provided that at
least one 'A' Director and one 'B' Director vote in favour
of such decision.
17 The quorum for the transaction of the business of the
Directors shall be one 'A' Director and one 'B' Director.
Any person who holds office only as an alternate Director
shall, if his appointor (being either an 'A' Director or a
'B' Director) is not present, be counted in the quorum.
Regulation 89 shall not apply.
18 On any matter in which a Director is in any way interested
he may nevertheless vote and be taken into account for the
purposes of a quorum provided that he has disclosed any
interest he may have in accordance with Section 317 of the
Act and (save as otherwise agreed) may retain for his own
absolute use and benefit all profits and advantages directly<PAGE>
or indirectly accruing to him thereunder or in consequence
thereof. Regulations 94 to 98 shall not apply.
NOTICES
19 A member whose registered address is not within the United
Kingdom shall be entitled to have notices sent to him as if
he were a member with a registered address within the United
Kingdom and the last sentence of Regulation 112 shall not
apply.
INDEMNITY
20.1 Subject to the provisions of and so far as may be consistent
with the Statutes, every Director, Secretary or other
officer of the Company shall be indemnified by the Company
out of its own funds against and/or exempted by the Company
from all costs, charges, losses, expenses and liabilities
incurred by him in the actual or purported execution and/or
discharge of his duties and/or the exercise or purported
exercise of his powers and/or otherwise in relation to or in
connection with his duties, powers or office including
(without prejudice to the generality of the foregoing) any
liability incurred by him in defending any proceedings,
civil or criminal, which relate to anything done or omitted
or alleged to have been done or omitted by him as an officer
or employee of the Company and in which judgement is given
in his favour (or the proceedings are otherwise disposed of
without any finding or admission of any material breach of
duty on his part) or in which he is acquitted or in
connection with any application under any statute for relief
from liability in respect of any such act or omission in
which relief is granted to him by the Court.
20.2 Without prejudice to paragraph 20.1 of this Article the
Directors shall have power to purchase and maintain
insurance for or for the benefit of any persons who are or
were at any time Directors, officers or employees of any
Relevant Company (as defined in paragraph 20.3 of this
Article) or who are or were at any time trustees of any
pension fund or employees' share scheme in which employees
of any Relevant Company are interested, including (without
prejudice to the generality of the foregoing) insurance
against any liability incurred by such persons in respect of
any act or omission in the actual or purported execution
and/or discharge of their duties and/or in the exercise or
purported exercise of their powers and/or otherwise in
relation to their duties, powers or offices in relation to
any Relevant Company, or any such pension fund or employees
share scheme.
20.3 For the purpose of paragraph 20.2 of this Article Relevant
Company shall mean the Company, any holding company of the
Company or any other body, whether or not incorporated, in
which the Company or such holding company or any of the<PAGE>
predecessors of the Company or of such holding company has
or had any interest whether direct or indirect or which is
in any way allied to or associated with the Company, or any
subsidiary undertaking of the Company or of such other body.
OVERRIDING PROVISIONS
21 Any member holding, or any members together holding, shares
carrying not less than 90 per cent of the votes which may
for the time being be cast at a general meeting of the
Company may at any time and from time to time:
(a) appoint any person to be a Director (whether to fill a
vacancy or as an additional Director);
(b) remove from office any Director howsoever appointed but
so that if he holds an appointment to an executive
office which thereby automatically determines such
removal shall be deemed an act of the Company and shall
have effect without prejudice to any claim for damages
for breach of any contract of service between him and
the Company.
Any such appointment, removal, consent or notice shall be in
writing served on the Company and signed by the member or
members. Any Director appointed pursuant to this article
shall be designated by such member as an 'A' Director, a 'B'
Director or a 'C' Director.
To the extent of any inconsistency this Article shall have
overriding effects as against all other provisions of these
Articles.<PAGE>
Exhibit B-108
Republic of the Philippines
Securities and Exchange Commission
EDSA, Greenhills, Mandaluyong
Metro-Manila
S.E.C. Reg. No. 182239
CERTIFICATE OF FILING
OF
AMENDED ARTICLES OF INCORPORATION
TO ALL TO WHOM THESE PRESENTS MAY COME, GREETINGS:
THIS IS TO CERTIFY that the amended articles of incorporation
of the
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
(Amending Article VII thereof)
copy annexed, adopted on March 14, 1994 by a majority vote of the
Board of Directors and the vote of the stockholders owning or
representing at least two-thirds of the outstanding capital
stock, and certified under oath by the Secretary and a majority
of the Board of Directors of the corporation was approved by
this Office on the 25th day of April nineteen hundred and
ninety-four pursuant to the provisions of Section 16 of the
Corporation Code of the Philippines, Batas Pambansa Blg. 68,
approved on May 1, 1980, and attached to the other papers
pertaining to said corporation
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of this Commission to be affixed at Mandaluyong, Metro-
Manila, Philippines, this 25th of April in the year of our Lord
nineteen hundred and ninety-four
RODOLFO L. SAMARISTA
Associate Commissioner<PAGE>
CERTIFICATE OF AMENDMENT
OF ARTICLES OF INCORPORATION
WE, the undersigned, who constitute at least a majority
of the members of the Board of Directors, the Chairman and
the Corporate Secretary of:
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
(the "Corporation") after having been duly sworn in
accordance with law, hereby certify that:
1. At a Joint Special Meeting of the Stockholders and
Board of Directors held on 14 March 1994 held at the
Corporation's principal office at the 4th Floor, Ortigas
Building, Ortigas Avenue, Pasig, Metro Manila (the "Joint
Meeting of the Stockholders and Board of Directors"), at
which meeting at least a majority of the Board of Directors
and stockholders owning at least two-thirds (2/3) of the
outstanding (capital stock were present or represented in
said meeting, the following resolution approving an increase
in the authorized capital stock of the Corporation, thereby
amending the Seventh Article of the Articles of
Incorporation of the Corporation, was unanimously approved
and adopted:
"RESOLVED, That subject to the approval of the
necessary government authorities, the Seventh Article
of the Articles of Incorporation of MAGELLAN UTILITIES
DEVELOPMENT CORPORATION be hereby amended to read as
follows:
SEVENTH: That the authorized capital stock of
the said corporation is ONE HUNDRED THIRTY
THOUSAND EIGHT HUNDRED EIGHTY FOUR (130,884)
shares without par value. A majority of the
members of the Board of Directors of the
corporation shall be authorized and empowered to
fix the issued price per share of the capital
stock of the corporation, for the purpose of
additional issuances or sales of shares of stock,
for cash or for such other authorized
consideration as the Board of Directors may
determine; provided that the issued price per
share shall not be less than Five Pesos (P5.00)
each.
2. At the same Joint Meeting of the Stockholders and
Board of Directors, the following resolutions on the
issuance of the Corporation's common no-par value shares of
stock, subject to the prior approval of the Securities and
Exchange Commission were unanimously approved and adopted:
1
<PAGE>
"RESOLVED, That subject to the approval of the
necessary government authorities and the waiver by
existing Stockholders of their pre-emptive rights,
MAGELLAN UTILITIES DEVELOPMENT CORPORATION (the
"Corporation") be hereby authorized and empowered to
issue Twenty One Thousand Four Hundred Seventy One
(21,471) common no-par shares of stock of the
Corporation, at an issued value of One Thousand Eight
Hundred Forty Six and 14/100 Pesos (P1,846.14) per
share, or an aggregate issued value of Thirty Nine
Million Six Hundred Thirty Eight Thousand Five Hundred
Forty Eight and 47/100 Pesos (P39,638,548.47), in favor
of Magellan Capital Holdings Corporation;
"RESOLVED, FURTHER, That the Chairman, Mr.
ANTONIO H. OZAETA, or the President, Mr. ROLANDO M.
ZOSA, be, as he is hereby, authorized and empowered to
sign, execute, deliver, receive and receipt, on behalf
of the Corporation, any and all contracts, documents
and instruments which may be necessary to carry out the
foregoing resolution."
3. The accompanying Amended Articles of
Incorporation, embodying the amendment to Article Seventh
thereof as underscored, is a true and correct copy of the
Amended Articles of incorporation of the Corporation.
4. The foregoing amendment was duly approved by at
least a majority vote of the Board of Directors of the
Corporation at the Joint Meeting of the Stockholders and
Board of Directors.
5. The same amendment was likewise duly approved by
the affirmative vote or written consent of stockholders
owning and/or representing at least two-thirds (2/3) of the
total outstanding capital stock of the Corporation at the
Joint Meeting of the Stockholders and Board of Directors.
SIGNED this 24th day of March 1994 at Makati, Metro
Manila.
ANTONIO H. OZAETA ROLANDO M. ZOSA
Chairman/Director Director
DENIS T. CARPIO EDGARDO A. GRAU
Director Director
EMMA C. FRANCISCO
Corporate Secretary
2
<PAGE>
SUBSCRIBED AND SWORN to before me this 24th day of
March 1994, at Makati, Metro Manila affiants exhibiting to
me their Community Tax Certificates, to wit:
Community Tax
Name Certificate No. Date/Place Issued
ANTONIO H. OZAETA 17637110 02/24/93-Makati, M.M.
ROLANDO M, ZOSA 11348494 04/14/93-Pasig, M.M.
DENIS T. CARPIO A-0015603 02/12/93-Makati, M.M.
EDGARDO A. GRAU 11349459 06/02/93-Pasig, M.M.
EMMA C. FRANCISCO 22406405 08/25/93-Makati, M.M.
Doc. No.
Page No.
Book No.
Series of 1994.
3
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AMENDED
ARTICLES OF INCORPORATION
OF
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
(As amended on 21 December 1990 and 14 March 1994)
KNOW ALL MEN BY THESE PRESENTS:
That we, all of legal age, citizens and residents of
the Republic of the Philippines, have this day voluntarily
associated ourselves together for the purpose of forming a
corporation under the laws of the Philippines.
AND WE HEREBY CERTIFY:
FIRST: That the name of the said corporation shall
be:
"MAGELLAN UTILITIES DEVELOPMENT CORPORATION"
SECOND: That the purposes for which the said
corporation is formed are:
PRIMARY PURPOSE
To build, construct, erect, own, equip, install,
operate, maintain, sell, and lease power generation plants,
facilities, machineries, equipment; and to purchase, import,
acquire, own, lease or let power generation,
telecommunications, transportation and other kinds of
equipment, materials, and facilities.
SECONDARY PURPOSES
1. To purchase, acquire, own, lease, sell and convey
real properties such as lands, buildings, factories and
warehouses and machineries, equipment and other personal
properties situated in any part of the world as may be
necessary or incidental to the conduct of the corporate
business, and to pay in cash, shares of its capital stock
debentures and other evidences, of indebtedness, or other
securities, as may be deemed expedient, for any business or
property acquired by the corporation; (Amended as of 21
December 1990)
2. To borrow or raise money necessary to meet the
financial requirements of its business by the issuance of
bonds, promissory notes and other evidences of indebtedness,
4
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and to secure the repayment thereof by mortgage, pledge,
deed of trust or lien upon the properties of the corporation
or to issue pursuant to law shares of its capital stock,
debentures and other evidences of indebtedness in payment
for properties acquired by the corporation or for money
borrowed in the prosecution of its lawful business;
3. To invest and deal with the money and properties
of the corporation in such manner as may from time to time
be considered wise or expedient for the advancement of its
interests and to sell, dispose of or transfer the business,
properties and goodwill of the corporation or any part
thereof for such consideration and under such terms as it
shall see fit to accept;
4. To aid in any manner any corporation, association,
or trust estate, domestic or foreign or any firm or
individual, any shares of stock in which any bonds,
debentures, notes, securities, evidences of indebtness,
contracts, or obligations of which are held by or for this
corporation, directly or indirectly or through other
corporations or otherwise;
5. To enter into any lawful arrangement for sharing
profits, union of interest, unitization or farmout
agreement, reciprocal concession, or cooperation, with any
corporation, association, partnership, syndicate, entity,
person or governmental, municipal or public authority,
domestic or foreign, in the carrying on of any business or
transaction deemed necessary, convenient or incidental to
carrying out any of the purposes of this corporation;
6. To acquire, or obtain from any government or
authority, national, provincial, municipal or otherwise, or
any corporation, company or partnership or person, such
charter, contracts, franchise, privileges, exemption,
licenses and concessions as may be conducive to any of the
objects of the corporation;
7. To establish and operate one or more branch
offices or agencies and to carry on any of all of its
operations and business without any restrictions as to place
or amount including the right to hold, purchase or otherwise
acquire, lease, mortgage, pledge and convey or otherwise
deal in and with real and personal property anywhere within
the Philippines;
8. To distribute the surplus profits of the
corporation to the stockholders thereof in kind, namely,
properties of the corporation, particularly any shares of
stock, debentures or securities of other companies belonging
to this corporation; (Amended as of 21 December 1990)
9. To engage in the general business of providing
management and/or consultancy services either as principals,
5
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advisers, representatives, or agents for any individual,
firm, partnership, association or corporation engaged in any
business and any industry including, but not limited to,
holding title to property, real or personal, and entering
into arrangements of technical assistance and providing
management services for the various aspects of the business
of others; (Amended as of 21 December 1990)
10. To purchase, import, acquire, own, lease, sell and
convey machineries, equipment, parts power generation
facilities, and other personal properties as may be
necessary or incidental to the conduct of the corporate
business, and to pay in cash, shares of its capital stock,
debentures and other evidence of indebtedness or other
securities, as may be deemed expedient, for any business or
properties acquired by the corporation; (Amended as of 21
December 1990)
11. To accept appointments as factors, agents,
representatives, consignees, indentors, dealers or
distributors for any person, company, person, firm,
association or manufacturer of any goods, wares,
merchandise, and commodities of all kinds and products,
natural or artificial, of the Philippines or other countries
which are or may become articles of commerce; (Amended as of
21 December 1990)
12. To conduct and transact any and all lawful
business, and to do or cause to be done any one or more of
the acts and things herein set forth as its purposes, within
or without the Philippines, and in any and all foreign
countries, and to do everything necessary, desirable or
incidental to the accomplishment of the purposes or the
exercise of any one or more of the powers therein
enumerated, or which shall at any time appear conducive to
or expedient for the protection or benefit of this
corporation.
THIRD: That the place where the principal office of
the corporation is to be established or located is at
Makati, Metro Manila, Philippines.
FOURTH: That the term for which said corporation is
to exist is fifty (50) years from and after the date of
incorporation.
FIFTH: That the names, nationalities and residences
of the incorporators of said corporation are as follows:
Name Nationality Residence
Antonio T. Carpio Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
6
<PAGE>
Sylvette T. Ferrer Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Jacqueline P. Swann Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Stephanie V. Gomez Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Valentina S. Santana Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
SIXTH: That the number of directors of said
corporation shall be seven (7) and that the names,
nationalities and residences of the directors who are to
serve until their successors are elected and qualified as
provided by the by-laws are as follows (Amended as of 21
December 1990):
Name Nationality Residence
Antonio T. Carpio Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Sylvette T. Ferrer Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Jacqueline P. Swann Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Stephanie V. Gomez Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
Ma. Valentina S. Santana Filipino 5th Floor, LTA Bldg.
118 Perea Street
Makati, Metro Manila
SEVENTH: That the authorized capital stock of the said
corporation is ONE HUNDRED THIRTY THOUSAND EIGHT HUNDRED
EIGHTY FOUR (130,884) shares without par value. A majority
of the members of the Board of Directors of the corporation
shall be authorized and empowered to fix the issued price
per share of the capital stock of the corporation, for the
purpose of additional issuances or sales of shares of stock,
for cash or for such other authorized consideration as the
Board of Directors may determine; provided that the issued
7
<PAGE>
price per share shall not be less than Five Pesos (P5.00)
each (Amended as of 21 December 1990 and 14 March 1994).
EIGHTH: That the amount of said capital stock which
has been actually subscribed is Two Hundred Fifty Thousand
Pesos (P250,000.00), and the following persons have
subscribed for the number of shares and the amount of
capital stock indicated opposite their respective names:
No. of Amount
Name Citizenship Shares Subscribed
Antonio T. Carpio Filipino 210,000 P 210,000.00
Sylvette T. Ferrer Filipino 10,000 10,000.00
Ma. Jacqueline P. Swann Filipino 10,000 10,000.00
Ma, Stephanie V. Gomez Filipino 10,000 10,000.00
Ma. Valentina S. Santana Filipino 10,000 10,000.00
T 0 T A L: 250,000 P 250,000.00
NINTH: That the following persons have paid on the
shares of capital stock for which they have subscribed, the
amount set out after their respective names:
Name Amount Paid
Antonio T. Carpio P 52,500.00
Sylvette T. Ferrer 2,500.00
Ma. Jacqueline P, Swann 2,500.00
Ma. Stephanie V. Gomez 2,500.00
Ma. Valentina S. Santana 2,500.00
T 0 T A L P 62,500.00
TENTH: That no issuance or transfer of shares of
stock of the corporation which would reduce the stock
ownership of Filipino citizens to less than the percentage
of the outstanding capital stock required by law to be owned
by Filipino citizens, shall be allowed or permitted to be
recorded in the books of the corporation. This restriction
shall be printed or indicated in all the certificates of
stock to be issued by the corporation.
ELEVENTH: That Antonio T. Carpio has been elected by
the subscribers as Treasurer of the corporation to act as
8
<PAGE>
such until his/her successor is duly elected and shall have
qualified in accordance with the by-laws; and that, as such
Treasurer, he/she has been authorized to receive for the
corporation, and to issue in its name receipts for, all
subscriptions paid in by the subscribers.
IN WITNESS WHEREOF, we have hereunto set our hands,
this 19th day of September 1990 at Makati, Metro Manila,
Philippines.
(Sgd.) (Sgd.)
ANTONIO T. CARPIO SYLVETTE. T. FERRER
(Sgd.) (Sgd.)
MA. JACQUELINE P. SWANN MA. STEPHANIE V. GOMEZ
(Sgd.)
MA. VALENTINA S. SANTANA
With my marital consent:
(Sgd.)
INOCENCIO P. FERRER, JR.
SIGNED IN THE PRESENCE OF:
illegible illegible
9
<PAGE>
ACKNOWLEDGMENT
REPUBLIC OF THE PHILIPPINES)
MAKATI, METRO MANILA ) S.S.
BEFORE ME, a Notary Public in and for Makati,
Philippines, this 19th day of September 1990 personally
appeared:
Res. Date
Name Cert. No. & Placed Issued
Antonio T. Carpio 8207500K 11 April 1990
Makati, M.M.
Sylvette T. Ferrer 4122120K 21 February 1990
Makati, M.M.
Ma. Jacqueline P. Swann 4122128K 21 February 1990
Makati, M.M.
Ma. Stephanie V. Gomez 4122125K 21 February 1990
Makati, M.M.
Ma. Valentina S. Santana 4122114K 21 February 1990
Makati, M.M.
all known to me and to me known to be the same persons who
executed the foregoing Articles of Incorporation and they
acknowledged to me that the same is their free and voluntary
act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my notarial seal on the date and at the place first
above-written.
(Sgd.)
Jannet V. Cruz
Notary Public
Until December 31, 1991
PTR No. 814842
April 24, 1990
Makati, Metro Manila
Doc. No. 175;
Page No. 36;
Book No. I; Note: Correction and deletion has
Series of 1990. been made prior to notarization.
10
<PAGE>
Exhibit B-109
CERTIFICATE OF INCORPORATION
OF
GPUI LAKE HOLDINGS, INC.
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called
the "corporation") is GPUI Lake Holdings, Inc.
SECOND: The address, including street, number, city and
county, of the registered office of the corporation in the State
of Delaware is 1013 Centre Road, Wilmington, Delaware 19805, New
Castle County; and the name of the registered agent of the
corporation in the State of Delaware at such address is
Corporation Service Company.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is one hundred (100)
shares, all of which are without par value. All such shares are
of one class and are shares of Common Stock.
FIFTH: The name and the mailing address of the
incorporator are as follows:
NAME MAILING ADDRESS
Michael S. Shenberg Berlack, Israels & Liberman LLP
120 West 45th Street
New York, New York 10036
SIXTH: The board of directors of the corporation is
expressly authorized to adopt, amend or repeal by-laws of the
corporation.
SEVENTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted
by paragraph (7) of subsection (b) of Section 102 of the General
Corporation Law of the State of Delaware, as the same may be
amended and supplemented.<PAGE>
EIGHTH: As of the date hereof, the corporation has
received no payment for any of its stock.
IN WITNESS WHEREOF, I have hereunto set my hand this day
of December, 1996.
Michael S. Shenberg
Sole Incorporator
- 2 -<PAGE>
Exhibit B-149
VICTORIA ELECTRIC HOLDINGS, INC.
BY-LAWS
Adopted June 17, 1996
Offices
1. The Corporation shall have offices at such places as
the Board of Directors may from time to time designate or the
business of the Corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held on such
date and time as shall be determined by the Board of Directors.
At the annual meeting, the stockholders entitled to vote shall
elect by ballot a Board of Directors and transact such other
business as may properly be brought before the meeting.
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
1<PAGE>
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. Except as otherwise provided by law or by
the Certificate of Incorporation, each holder of record of shares
of capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
8. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
2<PAGE>
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the
stockholders who would have been entitled to vote upon the action
if such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
9. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than six directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
10. In addition to the powers and authority by the By-
Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
11. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors, and the Board in good faith authorizes the
3<PAGE>
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified
by the Board of Directors or the stockholders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
contract or other transaction under any of the provisions of this
Section 11, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 11,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 11 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 11.
Meetings of the Board of Directors
12. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
13. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
4<PAGE>
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telecopy at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
14. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
15. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
16. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 10 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
17. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting. A majority of the Executive Committee
shall constitute a quorum at any meeting. The Board of Directors
may by vote of a majority of the total number of directors
5<PAGE>
provided for in Section 9 of the By-Laws fill any vacancies in
the Executive Committee. The Executive Committee shall designate
one of its number as Chairman of the Executive Committee and may,
from time to time, prescribe rules and regulations for the
calling and conduct of meetings of the Committee, and other
matters relating to its procedure and the exercise of its powers.
18. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
19. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
20. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
21. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, and a
Secretary, and may include a Chairman, Comptroller, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation,
and none of the other officers, need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person.
6<PAGE>
22. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
23. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
24. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
25. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 21 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
26. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive Committee,
if there be one;
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
7<PAGE>
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation:
(i) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
The President
27. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation:
8<PAGE>
(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive Committee
if there be one;
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
(iii)he may, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws,
attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President:
(i) shall be the chief operating officer of the
Corporation;
(ii) shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii)may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
9<PAGE>
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv) at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 36 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
(v) at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi) shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
28. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
10<PAGE>
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 27(b)(iii) and
27(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
the President is acting pursuant to the provisions of Subsection
27(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
29. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 43 of the By-Laws and in
other instances where the execution of documents on behalf of the
11<PAGE>
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
30. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
12<PAGE>
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
31. (a) If and when elected by the Board of Directors,
the Comptroller of the Corporation shall be the principal
accounting officer of the Corporation and shall be accountable
and report directly to the Board of Directors. If required by
the Board of Directors, the Comptroller shall give the
Corporation a bond, the premium on which shall be paid by the
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
13<PAGE>
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all disburse-
ments for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
(i) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
32. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
33. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
14<PAGE>
Duties of Officers May be Delegated
34. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 9 of the
By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
35. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding to the fullest extent permitted by law.
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
15<PAGE>
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person as a fiduciary with respect to
the plan; (ii) excise taxes assessed with respect to any
transaction with an employee benefit plan shall be deemed
"fines"; and (iii) action taken or omitted by such person with
respect to any employee benefit plan in the performance of duties
for a purpose reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the
Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
36. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
16<PAGE>
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
37. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
38. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
Fixing of Record Date
39 The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
17<PAGE>
Registered Stockholders
40. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
41. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
42. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. (a) All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
18<PAGE>
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring
a seal, when required in connection with matters which arise in
the ordinary course of business or when authorized by the Board
of Directors, shall be executed on behalf of the Corporation by
the Chairman or the President or a Vice President, and the seal
of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant
Treasurer, who shall, when required, attest the ensealing and
execution of said instrument. If authorized by the Board of
Directors, a facsimile of the seal may be employed and such
facsimile of the seal may be engraved, lithographed or printed
and shall have the same force and effect as an impressed seal.
If authorized by the Board of Directors, the signatures of the
Chairman or the President or a Vice President and the Secretary
or an Assistant Secretary or the Treasurer or Assistant
Treasurer upon any engraved, lithographed or printed bonds,
debentures, notes or other instruments may be made by engraving,
lithographing or printing thereon a facsimile of such signatures,
in lieu of actual signatures, and such facsimile signatures so
engraved, lithographed or printed thereon shall have the same
force and effect as if such officers had actually signed the
same. In case any officer who has signed, or whose facsimile
signature appears on, any such bonds, debentures, notes or other
instruments shall cease to be such officer before such bonds,
debentures, notes or other instruments shall have been delivered
by the Corporation, such bonds, debentures, notes or other
instruments may nevertheless be adopted by the Corporation and be
issued and delivered as though the person who signed the same, or
whose facsimile signature appears thereon, had not ceased to be
such officer of the Corporation.
Receipts for Securities
45. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January
in each year.
Dividends
47. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
19<PAGE>
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Notices
48. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Amendments
50. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in
office at a meeting of the Board of Directors.
20<PAGE>
Exhibit B-150
BY-LAWS
OF
EI UK HOLDINGS, INC.
Offices
1. The EI UK Holdings, Inc., (the "Corporation") shall
have offices at such places as the Board of Directors may from
time to time designate or the business of the Corporation may
require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held on such
date and time as shall be determined by the Board of Directors.
At the annual meeting, the stockholders entitled to vote shall
elect by ballot a Board of Directors and transact such other
business as may properly be brought before the meeting.
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
any such meeting, the stockholders entitled to vote thereat,
1<PAGE>
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly authoriz-
ed attorney; but no proxy shall be valid after the expiration of
eleven months from the date of its execution unless the stock-
holder executing it shall have specified therein the length of
time it is to continue in force, which shall be for some specifi-
ed period. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of
capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. Special meetings of the stockholders for any purpose
or purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
8. (a) Notice of every meeting of stockholders,
setting forth the time and the place and briefly the purpose or
purposes thereof, shall be mailed, not less than ten nor more
than fifty days prior to such meeting, to each stockholder of
record (at his address appearing on the stock books of the
Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be
mailed to some other address, in which case it shall be mailed to
the address designated in such request) as of a date fixed by the
Board of Directors pursuant to Section 41 of the By-Laws. Except
2<PAGE>
as otherwise provided by law, the Certificate of Incorporation or
the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(b) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the stock-
holders who would have been entitled to vote upon the action if
such meeting were held, shall consent in writing to such cor-
porate action being taken, and all such consents shall be filed
with the Secretary of the Corporation. However, this section
shall not be construed to alter or modify any provision of law or
of the Certificate of Incorporation under which the written
consent of the holders of less than all outstanding shares is
sufficient for corporate action.
Directors
9. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than six directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
10. In addition to the powers and authority by the
By-Laws expressly conferred upon it, the Board of Directors may
exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
11. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
3<PAGE>
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors, and the Board in good faith authorizes the
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified
by the Board of Directors or the stockholders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
contract or other transaction under any of the provisions of this
Section 11, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 11,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 11 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 11.
Meetings of the Board of Directors
12. Regular meetings of the Board of Directors may be
held without notice except for the purpose of taking action on
matters as to which notice is in the By-Laws required to be
given, at such time and place as shall from time to time be
designated by the Board. Special meetings of the Board of
Directors may be called by the Chairman or by the President or in
the absence or disability of the Chairman and the President, by a
Vice President, or by any two directors, and may be held at the
time and place designated in the call and notice of the meeting.
4<PAGE>
13. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telecopy at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
14. At all meetings of the Board of Directors a majority
of the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
15. Any regular or special meeting may be adjourned to
any time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
16. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 10 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
17. The Executive Committee shall cause to be kept
regular minutes of its proceedings, which may be transcribed in
the regular minute book of the Corporation, and all such
proceedings shall be reported to the Board of Directors at its
next succeeding meeting. A majority of the Executive Committee
5<PAGE>
shall constitute a quorum at any meeting. The Board of Directors
may by vote of a majority of the total number of directors
provided for in Section 9 of the By-Laws fill any vacancies in
the Executive Committee. The Executive Committee shall designate
one of its number as Chairman of the Executive Committee and may,
from time to time, prescribe rules and regulations for the
calling and conduct of meetings of the Committee, and other
matters relating to its procedure and the exercise of its powers.
18. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
19. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
20. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
21. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, and a
Secretary, and may include a Chairman, Comptroller, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation,
and none of the other officers, need be a director. Neither the
6<PAGE>
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
occupied and the duties thereof may be performed by one person.
22. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
23. The salary or other compensation of all employees
other than officers of the Corporation shall be fixed by the
chief executive officer of the Corporation or by such other
officer as shall be designated for that purpose by the Board of
Directors.
24. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
25. The officers of the Corporation shall hold office
until the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 21 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
26. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive Committee,
if there be one;
7<PAGE>
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iii) he may, unless otherwise directed by the
Board of Directors pursuant to Section 36 of the
By-Laws, attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of stockholders of any
corporation in which the Corporation holds stock
and grant any consent, waiver, or power of attorney
in respect of such stock;
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
(c) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation:
(i) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
8<PAGE>
The President
27. (a) If a Chairman shall not be chosen by the Board
of Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(b) If the President shall be designated by the
Board of Directors as chief executive officer of the Corporation:
(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive Committee
if there be one;
(ii) he may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
(iii) he may, unless otherwise directed by the
Board of Directors pursuant to Section 36 of the
By-Laws, attend in person or by substitute or proxy
appointed by him and act and vote on behalf of the
Corporation at all meetings of the stockholders of
any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv) he shall, whenever it may in his opinion be
necessary or appropriate, prescribe the duties of
officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and perform
such other duties as may be prescribed from time to
time by law, by the By-Laws, or by the Board of
Directors.
(c) If the Chairman shall be designated by the
Board of Directors as chief executive officer of the Corporation,
the President:
(i) shall be the chief operating officer of the
Corporation;
9<PAGE>
(ii) shall have supervision, direction and control
of the conduct of the business of the Corporation,
in the absence or disability of the Chairman,
subject, however, to the control of the Board of
Directors and the Executive Committee, if there be
one;
(iii) may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments pertaining to matters which arise
in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iv) at the request or in the absence or disability
of the Chairman, may, unless otherwise directed by
the Board of Directors pursuant to Section 36 of
the By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
(v) at the request or in the absence or disability
of the Chairman, whenever in his opinion it may be
necessary or appropriate, shall prescribe the
duties of officers and employees of the Corporation
whose duties are not otherwise defined; and
(vi) shall have such other powers and perform such
other duties as may be prescribed from time to time
by law, by the By-Laws, or by the Board of
Directors.
Vice President
28. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
10<PAGE>
(b) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(c) He may, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 27(b)(iii) and
27(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(d) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or by the Board of Directors.
(e) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
the President is acting pursuant to the provisions of Subsection
27(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
29. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(b) He shall give, or cause to be given, notice of
all meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
11<PAGE>
(c) He shall have such other powers and perform
such other duties as may be prescribed from time to time by law,
by the By-Laws, or the Board of Directors.
(d) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the Corpora-
tion in case of his death, resignation, retirement or removal
from office.
(e) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 43 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
attest the ensealing and the execution of such instruments.
(f) He shall have control of the stock ledger,
stock certificate book and all books containing minutes of any
meeting of the stockholders, Board of Directors, or Executive
Committee or other committee created by the Board of Directors,
and of all formal records and documents relating to the corporate
affairs of the Corporation.
(g) Any Assistant Secretary or Assistant Secretar-
ies shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
30. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the Corpora-
tion, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(b) He shall disburse the funds of the Corporation
in such manner as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements.
(c) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(d) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
12<PAGE>
(e) He shall render an account of all his
transactions as Treasurer at all regular meetings of the Board of
Directors, or whenever the Board may require it, and at such
other times as may be requested by the Board or by any director
of the Corporation.
(f) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
(g) He shall perform all duties generally incident
to the office of Treasurer, and shall have other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
31. (a) If and when elected by the Board of Directors,
the Comptroller of the Corporation shall be the principal
accounting officer of the Corporation and shall be accountable
and report directly to the Board of Directors. If required by
the Board of Directors, the Comptroller shall give the
Corporation a bond, the premium on which shall be paid by the
Corporation in such form and amount and with such surety or
sureties as shall be satisfactory to the Board, for the faithful
performance of the duties of his office.
(b) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(c) He shall have custody of all accounting records
of the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
13<PAGE>
(d) He shall exhibit at all reasonable times his
books of account and records to any director of the Corporation
upon application during business hours at the office of the
Corporation where such books of account and records are kept.
(e) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(f) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
(g) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all disburse-
ments for any purpose.
(h) He shall perform all duties generally incident
to the office of Comptroller, and shall have such other powers
and duties as from time to time may be prescribed by law, by the
By-Laws, or by the Board of Directors.
1. Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
32. If the office of any director becomes vacant by
reason of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
14<PAGE>
Resignations
33. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
34. In case of the absence or disability of any officer
of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board, by vote of a majority
of the total number of directors provided for in Section 9 of the
By-Laws may, notwithstanding any provisions of the By-Laws,
delegate or assign, for the time being, the powers or duties, or
any of them, of such officer to any other officer or to any
director.
Indemnification of Directors, Officers and Employees
35. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding to the fullest extent permitted by law.
15<PAGE>
(c) The Corporation shall pay the expenses
(including attorneys' fees and disbursements) actually and
reasonably incurred in defending a civil or criminal action, suit
or proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(d) For purposes of this Section: (i) the
Corporation shall be deemed to have requested an officer,
director, employee or agent to serve as fiduciary with respect to
an employee benefit plan where the performance by such person of
duties to the Corporation also imposes duties on, or otherwise
involves services by, such person as a fiduciary with respect to
the plan; (ii) excise taxes assessed with respect to any
transaction with an employee benefit plan shall be deemed
"fines"; and (iii) action taken or omitted by such person with
respect to any employee benefit plan in the performance of duties
for a purpose reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be
for a purpose which is not opposed to the best interests of the
Corporation.
(e) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(f) All rights of indemnification under this
Section shall be deemed a contract between the Corporation and
the person entitled to indemnification under this Section
pursuant to which the Corporation and each such person intend to
be legally bound. Any repeal, amendment or modification hereof
shall be prospective only and shall not limit, but may expand,
any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such
proceeding pertains to actions or failures to act occurring prior
to such change.
16<PAGE>
(g) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
36. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
Certificate of Stock
37. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
38. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
17<PAGE>
Fixing of Record Date
39. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
40. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
the State of Delaware.
Lost Certificates
41. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
42. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
18<PAGE>
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. (a) All checks or demands for money and notes of
the Corporation shall be signed by such person or persons (who
may but need not be an officer of officers of the Corporation) as
the Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring
a seal, when required in connection with matters which arise in
the ordinary course of business or when authorized by the Board
of Directors, shall be executed on behalf of the Corporation by
the Chairman or the President or a Vice President, and the seal
of the Corporation shall be thereupon affixed by the Secretary or
an Assistant Secretary or the Treasurer or an Assistant
Treasurer, who shall, when required, attest the ensealing and
execution of said instrument. If authorized by the Board of
Directors, a facsimile of the seal may be employed and such
facsimile of the seal may be engraved, lithographed or printed
and shall have the same force and effect as an impressed seal.
If authorized by the Board of Directors, the signatures of the
Chairman or the President or a Vice President and the Secretary
or an Assistant Secretary or the Treasurer or Assistant
Treasurer upon any engraved, lithographed or printed bonds,
debentures, notes or other instruments may be made by engraving,
lithographing or printing thereon a facsimile of such signatures,
in lieu of actual signatures, and such facsimile signatures so
engraved, lithographed or printed thereon shall have the same
force and effect as if such officers had actually signed the
same. In case any officer who has signed, or whose facsimile
signature appears on, any such bonds, debentures, notes or other
instruments shall cease to be such officer before such bonds,
debentures, notes or other instruments shall have been delivered
by the Corporation, such bonds, debentures, notes or other
instruments may nevertheless be adopted by the Corporation and be
issued and delivered as though the person who signed the same, or
whose facsimile signature appears thereon, had not ceased to be
such officer of the Corporation.
19<PAGE>
Receipts for Securities
45. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January
in each year.
Dividends
47. (a) Dividends in the form of cash or securities,
upon the capital stock of the Corporation, to the extent
permitted by law may be declared by the Board of Directors at any
regular or special meeting.
(b) The Board of Directors shall have power to fix
and determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Notices
48. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(b) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
20<PAGE>
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Amendments
(50) The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in
office at a meeting of the Board of Directors.
21<PAGE>
Exhibit B-151
Republic of the Philippines
Securities and Exchange Commission
EDSA, Greenhills, Mandaluyong
Metro-Manila
S.E.C. Reg. No. 182239
CERTIFICATE OF FILING OF AMENDED BY-LAWS
TO ALL TO WHOM THESE PRESENTS MAY COME, GREETINGS:
THIS IS TO CERTIFY that the amended By-laws of the
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
copy annexed, adopted by majority vote of the Board of Directors
and the stockholders owning or representing at least a majority
of all the outstanding capital stock on September 29, 1994,
certified to by a majority of the Board of Directors and
countersigned by the Secretary of the Corporation was approved by
this Office on the 20th day of December, 1994 pursuant to the
provisions of Section 48 of the Corporation Code of the
Philippines, Batas Pambansa Blg. 68, approved on May 1, 1980,
and attached to the other papers pertaining to said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of this Commission to be affixed at Mandaluyong, Metro
Manila, Philippines. this 20th day of December in the year of
our Lord nineteen hundred and ninety-four
SONIA M. CALLO
Director
Corporate and Legal Department<PAGE>
CERTIFICATE OF AMENDMENT OF THE BY-LAWS OF
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
WE, the undersigned, who constitute at least a majority
the members of the Board of Directors and the Chairman and
the Corporate Secretary of
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
(the "Corporation"), after having been duly sworn in
accordance with law, hereby certify that:
1. At the Special Joint Meeting of the Stockholders
and Board of Directors of the Corporation held on 29
September 1994 at the Fourth Floor, Ortigas Building,
Ortigas Avenue, Pasig, Metro Manila (the "Joint Meeting of
the Stockholders and Board of Directors"), at which meeting
at least a majority of the Board of Directors and
Stockholders owning or holding at least a majority of the
outstanding capital stock of the Corporation were present
and acting, throughout, the following resolution, currently
in full force and effect, was unanimously approved and
adopted:
"RESOLVED, That subject to the necessary
governmental approvals, Article II, Section 1 of the
Amended By-Laws of Magellan Utilities Development
Corporation be hereby amended to read as follows:
"Section 1. Regular Meetings. The regular
meetings of stockholders, for the purpose of
electing directors and for the transaction of such
business as may properly come before the meeting,
shall be held at the principal office on any date
in April of each year".
2. The accompanying Amended By-Laws of the
Corporation, containing the amendment to Article II Section
1 of the By-Laws as stated above, is a true and correct copy
of the Amended By-Laws of the Corporation.
3. The foregoing amendment was duly approved by at
least a majority vote of the Board of Directors of the
Corporation at the Joint Meeting of the Stockholders and
Board of Directors.
4. The same amendment was likewise duly approved by
the affirmative vote of stockholders owning and/or
representing at least a majority of the total outstanding
capital stock of the Corporation at the Joint Meeting of the
Stockholders and Board of Directors.
Page 1
<PAGE>
SIGNED this day of 1994
at Makati, Metro Manila.
ANTONIO H. OZAETA ROLANDO M. ZOSA
Chairman/Director Director
DENIS T. CARPIO EDGARDO A. GRAU
Director Director
EMMA C. FRANCISCO
Corporate Secretary
SUBSCRIBED AND SWORN to before me this day
of 1994, at
Makati, Metro Manila, affiants exhibiting to me their
Community Tax Certificates Nos. to wit:
Community Tax
Certificate Nos./
Name Passport Nos. Date/Place Issued
ANTONIO H. OZAETA 7227023 A 3/30/93 - Makati
ROLANDO M. ZOSA 13799141 A 4/04/94 - Pasig
DENIS T. CARPIO 13829804 06/02/94 - Pasig
EDGARDO A. GRAU 13803334 4/11/94 - Pasig
EMMA C. FRANCISCO 7452017 090/28/94 - Pasay
Doc No. 34;
Page No. 7;
Book. No. 40;
Series of 1994.
Page 2
<PAGE>
AMENDED BY-LAWS
OF
MAGELLAN UTILITIES DEVELOPMENT CORPORATION
(As Amended on 29 September 1994)
ARTICLE I
SUBSCRIPTION, ISSUANCE AND TRANSFER OF SHARES
Section 1. Subscriptions - Subscribers to the
capital stock of the corporation shall pay to the
corporation the subscription value or price of the stock in
accordance with the terms and conditions prescribed by the
Board of Directors. Unpaid subscriptions shall not earn
interest unless determined by the Board of Directors.
Section 2. Certificates - Each stockholder shall be
entitled to one or more certificates for such fully paid
stock subscription in his name in the books of the
corporation. The certificates shall contain the matters
required by law and the Articles of Incorporation. They
shall be in such form and design as may be determined by the
Board of Directors and numbered consecutively. The
certificates, which must be issued in consecutive order,
shall bear the signature of the President, manually
countersigned by the Secretary or Assistant Secretary, and
sealed with the corporate seal.
Section 3. Transfer of Shares - Subject to the
restrictions, terms and conditions contained in the Articles
of Incorporation, shares may be transferred, sold, ceded,
assigned or pledged by delivery of the certificates duly
indorsed by the stockholder, his attorney-in-fact, or other
legally authorized person. The transfer shall be valid and
binding on the corporation only upon record thereof in the
books of the corporation, cancellation of the certificate
surrendered to the Secretary, and issuance of a new
certificate to the transferee.
No shares of stock against which the corporation holds
unpaid claim shall be transferable in the books of the
corporation.
All certificates surrendered for transfer shall be
stamped "Cancelled" on the face thereof, together with the
date of cancellation, and attached to the corresponding stub
with the certificate book.
Section 4. Lost Certificates - In case any
certificate for the capital stock of the corporation is
lost, stolen, or destroyed, a new certificate may be issued
in lieu thereof in accordance with the procedure prescribed
Page 3
<PAGE>
under Section 73 of the Corporation Code.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Regular Meetings - The regular meetings
of stockholders, for the purpose of electing directors and
for the transaction of such business so may properly come
before the meeting, shall be held at the principal office at
any date in April of each year. (As amended on 29 September
1994)
Section 2. Special Meeting - The special meetings
of stockholders, for any purpose or purposes, may at any
time be called by any of the following: (a) Board of
Directors, at its own instance, or at the written request of
stockholders representing a majority of the outstanding
capital stock; (b) President.
Section 3. Place of Meeting - Stockholders'
meetings, whether regular or special, shall be held in the
principal office of the corporation or at any place
designated by the Board of Directors in the city or
municipality where the principal office of the corporation
is located.
Section 4. Notice of Meeting - Notices for regular
or special meetings of stockholders may be sent by the
Secretary by personal delivery or by mail at least two (2)
weeks prior to the date of the meeting to each stockholder
of record at his last known post office address or by
publication in a newspaper of general circulation. The
notice shall state the place, date and hour of the meeting,
and the purpose or purposes for which the meeting is called.
In case of special meetings, only matters stated in the
notice can be the subject of motions or deliberations at
such meeting.
When the meeting of stockholders is adjourned to
another time or place, it shall not be necessary to give any
notice of the adjourned meeting if the time and place to
which the meeting is adjourned are announced at the meeting
at which the adjournment is taken. At the reconvened
meeting, any business may be transacted that might have been
transacted on the original date of the meeting.
Section 5. Quorum - Unless otherwise provided by
law, in all regular or special meeting of stockholders, a
majority of the outstanding capital stock must be present or
represented in order to constitute a quorum. If no quorum
is constituted, the meeting shall be adjourned until the
requisite amount of stock shall be present.
Page 4
<PAGE>
Section 6. Conduct of Meeting - Meeting of the
Stockholders shall be presided over by the Chairman of the
Board, or in his absence, the President, or if none of the
foregoing is in office and present and acting, by a chairman
to be chosen by the stockholders. The Secretary, shall act
as Secretary of every meetings, but if not present, the
chairman of the meeting shall appoint a secretary of the
meeting. The chairman of the meeting may adjourn the
meeting from time to time, without notice other than
announced at the meeting.
Section 7. Manner of Voting - At all meetings of
stockholders, a stockholders may vote in person or by proxy
executed in writing by the stockholders or his duly
authorized attorney-in-fact. Unless otherwise provided in
the proxy, it shall be valid only for the meeting at which
it has been presented to the secretary.
All proxies must be in the hands of the secretary
before the time set for the meeting. Such proxies filed
with the Secretary may be revoked by the stockholders either
in an instrument in writing duly presented and recorded with
the Secretary prior to a schedule meeting or by their
personal presence at the meeting.
Section 8. Closing of Transfer Books of Fixing of
Record Date - For the purpose of determining the
stockholders entitled to notice of, or to vote at, any
meeting of stockholders or any adjournment thereof or to
receive payment of any dividend, or of making a
determination of stockholders for any other proper purpose,
the Board of Directors may provide that the stock and
transfer books be closed for a stated period, but not to
exceed, in any case, twenty (20) days. If the stock and
transfer books be closed for the purpose of determining
stockholders entitled to notice of, or to vote at, a meeting
of stockholders, such books shall be closed for at least ten
(10) working days immediately preceding such meeting. In
lieu of closing the stock and transfer books, the Board of
Directors may fix in advance a date as the record date shall
in no case be more than twenty (20) days prior to the date,
on which the particular action requiring such determination
of stockholders is to be taken, except in instance where
applicable rules and regulations provided otherwise.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers of the Board - Unless otherwise
provided by law, the corporate powers of the corporation
shall be exercised, all business conducted and all property
of the corporation controlled and held by the Board of
Directors to be elected by and from among the stockholders.
Page 5
<PAGE>
Without prejudice to such general powers and such other
powers as may be granted by law, the Board of Directors
shall have the following express powers:
a) From time to time, to make and change rules
and regulations not inconsistent with these by-laws for
the management of the corporation's business and
affairs;
b) To purchase, receive, take or otherwise
acquire in any lawful manner, for and in the name of
the corporation, any and all properties, rights,
interest or privileges, including securities and bonds
of other corporations, as the transaction of the
business of the corporation, as the transaction of the
business of the corporation may reasonably or
necessarily require, for such consideration and upon
such terms and conditions as the Board may deem proper
or convenient;
c) To invest the funds of the corporation in
another corporation or business or for any other
purposes other than those for which the corporation was
organized, whenever in the judgment of the board of
directors the interests of the corporation would
thereby be promoted, subject to such stockholders'
approval as may be required by law;
d) To incur such indebtedness as the Board may
deem necessary and, for such purpose, to make and issue
evidence of such indebtedness including, without
limitation, notes, deeds of trust, instruments, bonds,
debentures, or securities, subject to such stockholder
approval as may be required by law, and/or pledge,
mortgage, or otherwise encumber all or part of the
properties and rights of the corporation;
e) To guarantee, for and in behalf of the
corporation obligations of other corporations or
entities in which it has lawful interest;
f) To make provisions of the discharge of the
obligations of the corporation as they mature,
including payment for any property or in stocks, bonds,
debentures, or other securities of the corporation
lawfully issued for the purpose;
g) To sell, lease, exchange, assign, transfer or
otherwise dispose of any property, real or personal,
belonging to the corporation whenever in the Board's
judgment, the corporation's interest would thereby be
promoted;
h) To establish pension, retirement, bonus,
profit-sharing, or other types of incentives or
Page 6
<PAGE>
compensation plans for the employees, including
officers and directors of the corporation and to
determine the persons to participate in any such plans
and the amount of their respective participations;
i) To prosecute, maintain, defend, compromise or
abandon any lawsuit in which the corporation or its
officers are either plaintiffs or defendants in
connection with the business of the corporation, and
likewise, to grant installments for the payments or
settlements of whatsoever debts are payment to the
corporation;
j) To delegate, from time to time, any of the
powers of the Board which may lawfully be delegated in
the course of the current business or businesses of the
corporation to any standing or special committee or to
any officer or agent and to appoint any persons to be
agents of the corporation with such powers (including
the power to sub-delegate), and upon such terms, as may
be deemed fit;
k) To implement these by-laws and to act on any
matter not covered by these by-laws, provided such
matter does not require the approval or consent of the
stockholders under any existing law, rule or
regulation.
Section 2. Election and Term - The Board of
Directors shall be elected during each regular meeting of
stockholders and shall hold office for one (1) year and
until their successors are elected and qualified.
Section 3. Vacancies - Any vacancy occurring in the
Board of Directors other than by removal by the stockholders
or by expiration of term, may be filled by the vote of at
least a majority of the remaining directors, if still
constituting a quorum; otherwise, the vacancy must be filled
by the stockholders at a regular or at any special meeting
of stockholders called for the purpose. A director so
elected to fill a vacancy shall be elected only for the
unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase
in the number of directors shall be filled only by an
election at a regular or at a special meeting of
stockholders duly called for the purpose, on in the same
meeting authorizing the increase of directors if so stated
in the notice of the meeting.
The vacancy resulting from the removal of a director by
the stockholders in the manner provided by law may be filled
by election at the same meeting of stockholders without
further notice, or at any regular or at any special meeting
of stockholders called for the purpose, after giving notice
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as prescribed in this by-laws.
Section 4. Meetings - Regular meetings of the Board
of Directors shall be held once every quarter of the year on
such dates and at such times and places as the Chairman of
the Board, or in his absence, the President, or upon the
request of a majority of the directors and shall be held at
such places as may be designated in the notice.
Section 5. Notice - Notice of the regular or
special meeting of the Board, specifying the date, time
and place of the meeting, shall be communicated by the
Secretary of each director personally, or by telephone,
telex, telegram, or by written or oral message. A director
may waive this requirement, either expressly or impliedly.
Section 6. Quorum - A majority of the number of
directors as fixed in the Articles of Incorporation shall
constitute a quorum for the transaction of corporate
business, and every decision of at least a majority of the
directors present at a meeting at which there is a quorum
shall be valid as a corporate act, except for the election
of officers which shall require the vote of a majority of
all the members of the Board.
Section 7. Conduct of the Meetings - Meetings of
the Board of Directors shall be presided over by the
Chairman of the Board, or in his absence, the President or
if none of the foregoing is in office and present and
acting, by any other director chosen by the Board. The
Secretary, shall act as secretary of every meeting, if not
present, the Chairman of the meeting, shall appoint a
secretary of the meeting.
Section 8. Compensation - By resolution of the
Board, each director, shall receive a reasonable per diem
allowance for his attendance at each meeting of the Board.
As compensation, the Board shall receive and allocate an
amount of not more than ten percent (10%) of the net income
before income tax of the corporation during the preceding
year. Such compensation shall be determined and apportioned
among the directors in such manner as the Board may deem
proper, subject to the approval of stockholders representing
at least a majority of the outstanding capital stock at a
regular or special meeting of the stockholders.
ARTICLE IV
OFFICERS
Section 1. Election/Appointment - Immediately after
their election, the Board of Directors shall formally
organize by electing the Chairman, the President, one or
more Vice-President, the Treasurer, and the Secretary, at
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said meeting.
The Board may, from time to time, appoint such other
officers as it may determine to be necessary or proper.
Any two (2) or more positions may be held concurrently
by the same person, except that no one shall act as
President and Treasurer or Secretary at the same time.
Section 2. Chairman of the Board - The Chairman of
the Board of Directors shall preside at the meetings of the
directors and the stockholders. He shall also exercise such
powers and perform such duties as the Board of Directors may
assign to him.
Section 3. President - The President, who shall be
a director, shall be the Chief Executive Officer of the
corporation and shall also have administration and direction
of the day-to-day business affairs of the corporation. He
shall exercise the following functions:
a) To preside at the meetings of the Board of
Directors and of the stockholders in the absence of the
Chairman of the Board of Directors;
b) To initiate and develop corporate objectives
and policies and formulate long range projects, plans
and programs for the approval of the Board of
Directors, including those for executive training,
development and compensation;
c) To have general supervision and management of
the business affairs and property of the corporation;
d) To ensure that the administrative and
operational policies of the corporation are carried out
under his supervision and control;
e) Subject to guidelines prescribed by law, to
appoint, remove, suspend or discipline employees of the
corporation, prescribe their duties, and determine
their salaries;
f) To oversee the preparation of the budgets and
the statements of accounts of the corporation;
g) To prepare such statements and reports of the
corporation as may be required of him by law;
h) To represent the corporation at all functions
and proceedings;
i) To execute on behalf of the corporation all
contracts, agreements and other instruments affecting
the interest of the corporation which require the
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<PAGE>
approval of the Board of Directors, except as otherwise
directed by the Board of Directors;
j) To make reports to the Board of Directors and
stockholders;
k) To sign certificates of stock;
l) To perform such other duties as are incident
to his office or are entrusted to him by the Board of
Directors.
The President may assign the exercise or performance of
any of the foregoing powers, duties and functions to any
other officer(s), subject always to his supervision and
control.
Section 4. The Vice-President(s) - If one or more
Vice-Presidents are appointed, he/they shall have such
powers and shall perform such duties as may from time to
time be assigned to him/them by the Board of Directors or by
the President.
Section 5. The Secretary - The Secretary must be a
resident and a citizen of the Philippines. He shall be the
custodian of and shall maintain the corporate books and
records and shall be the recorder of the corporation's
formal actions and transactions. He shall have the
following specific powers and duties:
a) To record or see to the proper recording of
the minutes and transactions of all meetings of the
directors and the stockholders and to maintain minute
books of such meetings in the form and manner required
by law;
b) To keep or cause to be kept record books
showing the details required by law with respect to the
stock certificates of the corporation, including
ledgers and transfer books showing all shares of the
corporation subscribed, issued and transferred;
c) To keep the corporate seal and affix it to
all papers and documents requiring a seal, and to
attest by his signature all corporate documents
requiring the same;
d) To attend to the giving and serving of all
notices of the corporation required by law or these by-
laws to be given;
e) To certify to such corporate acts,
countersign corporate documents or certificates, and
make reports or statements as may be required of him by
law or by government rules and regulations;
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<PAGE>
f) To act as the inspector at the election of
directors and, as such, to determine the number of
shares of stock outstanding and entitled to vote, the
shares of stock represented at the meeting, the
existence of a quorum, the validity and effect of
proxies, and to receive votes, ballots or consents,
hear and determine all challenges and questions arising
in connection with the right to vote, count and
tabulate all vote, ballots or consents, determine the
result, and do such acts as are proper to conduct the
election or vote. The Secretary may assign the
exercise or performance of any or all of the foregoing
duties, power and functions to any other person or
persons, subject always to his supervision and control;
g) To perform such other duties as are incident
to his office or as may be assigned to him by the Board
of Directors or the President.
Section 6. The Treasurer - The Treasurer of the
corporation shall be its chief fiscal officer and the
custodian of its funds, securities and property. The
Treasurer shall have the following duties:
a) To keep full and accurate accounts of
receipts and disbursements in the books of the
corporation;
b) To have custody of, and be responsible for,
all the funds, securities and bonds of the corporation;
c) To deposit in the name and to the credit of
the corporation, in such banks as may be designated
from time to time by the Board of Directors, all the
moneys, funds, securities, bonds, and similar valuable
effects belonging to the corporation which may come
under his control;
d) To render an annual statements showing the
financial condition of the corporation and such other
financial reports as the Board of Directors, the
Chairman, or the President may, from time to time
require;
e) To prepare such financial reports,
statements, certificatations and other documents which
may, from time to time, be required by government rules
and regulations and to submit the same to the proper
government agencies;
f) To exercise such powers and perform such
duties and functions as may be assigned to him by the
President.
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<PAGE>
Section 7. Term of Office - The term of office of
all officers shall be for a period of One (1) year and until
their successors are duly elected and qualified. Such
officers may however be sooner removed for cause.
Section 8. Vacancies - If any position of the
officers becomes vacant by reason of death, resignation,
disqualification or for any other cause, the Baord of
Directors, by majority vote may elect a successor who shall
hold office for the unexpired term.
Section 9. Compensation - The by-laws officers
shall receive such remuneration as the Board of Directors
may determine. All other officers shall receive such
remuneration as the Board of Directors may determine upon
recommendation of the President. A director shall not be
precluded from serving the corporation in any other capacity
as an officer, agent or otherwise, and receiving
compensation therefor.
ARTICLE V
OFFICERS
Section 1. The principal office of the Corporation
shall be located in Makati, Metro Manila, Philippines. The
corporation may have such other branch offices, either
within or outside the Philippines as the Board of Directors
may designate or as the business of the corporation may,
from time to time, require.
ARTICLE VI
AUDIT OF BOOKS, FISCAL YEAR AND DIVIDENDS
Section 1. External Auditors - At the regular
stockholders' meeting, the external auditor or auditors of
the corporation for the ensuing year shall be appointed.
The external auditor or auditors shall examine, verify and
report on the earnings and expenses of the corporation and
shall certify the remuneration of the external auditor or
auditors as determined by the Board of Directors.
Section 2. Fiscal Year - The fiscal year of the
corporation shall begin on the first day of January and end
on the last day of December of each year.
Section 3. Dividends - Dividends shall be declared
and paid out of the unrestricted retained earnings which
shall be payable in cash, property, or stock to all
stockholders on the basis of outstanding stock held by them,
as often and at such times as the Board of Directors may
determine and in accordance with law and applicable rules
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<PAGE>
and regulations.
ARTICLE VII
AMENDMENTS
Section 1. These by-laws may be amended or repealed
by the affirmative vote of at least a majority of the Board
of Directors and the stockholders representing a majority of
the outstanding capital stock at any stockholders' meeting
called for that purpose. However, the power to amend,
modify, repeal or adopt new by-laws may be delegated to the
Board of Directors by the affirmative vote of stockholders
representing not less than two-thirds of the outstanding
capital stock; provided, however, that any such delegation
of powers to the Board of Directors to amend, repeal or
adopt new by-laws may be revoked only by the vote of the
stockholders representing a majority of the outstanding
captial stock at a regular or special meeting.
ARTICLE VIII
SEAL
Section 1. Form and Incriptions - The corporate
seal shall be determined by the Board of Directors.
The foregoing by-laws were adopted by all the
stockholders of the corporation on 19 September 1990 at the
principal office of the corporation.
IN WITNESS WHEREOF, we, the undersigned stockholders
present at said meeting and voting thereat in favor of the
adoption of said by-laws, have hereunto subscribed our names
this 19th day of September 1990 at Makati, Metro Manila.
(Sgd.) (Sgd.)
ANTONIO T. CARPIO SYLVETTE. T. FERRER
(Sgd.) (Sgd.)
MA. JACQUELINE P. SWANN MA. STEPHANIE V. GOMEZ
(Sgd.)
MA. VALENTINA S. SANTANA
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<PAGE>
Exhibit B-152
BY-LAWS
Offices
1. GPUI Lake Holdings, Inc. , (the "Corporation") shall
have offices at such places as the Board of Directors may from
time to time designate or the business of the Corporation may
require.
Seal
2. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization, and the
words "Corporate Seal" and "Delaware". If authorized by the
Board of Directors, the corporate seal may be affixed to any
certificates of stock, bonds, debentures, notes or other
engraved, lithographed or printed instruments, by engraving,
lithographing or printing thereon such seal or a facsimile
thereof, and such seal or facsimile thereof so engraved,
lithographed or printed thereon shall have the same force and
effect, for all purposes, as if such corporate seal had been
affixed thereto by indentation.
Stockholders' Meetings
3. All meetings of stockholders shall be held at the
principal office of the Corporation or at such other place as
shall be stated in the notice of the meeting. Such meetings
shall be presided over by the chief executive officer of the
Corporation, or, in his absence, by such other officer as shall
have been designated for the purpose by the Board of Directors,
except when by statute the election of a presiding officer is
required.
4. Annual meetings of stockholders shall be held on such
date and time as shall be determined by the Board of Directors.
At the annual meeting, the stockholders entitled to vote shall
elect by ballot a Board of Directors and transact such other
business as may properly be brought before the meeting.
5. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the
shares of stock of the Corporation issued and outstanding and
entitled to vote, present in person or by proxy, shall be
requisite for, and shall constitute a quorum at, any meeting of
the stockholders. If, however, the holders of a majority of such
shares of stock shall not be present or represented by proxy at
-1-<PAGE>
any such meeting, the stockholders entitled to vote thereat,
present in person or by proxy, shall have power, by vote of the
holders of a majority of the shares of capital stock present or
represented at the meeting, to adjourn the meeting from time to
time without notice other than announcement at the meeting, until
the holders of the amount of stock requisite to constitute a
quorum, as aforesaid, shall be present in person or by proxy. At
any adjourned meeting at which such quorum shall be present, in
person or by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
6. At each meeting of stockholders each holder of record
of shares of capital stock then entitled to vote shall be
entitled to vote in person, or by proxy appointed by instrument
executed in writing by such stockholders or by his duly
authorized attorney; but no proxy shall be valid after the
expiration of eleven months from the date of its execution unless
the stockholder executing it shall have specified therein the
length of time it is to continue in force, which shall be for
some specified period. Except as otherwise provided by law or by
the Certificate of Incorporation, each holder of record of shares
of capital stock entitled to vote at any meeting of stockholders
shall be entitled to one vote for every share of capital stock
standing in his name on the books of the Corporation. Shares of
capital stock of the Corporation belonging to the Corporation or
to a corporation controlled by the Corporation through stock
ownership or through majority representation on the board of
directors thereof, shall not be voted. All elections shall be
determined by a plurality vote, and, except as otherwise provided
by law or by the Certificate of Incorporation all other matters
shall be determined by a vote of the holders of a majority of the
shares of the capital stock present or represented at a meeting
and voting on such questions.
7. Special meetings of the stockholders for any purpose or
purposes, unless otherwise prescribed by law, may be called by
the Chairman or by the President, and shall be called by the
chief executive officer or Secretary at the request in writing of
any three members of the Board of Directors, or at the request in
writing of holders of record of ten percent of the shares of
capital stock of the Corporation issued and outstanding.
Business transacted at all special meetings of the stockholders
shall be confined to the purposes stated in the call.
8. (a) Notice of every meeting of stockholders, setting
forth the time and the place and briefly the purpose or purposes
thereof, shall be mailed, not less than ten nor more than fifty
days prior to such meeting, to each stockholder of record (at his
address appearing on the stock books of the Corporation, unless
he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be mailed to some
other address, in which case it shall be mailed to the address
designated in such request) as of a date fixed by the Board of
Directors pursuant to Section 41 of the By-Laws. Except as
otherwise provided by law, the Certificate of Incorporation or
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the By-Laws, items of business, in addition to those specified in
the notice of meeting, may be transacted at the annual meeting.
(a) Whenever by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be
taken in connection with any corporate action, the meeting and
vote of stockholders may be dispensed with, if all the
stockholders who would have been entitled to vote upon the action
if such meeting were held, shall consent in writing to such
corporate action being taken, and all such consents shall be
filed with the Secretary of the Corporation. However, this
section shall not be construed to alter or modify any provision
of law or of the Certificate of Incorporation under which the
written consent of the holders of less than all outstanding
shares is sufficient for corporate action.
Directors
9. The business and affairs of the Corporation shall be
managed by its Board of Directors, which shall consist of not
less than one nor more than six directors as shall be fixed from
time to time by a resolution adopted by a majority of the entire
Board of Directors; provided, however, that no decrease in the
number of directors constituting the entire Board of Directors
shall shorten the term of any incumbent director. Each director
shall be at least twenty-one years of age. Directors need not be
stockholders of the Corporation. Directors shall be elected at
the annual meeting of stockholders, or, if any such election
shall not be held, at a stockholders' meeting called and held in
accordance with the provisions of the General Corporation Law of
the State of Delaware. Each director shall serve until the next
annual meeting of stockholders and thereafter until his successor
shall have been elected and shall qualify.
10. In addition to the powers and authority by the By-Laws
expressly conferred upon it, the Board of Directors may exercise
all such powers of the Corporation and do all such lawful acts
and things as are not by law or by the Certificate of
Incorporation, or by the By-Laws directed or required to be
exercised or done by the stockholders.
11. Unless otherwise required by law, in the absence of
fraud no contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation
and any corporation, partnership, association or other
organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be
void or voidable solely for such reason, or solely because the
director or officer is present at or participates in the meeting
of the Board of Directors which authorize the contract or
transaction, or solely because his votes are counted for such
purpose if:
-3-<PAGE>
(a) The material facts as to his interest and as to
the contract or transaction are disclosed or are known to the
Board of Directors, and the Board in good faith authorizes the
contract or transaction by a vote sufficient for such purposes
without counting the vote of the interested director or
directors; or
(b) The material facts as to his interest and as to
the contract or transaction are disclosed or known to the
stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the
stockholders; or
(c) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified
by the Board of Directors or the stockholders.
No director or officer shall be liable to account to
the Corporation for any profit realized by him from or through
any such contract or transaction of the Corporation by reason of
his interest as aforesaid in such contract or transaction if such
contract or transaction shall be authorized, approved or ratified
as aforesaid.
No contract or other transaction between the
Corporation and any of its affiliates shall in any case be void
or voidable or otherwise affected because of the fact that
directors or officers of the Corporation are directors or
officers of such affiliate, nor shall any such director or
officer, because of such relation, be deemed interested in such
contract or other transaction under any of the provisions of this
Section 11, nor shall any such director be liable to account
because of such relation. For the purposes of this Section 11,
the term "affiliate" shall mean any corporation which is an
"affiliate" of the Corporation within the meaning of the Public
Utility Holding Company Act of 1935, as said Act shall at the
time be in effect.
Nothing herein shall create liability in any of the
events described in this Section 11 or prevent the authorization,
ratification or approval, in any other manner provided by law, of
any contract or transaction described in this Section 11.
Meetings of the Board of Directors
12. Regular meetings of the Board of Directors may be held
without notice except for the purpose of taking action on matters
as to which notice is in the By-Laws required to be given, at
such time and place as shall from time to time be designated by
the Board. Special meetings of the Board of Directors may be
called by the Chairman or by the President or in the absence or
disability of the Chairman and the President, by a Vice
President, or by any two directors, and may be held at the time
and place designated in the call and notice of the meeting.
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13. Except as otherwise provided by the By-Laws, any item
or business may be transacted at any meeting of the Board of
Directors, whether or not such item of business shall have been
specified in the notice of meeting. Where notice of any meeting
of the Board of Directors is required to be given by the By-Laws,
the Secretary or other officer performing his duties shall give
notice either personally or by telephone or telecopy at least
twenty-four hours before the meeting, or by mail at least three
days before the meeting. Meetings may be held at any time and
place without notice if all the directors are present or if those
not present waive notice in writing either before or after the
meeting.
14. At all meetings of the Board of Directors a majority of
the directors in office shall be requisite for, and shall
constitute, a quorum for the transaction of business, and the act
of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by law or by the
Certificate of Incorporation, as amended, or by the By-Laws.
15. Any regular or special meeting may be adjourned to any
time or place by a majority of the directors present at the
meeting, whether or not a quorum shall be present at such
meeting, and no notice of the adjourned meeting shall be required
other than announcement at the meeting.
Committees
16. The Board of Directors may, by the vote of a majority
of the directors in office, create an Executive Committee,
consisting of two or more members, of whom one shall be the chief
executive officer of the Corporation. The other members of the
Executive Committee shall be designated by the Board of Directors
from their number, shall hold office for such period as the Board
of Directors shall determine and may be removed at any time by
the Board of Directors. When a member of the Executive
Committee ceases to be a director, he shall cease to be a member
of the Executive Committee. The Executive Committee shall have
all the powers specifically granted to it by the By-Laws and,
between meetings of the Board of Directors, may also exercise all
the powers of the Board of Directors except such powers as the
Board of Directors may exercise by virtue of Section 10 of the
By-Laws. The Executive Committee shall have no power to revoke
any action taken by the Board of Directors, and shall be subject
to any restriction imposed by law, by the By-Laws, or by the
Board of Directors.
17. The Executive Committee shall cause to be kept regular
minutes of its proceedings, which may be transcribed in the
regular minute book of the Corporation, and all such proceedings
shall be reported to the Board of Directors at its next
succeeding meeting. A majority of the Executive Committee shall
constitute a quorum at any meeting. The Board of Directors may
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by vote of a majority of the total number of directors provided
for in Section 9 of the By-Laws fill any vacancies in the
Executive Committee. The Executive Committee shall designate one
of its number as Chairman of the Executive Committee and may,
from time to time, prescribe rules and regulations for the
calling and conduct of meetings of the Committee, and other
matters relating to its procedure and the exercise of its powers.
18. From time to time the Board of Directors may appoint
any other committee or committees for any purpose or purposes,
which committee or committees shall have such powers and such
tenure of office as shall be specified in the resolution of
appointment. The chief executive officer of the Corporation
shall be a member ex officio of all committees of the Board.
Compensation and Reimbursement of Directors
and Members of the Executive Committee
19. Directors, other than salaried officers of the
Corporation or its affiliates, shall receive compensation and
benefits for their services as directors, at such rate or under
such conditions as shall be fixed from time to time by the Board,
and all directors shall be reimbursed for their reasonable
expenses, if any, of attendance at each regular or special
meeting of the Board of Directors.
20. Directors, other than salaried officers of the
Corporation or its affiliates, who are members of any committee
of the Board, shall receive compensation for their services as
such members as shall be fixed from time to time by the Board,
and shall be reimbursed for their reasonable expenses, if any, in
attending meetings of the Executive Committee or such other
Committees of the Board and of otherwise performing their duties
as members of such Committees.
Officers
21. The officers of the Corporation shall be chosen by a
vote of a majority of the directors in office and shall be a
President, one or more Vice Presidents, a Treasurer, and a
Secretary, and may include a Chairman, Comptroller, one or more
Assistant Secretaries, one or more Assistant Treasurers, and one
or more Assistant Comptrollers. If a Chairman shall be chosen,
the Board of Directors shall designate either the Chairman or the
President as chief executive officer of the Corporation. If a
Chairman shall not be chosen, the President shall be the chief
executive officer of the Corporation. The Chairman and a
President who is designated chief executive officer of the
corporation shall be chosen from among the directors. A
President who is not chief executive officer of the Corporation,
and none of the other officers, need be a director. Neither the
Comptroller nor any Assistant Comptroller may occupy any other
office. With the above exceptions, any two offices may be
-6-<PAGE>
occupied and the duties thereof may be performed by one person.
22. The salary and other compensation of the chief
executive officer of the Corporation shall be determined from
time to time by the Board of Directors. The salaries and other
compensation of all other officers of the Corporation shall be
determined from time to time by the chief executive officer,
subject to the concurrence of the Chairman.
23. The salary or other compensation of all employees other
than officers of the Corporation shall be fixed by the chief
executive officer of the Corporation or by such other officer as
shall be designated for that purpose by the Board of Directors.
24. The Board of Directors may appoint such officers and
such representatives or agents as shall be deemed necessary, who
shall hold office for such terms, exercise such powers, and
perform such duties as shall be determined from time to time by
the Board of Directors.
25. The officers of the Corporation shall hold office until
the first meeting of the Board of Directors after the next
succeeding annual meeting of stockholders and until their
respective successors are chosen and qualify. Any officer
elected pursuant to Section 21 of the By-Laws may be removed at
any time, with or without cause, by the vote of a majority of the
directors in office. Any other officer and any representative,
employee or agent of the Corporation may be removed at any time,
with or without cause, by action of the Board of Directors, by
the Executive Committee, or the chief executive officer of the
Corporation, or such other officer as shall have been designated
for that purpose by the chief executive officer of the
Corporation.
The Chairman
26. (a) If a Chairman shall be chosen by the Board of
Directors, he shall preside at all meetings of the Board at which
he shall be present.
(a) If a Chairman shall be chosen by the Board of
Directors and if he shall be designated by the Board as chief
executive officer of the Corporation:
(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive
Committee, if there be one;
(ii) he may sign in the name and on behalf of
the Corporation any and all contracts, agreements
or other instruments pertaining to matters which
arise in the ordinary course of business of the
-7-<PAGE>
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(iii) he may, unless otherwise directed by the
Board of Directors pursuant to Section 36 of the
By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of stockholders
of any corporation in which the Corporation holds
stock and grant any consent, waiver, or power of
attorney in respect of such stock;
(iv) he shall, whenever it may in his opinion
be necessary or appropriate, prescribe the duties
of officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and
perform such other duties as may be prescribed
from time to time by law, by the By-Laws, or by
the Board of Directors.
(b) If a Chairman shall be chosen by the Board of
Directors and if he shall not be designated by the Board as chief
executive officer of the Corporation:
(i) he may sign in the name and on behalf of
the Corporation any and all contracts, agreements
or other instruments pertaining to matters which
arise in the ordinary course of business of the
Corporation and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(ii) he shall have such other powers and
perform such other duties as may be prescribed
from time to time by law, by the By-Laws, or by
the Board of Directors.
The President
27. (a) If a Chairman shall not be chosen by the Board of
Directors, the President shall preside at all meetings of the
Board at which he shall be present.
(a) If the President shall be designated by the Board
of Directors as chief executive officer of the Corporation:
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(i) he shall have supervision, direction and
control of the conduct of the business of the
Corporation, subject, however, to the control of
the Board of Directors and the Executive Committee
if there be one;
(ii) he may sign in the name and on behalf of
the Corporation any and all contracts, agreements
or other instruments pertaining to matters which
arise in the ordinary course of business of the
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements, or
other instruments of any nature pertaining to the
business of the Corporation;
(iii) he may, unless otherwise directed by the
Board of Directors pursuant to Section 36 of the
By-Laws, attend in person or by substitute or
proxy appointed by him and act and vote on behalf
of the Corporation at all meetings of the
stockholders of any corporation in which the
Corporation holds stock and grant any consent,
waiver, or power of attorney in respect of such
stock;
(iv) he shall, whenever it may in his opinion
be necessary or appropriate, prescribe the duties
of officers and employees of the Corporation whose
duties are not otherwise defined; and
(v) he shall have such other powers and
perform such other duties as may be prescribed
from time to time by law, by the By-Laws, or by
the Board of Directors.
(b) If the Chairman shall be designated by the Board
of Directors as chief executive officer of the Corporation, the
President:
(i) shall be the chief operating officer of
the Corporation;
(ii) shall have supervision, direction and
control of the conduct of the business of the
Corporation, in the absence or disability of the
Chairman, subject, however, to the control of the
Board of Directors and the Executive Committee, if
there be one;
(iii) may sign in the name and on behalf of
the Corporation any and all contracts, agreements
or other instruments pertaining to matters which
arise in the ordinary course of business of the
-9-<PAGE>
Corporation, and, when authorized by the Board of
Directors or the Executive Committee, if there be
one, may sign in the name and on behalf of the
Corporation any and all contracts, agreements or
other instruments of any nature pertaining to the
business of the Corporation;
(v) at the request or in the absence or
disability of the Chairman, may, unless otherwise
directed by the Board of Directors pursuant to
Section 36 of the By-Laws, attend in person or by
substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings
of the stockholders of any corporation in which
the Corporation holds stock and grant any consent,
waiver or power of attorney in respect of such
stock;
(v) at the request or in the absence or
disability of the Chairman, whenever in his
opinion it may be necessary or appropriate, shall
prescribe the duties of officers and employees of
the Corporation whose duties are not otherwise
defined; and
(vi) shall have such other powers and perform
such other duties as may be prescribed from time
to time by law, by the By-Laws, or by the Board of
Directors.
Vice President
28. (a) The Vice President shall, in the absence or
disability of the President, if the President has been designated
chief executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, have supervision, direction and control of the conduct
of the business of the Corporation, subject, however, to the
control of the Directors and the Executive Committee, if there be
one.
(a) He may sign in the name of and on behalf of the
Corporation any and all contracts, agreements or other
instruments pertaining to matters which arise in the ordinary
course of business of the Corporation, and when authorized by the
Board of Directors or the Executive Committee, if there be one,
except in cases where the signing thereof shall be expressly
delegated by the Board of Directors or the Executive Committee to
some other officer or agent of the Corporation.
(b) He may, if the President has been designated chief
executive officer of the Corporation or if the President is
acting pursuant to the provisions of Subsection 27(c)(ii) of the
By-Laws, at the request or in the absence or disability of the
-10-<PAGE>
President or in case of the failure of the President to appoint a
substitute or proxy as provided in Subsections 27(b)(iii) and
27(c)(iv) of the By-Laws, unless otherwise directed by the Board
of Directors pursuant to Section 36 of the By-Laws, attend in
person or by substitute or proxy appointed by him and act and
vote on behalf of the Corporation at all meetings of the
stockholders of any corporation in which the Corporation holds
stock and grant any consent, waiver or power of attorney in
respect of such stock.
(c) He shall have such other powers and perform such
other duties as may be prescribed from time to time by law, by
the By-Laws, or by the Board of Directors.
(d) If there be more than one Vice President, the
Board of Directors may designate one or more of such Vice
Presidents as an Executive Vice President or a Senior Vice
President. The Board of Directors may assign to such Vice
Presidents their respective duties and may, if the President has
been designated chief executive officer of the Corporation or if
the President is acting pursuant to the provisions of Subsection
27(c)(ii) of the By-Laws, designate the order in which the
respective Vice Presidents shall have supervision, direction and
control of the business of the Corporation in the absence or
disability of the President.
The Secretary
29. (a) The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and
record all votes and the minutes of all proceedings in books to
be kept for that purpose; and he shall perform like duties for
the Executive Committee and any other committees created by the
Board of Directors.
(a) He shall give, or cause to be given, notice of all
meetings of the stockholders, the Board of Directors, or the
Executive Committee of which notice is required to be given by
law or by the By-Laws.
(b) He shall have such other powers and perform such
other duties as may be prescribed from time to time by law, by
the By-Laws, or the Board of Directors.
(c) Any records kept by the Secretary shall be the
property of the Corporation and shall be restored to the
Corporation in case of his death, resignation, retirement or
removal from office.
(d) He shall be the custodian of the seal of the
Corporation and, pursuant to Section 43 of the By-Laws and in
other instances where the execution of documents on behalf of the
Corporation is authorized by the By-Laws or by the Board of
Directors, may affix the seal to all instruments requiring it and
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attest the ensealing and the execution of such instruments.
(e) He shall have control of the stock ledger, stock
certificate book and all books containing minutes of any meeting
of the stockholders, Board of Directors, or Executive Committee
or other committee created by the Board of Directors, and of all
formal records and documents relating to the corporate affairs of
the Corporation.
(f) Any Assistant Secretary or Assistant Secretaries
shall assist the Secretary in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors.
The Treasurer
30. (a) The Treasurer shall be responsible for the
safekeeping of the corporate funds and securities of the
Corporation, and shall maintain and keep in his custody full and
accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and
other funds of the Corporation in the name and to the credit of
the Corporation, in such depositories as may be designated by the
Board of Directors.
(a) He shall disburse the funds of the Corporation in
such manner as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements.
(b) Pursuant to Section 45 of the By-Laws, he may,
when authorized by the Board of Directors, affix the seal to all
instruments requiring it and shall attest the ensealing and
execution of said instruments.
(c) He shall exhibit at all reasonable times his
accounts and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such accounts and records are kept.
(d) He shall render an account of all his transactions
as Treasurer at all regular meetings of the Board of Directors,
or whenever the Board may require it, and at such other times as
may be requested by the Board or by any director of the
Corporation.
(e) If required by the Board of Directors, he shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, in such form and amount and with such surety
or sureties as shall be satisfactory to the Board, for the
faithful performance of the duties of his office, and for the
restoration to the Corporation in case of his death, resignation,
retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his
-12-<PAGE>
possession or under his control belonging to the Corporation.
(f) He shall perform all duties generally incident to
the office of Treasurer, and shall have other powers and duties
as from time to time may be prescribed by law, by the By-Laws, or
by the Board of Directors.
(g) Any Assistant Treasurer or Assistant Treasurers
shall assist the Treasurer in the performance of his duties,
shall exercise his powers and duties at his request or in his
absence or disability, and shall exercise such other powers and
duties as may be prescribed by the Board of Directors. If
required by the Board of Directors, any Assistant Treasurer shall
give the Corporation a bond, the premium on which shall be paid
by the Corporation, similar to that which may be required to be
given by the Treasurer.
Comptroller
31. (a) If and when elected by the Board of Directors, the
Comptroller of the Corporation shall be the principal accounting
officer of the Corporation and shall be accountable and report
directly to the Board of Directors. If required by the Board of
Directors, the Comptroller shall give the Corporation a bond, the
premium on which shall be paid by the Corporation in such form
and amount and with such surety or sureties as shall be
satisfactory to the Board, for the faithful performance of the
duties of his office.
(a) He shall keep or cause to be kept full and
complete books of account of all operations of the Corporation
and of its assets and liabilities.
(b) He shall have custody of all accounting records of
the Corporation other than the record of receipts and
disbursements and those relating to the deposit or custody of
money or securities of the Corporation, which shall be in the
custody of the Treasurer.
(c) He shall exhibit at all reasonable times his books
of account and records to any director of the Corporation upon
application during business hours at the office of the
Corporation where such books of account and records are kept.
(d) He shall render reports of the operations and
business and of the condition of the finances of the Corporation
at regular meetings of the Board of Directors, and at such other
times as he may be requested by the Board or any director of the
Corporation, and shall render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(e) He shall receive and keep in his custody an
original copy of each written contract made by or on behalf of
the Corporation.
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(f) He shall receive periodic reports from the
Treasurer of the Corporation of all receipts and disbursements,
and shall see that correct vouchers are taken for all
disbursements for any purpose.
(g) He shall perform all duties generally incident to
the office of Comptroller, and shall have such other powers and
duties as from time to time may be prescribed by law, by the By-
Laws, or by the Board of Directors.
(h) Any Assistant Comptroller or Assistant
Comptrollers shall assist the Comptroller in the performance of
his duties, shall exercise his powers and duties at his request
or in his absence or disability and shall exercise such other
powers and duties as may be conferred or required by the Board of
Directors. If required by the Board of Directors, any Assistant
Comptroller shall give the Corporation a bond, the premium on
which shall be paid by the Corporation, similar to that which may
be required to be given by the Comptroller.
Vacancies
32. If the office of any director becomes vacant by reason
of death, resignation, retirement, disqualification, or
otherwise, the remaining directors, by the vote of a majority of
those then in office at a meeting, the notice of which shall have
specified the filling of such vacancy as one of its purposes may
choose a successor, who shall hold office for the unexpired term
in respect of which such vacancy occurs. If the office of any
officer of the Corporation shall become vacant for any reason,
the Board of Directors, at a meeting, the notice of which shall
have specified the filling of such vacancy as one of its
purposes, may choose a successor who shall hold office for the
unexpired term in respect of which such vacancy occurred.
Pending action by the Board of Directors at such meeting, the
Board of Directors or the Executive Committee may choose a
successor temporarily to serve as an officer of the Corporation.
Resignations
33. Any officer or any director of the Corporation may
resign at any time, such resignation to be made in writing and
transmitted to the Secretary. Such resignation shall take effect
from the time of its acceptance, unless some time be fixed in the
resignation, and then from that time. Nothing herein shall be
deemed to relieve any officer from liability for breach of any
contract of employment resulting from any such resignation.
Duties of Officers May be Delegated
34. In case of the absence or disability of any officer of
the Corporation, or for any other reason the Board of Directors
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may deem sufficient, the Board, by vote of a majority of the
total number of directors provided for in Section 9 of the By-
Laws may, notwithstanding any provisions of the By-Laws, delegate
or assign, for the time being, the powers or duties, or any of
them, of such officer to any other officer or to any director.
Indemnification of Directors, Officers and Employees
35. (a) A director shall not be personally liable for
monetary damages as such for any action taken, or any failure to
take any action, unless the director has breached or failed to
perform the duties of his office under the General Corporation
Law of the State of Delaware, and the breach or failure to
perform constitutes self-dealing, willful misconduct or
recklessness. The provisions of this subsection (a) shall not
apply to the responsibility or liability of a director pursuant
to any criminal statute, or the liability of a director for the
payment of taxes pursuant to local, state or federal law.
(a) The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the
Corporation or otherwise, by reason of the fact that he was a
director, officer or employee of the Corporation (and may
indemnify any person who was an agent of the Corporation), or a
person serving at the request of the Corporation as a director,
officer, partner, fiduciary or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, to the fullest extent permitted by law, including
without limitation indemnification against expenses (including
attorneys' fees and disbursements), damages, punitive damages,
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection
with such proceeding to the fullest extent permitted by law.
(a) The Corporation shall pay the expenses (including
attorneys' fees and disbursements) actually and reasonably
incurred in defending a civil or criminal action, suit or
proceeding on behalf of any person entitled to indemnification
under subsection (b) in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation, and
may pay such expenses in advance on behalf of any agent on
receipt of a similar undertaking. The financial ability of such
person to make such repayment shall not be a prerequisite to the
making of an advance.
(c) For purposes of this Section: (i) the Corporation
shall be deemed to have requested an officer, director, employee
or agent to serve as fiduciary with respect to an employee
benefit plan where the performance by such person of duties to
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the Corporation also imposes duties on, or otherwise involves
services by, such person as a fiduciary with respect to the plan;
(ii) excise taxes assessed with respect to any transaction with
an employee benefit plan shall be deemed "fines"; and (iii)
action taken or omitted by such person with respect to any
employee benefit plan in the performance of duties for a purpose
reasonably believed to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Corporation.
(d) To further effect, satisfy or secure the
indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit,
act as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into indemnification
agreements, pledge or grant a security interest in any assets or
properties of the Corporation, or use any other mechanism or
arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall
deem appropriate.
(e) All rights of indemnification under this Section
shall be deemed a contract between the Corporation and the person
entitled to indemnification under this Section pursuant to which
the Corporation and each such person intend to be legally bound.
Any repeal, amendment or modification hereof shall be prospective
only and shall not limit, but may expand, any rights or
obligations in respect of any proceeding whether commenced prior
to or after such change to the extent such proceeding pertains to
actions or failures to act occurring prior to such change.
(f) The indemnification, as authorized by this
Section, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses
may be entitled under any statute, agreement, vote of
shareholder, or disinterested directors or otherwise, both as to
action in an official capacity and as to action in any other
capacity while holding such office. The indemnification and
advancement of expenses provided by, or granted pursuant to, this
Section shall continue as to a person who has ceased to be an
officer, director, employee or agent in respect of matters
arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Stock of Other Corporations
36. The Board of Directors may authorize any director,
officer or other person on behalf of the Corporation to attend,
act and vote at meetings of the stockholders of any corporation
in which the Corporation shall hold stock, and to exercise
thereat any and all of the rights and powers incident to the
ownership of such stock and to execute waivers of notice of such
meetings and calls therefor.
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Certificate of Stock
37. The certificates of stock of the Corporation shall be
numbered and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number
of shares and may include his address. No fractional shares of
stock shall be issued. Certificates of stock shall be signed by
the Chairman, President or a Vice President and by the Treasurer
or an Assistant Treasurer or the Secretary or an Assistant
Secretary, and shall be sealed with the seal of the Corporation.
Where any certificate of stock is signed by a transfer agent or
transfer clerk, who may be but need not be an officer or employee
of the Corporation, and by a registrar, the signature of any such
Chairman, President, Vice President, Secretary, Assistant
Secretary, Treasurer, or Assistant Treasurer upon such
certificate who shall have ceased to be such before such
certificate of stock is issued, it may be issued by the
Corporation with the same effect as if such officer had not
ceased to be such at the date of its issue.
Transfer of Stock
38. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by
attorney, lawfully constituted in writing, and upon surrender of
the certificate therefor.
Fixing of Record Date
39. The Board of Directors is hereby authorized to fix a
time, not exceeding fifty (50) days preceding the date of any
meeting of stockholders or the date fixed for the payment of any
dividend or the making of any distribution, or for the delivery
of evidences of rights or evidences of interests arising out of
any change, conversion or exchange of capital stock, as a record
time for the determination of the stockholders entitled to notice
of and to vote at such meeting or entitled to receive any such
dividend, distribution, rights or interests as the case may be;
and all persons who are holders of record of capital stock at the
time so fixed and no others, shall be entitled to notice of and
to vote at such meeting, and only stockholders of record at such
time shall be entitled to receive any such notice, dividend,
distribution, rights or interests.
Registered Stockholders
40. The Corporation shall be entitled to treat the holder
of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any
equitable or other claim to, or interest in, such share on the
part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by statutes of
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the State of Delaware.
Lost Certificates
41. Any person claiming a certificate of stock to be lost
or destroyed shall make an affidavit or affirmation of that fact,
whereupon a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to be lost or
destroyed; provided, however, that the Board of Directors may
require, as a condition to the issuance of a new certificate, the
payment of the reasonable expenses of such issuance or the
furnishing of a bond of indemnity in such form and amount and
with such surety or sureties, or without surety, as the Board of
Directors shall determine, or both the payment of such expenses
and the furnishing of such bond, and may also require the
advertisement of such loss in such manner as the Board of
Directors may prescribe.
Inspection of Books
42. The Board of Directors may determine whether and to
what extent, and at what time the places and under what
conditions and regulations, the accounts and books of the
Corporation (other than the books required by statute to be open
to the inspection of stockholders), or any of them, shall be
open to the inspection of stockholders, and no stockholder shall
have any right to inspect any account or book or document of the
Corporation, except as such right may be conferred by statutes of
the State of Delaware or by the By-Laws or by resolution of the
Board of Directors or of the stockholders.
Checks, Notes, Bonds and Other Instruments
43. (a) All checks or demands for money and notes of the
Corporation shall be signed by such person or persons (who may
but need not be an officer of officers of the Corporation) as the
Board of Directors may from time to time designate, either
directly or through such officers of the Corporation as shall, by
resolution of the Board of Directors, be authorized to designate
such person or persons. If authorized by the Board of Directors,
the signatures of such persons, or any of them, upon any checks
for the payment of money may be made by engraving, lithographing
or printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such persons had actually signed the same.
44. All bonds, mortgages and other instruments requiring a
seal, when required in connection with matters which arise in the
ordinary course of business or when authorized by the Board of
Directors, shall be executed on behalf of the Corporation by the
Chairman or the President or a Vice President, and the seal of
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the Corporation shall be thereupon affixed by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer,
who shall, when required, attest the ensealing and execution of
said instrument. If authorized by the Board of Directors, a
facsimile of the seal may be employed and such facsimile of the
seal may be engraved, lithographed or printed and shall have the
same force and effect as an impressed seal. If authorized by the
Board of Directors, the signatures of the Chairman or the
President or a Vice President and the Secretary or an Assistant
Secretary or the Treasurer or Assistant Treasurer upon any
engraved, lithographed or printed bonds, debentures, notes or
other instruments may be made by engraving, lithographing or
printing thereon a facsimile of such signatures, in lieu of
actual signatures, and such facsimile signatures so engraved,
lithographed or printed thereon shall have the same force and
effect as if such officers had actually signed the same. In case
any officer who has signed, or whose facsimile signature appears
on, any such bonds, debentures, notes or other instruments shall
cease to be such officer before such bonds, debentures, notes or
other instruments shall have been delivered by the Corporation,
such bonds, debentures, notes or other instruments may
nevertheless be adopted by the Corporation and be issued and
delivered as though the person who signed the same, or whose
facsimile signature appears thereon, had not ceased to be such
officer of the Corporation.
Receipts for Securities
45. All receipts for stocks, bonds or other securities
received by the Corporation shall be signed by the Treasurer or
an Assistant Treasurer, or by such other person or persons as the
Board of Directors or Executive Committee shall designate.
Fiscal Year
46. The fiscal year shall begin the first day of January in
each year.
Dividends
47. (a) Dividends in the form of cash or securities, upon
the capital stock of the Corporation, to the extent permitted by
law may be declared by the Board of Directors at any regular or
special meeting.
(a) The Board of Directors shall have power to fix and
determine, and from time to time to vary, the amount to be
reserved as working capital; to determine whether any, and if
any, what part of any, surplus of the Corporation shall be
declared as dividends; to determine the date or dates for the
declaration and payment or distribution of dividends; and, before
payment of any dividend or the making of any distribution to set
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aside out of the surplus of the Corporation such amount or
amounts as the Board of Directors from time to time, in its
absolute discretion, may think proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for such other
purpose as it shall deem to be in the interest of the
Corporation.
Notices
48. (a) Whenever under the provisions of the By-Laws
notice is required to be given to any director, officer of
stockholder, it shall not be construed to require personal
notice, but, except as otherwise specifically provided, such
notice may be given in writing, by mail, by depositing a copy of
the same in a post office, letter box or mail chute, maintained
by the United States Postal Service, postage prepaid, addressed
to such stockholder, officer or director, at his address as the
same appears on the books of the Corporation.
(a) A stockholder, director or officer may waive in
writing any notice required to be given to him by law or by the
By-Laws.
Participation in Meetings by Telephone
49. At any meeting of the Board of Directors or the
Executive Committee or any other committee designated by the
Board of Directors, one or more directors may participate in such
meeting in lieu of attendance in person by means of the
conference telephone or similar communications equipment by means
of which all persons participating in the meeting will be able to
hear and speak.
Amendments
50. The By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the capital
stock represented and entitled to vote at a meeting of the
stockholders duly held. The By-Laws may also be altered or
amended by the affirmative vote of a majority of the directors in
office at a meeting of the Board of Directors.
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Exhibit B-186
LIMITED PARTNERSHIP AGREEMENT
OF
MID-GEORGIA COGEN L.P.
A DELAWARE LIMITED PARTNERSHIP
Dated as of April 15, 1996<PAGE>
TABLE OF CONTENTS
RECITALS 1
ARTICLE I
DEFINITIONS 2
Section 1.1 2
ARTICLE II
FORMATION OF PARTNERSHIP 4
Section 2.1 Continuation 4
Section 2.2 Name 4
Section 2.3 Principal Office 4
ARTICLE III
FILING OF CERTIFICATES AND OTHER DOCUMENTS 4
Section 3.1 Additional Filings of Certificates 4
Section 3.2 Filing of Other Documents 5
ARTICLE IV
PURPOSES 5
Section 4.1 Purposes of Partnership 5
ARTICLE V
TERM, FISCAL YEAR AND ACCOUNTING METHOD 5
Section 5.1 Term 5
Section 5.2 Fiscal Year; Accounting Method 5
ARTICLE VI
CONTRIBUTIONS AND CAPITAL 6
Section 6.1 Capital Contributions 6
Section 6.2 Capital Account 6
Section 6.3 Withdrawal of Capital 7
Section 6.4 Interest 7
Section 6.5 No Liability for Return of Capital 7
Section 6.6 No Third Party Rights 7
ARTICLE VII
DISTRIBUTIONS; ALLOCATION OF PROFITS AND LOSSES 8
Section 7.1 Distributions 8
Section 7.2 Form of Distribution 8
Section 7.3 Allocation of Profits and Losses 8
ARTICLE VIII
TAX MATTERS 8
Section 8.1 Considered a Partnership 8
Section 8.2 General Partner as Tax Matters Partner 9
Section 8.3 Preparation of Tax Returns 9
Section 8.4 Elections by Tax Matters Partner 10
Section 8.5 Special Basis Adjustment 10
Section 8.6 Withholding 10
Section 8.7 Survival of Tax Provisions 10
-i-<PAGE>
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING AND REPORTS 10
Section 9.1 Books and Records 10
Section 9.2 Reports; Fiscal Year 11
Section 9.3 Tax Returns 11
Section 9.4 Bank Accounts 11
ARTICLE X
COMPENSATION AND REIMBURSEMENT OF GENERAL PARTNER 11
Section 10.1 Compensation 11
ARTICLE XI
AUTHORIZED PAYMENTS 12
Section 11.1 Contractual Obligations 12
ARTICLE XII
RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER 12
Section 12.1 Management of the Partnership 12
Section 12.2 Authority of the General Partner 12
Section 12.3 Right of Public to Rely on Authority
of General Partner 15
Section 12.4 Duties and Obligations of General
Partner 16
Section 12.5 Liability of the General Partner;
Indemnification 16
Section 12.6 Restrictions 17
Section 12.7 Withdrawal of General Partner 18
ARTICLE XIII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS 19
Section 13.1 No Right to Participate in Management 19
Section 13.2 Limited Liability 19
Section 13.3 Matters Subject to Vote 19
Section 13.4 Call of Meetings and Written Consents 19
Section 13.5 Manner of Voting 20
Section 13.6 Limitations 20
Section 13.7 Compensation and Reimbursement 20
ARTICLE XIV
ASSIGNMENT OF PARTNERSHIP INTERESTS 20
Section 14.1 Restrictions on Transfers 20
Section 14.2 Rights of Assignee of Limited
Partnership 21
Section 14.3 Substitution of Assignee of Limited
Partner 21
Section 14.4 Consent to Assignment 22
Section 14.5 Indemnification 23
Section 14.6 Bankruptcy of a Limited Partner 23
Section 14.7 Further Assignments 23
Section 14.8 Additional Limited Partner 23
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ARTICLE XV
REMOVAL, WITHDRAWAL AND REPLACEMENT OF THE GENERAL PARTNER 23
Section 15.1 Voluntary Withdrawal 23
Section 15.2 Selection of a Substitute General
Partner 24
Section 15.3 Substitution 24
Section 15.4 Conversion or Purchase of the General
Partner's Interest 24
ARTICLE XVI
DISSOLUTION, LIQUIDATION AND
TERMINATION OF THE PARTNERSHIP 24
Section 16.1 Events of Dissolution 24
Section 16.2 Right to Continue the Partnership
Business 25
Section 16.3 Liquidation 25
Section 16.4 Termination 26
Section 16.5 Compliance With Timing Requirements of
Regulations 27
ARTICLE XVII
MISCELLANEOUS PROVISIONS 27
Section 17.1 Amendments 27
Section 17.2 Notices 28
Section 17.3 Power of Attorney 28
Section 17.4 Severability 28
Section 17.5 Application of Delaware Law 29
Section 17.6 Sole and Absolute Discretion 29
Section 17.7 Confidential Information 29
Section 17.8 Headings 29
Section 17.9 Entire Agreement 29
Section 17.10 Gender and Number 29
Section 17.11 Successors 29
Section 17.12 Variation of Pronouns 29
Section 17.13 Attorneys' Fees 29
Section 17.14 Further Action 30
Section 17.15 Counterparts 30
Section 17.16 Covenant to Sign Documents 30
Section 17.17 No Partition 30
Section 17.18 Not for Benefit of Creditors 30
Section 17.19 Representations of Limited Partner 30
Section 17.20 Waiver 31
Section 17.21 Incorporation by Reference 31
EXHIBIT A 1
CONTRIBUTIONS BY PARTNERS 1
EXHIBIT B 1
ALLOCATION OF PROFITS AND LOSSES 1
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THE PARTNERSHIP INTERESTS REFERRED TO HEREIN ("INTERESTS") HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT") OR UNDER THE SECURITIES LAWS OF DELAWARE
OR ANY OTHER STATE. SUCH INTERESTS ARE BEING OFFERED AND SOLD
UNDER THE EXEMPTION PROVIDED BY SECTION 4(2) OF THE SECURITIES
ACT AND SIMILAR EXEMPTIONS UNDER APPLICABLE STATE LAW.
A PURCHASER OF ANY INTEREST MUST BE PREPARED TO BEAR THE ECONOMIC
RISK OF THE INVESTMENT FOR AN INDEFINITE PERIOD OF TIME BECAUSE
THE INTERESTS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OR UNDER APPLICABLE STATE SECURITIES LAWS AND, THEREFORE, CANNOT
BE SOLD UNLESS THEY ARE SUBSEQUENTLY SO REGISTERED OR AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THERE IS NO
OBLIGATION OF THE ISSUER TO REGISTER THE INTERESTS UNDER THE
SECURITIES ACT OR APPLICABLE STATE LAW.
ARTICLE XIII OF THE PARTNERSHIP AGREEMENT PROVIDES FOR FURTHER
RESTRICTIONS ON TRANSFER OF THE INTERESTS.
LIMITED PARTNERSHIP AGREEMENT
OF
MID-GEORGIA COGEN L.P.,
A DELAWARE LIMITED PARTNERSHIP
THIS LIMITED PARTNERSHIP AGREEMENT (the "Agreement") of
Mid-Georgia Cogen L.P., a Delaware limited partnership (the
"Partnership"), is made and entered into as of the 15th day of
April, 1996, between NCP Houston Power Incorporated, a Delaware
corporation, as the general partner ("NCP Houston" or, in its
capacity as the general partner, the "General Partner") and NCP
Perry Incorporated, a Delaware corporation, as a limited partner
("NCP Perry") and NCP Houston, as a limited partner (together,
NCP Perry and NCP Houston, in its capacity as a limited partner,
are hereinafter referred to as the "Initial Limited Partners")
and any other limited partner (the "Additional Limited Partner")
admitted to the Partnership in accordance with the terms of this
Agreement (together with the Initial Limited Partners, the
"Limited Partners").
RECITALS
A. The Partnership was formed by NCP Houston, as a general
partner, and NCP Perry, as a limited partner, for the purpose of
developing, financing, constructing, owning (or leasing) and
operating a natural gas and distillate oil-fired electric
generating facility (the "Facility") to be located in Kathleen,
Georgia. No written partnership agreement was entered into at
the time of its formation, but a Certificate of Limited
Partnership was filed in the Office of the Secretary of State of
the State of Delaware on December 3, 1993 (the "Certificate").
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B. The General Partner and the Initial Limited Partners
desire to continue the Partnership on the terms and conditions
set forth herein and to enter into this Agreement to govern the
relationships of the parties hereto.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants set forth herein, the parties agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings set
forth below:
"Act" shall mean the Delaware Revised Uniform Limited
Partnership Act.
"Affiliate" shall mean, with respect to any Person, a Person
(including a subsidiary) which directly or indirectly controls,
or is controlled by, or is under common control with, such
Person.
"Capital Account" shall mean, with respect to any Partner,
the Capital Account maintained for such Partner in accordance
with the provisions of Article VI.
"Capital Contribution" shall mean, with respect to any
Partner, the amount of money and the initial gross asset value of
any property (other than money) contributed to the Partnership
with respect to the interest in the Partnership held by such
Partner.
"Cash Available for Distribution" shall mean, at any time,
such cash on hand and in financial institutions as in the General
Partner's sole and absolute discretion is then available for
distribution to the Partners after (i) all costs and expenses
incurred by or on behalf of the Partnership have been paid or
reimbursed and all current debts and obligations of the
Partnership have been paid or provisions therefor have been made,
(ii) reserves have been set aside by the General Partner (which
reserves shall be determined by the General Partner in its sole
and absolute discretion) and (iii) adequate provision has been
made for the satisfaction of debt service requirements (if any).
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"EI Fuels" shall mean EI Fuels Corporation, a Delaware
corporation.
"EI Services" shall mean EI Services, Inc., a Delaware
corporation.
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"Equity Contribution Agreement" shall mean that certain
Equity Contribution Agreement, dated as of April 15, 1996, among
NCP Houston, NCP Perry, the Partnership and The Bank of Nova
Scotia.
"Fuel Management Agreement" shall mean that certain Fuel
Management Agreement, dated as of February 19, 1996, between EI
Fuels and the Partnership, as amended by the letter amendment
thereto dated as of April 15, 1996.
"GDPIPD" shall mean the Gross Domestic Product Implicit
Price Deflator which shall have the value specified by the United
States Government Department of Commerce, Bureau of Economic
Analysis, in the Survey of Current Business as published in
January of each year and revised thereafter.
"Limited Partnership Interest" shall mean, as to any Limited
Partner, the proportion that the Partnership Interest of such
Limited Partner (as such) bears to the sum of the Partnership
Interests of all Partners.
"Loan Documents" shall have the same meaning as set forth in
the Project Loan Agreement.
"Majority in Interest of the Limited Partners" shall mean
the Limited Partners owning more than fifty (50%) percent of the
Partnership Interests then owned by all of the Limited Partners.
"Operations Management Agreement" shall mean that certain
Construction and Operations Management Agreement dated as of
April 15, 1996 between EI Services and the Partnership.
"Partnership Interest" shall mean the percentage interest in
the profits, losses and capital of the Partnership of each
Partner which is set forth opposite such Partner's name on
Exhibit A annexed hereto, as such percentage interest may be
amended from time to time.
"Partnership Property" shall mean the Partnership's right,
title and interest in all property of the Partnership, whether
real, personal or mixed, whether tangible or intangible.
"Partner" shall mean NCP Houston, NCP Perry and any other
Person admitted as a general or limited partner to the
Partnership.
"Person" shall mean the individual, partnership (whether
general or limited), business trust, joint venture, trust,
unincorporated association, corporation, limited liability
company, joint stock company, government authority or any other
legal entity of whatever nature.
"Project Documents" shall have the same meaning as set forth
in the Project Loan Agreement.
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"Project Loan Agreement" shall mean that certain Loan and
Reimbursement Agreement dated as of April 15, 1996, among
Partnership, The Bank of Nova Scotia and other parties thereto,
as it may be amended from time to time.
"Regulations" shall mean the Treasury Regulations
promulgated under the Code.
"Transaction Documents" shall have the same meaning as set
forth in the Project Loan Agreement.
ARTICLE II
FORMATION OF PARTNERSHIP
Section 2.1 Continuation. On December 3, 1993, NCP Houston
and NCP Perry caused the Certificate to be prepared and to be
filed in the Office of the Secretary of State of the State of
Delaware. The General Partner and the Initial Limited Partners
hereby ratify and approve the Certificate of Limited Partnership
of the Partnership effective as of the date of this Agreement.
The parties hereto acknowledge that the Partnership has been
formed under the Act, and that the Act shall govern the rights
and liabilities of the parties hereto, except as otherwise herein
expressly stated. As of the date hereof, NCP Houston is the sole
General Partner of the Partnership. As of the date hereof, NCP
Perry and NCP Houston are the sole limited partners of the
Partnership. The Partners expressly ratify and approve all prior
actions of the Partnership.
Section 2.2 Name. The name of the Partnership is "MID-GEORGIA
COGEN L.P." The business of the Partnership may be conducted
under any name chosen by the General Partner, in accordance with
the Act, and the General Partner may, in its sole discretion,
change the name of the Partnership from time to time. The
General Partner shall promptly notify the Limited Partners of any
such name change.
Section 2.3 Principal Office. The principal office of the
Partnership shall be located at One Upper Pond Road, Parsippany,
NJ 07054. From time to time, the General Partner may change the
location of such principal office and may establish such
additional offices as the General Partner may deem advisable, in
the General Partner's sole discretion. Notification of any such
change or additional offices shall be given to the Limited
Partners as soon as practicable.
ARTICLE III
FILING OF CERTIFICATES AND OTHER DOCUMENTS
Section 3.1 Additional Filings of Certificates. In addition
to the filing of the Certificate with the Delaware Secretary of
State, the General Partner shall cause the Certificate to be
filed in such other places as are or shall be required by
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applicable law. The General Partner shall also cause the
Certificate to be amended as and when required by applicable law,
and shall cause to be prepared and filed in the office of the
Delaware Secretary of State and in such other places as are or
shall be required by applicable law any certificate of
cancellation required to be filed by applicable law.
Section 3.2 Filing of Other Documents. From time to time, the
General Partner shall sign, acknowledge, swear, file and publish
any additional certificates, notices, statements or other
instruments, including without limitation, any appropriate
fictitious business name statements, as, when and where required
by any provisions of law governing the formation of the
Partnership or the conduct of its business or to enable the
Partnership to have a right, title and interest in real, personal
or mixed property in the Partnership's name.
ARTICLE IV
PURPOSES
Section 4.1 Purposes of Partnership. The purposes of the
Partnership are to: construct, finance, own and/or lease,
operate and manage the Facility; and carry on any activities
whatsoever that it may deem proper, convenient, incidental or
appropriate in connection with any of the foregoing purposes, or
that it may deem calculated, directly or indirectly, to improve
the interests of the Partnership in connection therewith.
Without limiting the generality of the foregoing, the Partnership
may (A) develop, own, invest, sell, transfer, convey, license,
mortgage, pledge, exchange, use, exhaust or otherwise dispose of
or deal with all of the property of every nature whatsoever of
the Partnership, (B) incur indebtedness, secured or unsecured,
for any of the purposes of the Partnership, (C) engage in any
activities in the opinion of the General Partner that are in
furtherance of said purposes and are not prohibited by law and
(D) execute, deliver and perform all such documents, writings,
agreements, certificates, acknowledgments, applications and
instruments incidental thereto, in each case as the same may be
amended, modified, supplemented or replaced from time to time.
ARTICLE V
TERM, FISCAL YEAR AND ACCOUNTING METHOD
Section 5.1 Term. The term of the Partnership commenced on
December 3, 1993, the date the Certificate was filed in the
office of the Delaware Secretary of State. Unless earlier
dissolved pursuant to Section 16.1 hereof or the provisions of
the Act, the Partnership shall be dissolved on April 14, 2046.
Section 5.2 Fiscal Year; Accounting Method. The Partnership's
fiscal year shall be the calendar year. The Partnership's books
and records shall be maintained on an accrual basis in accordance
with generally accepted accounting principles and tax accounting
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methods applicable to the Partnership.
ARTICLE VI
CONTRIBUTIONS AND CAPITAL
Section 6.1 Capital Contributions. (a) As of the date of this
Agreement, each Partner has contributed to the capital of the
Partnership the net amount set forth opposite such Partner's name
on Exhibit A attached hereto, and such amount has been credited
to such Partner's Capital Account.
(b) NCP Houston and NCP Perry each agree to make the
capital contributions to the Partnership in the amounts and at
the times as required under the Equity Contribution Agreement.
In the event that General Public Utilities Corporation ("GPU") is
required to meet the obligations of NCP Houston or NCP Perry, as
the case may be, under its Guarantee of the Equity Contribution
Agreement, dated as of April 15, 1996, such payments by GPU shall
be treated as satisfying the obligations of NCP Houston or NCP
Perry, as the case may be, under the Equity Contribution
Agreement and shall also be treated as capital contributions to
the Partnership by the respective guaranteed party.
(c) Except as set forth in this Section 6.1 or as
expressly required elsewhere in this Agreement, no Partner shall
have any further obligation to make capital contributions to the
Partnership.
Section 6.2 Capital Account. The Partnership shall maintain a
Capital Account for each Partner in accordance with the following
provisions:
(i) To each Partner's Capital Account there shall
be debited (x) the amount of cash and the gross asset value of
any Partnership Property distributed to such Partner pursuant to
any provision of this Agreement, (y) such Partner's distributive
share of Loss and any items in the nature of expenses or losses
which are specially allocated pursuant to Exhibit B hereof, and
(z) the amount of any liabilities of such Partner assumed by the
Partnership or which are secured by any property contributed by
such Partner to the Partnership.
(ii) To each Partner's Capital Account there shall
be credited (x) such Partner's Capital Contributions, (y) such
Partner's distributive share of Profits and any items in the
nature of income or gain which are specially allocated pursuant
to Exhibit B hereof, and (z) the amount of any Partnership
liabilities assumed by such Partner or which are secured by any
Property distributed to such Partner.
(iii) In the event all or a portion of a Partner's
Partnership Interest is transferred in accordance with the terms
of this Agreement, the transferee shall succeed to the Capital
Account of the transferor to the extent it relates to the
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transferred Partnership Interest.
(iv) In determining the amount of any liability
for purposes of clauses (i) and (ii) hereof, there shall be taken
into account Section 752(c) of the Code and any other applicable
provisions of the Code and Regulations.
The foregoing provisions and the other provisions of
this Agreement relating to the maintenance of Capital Accounts
are intended to comply with Regulations Section 1.704-1(b), and
shall be interpreted and applied in a manner consistent with such
Regulations. In the event the General Partner shall determine
that it is prudent to modify the manner in which the Capital
Accounts, or any debits or credits thereto (including without
limitation, debits or credits relating to liabilities which are
secured by contributed or distributed property or which are
assumed by the Partnership or Partners), are computed in order to
comply with such Regulations, the General Partner may make such
modification, provided that it is not reasonably expected to have
a material effect on the amounts distributable to any Partner
pursuant to Article XVI hereof upon the dissolution of the
Partnership. The General Partner also shall (i) make any
adjustments that are necessary or appropriate to maintain
equality between the Capital Accounts of the Partners and the
amount of Partnership capital reflected on the Partnership's
balance sheet, as computed for book purposes, in accordance with
Regulations Section 1.704-1(b)(2)(iv)(g) and (ii) make any
appropriate modifications in the event unanticipated events might
otherwise cause this Agreement not to comply with Regulations
Section 1.704-1(b).
Section 6.3 Withdrawal of Capital. No Partner shall have the
right to withdraw its Capital Contribution or to receive any
return of all or any portion of its Capital Contribution.
Section 6.4 Interest. Interest earned on funds of the
Partnership shall constitute Partnership Property and no Partner
shall be entitled to interest on any Capital Contribution, on any
Capital Account balance or on any undistributed or reinvested
Partnership Property.
Section 6.5 No Liability for Return of Capital. The General
Partner shall not be personally liable for the return of all or
any portion of the Capital Contribution of any Limited Partner;
the return of such Capital Contribution shall be made solely from
Partnership assets. Under the circumstances requiring a return
of any Capital Contribution pursuant to the terms of this
Agreement, no Partner shall have the right to demand or receive
property other than cash except as may be specifically provided
for herein.
Section 6.6 No Third Party Rights. Except as each Partner may
otherwise consent with respect to such Partner's own obligations
or rights, the obligations or rights of the Partnership or of
Partners to make or require any Capital Contribution under this
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Agreement shall not grant any rights to, or confer any benefits
upon, any Person who is not a Partner unless otherwise required
by applicable law.
ARTICLE VII
DISTRIBUTIONS; ALLOCATION OF PROFITS AND LOSSES
Section 7.1 Distributions. The Partnership intends to make
distributions of Cash Available for Distribution from time to
time (each such distribution, a "Distribution") as determined by
the General Partner, subject to the following: (i)
Distributions may be restricted or suspended when the General
Partner determines in its sole and absolute discretion that it is
in the best interest of the Partnership to do so; and (ii)
Distributions shall be limited by, or otherwise subject to, the
terms on which the Partnership has incurred any indebtedness
outstanding. Subject to the foregoing and to Article XVI hereof,
Cash Available for Distribution, if any, shall be distributed to
the Partners in proportion to the Partnership Interest of each
Partner.
Section 7.2 Form of Distribution. No Partner shall have any
right to receive any Partnership Property other than cash upon a
Distribution, except as specifically provided in this Agreement.
A Partner shall not be compelled to accept a distribution of
Partnership Property other than cash.
Section 7.3 Allocation of Profits and Losses. The profits and
losses and other items of the Partnership shall be allocated
among the Partners as set forth in Exhibit B attached hereto.
For purposes of this Agreement, profits and losses shall mean the
profits or losses, as the case may be, of the Partnership for
each fiscal year, or part thereof, as determined by the
Partnership's independent certified public accountants and
reported to the Partners on the Partnership's financial
statements; provided, however, that if, pursuant to Exhibit B,
certain items of income, gain, loss or expense are required to be
reported and allocated differently for tax purposes than for
financial reporting purposes, the Partnership shall allocate such
items among the Partners in accordance with Exhibit B in
preparing and filing its tax returns.
ARTICLE VIII
TAX MATTERS
Section 8.1 Considered a Partnership. The Partners intend
that, as defined in Section 7701(a)(2) of the Code, the
Partnership will be treated as a partnership for United States,
state and local income tax purposes. Specifically, each Partner
agrees not to make the election described in Section 761(a) of
the Code to be excluded from the application of the provisions of
Subchapter K. Moreover, each Partner further agrees not to make
an election to be excluded from the application of the
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partnership provisions of any applicable state taxation code or
statute.
Section 8.2 General Partner as Tax Matters Partner. The
General Partner is designated the tax matters partner ("Tax
Matters Partner") as provided in Section 6231(a)(7)(A) of the
Code and any comparable provision of state or local law. Except
as otherwise provided herein, this designation is effective only
for the purpose of activities performed under the Agreement
pursuant to the provisions of the Code and any comparable
provision of state or local law and shall be subject to the
following terms and conditions:
(a) The Tax Matters Partner shall keep the Partners
informed of all administrative and judicial proceedings for the
adjustment of Partnership items (as defined in Section 6231(a)(3)
of the Code and any comparable provision of state or local law)
at the Partnership level.
(b) If notice of an administrative proceeding under
Section 6223 of the Code (or any comparable provision of state or
local law) is received by a Partner (other than the Tax Matters
Partner), such Partner shall notify the Tax Matters Partner of
the treatment of any Partnership item on the Partner's income tax
return which is or may be inconsistent with the treatment of that
item on the Partnership return.
(c) No Partner (other than the Tax Matters Partner)
shall enter into any settlement agreement with any taxing
authority with respect to any Partnership item unless and until
such Partner shall have first notified the Tax Matters Partner in
writing of the proposed agreement and its terms at least thirty
(30) days prior to entering into such settlement.
(d) The Tax Matters Partner or any Partner shall
notify all Partners of any intention to file a petition with the
Tax Court for a redetermination of any Partnership item within
five (5) business days from the date of the Notice of Final
Partnership Administrative Adjustments (as defined in Section
6223 of the Code).
(e) The Tax Matters Partner may enter into one or more
agreements with the Internal Revenue Service with respect to the
tax treatment of any items of Partnership income, loss,
deductions or credits and, to the extent permitted under the
Code, may expressly argue that such agreement or agreements shall
bind all of the Partners.
Section 8.3 Preparation of Tax Returns. The Tax Matters
Partner shall cause the preparation and timely filing of United
States, state and local income tax returns on behalf of the
Partnership. Each Partner agrees to furnish the Tax Matters
Partner such information as each Partner may have which is
required for the proper and timely preparation of such returns.
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Section 8.4 Elections by Tax Matters Partner. The Tax Matters
Partner shall make the following elections under the Code and the
Regulations and any similar state and local statutes and
regulations:
(a) To adopt the calendar year as the annual
accounting period, unless otherwise required by law;
(b) To adopt the accrual method of accounting;
(c) To make such other elections as the Tax Matters
Partner may deem advisable to reduce Partnership taxable income
to the maximum extent possible and to take deductions in the
earliest taxable year possible in accordance with the Code and
the Regulations.
Section 8.5 Special Basis Adjustment. In connection with
Distributions or any assignment or transfer of a Partnership
Interest permitted by the terms of this Agreement, the General
Partner in its discretion may cause the Partnership, at the
written request of the transferor or the transferee with respect
to a transfer of a Partnership Interest, on behalf of the
Partnership and at the time and in the manner provided in the
Regulations, to make an election to adjust the basis of
Partnership Property in the manner provided in Sections 734(b),
743(b) and 754 of the Code. If such election is made with
respect to a transfer of a Partnership Interest, the transferee
shall pay all costs incurred by the Partnership in connection
therewith, including without limitation, reasonable attorneys'
and accountants' fees.
Section 8.6 Withholding. The General Partner shall comply
with any income tax withholding obligations that may be imposed
from time to time by the Code or any similar state and local
statutes with respect to distributions or income allocations to
Partners.
Section 8.7 Survival of Tax Provisions. The provisions of
this Agreement relating to tax matters shall survive the
termination of the Partnership and this Agreement and the
termination of any Partner's Partnership Interest in the
Partnership and shall remain binding on that Partner for the
period of time necessary to resolve with any Federal, state or
local tax authority any tax matters regarding the Partnership.
ARTICLE IX
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Books and Records. The Partnership's books and
records, together with copies of all of the documents and papers
pertaining to the business of the Partnership, shall be kept at
the principal place of business of the Partnership and at all
reasonable times upon reasonable notice shall be open to the
inspection of and may be copied and excerpts taken therefrom by
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any Partner, or such Partner's duly authorized representative,
provided that such inspection is made in good faith, at such
Partner's expense, and without any intent to damage the
Partnership or any of the Partners.
Section 9.2 Reports; Fiscal Year.
(a) Annual Reports. Within one hundred twenty (120)
days after the close of each fiscal year, the Partnership shall
provide its Partners with a balance sheet (including a statement
of such Partner's capital account), determined as of the close of
such year, and an income statement and a statement of changes in
financial position for such year, which balance sheet and
statements shall be accompanied by the report prepared by the
independent accountants engaged by the General Partner on behalf
of the Partnership.
(b) Quarterly Reports. The General Partner shall
prepare and forward to the Limited Partners quarterly unaudited
financial information summarizing the results of operations of
the Partnership's business for the three months then ended within
sixty (60) days after the end of each such period (excluding the
last fiscal quarter), the form and extent of which shall be in
the sole discretion of the General Partner.
Section 9.3 Tax Returns. The General Partner shall send to
each Partner, within one hundred twenty (120) days after the end
of each tax year, the information necessary for such Partner to
complete its Federal and state income tax or information returns.
Section 9.4 Bank Accounts. All funds of the Partnership shall
be deposited in the name of the Partnership in such bank accounts
or other accounts, including, in the sole discretion of the
General Partner, money market funds or other short term
investments, as shall be determined by the General Partner, or as
may be otherwise required under the Project Loan Agreement. All
withdrawals therefrom shall be made upon checks signed on behalf
of the Partnership by any officer of the General Partner or by
any Person or Persons authorized by the General Partner to sign
checks on behalf of the Partnership, except as otherwise may be
required under the Project Loan Agreement.
ARTICLE X
COMPENSATION AND REIMBURSEMENT OF GENERAL PARTNER
Section 10.1 Compensation. In addition to other amounts
payable to the General Partner hereunder, the General Partner
shall have the authority to cause the Partnership to pay or cause
to be paid:
(i) On the Closing Date (as defined in
the Project Loan Agreement), the amounts payable on the Closing
Date as set forth in the budget delivered pursuant to Section
8.1(w) of the Project Loan Agreement, including a development fee
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to the General Partner of not less than Three Million Five
Hundred Thousand ($3,500,000) Dollars.
(ii) Commencing on the Closing Date (as
defined in the Project Loan Agreement), an annual administrative
fee ("Administrative Fee") to the General Partner equal, in each
twelve month period, to the product of $50,000 and a fraction,
the numerator of which is the GDPIPD as of January 1st of such
year and the denominator of which the GDPIPD as of January 1st of
the year in which the Closing Date occurs. The Administrative
Fee shall be payable in advance in equal installments, beginning
on the Closing Date and thereafter on each March 31, June 30,
September 30 and December 31, during the term of this Agreement,
and shall be apportioned for periods of less than twelve months.
(iii) reimbursements from time to time
for all expenses incurred by the General Partner in performing
its duties hereunder including, but not limited to, travel costs,
costs incurred in the preparation of draw requests under, and
compliance with, the Project Loan Agreement and other Transaction
Documents, amounts payable to Persons employed pursuant to
Section 12.2(b)(iii) hereof (including allocable overhead) and
attorneys' fees, consultants' fees, accountants' fees and similar
fees related thereto.
ARTICLE XI
AUTHORIZED PAYMENTS
Section 11.1 Contractual Obligations. The General Partner
shall have the authority to cause the Partnership to pay, subject
to any restrictions contained in the Project Loan Agreement, all
amounts payable by the Partnership to (i) EI Services under the
Operations Management Agreement, (ii) EI Fuels under the Fuel
Management Agreement and (iii) Energy Initiatives Inc. under that
certain Front Load Letter of Credit Maintenance Agreement dated
as of April 15, 1996.
ARTICLE XII
RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER
Section 12.1 Management of the Partnership. The management and
control of the business and affairs of the Partnership shall be
vested solely in the General Partner, except as otherwise
expressly provided in this Agreement.
Section 12.2 Authority of the General Partner.
(a) The General Partner shall have all the
rights and powers herein conferred upon the General Partner and
all rights and powers of general partners as provided in the Act
and as otherwise provided by law, except to the extent such
powers may be expressly limited by this Agreement.
Notwithstanding anything to the contrary set forth herein, the
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General Partner shall have the right and power to cause the
Partnership to perform all of its obligations and to take all
action required by the Transaction Documents. Any action taken
by the General Partner on behalf of the Partnership shall
constitute the act of and serve to bind the Partnership.
(b) Except as otherwise expressly provided
in this Agreement, including, without limitation, the
restrictions set forth in Section 12.6 below, the General Partner
is hereby granted the right, power and authority to do on behalf
of the Partnership, and in its name, to the extent the General
Partner determines it to be appropriate, all things which, in its
good faith judgment, are necessary, proper or desirable to carry
out its duties and responsibilities in managing the business of
the Partnership, including, but not limited to, the right, power
and authority from time to time to do the following:
(i) to make borrowings under the
Transaction Documents, and, as contemplated and permitted thereby
as security for the Partnership's obligation thereunder, to
mortgage, pledge or otherwise encumber the assets of the
Partnership, all on such terms and conditions as the General
Partner in its discretion deems appropriate;
(ii) to cause to be paid all
amounts due and payable by the Partnership to any Person and to
collect all amounts due to the Partnership;
(iii) to employ such agents,
employees, managers, accountants, attorneys, consultants and
other Persons, including itself and its Affiliates (including,
without limitation, EI Services pursuant to the Operations
Management Agreement and EI Fuels pursuant to the Fuel Management
Agreement), as it deems necessary or appropriate to carry out the
business and affairs of the Partnership, whether or not any such
Persons so employed are Affiliates of any Partner, and to pay the
fees, expenses, salaries, wages and other compensation to such
Persons provided for in the agreement under which they are
employed;
(iv) to pay, extend, renew, modify,
adjust, submit to arbitration, prosecute, defend or compromise,
upon such terms as it may determine and upon such evidence as it
may deem sufficient, any obligation, suit, liability, cause of
action or claim, including taxes, either in favor of or against
the Partnership;
(v) subject only to such
limitations, if any, as are specifically set forth in this
Agreement, to pay any and all fees and to make any and all
expenditures which it, in its good faith judgment, deems
necessary or appropriate in connection with the organization of
the Partnership, the management of the affairs of the
Partnership, and the carrying out of its obligations and
responsibilities under this Agreement, and to enforce all rights
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of the Partnership;
(vi) to admit an assignee of a
Limited Partner's Interest to be a Limited Partner in the
Partnership, pursuant to and subject to the terms of Section
14.2;
(vii) to prosecute, protect and
defend or cause to be prosecuted, protected and defended all
patents, patent rights, tradenames, trademarks and servicemarks,
and all applications with respect thereto, which may be held by
the Partnership and to take all reasonable and necessary actions
to protect the secrecy of and the proprietary rights with respect
to any trade secret, know-how, secret processes or other
proprietary information and to prosecute and defend all rights of
the Partnership in connection therewith;
(viii) to enter into, execute,
acknowledge, deliver and perform any and all contracts,
agreements or other instruments necessary or appropriate to carry
on the business of the Partnership, including, without
limitation, the Transaction Documents (and all such contracts,
agreements and instruments as have been executed are hereby
ratified and approved) subject to the restrictions set forth in
Section 12.6(c);
(ix) to file any and all tax
returns that may be required by applicable law, to cause to be
paid any and all taxes, charges and assessments that may be
levied or assessed against or imposed upon the Partnership or any
of the assets of the Partnership.
(x) subject to Section 8.4 to
make, from time to time, such tax elections, as the General
Partner may deem necessary or desirable and to file any and all
tax returns that may be required by applicable law;
(xi) to enter into agreements and
engage in the transactions described in Section 10.1 with itself,
as provided in such Section, and to execute and deliver the
Operations Management Agreement and the Fuel Management
Agreement;
(xii) to establish and maintain one
or more accounts for the Partnership in such banks, and with such
brokers and other financial institutions as the General Partner
may from time to time designate;
(xiii) to make Distributions
periodically to the Partners in accordance with the provisions of
this Agreement;
(xiv) to sell, transfer, assign,
convey, lease or otherwise dispose of or deal with all or any
part of the Partnership Property or any interest or estate
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therein, subject to the restrictions set forth in Section
12.6(b);
(xv) to execute and deliver (either
singly or jointly) on behalf of the Partnership any documents
required to be executed and delivered by the Partnership pursuant
to the closing of the financing relating to the construction and
development of the Facility, including, but not limited to the
Transaction Documents and all documents and certificates required
or otherwise necessary or convenient to be executed in connection
with the transactions contemplated thereby;
(xvi) to acquire and enter into any
contract of insurance which the General Partner in its good faith
judgment deems to be necessary and proper for the protection of
the Partnership, for the conservation of Partnership Property or
for any purpose beneficial to the Partnership;
(xvii) to make any alterations,
improvements and repairs which are necessary to maintain the
Partnership Property in good operating condition;
(xviii) to invest, subject to any
restrictions contained in the Project Loan Agreement, any
Partnership funds not immediately needed in the conduct of the
Partnership's business in such investments as the General Partner
deems appropriate; and
(xix) to engage in any kind of
activity and to perform and carry out contracts of any kind
necessary to, or in connection with or convenient or incidental
to, the accomplishment of the purposes of the Partnership, so
long as such activities and contracts may be lawfully carried on
or performed by a partnership under the laws of the State of
Delaware.
(c) With respect to all of its obligations,
powers and responsibilities under this Agreement, the General
Partner is authorized to execute and deliver, for and on behalf
of the Partnership, such notes and other evidences of
indebtedness, contracts, agreements, assignments, deeds, leases,
loan agreements, mortgages and other security instruments and
agreements as it deems proper, all on such terms and conditions
as it deems proper, but subject to the limitations on the powers
of the General Partner contained below in Section 12.6(b) and
(c).
Section 12.3 Right of Public to Rely on Authority of General
Partner. At any time during the term of the Partnership, any
General Partner, individually, if there is more than one General
Partner, shall have the authority to act for and on behalf of the
General Partners collectively and the Partnership consistent with
the terms and conditions of this Agreement. No person shall be
required to determine a General Partner's authority to undertake
any act or execute any contract on behalf of the General Partners
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collectively (if more than one) and on behalf of the Partnership,
or to see to the application or distribution of revenues or
proceeds paid to a General Partner as a representative of the
Partnership. Any Limited Partner who acts in contravention of
this Agreement and thereby causes itself to be deemed a general
partner for liability purposes shall under no circumstances be
construed as receiving a grant of power to act or authority to
act in such capacity under this or any other provision of this
Partnership Agreement.
Section 12.4 Duties and Obligations of General Partner.
(a) The General Partner shall be responsible for the
general management, supervision, and administration of the
Partnership's business and affairs. The General Partner shall
also manage and supervise the construction and operation of the
Facility. The General Partner shall devote such time and effort
to the Partnership's business as shall be reasonably necessary or
appropriate to perform its duties as specified in the preceding
sentence, and the General Partner shall not engage in any
business other than the business of the Partnership.
(b) Neither being a party to this Agreement nor
participating in the implementation and development of the
Facility shall in any way restrain any Partner or its officers,
directors, shareholders, employees or Affiliates from engaging in
any other present or future business activities, whether or not
any such activity is competitive with the business of the
Partnership or the Facility, or shall in any way preclude or
restrict any of them from entering into a joint venture,
partnership or other business arrangement with one or more
Partners, whether or not such venture, partnership or arrangement
is competitive with the business of the Partnership or the
Facility.
No Partner or its officers, directors,
shareholders, employees or Affiliates shall be obligated or bound
to offer or present to any other Partner or the Partnership any
business opportunity offered to such Partner, officers,
directors, shareholders, employees or Affiliates, whether or not
such business opportunity is competitive with the business of the
Partnership or the Facility.
Section 12.5 Liability of the General Partner; Indemnification.
The General Partner shall not be liable, responsible or
accountable in damages or otherwise to the Partnership, to any of
the Limited Partners or to any other Person for any act or
omission performed or omitted in good faith by it as General
Partner on behalf of the Partnership or the Limited Partners, as
the case may be, and in a manner reasonably believed by the
General Partner to be within the scope of the authority granted
to it by this Agreement and in the best interests of the
Partnership, except when such action or failure to act
constitutes gross negligence or willful misconduct. The General
Partner shall be indemnified by the Partnership against any
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liability, loss or expense, including, without limitation,
reasonable attorney's fees, litigation costs, settlement amounts
and judgments, as and when incurred, it may incur for any act
performed by it in good faith and reasonably believed by it to be
within the scope of the authority granted to it by this Agreement
and in the best interests of the Partnership; provided, however,
that no indemnification may be made in respect of any claim,
issue or matter as to which the General Partner shall have been
adjudged by a court having jurisdiction to be liable for gross
negligence or willful misconduct in the performance of its duties
hereunder unless, and only to the extent that, the court in which
such action or suit has been brought determines that in view of
all the circumstances of the case, despite such adjudication, the
General Partner is fairly and reasonably entitled to
indemnification for those expenses which the court deems proper.
Any indemnity under this Section 12.5 shall be paid from, and
only to the extent of, the Partnership Property, and no Limited
Partner shall have any personal liability on account thereof.
The obligations of the Partnership to the General
Partner under this Section 12.5 are subordinate, subject and made
junior in right of payment to the rights under the Project Loan
Agreement of the Lenders, as defined therein; provided, however,
that so long as no Event of Default shall have occurred and be
continuing under the Project Loan Agreement, the Partnership may
make such payments to the General Partner as may be required
under this Section 11.5.
Section 12.6 Restrictions.
(a) Notwithstanding anything herein to the contrary,
the General Partner shall not borrow money on behalf of the
Partnership for other than a Partnership purpose, it being
understood without limitation that any borrowings made under the
Transaction Documents shall be deemed to be made for Partnership
purposes.
(b) The General Partner shall not cause the
Partnership to sell all or substantially all of the Partnership
Property, except upon obtaining the consent of a Majority in
Interest of the Limited Partners or in accordance with the
procedures described in Article XVI with respect to the
dissolution of the Partnership, if applicable.
(c) Except as otherwise provided herein, without the
consent of a Majority in Interest of the Limited Partners, the
General Partner shall have no authority to:
(i) do any act in contravention of this
Agreement or the Partnership's Certificate of Limited
Partnership, as such document may be amended from time to time;
(ii) do any act which would make it
impossible to carry on the ordinary business of the Partnership;
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(iii) possess any Partnership Property,
or assign rights in specific Partnership Property for other than
a Partnership purpose;
(iv) borrow from the Partnership;
(v) affirmatively represent to any
Person that any Limited Partner is a general partner of the
Partnership other than NCP Houston in its capacity as General
Partner;
(vi) except as provided in Article XIV,
admit a Person as a Limited Partner or as a General Partner;
(vii) change the nature of the
Partnership's business;
(viii) transfer the Facility;
(ix) cause or permit the Partnership to
waive any provisions of its material agreements, including but
not limited to the Project Loan Agreement, the Power Purchase
Agreement (as defined in the Project Loan Agreement), the
Operations Management Agreement or the Fuel Management Agreement
if such waiver would have the effect of (1) decreasing by a
material amount the amount of payments to be made by Georgia
Power Company thereunder to the Partnership under the Power
Purchase Agreement, (2) relieving Georgia Power Company by a
material amount of its obligations to accept and pay for all
electric energy and capacity delivered to it under the Power
Purchase Agreement or (3) diminishing the term of the Power
Purchase Agreement; or
(x) cause or permit the Partnership to
modify, amend or waive any provisions of its material agreements,
including but not limited to the Project Loan Agreement, the
Power Purchase Agreement (as defined in the Project Loan
Agreement), the Operations Management Agreement, the Fuel
Management Agreement, any other Loan Documents or any Project
Document or enter into any new Project Documents, if such
modification, amendment or waiver is expected to have a material
adverse effect on the Facility.
Section 12.7 Withdrawal of General Partner. The General
Partner shall not voluntarily withdraw from the Partnership as a
General Partner, and no purported withdrawal shall be effective,
unless (i) a substitute General Partner shall have been selected
as provided in Article XV, and (ii) the General Partner shall
have delivered to the Partnership an opinion of the Partnership's
counsel that such withdrawal and appointment of such successor
General Partner or Partners would not (x) subject the Partnership
to Federal income taxation as an association taxable as a
corporation and not as a partnership or (y) result in the loss of
the Project's status as a "qualifying cogeneration facility"
under Public Utility Regulatory Policies Act ("PURPA") or any
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applicable successor provision (if the Facility then is not
required to be a qualifying cogeneration facility under the
Project Loan Agreement), unless otherwise permitted under the
Loan Documents. The General Partner may not dispose of its
Partnership Interest held by it as a General Partner except to
its successor general partner or partners.
ARTICLE XIII
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
Section 13.1 No Right to Participate in Management. The
Limited Partners shall not, and shall have no right to,
participate in the control, conduct or operation of the
Partnership or the Partnership's business, and shall have no
right or authority to act for or bind the Partnership; provided,
however, that a Limited Partner may be selected as the person to
act for and bind the Partnership during the winding up period
following dissolution of the Partnership pursuant to, and subject
to the conditions of, Section 16.3(a) hereof in the event that
the General Partner is no longer a general partner of the
Partnership and no Substitute General Partner exists. A Limited
Partner shall not be deemed to participate in the management or
control of the Partnership solely by virtue of consulting with
and advising the General Partner with respect to the business of
the Partnership or exercising any rights or powers which the
Limited Partners are permitted to exercise pursuant to this
Agreement and Section 17-303 of the Act.
Section 13.2 Limited Liability. No Limited Partner or
assignee of a Limited Partner shall have any liability whatsoever
for any debts, liabilities or other obligations of the
Partnership to the fullest extent provided by the Act, beyond the
amount of such Limited Partner's Capital Contribution pursuant to
Section 6.1 hereof; provided, however, that each Limited Partner
may be required to return any Distributions made to such Limited
Partner (with interest thereon) in violation of Section 17-607 of
the Act. A Limited Partner, as such, shall not be personally
liable for any obligations of the Partnership, and shall not be
obligated to make loans to the Partnership.
Section 13.3 Matters Subject to Vote. The Limited Partners
shall not be entitled to vote on, or consent to, any matters
except as expressly provided for in this Agreement or as
otherwise required by law.
Section 13.4 Call of Meetings and Written Consents. The
General Partner may call a meeting of the Limited Partners for a
vote, or may call for a vote or consent without a meeting. The
General Partner shall call a meeting of the Limited Partners for
a vote, or shall call for a vote or consent without a meeting,
within twenty (20) days after receiving a written request from
Limited Partners holding a majority or more of the aggregate
Limited Partnership Interests for a vote or consent with respect
to any matter as to which any or all of the Limited Partners may
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vote or consent pursuant to Section 13.3 hereof. The General
Partner's notice of a meeting shall state the time and place of
the meeting, and the general nature of the business to be
transacted; if no meeting is called, the General Partner's notice
shall state the matter or matters as to which a vote or consent
is being sought and the date on which such votes or consents
shall be counted. The date of the meeting, or the date on which
votes or consents shall be counted, shall be no less than ten
(10) nor more than sixty (60) days after the mailing of the
General Partner's notice. The meeting, if any, shall be held at
the Partnership's principal place of business or at such other at
location as the General Partner shall state in the notice. The
Partnership shall bear all expenses of the notification and
meeting or vote or consent.
Section 13.5 Manner of Voting. Each Limited Partner shall be
entitled to cast votes (a) at a meeting, in person, by written
proxy or by a signed writing directing the manner in which the
vote is to be cast, which writing must be received by the General
Partner before the meeting or (b) without a meeting, by a signed
writing indicating the matter as to which the vote or consent is
effective and, if a vote, whether it is in support of or
opposition to such matter, which writing must be received by the
General Partner at or before the time and date on which the votes
or consents are to be counted. Only the votes or consents of
Limited Partners of record on the date on which the General
Partner sends its notice, whether at a meeting or otherwise,
shall be counted. The General Partner shall be entitled to vote
its Limited Partnership Interest, if any, for all matters in the
same fashion as other Limited Partners. If a proposal is
approved by an action of the Limited Partners taken without a
meeting, the written vote or consent shall set forth the action
to be taken and shall be signed by Limited Partners owning, in
the aggregate, not less than the minimum percentage of the
aggregate Limited Partnership Interest that would be necessary to
authorize or take such action at a meeting at which all the
Limited Partners were present and voted.
Section 13.6 Limitations. No Limited Partner shall have the
power to: (a) withdraw from the Partnership or reduce its
contribution to the capital of the Partnership; (b) except as may
be otherwise required by law, cause the dissolution and
termination of the Partnership by court decree or otherwise; or
(c) receive property other than cash in return for such Limited
Partner's Capital Contribution.
Section 13.7 Compensation and Reimbursement. No salary or
other compensation shall be paid to any Limited Partner.
ARTICLE XIV
ASSIGNMENT OF PARTNERSHIP INTERESTS
Section 14.1 Restrictions on Transfers. No Partner shall
voluntarily, involuntarily or by operation of law, convey,
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exchange, assign, mortgage, encumber, hypothecate, pledge, sell
or otherwise transfer (each a "Transfer") all or any portion of
its interest in the Partnership or enter into any agreement to do
so, except in accordance with the provisions of this Article XIV.
Any attempted Transfer in violation of the terms of this Article
XIV shall be deemed to be null and void and of no effect.
No Partner may Transfer any portion of its interest in the
Partnership unless (a) the Partnership shall have received an
instrument, duly executed by the transferring Limited Partner, in
a form satisfactory to the General Partner, which sets forth the
transferee of the Limited Partnership Interest which is the
subject of the Transfer, (b) the Partnership shall have received
an opinion from counsel reasonably acceptable to the Partnership
that (i) such Transfer shall not result in the Partnership being
treated as an association taxable as a corporation under the
Code, (ii) such Transfer would not result in the Facility ceasing
to be a "qualifying cogeneration facility" under PURPA (if the
Facility then is a qualifying cogeneration facility) or an exempt
wholesale generator ("EWG") (if the Partnership then is an EWG),
unless otherwise permitted under the Project Loan Agreement,
(iii) such Transfer, when added to any previous Transfer by any
other Partner within a twelve (12) month period, would not cause
the Partnership to be considered to be terminated under Section
708(b) of the Code, unless such Transfer has received the
unanimous consent of the Partners, and (iv) such Transfer would
not cause a Default (as defined in the Project Loan Agreement),
and (c) the transferee of the Limited Partnership Interest agrees
to be bound by the provisions of this Article XIV and (d) the
transferee of the Limited Partnership Interest shall have paid
all of the fees and expenses (including reasonable attorneys'
fees) incurred by the Partnership and the General Partner in
effecting the Transfer and, if requested, the substitution
described in Section 14.3.
Section 14.2 Rights of Assignee of Limited Partnership. An
assignee of a Partner's Limited Partnership Interest or a portion
thereof (an "Assignee") who does not become a Substitute Limited
Partner in accordance with the provisions of Section 14.3 hereof
shall not have any other rights of a Partner other than the right
to the transferring Limited Partner's share of Profits and Losses
and Distributions. If the General Partner receives a notice of
Transfer, as defined in Section 14.1, the Assignee shall become
entitled to receive the transferring Limited Partner's share of
Profits and Losses and Distributions with respect to the Limited
Partnership Interest so transferred and shall succeed to the
transferring Limited Partner's Capital Account with respect to
the Limited Partnership Interest so transferred as of the close
of the month all the conditions set forth in Section 14.1 are
satisfied; provided, however, that an Assignee shall become a
Substitute Limited Partner only upon the satisfaction of the
conditions for substitution set forth in Section 14.3 hereof.
Section 14.3 Substitution of Assignee of Limited Partner. An
Assignee of all or any part of a Partner's Limited Partnership
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Interest shall become a substitute limited partner ("Substitute
Limited Partner") only if each of the following conditions are
met:
(a) The General Partner consents thereto, which
consent shall be in the sole and absolute discretion of the
General Partner;
(b) The Assignee shall consent in writing, in a
form prepared by or satisfactory to the General Partner, to be
bound by all of the terms and conditions of this Agreement, and
to assume all of the obligations of the transferring Limited
Partner hereunder;
(c) The Assignee shall have certified in writing
to the General Partner that the transferring Limited Partner
intends that the Assignee become a Substitute Limited Partner;
and
(e) All requirements of the Act, including any
amendment of the Certificate required by the Act, shall have been
completed by the Assignee, the transferring Limited Partner and
the Partnership, as the case may be.
The admission of a Substitute Limited Partner shall be
effective as of the close of the month in which all of the
conditions specified in this Section 14.3 have been satisfied.
A Substitute General Partner may be admitted only
pursuant to the provisions of Article XV or Section 12.8 hereof.
Section 14.4 Consent to Assignment. Notwithstanding anything
to the contrary set forth herein, each Partner hereby consents to
(1) the pledge by the General Partner of all of its Partnership
Interest to The Bank of Nova Scotia, as Security Agent, pursuant
to the General and Limited Partner Interest Pledge Agreement (as
defined in the Project Loan Agreement), (2) the pledge by each
Initial Limited Partner of all of its Partnership Interest to The
Bank of Nova Scotia, as Security Agent, pursuant to the Limited
Partner Interest Pledge Agreement (as defined in the Project Loan
Agreement) (the General Partner Interest Pledge Agreement and the
Limited Partner Interest Pledge Agreement being collectively
referred to as the "Pledge Agreements"), (3) the exercise by the
Security Agent, upon the occurrence of an event of default under
the Pledge Agreements, of the rights and remedies set forth under
the Pledge Agreements, including, without limitation, (A) the
right to exercise the voting and consensual rights and other
powers of the assigning Partner as set forth in this Agreement to
the extent provided in the Pledge Agreements, and (B) the right
to foreclose upon the collateral subject to the security
interests granted under the Pledge Agreements and to cause the
Security Agent or any third party purchaser of such collateral to
become a substitute General Partner or a substitute Limited
Partner, as the case may be, to the extent provided in the Pledge
Agreements without complying with the requirements of Section
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14.1, 14.3 or 15.3 of this Agreement, (4) any transfer by any
nominee, affiliate or designee of the Security Agent or any
successor thereto that has become a Substituted Limited Partner
or substitute General Partner, and (5) the requirement set forth
in Section 5(j) of the Pledge Agreements that all transfers of
existing Partnership Interests, and all issuances of new or
substitute Partnership Interests, be subject to the pledge in
favor of the Security Agent.
Section 14.5 Indemnification. Each Limited Partner hereby
agrees that it shall indemnify and hold harmless the Partnership,
and in the case of an attempted Transfer by such Partner, the
General Partner, from and against any and all losses, costs,
liabilities or economic disadvantages which result, directly or
indirectly, from any attempt by such Partner to make a Transfer
which does not comply with the requirements of this Article XIV.
Section 14.6 Bankruptcy of a Limited Partner. In the event of
the bankruptcy of a Limited Partner, the trustee, conservator,
administrator, receiver or other successor in interest of such
Limited Partner shall have all the rights of such Limited Partner
for the purpose of settling or managing its affairs and such
power as such Limited Partner possessed to assign all or a part
of its Limited Partnership Interest and to join with the assignee
in satisfying the conditions precedent to such assignee becoming
a Substitute Limited Partner. The bankruptcy of a Limited
Partner shall not dissolve the Partnership. A Limited Partner's
successor in interest shall be liable for all obligations of the
Limited Partner hereunder. In no event, however, shall such
successor in interest become a Substitute Limited Partner, except
in accordance with Section 14.3 hereof.
Section 14.7 Further Assignments. An Assignee of all or any
portion of a Partner's Partnership Interest pursuant to the terms
hereof, who desires to make a further Transfer of such interest,
shall be subject to all of the relevant provisions of this
Article XIV to the same extent and in the same manner as the
Partner making the initial Transfer of a Partnership Interest.
Section 14.8 Additional Limited Partner. No additional limited
partner shall be admitted to the Partnership pursuant to the
creation of additional Limited Partnership Interests in the
Partnership without the approval of the General Partner.
ARTICLE XV
REMOVAL, WITHDRAWAL AND REPLACEMENT OF THE GENERAL PARTNER
Section 15.1 Voluntary Withdrawal. So long as the General
Partner has given written notice to the other Partners and a
Person has been selected and has agreed to become a Substitute
General Partner in accordance with Sections 15.2 and 15.3 hereof,
the General Partner may voluntarily withdraw from the Partnership
as the general partner effective ninety (90) days after written
notice (the "Withdrawal Notice") to the Limited Partners (the
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"Withdrawal Date"); provided, however, that (i) such Withdrawal
Date may not be prior to the date upon which a Person has agreed
to become a Substitute General Partner in accordance with the
terms hereof and (ii) so long as the Loan Documents remain in
effect, the General Partner may not withdraw from the
Partnership.
Section 15.2 Selection of a Substitute General Partner. The
vote of a Majority in Interest of the Limited Partners is
necessary to select a Substitute General Partner; provided,
however, that so long as the Loan Documents remain in effect, the
selection of a Substitute General Partner shall be subject to the
approval requirements therein.
Section 15.3 Substitution. A Person shall become a Substitute
General Partner and assume the rights, powers and
responsibilities of the General Partner as provided in this
Agreement when such Person delivers to the Partners a written
agreement (the "Substitute General Partner Agreement") executed
by such Person within ten (10) days after such Person's selection
as a proposed Substitute General Partner, which Substitute
General Partner Agreement shall set forth the following
agreements by such Person: (a) to be bound by this Agreement;
(b) to assume the rights, powers and responsibilities of the
General Partner pursuant to the terms of this Agreement accruing
after such selection; (c) to amend this Agreement to reflect the
withdrawal of the withdrawn General Partner and the appointment
of such Substitute General Partner; (d) to perform the duties
and the responsibilities of the General Partner; and (e) to
record, file and publish any certificates or documents as may be
appropriate to evidence or effect such withdrawal, substitution
and release.
Section 15.4 Conversion or Purchase of the General Partner's
Interest. The Partnership shall not make any payment to a
withdrawing General Partner in respect of its interest in the
Partnership. Instead, within thirty (30) days after the
Withdrawal Date, if the withdrawing General Partner does not
assign its General Partner Partnership Interest to a Substitute
General Partner, the General Partner Partnership Interest of the
withdrawing General Partner in the Partnership as of the
Withdrawal Date shall be converted into an interest as a
transferee of a Limited Partner that does not become a Substitute
Limited Partner.
ARTICLE XVI
DISSOLUTION, LIQUIDATION AND
TERMINATION OF THE PARTNERSHIP
Section 16.1 Events of Dissolution. The Partnership shall
dissolve and commence winding up and liquidating upon the first
to occur of any of the following:
(a) The date specified in Section 5.1 hereof;
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(b) When all of the Partners have given their
written consent to dissolve the Partnership;
(c) The removal or withdrawal of the General
Partner, unless either (i) there is at least one other general
partner and that general partner elects to continue the business
of the Partnership or (ii) if there is no other general partner
or there is a general partner but such general partner does not
elect to continue the business of the Partnership, then, within
ninety (90) days after the withdrawal, all Limited Partners agree
in writing to continue the business of the Partnership and a
Substitute General Partner is elected and admitted pursuant to
the provisions of Article XV hereof;
(d) The sale or other disposition of all or
substantially all of the Facility;
(e) The continued conduct of the business of the
Partnership becomes illegal;
(f) The General Partner files a voluntary
petition in bankruptcy or is adjudged a bankrupt (each a "GP
Bankruptcy Event") unless a Substitute General Partner is
selected and admitted pursuant to the provisions of Article XV
and all the other Partners agree to continue the Partnership
within ninety (90) days after the GP Bankruptcy Event;
(g) The entry of a judicial decree of dissolution
of the General Partner or the Partnership; provided, however,
that the involuntary dissolution of the General Partner shall not
cause a dissolution of the Partnership if the General Partner is
reinstated within ninety (90) days after such involuntary
dissolution; or
(h) Any event requiring dissolution of the
Partnership pursuant to Section 17-801(4) of the Act.
Section 16.2 Right to Continue the Partnership Business. Upon
the occurrence of any event which causes there to be no General
Partner, Limited Partners holding all of the Limited Partner
Interests shall have the right, but not the obligation,
exercisable within ninety (90) days from such event, to elect to
continue the Partnership's business provided that such election
shall not be effective unless within such ninety (90) day period,
a Majority in Interest of the Limited Partners appoints a
Substitute General Partner in accordance with the terms of this
Agreement.
Section 16.3 Liquidation.
(a) Except as otherwise set forth in Section 16.2
hereof, upon dissolution of the Partnership, the General Partner
shall take (or cause to be taken) a full accounting of the
Partnership's assets and liabilities as of the date of such
dissolution and, subject to the right of the General Partner or
-25-<PAGE>
its successor to continue the business of the Partnership for the
purpose of winding up its affairs, the General Partner shall
proceed with reasonable promptness to liquidate the Partnership's
assets (including, without limitation, by way of the sale,
assignment, exchange, lease, sublease or other disposition of any
or all of the assets of the Partnership) and to terminate its
business; provided, however, that the assets of the Partnership
which are, in the opinion of the General Partner, suitable for
distribution in kind, may, in the sole and absolute discretion of
the General Partner, be distributed in kind to the extent that
the liquidation thereof is not necessary to satisfy the
requirements of clauses (i), (ii) and (iii) below. In the event
of the withdrawal, dissolution or bankruptcy of the General
Partner which causes the dissolution of the Partnership under
Section 16.1, the winding up of the affairs of the Partnership
and the liquidation of its assets shall be conducted by such
Person as may be selected by a Majority in Interest of the
Limited Partners, which Person is hereby authorized to do any and
all acts and things authorized by law for these purposes and is
entitled to the compensation approved by a court of competent
jurisdiction.
The cash proceeds from such liquidation shall be
applied in the following order:
(i) First, to the payment of all taxes,
debts and other obligations and liabilities of the Partnership,
including amounts owing to Partners, and all necessary expenses
of liquidation thereof;
(ii) Second, to the establishing of
reserves deemed reasonably necessary to satisfy contingent
liabilities or obligations of the Partnership or of the General
Partner arising out of or in connection with the Partnership; and
(iii) Third, to the Partners, in
accordance with the relative amounts of the positive balances (if
any) in their respective Capital Accounts, after giving effect to
all contributions, distributions and allocations for all periods.
(b) Except as provided above, the General Partner
shall administer the liquidation of the Partnership and the
termination of its business but shall receive no compensation.
The General Partner shall be allowed a reasonable time for the
orderly liquidation of the Partnership's assets and the discharge
of liabilities to creditors so as to minimize losses resulting
from the liquidation of the Partnership's assets.
Section 16.4 Termination. Upon compliance with the foregoing,
the General Partner or other Person winding up the affairs of the
Partnership as permitted hereunder, as the case may be, shall
file or cause to be filed a certificate of cancellation of the
Partnership, as provided in Section 17-203 of the Act, and the
Partnership thereupon shall be terminated.
-26-<PAGE>
Section 16.5 Compliance With Timing Requirements of
Regulations. In the event the Partnership is "liquidated" within
the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) of the
Code, distributions shall be made pursuant to this Article XVI to
the Partners who have positive Capital Accounts in compliance
with Regulations Section 1.704-1(b)(2)(ii)(b)(2) of the Code. If
any Partner has a deficit balance in his Capital Account (after
giving effect to all contributions, distributions and allocations
for all taxable years, including the year during which such
liquidation occurs), such Partner shall have no obligation to
make any contribution to the capital of the Partnership with
respect to such deficit, and such deficit shall not be considered
a debt owed to the Partnership or to any other Person for any
purpose whatsoever. In the discretion of the General Partner, a
pro rata portion of the distributions that would otherwise be
made to the Partners pursuant to this Article XVI may be:
(a) distributed to a trust established for the
benefit of the Partners for the purposes of liquidating
Partnership assets, collecting amounts owed to the Partnership
and paying any contingent or unforeseen liabilities or
obligations of the Partnership or of the General Partner arising
out of or in connection with the Partnership. The assets of any
such trust shall be distributed to the Partners from time to
time, in the reasonable discretion of the General Partner, in the
same proportions as the amount distributed to such trust by the
Partnership would otherwise have been distributed to the Partners
pursuant to this Agreement; or
(b) withheld to provide a reasonable reserve for
Partnership liabilities (contingent or otherwise) and to reflect
the unrealized portion of any installment obligations owed to the
Partnership, provided that such withheld amounts shall be
distributed to the Partners as soon as practicable.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.1 Amendments.
(a) Except for amendments made in accordance with
Sections 17.1(b) hereof, this Agreement may be amended only with
the written consent of the General Partner and a Majority in
Interest of the Limited Partners.
(b) In addition to any amendments otherwise
authorized herein, amendments may be made to this Agreement by
the General Partner, acting without the consent of any Limited
Partner: (i) to elect that the Partnership be governed by any
successor statute of the State of Delaware governing limited
partnerships; (ii) to substitute or admit any additional Limited
Partners to the extent allowed by this Agreement; (iii) to effect
changes of a ministerial nature that do not materially and
adversely affect the rights of the Partners; (iv) to cure any
-27-<PAGE>
ambiguity, to correct or supplement any provision herein that may
be inconsistent with any other provision herein, or to make any
other provision with respect to matters or questions arising
under this Agreement that will not be inconsistent with the
provisions of this Agreement; and (v) to preserve the
Partnership's status as a Partnership and not as an association
taxable as a corporation for federal income tax purposes.
Section 17.2 Notices. Any notice, payment, demand or
communication required or permitted to be given by the
Partnership to a Partner pursuant any provision of this Agreement
shall be deemed to have been sufficiently given or served for all
purposes if delivered personally to the party to whom the same is
directed by a recognized national or local courier service (in
which case notice shall be effective upon receipt) or five
business days after deposit in the United States mail, registered
or certified, postage and charges prepaid, addressed to the other
Partner, as applicable at the address set forth opposite such
Partner's name on the signature page hereto. A Partner may
change his or her address for purposes of notice by a writing
sent in accordance with this Section 17.2 to the General Partner.
Section 17.3 Power of Attorney. Each Limited Partner hereby
makes, constitutes and appoints the General Partner (and each
such Person appointed by the General Partner), with full power of
substitution, such Limited Partner's true and lawful attorney,
for it and in its name, place, stead and benefit, to sign,
execute, swear, file and record the Certificate, and, subject to
any applicable consent requirements contained in this Agreement,
to sign, execute, certify, swear, acknowledge, file and record
any other documents, instruments and conveyances as may be
necessary or appropriate to carry out the provisions or purposes
of this Agreement or which may be required of the Partnership in
Delaware or any other applicable jurisdiction, or by the Act, or
by Federal or state securities laws or other applicable laws,
including, without limitation, amendments to or cancellation and
termination of the Certificate and fictitious business name
statements. The foregoing grant of authority is hereby declared
to be irrevocable and a power coupled with an interest and shall
survive the bankruptcy or dissolution of any Person hereby giving
such power and the transfer or assignment of the whole or any
portion of the Limited Partnership Interest of such Person;
provided, however, that in the event of a transfer by such
Limited Partner of all of such Limited Partner's Limited
Partnership Interest, the foregoing power of attorney of the
transferor Limited Partner shall survive such transfer until such
time, if any, as the transferee shall have been duly admitted to
the Partnership as a Substitute Limited Partner.
Section 17.4 Severability. If any provision of this Agreement
shall be invalid, illegal or unenforceable in any applicable
jurisdiction, the validity, legality and enforceability of the
remaining provisions, or of such provision in any other
jurisdiction, shall not in any way be affected or impaired
thereby.
-28-<PAGE>
Section 17.5 Application of Delaware Law. This Agreement, and
the application or interpretation hereof, shall be governed,
construed and enforced in accordance with the laws of the State
of Delaware.
Section 17.6 Sole and Absolute Discretion. Except as
otherwise provided in this Agreement, all actions which the
General Partner may take and all determinations which the General
Partner may make pursuant to this Agreement may be taken and made
at the sole and absolute discretion of such General Partner.
Section 17.7 Confidential Information. Each of the Partners
shall treat and maintain as confidential any and all confidential
and/or proprietary information, including without limitation
financial information, technical information and know-how and
development plans and strategies, received from or pertaining to
any other Partner or any Affiliate thereof, the Partnership or
the Facility; provided, however, that the foregoing obligation
shall not apply to information which (a) was or becomes known by
such Partner or was or is generally available to the public
through no breach of this Agreement by any Partner, (b) was or is
disclosed to the public by a third party having the right to do
so, or (c) where such disclosure was required by law, regulatory
authority or judicial order.
Section 17.8 Headings. Headings at the beginning of each
Article and Section of this Agreement are solely for convenience
and are not a part of this Agreement.
Section 17.9 Entire Agreement. This Agreement contains the
entire agreement of the parties relating to the subject matter
hereof.
Section 17.10 Gender and Number. With respect to words used in
this Agreement, the singular form shall include the plural form,
the masculine gender shall include the feminine or neuter gender,
and vice versa, as the context requires.
Section 17.11 Successors. This Agreement shall be binding on
and inure to the benefit of the respective successors, permitted
assigns and personal representatives of the parties hereto,
except to the extent of any contrary provision of this Agreement.
Section 17.12 Variation of Pronouns. All pronouns and any
variations thereof shall be deemed to refer to masculine,
feminine or neuter, singular or plural, as the identity of the
Person or Persons may require.
Section 17.13 Attorneys' Fees. If any legal action or
arbitration or other proceeding is brought by any party hereto
for the enforcement of this Agreement or as a result of a breach,
default or misrepresentation in connection with any of the
provisions of this Agreement, any successful or prevailing party
shall be entitled to recover from the party that does not prevail
reasonable attorneys' fees and other costs incurred by the
-29-<PAGE>
prevailing party in such action or proceeding, in addition to any
other relief to which that party may be entitled.
Section 17.14 Further Action. Each Partner, upon the request of
the General Partner, agrees to perform all further acts and
execute, acknowledge and deliver any documents which may be
reasonably necessary, appropriate or desirable to carry out the
provisions of this Agreement.
Section 17.15 Counterparts. This Agreement may be executed in
counterparts by each of the Partners, all of which taken together
shall be deemed one original.
Section 17.16 Covenant to Sign Documents. Each Partner shall
execute, with acknowledgment or affidavit if required, all
documents and writings reasonably necessary or expedient in the
creation of the Partnership and the achievement of its purpose
and the implementation of the provisions of this Agreement. Each
Partner hereby represents and warrants that the individual
signing this Agreement on its behalf is duly authorized to
execute and deliver this Agreement on behalf of such Partner.
Section 17.17 No Partition. No Partner nor any legal
representative, successor, heir or assignee of any Partner shall
have the right to partition the Partnership Property or any part
thereof or interest therein, or to file a complaint or institute
any proceeding at law or in equity to partition the Partnership
Property or any part thereof or interest therein. Each Partner,
for itself and its legal representatives, heirs, successors and
assigns, hereby waives any such rights. The Partners intend
that during the term of this Agreement, the rights of the
Partners and their successors in interest, as among themselves,
shall he governed solely by the terms of this Agreement and, to
the extent consistent with this Agreement, by the Act.
Section 17.18 Not for Benefit of Creditors. The provisions of
this Agreement are intended only for the regulation of relations
among Partners and the Partnership. Except as expressly provided
herein, this Agreement is not intended for the benefit of non-
Partner creditors and does not grant any rights to any non-
Partner.
Section 17.19 Representations of Limited Partner. Each Limited
Partner represents to the Partnership and the General Partner
that: (a) it is acquiring its Limited Partnership Interest for
its own account for investment and not with a view to or for sale
in connection with any distribution of such Limited Partnership
Interest (but subject, nevertheless, to any requirement of law
that the disposition of its property remain within its control at
all times); (b) it understands that the interests in the
Partnership have not been registered under the Securities Act of
1933, as amended, or the applicable securities laws of Delaware
or any other state, and must be held indefinitely unless the
interests are so registered or an exemption from such
registration is available; (c) it has such knowledge and
-30-<PAGE>
experience in business matters that it is capable of evaluating
the risks and merits of its investment in the Partnership; and
(d) it has received and reviewed the material agreements and
other documents relating to the Partnership and/or its business
and such other information, oral or written, as it has requested,
having been afforded the opportunity to ask questions of the
General Partner and to obtain any additional information that it
has deemed appropriate.
Section 17.20 Waiver. No waiver of any provision of this
Agreement shall be deemed effective unless contained in a writing
signed by the party against whom the waiver is sought to be
enforced. No failure or delay by any party in exercising any
right, power or remedy under this Agreement shall operate as a
waiver of any such right, power or remedy, and no waiver of any
breach or failure to perform shall be deemed a waiver of any
subsequent breach or failure to perform or of any other right
arising under this Agreement.
Section 17.21 Incorporation by Reference. Every exhibit,
schedule and other appendix attached to this Agreement and
referred to herein is hereby incorporated in this Agreement by
reference.
-31-<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
"GENERAL PARTNER"
NCP HOUSTON POWER INCORPORATED,
a Delaware corporation
By:__________________________
Address: One Upper Pond Road
Parsippany, New Jersey 07054
Telecopier: 201-263-6977
Attention: Vice President - Finance
"LIMITED PARTNER"
NCP PERRY INCORPORATED
a Delaware corporation
By:__________________________
Address: One Upper Pond Road
Parsippany, New Jersey 07054
Telecopier: 201-263-6977
Attention: Vice President - Finance
NCP HOUSTON POWER INCORPORATED,
a Delaware corporation
By:___________________________
Address: One Upper Pond Road
Parsippany, New Jersey 07054
Telecopier: 201-263-6977
Attention: Vice President - Finance
-32-<PAGE>
EXHIBIT A
LIMITED PARTNERSHIP AGREEMENT
OF
MID-GEORGIA COGEN L.P.
PERCENTAGE INTEREST AND
CONTRIBUTIONS BY PARTNERS
Percentage
Interest Contributions
"General Partner"
NCP Houston Power Incorporated 1% $1
"Limited Partner"
NCP Houston Power Incorporated 19% $19
NCP Perry Incorporated 80% $80
-A-1-<PAGE>
EXHIBIT B
LIMITED PARTNERSHIP AGREEMENT
OF
MID-GEORGIA COGEN L.P.
ALLOCATION OF PROFITS AND LOSSES
1. Profits. After giving effect to the special
allocations set forth in Sections 3 and 4 hereof, Profits for any
fiscal year shall be allocated to the Partners in proportion to
the Partnership Interest of each Partner.
2. Losses. After giving effect to the special
allocations set forth in Sections 3 and 4 hereof, Losses for any
fiscal year shall be allocated as follows:
(a) Except as provided in Section 2(b) hereof,
Losses shall be allocated to the Partners in proportion to the
Partnership Interest of each Partner.
(b) The Losses allocated pursuant to Section 2(a)
hereof shall not exceed the maximum amount of Losses that can be
so allocated without causing any Limited Partner to have an
Adjusted Capital Account Deficit at the end of any fiscal year.
All Losses in excess of the limitation set forth in this Section
2(b) shall be allocated to the General Partner. For purposes of
this Exhibit B, Adjusted Capital Account Deficit shall mean the
amount by which zero exceeds the Capital Account balance credited
to such Partner as of the end of such fiscal year.
3. Special Allocations. The following special
allocations shall be made in the following order:
(a) Partnership Minimum Gain Chargeback. Except
as provided in Section 1.704-2(f) of the Regulations,
notwithstanding any other provision of this Exhibit B, if there
is a net decrease in Partnership Minimum Gain during any
Partnership fiscal year, each Partner shall be specially
allocated items of Partnership income and gain for such year
(and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain,
determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to
each Partner pursuant thereto. The items to be so allocated
shall be determined in accordance with Sections 1.704-2(f)(6) and
1.704-2(j)(2) of the Regulations. This Section 3(a) is intended
to comply with the minimum gain chargeback requirement in such
Section of the Regulations and shall be interpreted consistently
therewith.
-B-1-<PAGE>
(b) Partner Nonrecourse Debt Minimum Gain
Chargeback. Except as otherwise provided in Section 1.704-
2(i)(4) of the Regulations, notwithstanding any other provision
of this Exhibit B except Section 3(a) hereof, if there is a net
decrease in Partner Nonrecourse Debt Minimum Gain attributable to
a Partner Nonrecourse Debt during any Partnership fiscal year,
each Partner who has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt,
determined in accordance with Section 1.704-2(i)(5) of the
Regulations, shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent
years) in an amount equal to the portion of such Partner's share
of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt determined in
accordance with Regulations Section 1.704-2(i)(4). Allocations
pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i) (4) and 1.704-
2(j)(2) of the Regulations. This Section 3(b) is intended to
comply with the minimum gain chargeback requirement in such
Section of the Regulations and shall be interpreted consistently
herewith.
(c) Qualified Income Offset. In the event any
Limited Partner unexpectedly receives any adjustments,
allocations or distributions described in Section 1.704-
l(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, items of
Partnership income and gain shall be specially allocated to each
such Limited Partner in an amount and manner sufficient to
eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of such Limited Partner as
quickly as possible, provided that an allocation pursuant to this
Section 3(c) shall be made only if and to the extent that such
Limited Partner would have an Adjusted Capital Account Deficit
after all other allocations provided for in this Exhibit B have
been tentatively made as if this Section 3(c) were not in the
Agreement.
(d) Gross Income Allocation. In the event any
Limited Partner has a deficit Capital Account at the end of any
Partnership fiscal year which is in excess of the sum of (i) the
amount such Limited Partner is obligated to restore pursuant to
any provision of this Agreement and (ii) the amount such Limited
Partner is deemed to be obligated to restore pursuant to the
penultimate sentences of Regulations Sections 1.704-2(g) and
1.704-2(i)(5), each such Limited Partner shall be specially
allocated items of Partnership income and gain in the amount of
such excess as quickly as possible, provided that an allocation
pursuant to this Section 3(d) shall be made only if and to the
extent that such Limited Partner would have a deficit Capital
Account in excess of such sum after all other allocations
provided for in this Exhibit B have been tentatively made as if
this Section 3(d) and Section 3(c) hereof were not in the
Agreement.
-B-2-<PAGE>
(e) Nonrecourse Deductions. Nonrecourse
Deductions for any fiscal year or other period shall be specially
allocated to Partners in proportion to the Partnership Interest
of each Partner.
(f) Partner Nonrecourse Deduction. Any
Nonrecourse Deductions for any fiscal year or other period shall
be allocated to the Partner who bears the economic risk of loss
with respect to the Partner Nonrecourse Debt to which such
Partner Nonrecourse Deductions are attributable in accordance
with Regulations Section 1.704-2(i)(1).
(g) Section 754 Adjustments. To the extent an
the adjusted tax basis of any Partnership asset pursuant to
Section 734(b) of the Code or Section 743(b) of the Code is
required, pursuant to Regulations Section 1.704-l(b)(2)(iv)(m),
to be taken into account in determining Capital Accounts, the
amount of such adjustment to the Capital Accounts shall be
treated as an item of gain (if the adjustment increases the basis
of the asset) or loss (if the adjustment decreases such basis)
and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such
Section of the Regulations.
4. Curative Allocations.
(a) The "Regulatory Allocations" consist of the
"Basic Regulatory Allocations," as defined in Section 4(b)
hereof, the "Nonrecourse Regulatory Allocations," as defined in
Section 4(c) hereof, and the "Partner Nonrecourse Regulatory
Allocations," as defined in Section 4(d) hereof.
(b) The "Basic Regulatory Allocations" consist of
(i) allocations pursuant to the last sentence of Section 2(b)
hereof, and (ii) allocations pursuant to Sections 3(c), 3(d) and
3(g) hereof. Notwithstanding any other provision of this
Agreement, other than the Regulatory Allocations, the Basic
Regulatory Allocations shall be taken into account in allocating
items of income, gain, loss and deduction among the Partners so
that, to the extent possible, the net amount of such allocations
of other items and the Basic Regulatory Allocations to each
Partner shall be equal to the net amount that would have been
allocated to each such Partner if the Basic Regulatory
Allocations had not occurred. For purposes of applying the
foregoing sentence, allocations pursuant to this Section 4(b)
shall only be made with respect to allocations pursuant to
Section 3(g) hereof to the extent the General Partner reasonably
determines that such allocations will otherwise be consistent
with the economic agreement among the parties to this Agreement.
(c) The "Nonrecourse Regulatory Allocations"
consist of all allocations pursuant to Sections 3(a) and 3(e)
hereof. Notwithstanding any other provision of this Agreement,
other than the Regulatory Allocations, the Nonrecourse Regulatory
-B-3-<PAGE>
Allocations shall be taken into account in allocating items of
income, gain, loss and deduction among the Partners so that, to
the extent possible, the net amount of such allocations of other
items and the Nonrecourse Regulatory Allocations to each Partner
shall be equal to the net amount that would have been allocated
to each such Partner if the Nonrecourse Regulatory Allocations
had not occurred. For purposes of applying the foregoing
sentence, (i) no allocations pursuant to this Section 4(c) shall
be made prior to the Partnership fiscal year during which there
is a net decrease in Partnership Minimum Gain, and then only to
the extent necessary to avoid any potential economic distortions
caused by such net decrease, and (ii) allocations pursuant to
this Section 4(c) shall be deferred with respect to allocations
pursuant to Section 3(e) hereof to the extent the General Partner
reasonably determines that such allocations are likely to be
offset by subsequent allocations pursuant to Section 3(a) hereof.
(d) The "Partner Nonrecourse Regulatory
Allocations" consist of all allocations pursuant to Sections 3(b)
and 3(f) hereof. Notwithstanding any other provision of this
Agreement, other than the Regulatory Allocations, the Partner
Nonrecourse Regulatory Allocations shall be taken into account in
allocating items of income, gain, loss and deduction among the
Partners so that, to the extent possible, the net amount of such
allocations of other items and the Partner Nonrecourse Regulatory
Allocations to each Partner shall be equal to the net amount that
would have been allocated to each such Partner if the Partner
Nonrecourse Regulatory Allocations had not occurred. For purposes
of applying the foregoing sentence, (i) no allocations pursuant
this Section 4(d) shall be made with respect to allocations
pursuant to Section 3(f) relating to a particular Partner
Nonrecourse Debt prior to the Partnership fiscal year during
which there is a net decrease in Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, and then only to
the extent necessary to avoid any potential economic distortions
caused by such net decrease, and (ii) allocations pursuant to
this Section 4(d) shall be deferred with respect to allocations
pursuant to Section 3(f) hereof relating to a particular Partner
Nonrecourse Debt to the extent the General Partner reasonably
determines that such allocations are likely to be offset by
subsequent allocations pursuant to Section 3(b) hereof.
(e) The General Partner shall have reasonable
discretion, with respect to each Partnership fiscal year, to (i)
apply the provisions of Sections 4(b), 4(c) and 4(d) hereof in
whatever order is likely to minimize the economic distortions
that might otherwise result from the Regulatory Allocations, and
(ii) divide all allocations pursuant to Sections 4(b), 4(c) and
4(d) hereof among the Partners in a manner that is likely to
minimize such economic distortions.
5. Other Allocation Rules.
(a) For purposes of determining the Profits,
Losses, or any other items allocable to any period, Profits,
-B-4-<PAGE>
Losses, and any such other items shall be determined on a daily,
monthly, or other basis, as determined by the General Partner
using any permissible method under Section 706 of the Code and
the Regulations thereunder.
(b) Except as otherwise provided in this
Agreement, all items of Partnership income, gain, loss,
deduction, and any other allocations not otherwise provided for
shall be divided among the Partners in the same proportions as
they share Profits or Losses, as the case may be, for the year.
(c) The Partners are aware of the income tax
consequences of the allocations made by this Exhibit B and hereby
agree to be bound by the provisions of this Exhibit B in
reporting
their shares of Partnership income and loss for income tax
purposes.
(d) Solely for the purpose of determining a
Partner's proportionate share of the "excess nonrecourse
liabilities" of the Partnership within the meaning of Regulations
Section 1.752-3(a)(3), the Partners' interests in Partnership
profits shall be in proportion to each Partner's Partnership
Interest.
(e) To the extent Permitted by Section 1.704-
2(h)(3) of the Regulations, the General Partner shall endeavor to
treat Distributions as having been made from Proceeds of
Nonrecourse Liabilities or Partner Nonrecourse Debt only to the
extent that such Distributions would cause or increase an
Adjusted Capital Account Deficit for any Limited Partner.
6. Tax Allocations: Section 704(c) of the Code. In
accordance with Section 704(c) of the Code and the Regulations
thereunder, income, gain, loss and deduction with respect to any
property contributed to the capital of the Partnership shall,
solely for tax purposes, be allocated among the Partners so as to
take account of any variation between the adjusted basis of such
property to the Partnership for federal income tax purposes and
its initial Gross Asset Value (computed in accordance with clause
(i) of the definition thereof).
In the event the Gross Asset Value of any
Partnership asset is adjusted pursuant to clause (ii) of the
definition thereof, subsequent allocations of income, gain, loss
and deduction with respect to such asset shall take account of
any variation between the adjusted basis of such asset for
federal income tax purposes and its Gross Asset Value in the same
manner as under Section 704(c) of the Code and the Regulations
thereunder.
Any elections or other decisions relating to such
allocations shall be made by the General Partner in any manner
that reasonably reflects the purpose and intention of this
Agreement. Allocations pursuant to this Section 6 are solely for
-B-5-<PAGE>
purposes of federal, state and local taxes and shall not affect,
or in any way be taken into account in computing, any Partner's
Capital Account or share of Profits, Losses, other items or
distributions pursuant to any provision of this Agreement.
-B-6-<PAGE>
Exhibit C-2
GPU, INC.
RESTRICTED STOCK PLAN FOR OUTSIDE DIRECTORS
AS AMENDED AND RESTATED AS OF FEBRUARY 6, 1997<PAGE>
GPU, INC.
RESTRICTED STOCK PLAN FOR OUTSIDE DIRECTORS
1. Purpose. The purpose of this restricted Stock Plan for
Outside Directors (the "Plan") is to enable GPU, Inc. ("GPU") to
attract and retain persons of outstanding competence to serve on
its Board of Directors by paying such persons a portion of their
compensation in GPU Common Stock ("Common Stock") pursuant to the
terms hereof.
2. Definitions.
(a) The term "Board of Directors" shall mean the board
of directors of GPU.
(b) The term "Change in Control" shall mean the
occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU)
of any Common Stock or other voting securities of GPU entitled to
vote generally for the election of directors (the "Voting
Securities") by any "Person" (as the term person is used for
purposes of Section 13(d) or 14(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common
Stock or the combined voting power of GPU's then outstanding
Voting Securities; provided, however, in determining whether a
Change in Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter defined)
shall not constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition
by (A) an employee benefit plan (or a trust forming a part
thereof) maintained by (i) GPU or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by GPU (for purposes of this definition, a
"Subsidiary"), (B) GPU or its Subsidiaries, or (C) any Person in
connection with a "Non-Control Transaction" (as hereinafter
defined);
(2) The individuals who, as of August 1, 1996,
are members of the Board of Directors (the "Incumbent Board"),
cease for any reason to constitute at least seventy percent (70%)
of the members of the Board of Directors; provided, however, that
if the election, or nomination for election by GPU's
shareholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the Exchange Act) or other actual or<PAGE>
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into GPU or in which securities of GPU are
issued, unless such merger, consolidation or reorganization is a
"Non-Control Transaction." A "Non-Control Transaction" shall
mean a merger, consolidation or reorganization with or into GPU
or in which securities of GPU are issued where:
(i) the shareholders of GPU,
immediately before such merger, consolidation or reorganization,
own directly or indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent (60%) of
the combined voting power of the outstanding voting securities of
the corporation resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in substantially the
same proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately prior to the execution
of the agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of the
members of the board of directors of the Surviving Corporation,
or a corporation, directly or indirectly, beneficially owning a
majority of the Voting Securities of the Surviving Corporation,
and
(iii) no Person other than (w) GPU,
(x) any Subsidiary, (y) any employee benefit plan (or any trust
forming a part thereof) that, immediately prior to such merger,
consolidation or reorganization, was maintained by GPU or any
Subsidiary, or (z) any Person who, immediately prior to such
merger, consolidation or reorganization had Beneficial Ownership
of twenty percent (20%) or more of the then outstanding Voting
Securities or Common Stock, has Beneficial Ownership of twenty
percent (20%) or more of the combined voting power of the
Surviving Corporation's then outstanding voting securities or its
common stock;
(B) A complete liquidation or dissolution of
GPU; or
(C) The sale or other disposition of all or
substantially all of the assets of GPU to any Person (other than
a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than the
2<PAGE>
permitted amount of the then outstanding Common Stock or Voting
Securities as a result of the acquisition of Common Stock or
Voting Securities by GPU which, by reducing the number of shares
of Common Stock or Voting Securities then outstanding, increases
the proportional number of shares Beneficially Owned by the
Subject Person, provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities by
GPU, and after such share acquisition by GPU, the Subject Person
becomes the Beneficial Owner of any additional shares of Common
Stock or Voting Securities which increases the percentage of the
then outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(c) The term "Outside Director" or "Participant" means
a member of the Board of Directors who is not an employee (within
the meaning of the Employee Retirement Income Security Act of
1974) of GPU or any of its Subsidiaries. A director of GPU who
is also an employee of GPU or any of its Subsidiaries shall
become eligible to participate in this Plan and shall be entitled
to receive an award of restricted stock upon the termination of
such employment.
(d) The term "Subsidiary" means, for purposes other
than Section 2(b), any corporation 50% or more of the outstanding
Common Stock of which is owned, directly or indirectly, by GPU.
(e) The term "Service" shall mean service as an
Outside Director.
3. Eligibility. All Outside Directors of GPU shall receive
stock awards hereunder.
4. Stock Awards.
(a) A total of 33,000(1) shares of GPU Common Stock
shall be available for awards under the Plan. Such shares shall
be either previously unissued shares or reacquired shares. Any
restricted shares awarded under this Plan with respect to which
the restrictions do not lapse and which are forfeited as provided
herein shall again be available for other awards under the plan.
(b) Each Outside Director shall receive an annual
award of 300 shares of GPU Common Stock with respect to each
calendar year or portion thereof, during which he or she serves
as an Outside Director, beginning with the calendar year 1993.
Awards shall be made in January of each year.
_______________________________________
1 Initially, 20,000 shares were authorized to be issued under
the Plan. On May 29, 1991, GPU effected a two-for-one stock
split by way of a stock dividend, leaving 33,000 shares
available for issuance under the Plan on and after July 1,
1991 after giving effect to shares previously awarded.
3<PAGE>
However, for the calendar year in which an Outside Director
commences Service, the award of shares to such Outside Director
for such year shall be made in the month in which his or her
Service commences, if his or her Service commences after January
31 of such year. All awards of shares made hereunder shall be
subject to the restrictions set forth in Section 5.
(c) Subject to the provisions of Section 5,
certificates representing shares of GPU Common Stock awarded
hereunder shall be issued in the name of the respective
Participants. During the period of time such shares are subject
to the restrictions set forth in Section 5, such certificates
shall be endorsed with a legend to that effect, and shall be held
by GPU or an agent therefor. The Participant shall,
nevertheless, have all the other rights of a shareholder,
including the right to vote and the right to receive all cash
dividends paid with respect to such shares.
Subject to the requirements of applicable law, certificates
representing such shares shall be delivered to the Participant
within 30 days after the lapse of the restrictions to which they
are subject.
(d) If as a result of a stock dividend, stock split,
recapitalization (or other adjustment in the stated capital of
GPU), or as the result of a merger, consolidation, or other
reorganization, the common shares of GPU are increased, reduced,
or otherwise changed, the number of shares available and to be
awarded hereunder shall be appropriately adjusted, and if by
virtue thereof a Participant shall be entitled to new or
additional or different shares, such shares to which the
Participant shall be entitled shall be subject to the terms,
conditions, and restrictions herein contained relating to the
original shares. In the event that warrants or rights are
awarded with respect to shares awarded hereunder, and the
recipient exercises such rights or warrants, the shares or
securities issuable upon such exercise shall be likewise subject
to the terms, conditions, and restrictions herein contained
relating to the original shares.
5. Restrictions.
(a) Shares are awarded to a Participant on the
condition that he or she serves or has served as an Outside
Director until:
(i) the Participant's death or disability,
or
(ii) the Participant's failure to stand for
re-election at the end of the term during which the Participant
reaches age 70; or
4<PAGE>
(iii) the Participant's resignation or failure
to stand for re-election prior to the end of the term during
which the Participant reaches age 70 with the consent of the
Board, i.e., approval thereof by a least 80% of the directors
voting thereon, with the affected director abstaining; or
(iv) the Participant's failure to be re-
elected after being duly nominated.
Termination of Service of a Participant for any other reason,
including, without limitation, any involuntary termination
effected by Board action, shall result in forfeiture of all
shares awarded. Notwithstanding the foregoing, upon the
occurrence of a Change in Control, the restrictions set forth in
Section 5(b) hereof to which any shares awarded to a Participant
are then still subject shall lapse, and the termination of the
Participant's Service for any reason at any time after the
occurrence of such Change in Control shall not result in the
forfeiture of any such shares.
(b) Shares awarded hereunder may not be sold,
exchanged, transferred, pledged, hypothecated, or otherwise
disposed of (herein, "Transferred") other than to GPU pursuant to
Section 5(a) during the period commencing on the date of the
award of such shares and ending on the date of termination of the
Outside Director's Service; provided, however, that in no event
may any shares awarded hereunder be Transferred for a period of
six months following the date of the award thereof, except in the
case of the recipient's death or disability, other than to GPU
pursuant to Section 5(a) hereof.
(c) Each Participant shall represent and warrant to and agree
with GPU that he or she (i) takes any shares awarded under the
Plan for investment only and not for purposes of sale or other
disposition and will also take for investment only and not for
purposes of sale or other disposition any rights, warrants,
shares, or securities which may be issued on account of ownership
of such shares, and (ii) will not sell or transfer any shares
awarded or any shares received upon exercise of any such rights
or warrants except in accordance with (A) an opinion of counsel
for GPU (or other counsel acceptable to GPU) that such shares,
rights, warrants, or other securities may be disposed of without
registration under the Securities Act of 1933, or (B) an
applicable "no action" letter issued by the Staff of the
Commission.
6. Administrative Committee. An Administrative Committee (the
"Committee") shall have full power and authority to construe and
administer the Plan. Any action taken under the provisions of
the Plan by the Committee arising out of or in connection with
the administration, construction, or effect of the Plan or any
rules adopted thereunder shall, in each case, lie within the
discretion of the Committee and shall be conclusive and binding
under GPU and upon all Participants, and all persons claiming
5<PAGE>
under or through any of them. Notwithstanding the foregoing, any
determination made by the Committee after the occurrence of a
Change in Control that denies in whole or in part any claim made
by any individual for benefits under the Plan shall be subject to
judicial review, under a "de novo," rather than a deferential,
standard. The Committee shall have as members the Chief
Executive Officer of GPU and two officers of GPU or its
Subsidiaries designated by the Chief Executive Officer; in the
absence of such designation, the other members of the Committee
shall be the Chief Financial Officer and the Secretary of GPU.
7. Approval: Effective Date. The Plan is subject to the
approval of a majority of the holders of GPU's Common Stock
present and entitled to vote at a meeting of shareholders, and of
the Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935. The Plan shall be effective January
1, 1989.
8. Termination and Amendment. The Board of Directors of GPU
may suspend, terminate, modify or amend the Plan, provided that
if any such amendment requires shareholder approval to meet the
requirement of the then applicable rules under Section 16(b) of
the Exchange Act, such amendment shall be subject to the approval
of GPU's shareholders; and provided further that no amendment or
modification to Section 2(b), to the penultimate sentence of
Section 6, to the last sentence of Section 5(a), or to this
Section 8, nor any suspension or termination of the Plan,
effectuated (i) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months prior
to, or otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed and which
actually occurs, or (iii) following a Change in Control, shall be
effective if the amendment, modification, suspension or
termination adversely affects the rights of any Participant under
the Plan. If the Plan is terminated, the terms of the Plan
shall, notwithstanding such termination, continue to apply to
awards granted prior to such termination. In addition, no
amendment, modification, suspension or termination of the Plan
shall adversely affect the rights of any Participant with respect
to any award (including without limitation any right with respect
to the timing and method of payment of any award) granted to the
Participant prior to the date of the adoption of such amendment,
modification, suspension or termination without such
Participant's written consent.
6<PAGE>
Exhibit C-3
GPU, INC.
1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC. AND SUBSIDIARIES
AS AMENDED AND RESTATED
TO REFLECT AMENDMENTS
THROUGH FEBRUARY 6, 1997<PAGE>
1990 STOCK PLAN FOR EMPLOYEES OF
GPU, INC. AND SUBSIDIARIES
1. Purpose
GPU, Inc. (the "Corporation") desires to attract and retain
employees of outstanding talent. The 1990 Stock Plan for
Employees of GPU, Inc. and Subsidiaries (the "Plan") affords
eligible employees the opportunity to acquire proprietary
interests in the Corporation and thereby encourages their highest
levels of performance.
2. Scope and Duration
(a) Awards under the Plan may be granted in the following
forms:
(i) incentive stock options ("incentive
stock options") as provided in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code") and non-
qualified stock options ("non-qualified options") (the term
"options" includes incentive stock options and non-qualified
options);
(ii) shares of Common Stock of the
Corporation (the "Common Stock") which are restricted as
provided in paragraph 10 ("restricted shares"); or
(iii) rights to acquire shares of Common Stock
which are restricted as provided in paragraph 10 ("units" or
"restricted units").
Options may be accompanied by stock appreciation rights
("rights").
(b) The maximum aggregate number of shares of Common Stock
as to which awards of options, restricted shares, units or rights
may be made from time to time under the Plan is 1,974,190 shares.
(1) Shares issued pursuant to this Plan may be in whole or in
part, as the Board of Directors of the Corporation (the "Board of
Directors") shall from time to time determine, authorized but
unissued shares or issued shares reacquired by the Corporation.
If for any reason any shares as to which an option has been
granted cease to be subject to purchase thereunder or any
restricted shares or restricted units are forfeited to the
Corporation, or to the extent that any awards under the Plan
denominated in shares or units are paid or settled in cash or are
_______________________________
1 Initially, 1,000,000 shares were authorized to be issued
under the Plan. On May 29, 1991, the Corporation effected a
two-for-one stock split by way of a stock divident, leaving
1,974,190 shares available for issuance under the Plan on
and after that date, after giving effect to shares
previously awarded.<PAGE>
surrendered upon the exercise of an option, then (unless the Plan
shall have been terminated) such shares or units, and any shares
surrendered to the Corporation upon such exercise, shall become
available for subsequent awards under the Plan unless such shares
or units, if so made available for subsequent awards under the
Plan, would not be exempt from Section 16(b) of the Securities
Exchange Act of 1934 (the "Exchange Act") pursuant to Rule 16b-3,
as amended, thereunder; provided, however, that shares
surrendered to the Corporation upon the exercise of an incentive
stock option and shares subject to an incentive stock option
surrendered upon the exercise of a right shall not be available
for subsequent award of additional stock options under the Plan.
(c) No incentive stock option shall be granted hereunder
after November 30, 1999.
3. Administration
(a) The Plan shall be administered by those members of the
Personnel, Compensation and Nominating Committee, or any
successor thereto, of the Board of Directors who are
"disinterested persons" within the meaning of Rule 16b-3, as
amended, under Section 16(b) of the Exchange Act or by such other
committee consisting of not less than two persons each of whom
shall qualify as "disinterested persons," as may be determined by
the Board of Directors ("the Committee").
(b) The Committee shall have plenary authority in its sole
discretion, subject to and not inconsistent with the express
provisions of this Plan: (i) to grant options, to determine the
purchase price of the Common Stock covered by each option, the
term of each option, the employees to whom, and the time or times
at which, options shall be granted and the number of shares to be
covered by each option; (ii) to designate options as incentive
stock options or non-qualified options and to determine which
options shall be accompanied by rights; (iii) to grant rights and
to determine the purchase price of the Common Stock covered by
each right or related option, the term of each right or related
option, the employees to whom, and the time or times at which,
rights or related options shall be granted and the number of
shares to be covered by each right or related option; (iv) to
grant restricted shares and restricted units and to determine the
term of the Restricted Period (as defined in paragraph 10) and
other conditions applicable to such shares or units, the
employees to whom, and the time or times at which, restricted
shares or restricted units shall be granted and the number of
shares or units to be covered by each grant; (v) to interpret the
Plan; (vi) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) to determine the terms and provisions
of the option and rights agreements (which need not be identical)
and the restricted share and restricted unit agreements (which
need not be identical) entered into in connection with awards
under the Plan, including any provisions of such agreements that
may permit a recipient of an award of restricted units to elect,
2<PAGE>
prior to the vesting of such units, to defer the payment of cash
and/or the delivery of shares of Common Stock otherwise to be
made upon the vesting of such restricted units, and/or to defer
the payment of any cash compensation awarded to the recipient
with respect to such restricted units, or with respect to any
restricted stock awarded to the recipient, either under this Plan
or the GPU System Companies Deferred Compensation Plan (a
"Deferral"); and to make all other determinations deemed
necessary or advisable for the administration of the Plan.
Without limiting the foregoing, the Committee shall have plenary
authority in its sole discretion, subject to and not inconsistent
with the express provisions of the Plan, (1) to select GPU
Officers (as defined below) for participation in the Plan, (2) to
determine the timing, price and amount of any grant or award
under the Plan to any GPU Officer, (3) either (A) to determine
the form in which payment of any right granted or awarded under
the Plan will be made (i.e., cash, securities or any combination
thereof) or (B) to approve the election of the employee to
receive cash in whole or in part in settlement of any right
granted or awarded under the Plan. As used herein, the term "GPU
Officer" shall mean an officer (other than an assistant officer)
of the Corporation, any member of the Corporation's Corporate
Executive Council (as it may be constituted from time to time),
and any person who may from time to time be designated an
executive officer of the Corporation by its Board of Directors.
The exercise by the Committee of the powers granted in clauses
(i), (ii), (iii), (iv), and (vii) hereof shall be subject to the
approval of a committee of the Board of Directors comprised only
of "disinterested persons" within the meaning of Rule 16b-3, as
amended, under Section 16(b) of the Exchange Act with respect to
a recipient of an award hereunder who is an officer (other than
assistant officer) of the Corporation or the Chairman or
President of any subsidiary (as defined in paragraph 4(a) hereof)
of the Corporation (the "Board Committee"). (The Committee and
the Board Committee are sometimes hereinafter referred to as the
"Committees.")
(c) The Committees may delegate to one or more of their
members or to one or more agents such administrative duties as
they may deem advisable, and the Committees or any person to whom
they have delegated duties as aforesaid may employ one or more
persons to render advice with respect to any responsibility the
Committees or such person may have under the Plan; provided, that
the Committees may not delegate any duties to a member of the
Board of Directors who would not qualify as a "disinterested
person" to administer the Plan as contemplated by Rule 16b-3, as
amended, or other applicable rules under the Exchange Act. The
Committees may employ attorneys, consultants, accountants or
other persons and the Committees, the Corporation and its
officers and directors shall be entitled to rely upon the advice,
opinions or valuations of any such persons. All actions taken
and all interpretations and determinations made by the Committees
in good faith shall be final and binding upon all employees who
have received awards, the Corporation and all other interested
persons. Notwithstanding the foregoing, any action taken or any
3<PAGE>
interpretation or determination made by the Committees after the
occurrence of a "Change in Control" (as defined in paragraph 7(c)
hereof) which adversely affects the rights of any employee with
respect to any award made to the employee hereunder shall be
subject to judicial review under a "de novo" rather than a
deferential standard. No member or agent of the Committees shall
be personally liable for any action, determination, or
interpretation made in good faith with respect to the Plan or
awards made thereunder, and all members and agents of the
Committees shall be fully protected by the Corporation in respect
of any such action, determination or interpretation.
4. Eligibility; Factors to be Considered in Making Awards
(a) Only employees of the Corporation or its subsidiaries
may receive awards under the Plan. The term "subsidiary" means
any corporation one hundred (100%) percent of the common stock of
which is owned, directly or indirectly, by the Corporation. A
director of the Corporation or of a subsidiary who is not also an
employee will not be eligible to receive an award.
(b) In determining the employees to whom awards shall be
granted and the number of shares or units to be covered by each
award, the Committee shall take into account the nature of the
employee's duties, his or her present and potential contributions
to the success of the Corporation and such other factors as it
shall deem relevant in connection with accomplishing the purposes
of the Plan.
(c) Awards may be granted singly, in combination or in
tandem and may be made in combination or in tandem with or in
replacement of, or as alternatives to, awards or grants under any
other employee plan maintained by the Corporation or its
subsidiaries. An award made in the form of an option, a unit or
a right may provide, in the discretion of the committee, for (i)
the crediting to the account of, or the current payment to, each
employee who has such an award of an amount equal to the cash
dividends and stock dividends paid by the Corporation upon one
share of Common Stock for each restricted unit, or share of
Common Stock subject to an option or right, included in such
award, and for each restricted unit which is the subject of a
Deferral ("Dividend Equivalents"), or (ii) the deemed
reinvestment of such Dividend Equivalents and stock dividends in
shares of Common Stock or the deemed reinvestment of units in
additional units , which deemed reinvestment in each case shall
be deemed to be made in accordance with the provisions of
paragraph 10 and credited to the Employee's account ("Additional
Deemed Shares"). Such Additional Deemed Shares shall be subject
to the same restrictions (including but not limited to provisions
regarding forfeitures) applicable with respect to the option,
unit or right with respect to which such credit is made. Dividend
Equivalents not deemed reinvested as stock dividends shall not be
subject to forfeiture, and may bear amounts equivalent to
interest or cash dividends as the Committee may determine. An
4<PAGE>
employee who has been granted incentive stock options under the
Plan may be granted an additional award or awards, subject to
such limitations as may be imposed by the Code with respect to
incentive stock options.
(d) The Committee, in its sole discretion, may grant to an
employee who has been granted an award under the Plan or any
other employee plan maintained by the Corporation, any of its
subsidiaries, or any successor thereto, in exchange for the
surrender and cancellation of such award, a new award in the same
or a different form and containing such terms, including without
limitation a price which is different (either higher or lower)
than any price provided in the award so surrendered and
cancelled, as the Committee may deem appropriate.
5. Option Price
(a) The purchase price of the Common Stock covered by each
option shall be determined by the Committee; provided, however,
that in the case of incentive stock options, the purchase price
shall not be less than 100% of the fair market value of the
Common Stock on the date the option is granted. Fair market
value shall mean the closing price of the Common Stock as
reported on the New York Stock Exchange Composite Tape for the
date on which the option is granted, or if there are no sales
onsuch date, on the next preceding day on which there were sales.
Such price shall be subject to adjustment as provided in
paragraph 13. The price so determined shall also be applicable
in connection with the exercise of any related right.
(b) The purchase price of the shares as to which an option
is exercised shall be paid in full at the time of exercise;
payment may be made in cash, which may be paid by check or other
instrument acceptable to the Corporation, in shares of the Common
Stock, valued at the closing price of the Common Stock as
reported on the New York Stock Exchange Composite Tape for the
date of exercise, or if there were no sales on such date, on the
next preceding day on which there were sales, or (if permitted by
the Committee and subject to such terms and conditions as it may
determine) by surrender of outstanding awards under the Plan. In
addition, the employee shall pay any amount necessary to satisfy
applicable federal, state or local tax requirements promptly upon
notification of the amount due. The Committee may permit such
amount to be paid in shares of Common Stock previously owned by
the employee, or a portion of the shares of Common Stock that
otherwise would be distributed to such employee upon exercise
ofthe option, or a combination of cash and shares of such Common
Stock.
5<PAGE>
6. Term of Options
The term of each incentive stock option granted under the
Plan shall be such period of time as the Committee shall
determine, but not more than ten years from the date of grant,
subject to earlier termination as provided in paragraphs 11 and
12. The term of each non-qualified stock option granted under
the Plan shall be such period of time as the Committee shall
determine, subject to earlier termination as provided in
paragraphs 11 and 12.
7. Exercise of Options
(a) Each option shall become exercisable in whole or in
part, as the Committee shall determine provided, however, that
the Committee may also, in its discretion, accelerate the
exercisability of any option in whole or in part at any time.
(b) Subject to the provisions of the Plan and unless
otherwise provided in the option agreement, an option granted
under the Plan shall become exercisable in full at the earliest
of the employee's death, Eligible Retirement (as defined below),
or Total Disability (as defined in paragraph 12). For purposes
of this Plan, the term "Eligible Retirement" shall mean the date
upon which an employee, having attained an age of not less than
fifty-five, terminates his or employment with the Corporation and
all of its subsidiaries, provided that such employee is
immediately eligible to receive a pension (whether or not he or
she otherwise elects to defer such receipt) under Section 3.1 or
3.3 of the "Employee Pension Plan" maintained by any subsidiary
or subsidiaries of the Corporation for salaried employees, or any
successor plan thereto.
(c) Notwithstanding the foregoing, an option shall become
immediately exercisable as to all shares of Common Stock
remaining subject to the option on or following a "Change in
Control" of the Corporation (the date upon which such event
occurs shall be referred to for purposes of this Plan as an
"Acceleration Date"). A "Change in Control" shall mean the
occurrence during the term of the Plan of:
(1) An acquisition (other than directly from the
Corporation) of any Common Stock or other voting securities of
the Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of twenty percent (20%) or more of the then
outstanding shares of Common Stock or the combined voting power
of the Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a "Non-Control
6<PAGE>
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-
Control Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained by
(i) the Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or indirectly,
by the Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries, or (C)
any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the Board of Directors (the "Incumbent Board"), cease
for any reason to constitute at least seventy percent (70%) of
the members of the Board of Directors; provided, however, that if
the election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of the
Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately following
such merger, consolidation or reorganization, at least sixty
percent (60%) ofthe combined voting power of the outstanding
voting securities of the corporation resulting from such merger
or consolidation or reorganization (the "Surviving Corporation")
in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were members of
the Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of the
7<PAGE>
members of the board of directors of the Surviving Corporation,
or a corporation, directly or indirectly, beneficially owning a
majority of the Voting Securities of the Surviving Corporation,
and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to
such merger, consolidation or reorganization, was maintained by
the Corporation or any Subsidiary, or (z) any Person who,
immediately prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or more of the
then outstanding Voting Securities or Common Stock, has
Beneficial Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any Person
(other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or Voting
Securities as a result of the acquisition of Common Stock or
Voting Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities then
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of shares of Common
Stock or Voting Securities by the Corporation, and after such
share acquisition by the Corporation, the Subject Person becomes
the Beneficial Owner of any additional shares of Common Stock or
Voting Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(d) An option may be exercised, at any time or from time to
time (subject, in the case of an incentive stock option, to such
restrictions as may be imposed by the Code), as to any or all
full shares as to which the option has become exercisable,
provided, however, that an option may not be exercised at any one
time as to less than 100 shares (or less than the number of
shares as to which the option is then exercisable, if that number
is less than 100 shares).
(e) Subject to the provisions of paragraphs 11 and 12, in
the case of incentive stock options, no option may be exercised
at any time unless the holder thereof is then an employee of the
8<PAGE>
Corporation or any of its subsidiaries. For purposes of this
subparagraph 7(e), subsidiary shall include, as under Treasury
Regulations Section 1.421-7(h)(3) and (4), example (3), any
corporation which is a subsidiary of the Corporation during the
entire portion of the requisite period of employment during which
it is the employer of the holder.
(f) Upon the exercise of an option or portion thereof in
accordance with the Plan, the option agreement and such rules and
regulations as may be established by the Committee, the holder
thereof shall have the rights of a shareholder with respect to
the shares issued as a result of such exercise.
8. Award and Exercise of Rights
(a) A right may be awarded by the Committee in connection
with any option granted under the Plan, either at the time the
option is granted or thereafter at any time prior to the
exercise, termination or expiration of the option ("tandem
right"), or separately ("freestanding right"). Each tandem right
shall be subject to the same terms and conditions as the related
option and shall be exercisable only to the extent the option is
exercisable. No right shall be exercisable for cash by a GPU
Officer within six months from the date the right is awarded (and
then, as to a tandem right, only to the extent the related option
is exercisable) or, if the exercise price of the right is not
fixed on the date of the award, within six months from the date
when the exercise price is so fixed, and in any case only when
the GPU Officer's election to receive cash in full or partial
satisfaction of the right, as well as the GPU Officer's exercise
of the right for cash, is made during a Quarterly Window Period
(as defined below); provided, that a right may be exercised by a
GPU Officer for cash outside a Quarterly Window Period if the
date of exercise is automatic or has been fixed in advance under
the Plan and is outside the GPU Officer's control. The term
"Quarterly Window Period" shall mean the period beginning on the
third business day following the date of release of each of the
Corporation's quarterly and annual summary statements of sales
and earnings and ending on the twelfth business day following
such release; and the date of any such release shall be deemed to
be the date it either (A) appears on a wire service, (B) appears
on a financial news service, (C) appears in a newspaper of
general circulation, or (D) is otherwise made publicly available,
for example, by press releases to a wire service,financial news
service, or newspapers or general circulation. Subject to the
foregoing, a right shall be exercisable (as to a tandem right,
only to the extent the related option is exercisable) on or after
an Acceleration Date.
(b) A right shall entitle the employee upon exercise in
accordance with its terms (subject, in the case of a tandem
right, to the surrender unexercised of the related option or any
portion or portions thereof which the employee from time to time
determines to surrender for this purpose) to receive, subject to
9<PAGE>
the provisions of the Plan and such rules and regulations as from
time to time may be established by the Committee, a payment
having an aggregate value equal to the product of (A) the excess
of (i) the fair market value on the exercise date of one share of
Common Stock over (ii) the exercise price per share, in the case
of a tandem right, or the price per share specified in the terms
of the right, in the case of a freestanding right, multiplied by
(B) the number of shares with respect to which the right shall
have been exercised. The payment may be made in the form of all
cash, all shares of Common Stock, or a combination thereof, as
elected by the employee, subject (where the employee is a GPU
Officer) to paragraph 8(a) hereof.
(c) The exercise price per share specified in a right shall
be as determined by the Committee, provided that, in the case of
a tandem right accompanying an incentive stock option, the
exercise price shall be not less than fair market value of the
Common Stock subject to such option on the date of grant.
(d) If upon the exercise of a right the employee is to
receive a portion of the payment in shares of Common Stock, the
number of shares shall be determined by dividing such portion by
the fair market value of a share on the exercise date. The
number of shares received may not exceed the number of shares
covered by any option or portion thereof surrendered. Cash will
be paid in lieu of any fractional share.
(e) No payment will be required from an employee upon
exercise of a right, except that any amount necessary to satisfy
applicable federal, state or local tax requirements shall be
withheld or paid promptly by the employee upon notification of
the amount due and prior to or concurrently with delivery of cash
or a certificate representing shares. The Committee may permit
such amount to be paid in shares of Common Stock previously owned
by the employee, or a portion of the shares of Common Stock that
otherwise would be distributed to such employee upon exercise
ofthe right, or a combination of cash and shares of such Common
Stock.
(f) The fair market value of a share shall mean the closing
price of the Common Stock as reported on the New York Stock
Exchange Composite Tape for the date of exercise, or if there are
no sales on such date, on the next preceding day on which there
were sales; provided, however, that in the case of rights that
relate to an incentive stock option, the Committee may prescribe,
by rules of general application, such other measure of fair
market value as the Committee may in its discretion determine but
not in excess of the maximum amount that would be permissible
under Section 422 of the Code without disqualifying such option
under Section 422.
(g) Upon exercise of a tandem right, the number of shares
subject to exercise under the related option shall automatically
be reduced by the number of shares represented by the option or
portion thereof surrendered.
10<PAGE>
(h) A right related to an incentive stock option may only
be exercised if the fair market value of a share of Common Stock
on the exercise date exceeds the option price.
9. Non-Transferability of Options, Rights and Units;
Holding Periods for GPU Officers
(a) Options, rights, and units granted under the Plan shall
not be transferable by the grantee thereof otherwise than by will
or the laws of descent and distribution; provided, that the
designation of a beneficiary by an employee shall not constitute
a transfer; and options and rights may be exercised during the
lifetime of the employee only by the employee or, unless such
exercise would disqualify an option as an incentive stock option,
by the employee's guardian or legal representative.
(b) Notwithstanding anything contained in this Plan to the
contrary, (i) any shares of Common Stock awarded hereunder to a
GPU Officer may not be transferred or disposed of for at least
six months from the date of award thereof, (ii) any option, right
or unit awarded hereunder to a GPU Officer, or the shares of
Common Stock into which any such option, right or unit is
exercised or converted, may not be transferred or disposed of for
at least six months following the date of acquisition by the GPU
Officer of such option, right or unit, and (iii) the Committee
shall take no action whose effect would cause a GPU Officer to be
in violation of clause (i) or (ii) above.
10. Award and Delivery of Restricted
Shares or Restricted Units
(a) At the time an award of restricted shares or restricted
units is made, the Committee shall establish a period of time
(the "Restricted Period") applicable to such award. Each award
of restricted shares or restricted units may have a different
Restricted Period. The Committee may, in its sole discretion, at
the time an award is made, prescribe conditions for the
incremental lapse of restrictions during the Restricted Period
and for the lapse or termination of restrictions upon the
satisfaction of other conditions in addition to or other than the
expiration of the Restricted Period with respect to all or any
portion of the restricted shares or restricted units. Subject to
Section 9 hereof, the Committee may also, in its sole discretion,
shorten or terminate the Restricted Period, or waive any
conditions for the lapse or termination of restrictions with
respect to all or any portion of the restricted shares or
restricted units. Notwithstanding the foregoing but subject to
Section 9 hereof, all restrictions shall lapse, and the
Restricted Period shall terminate, with respect to all restricted
shares or restricted units upon the earliest to occur of an
employee's Eligible Retirement, death, Total Disability or the
occurrence of an Acceleration Date.
11<PAGE>
(b) (1) Unless such shares are issued as uncertificated
shares pursuant to subparagraph (3) below, a stock certificate
representing the number of restricted shares granted to an
employee shall be registered in the employee's name but shall be
held in custody by the Corporation or an agent therefor for the
employee's account. The employee shall generally have the rights
and privileges of a shareholder as to such restricted shares,
including the right to vote such restricted shares, except that,
subject to the provisions of paragraph 11, the following
restrictions shall apply: (i) the employee shall not be entitled
to delivery of the certificate until the expiration or
termination of the Restricted Period and the satisfaction of any
other conditions prescribed by the Committee; (ii) none of the
restricted shares may be sold, transferred, assigned, pledged, or
otherwise encumbered or disposed of during the Restricted Period
and until the satisfaction of any other conditions prescribed by
the Committee at the time of award; and (iii) all of the
restricted shares shall be forfeited and all rights of the
employee to such restricted shares shall terminate without
further obligation on the part of the Corporation unless the
employee has remained an employee of the Corporation or any of
its subsidiaries until the expiration or termination of the
Restricted Period and the satisfaction of any other conditions
prescribed by the Committee at the time of award applicable to
such restricted shares. At the discretion of the Committee, (i)
cash and stock dividends with respect to the restricted shares
may be either currently paid or withheld by the Corporation for
the employee's account, and interest may be paid on the amount of
cash dividends withheld at a rate and subject to such terms as
determined by the Committee or (ii) the Committee may require
that all cash dividends be applied to the purchase of additional
shares of Common Stock, and such purchased shares, together with
any stock dividends related to such restricted shares (such
purchased shares and stock dividends are hereafter referred to as
"Additional Restricted Shares") shall be treated as Additional
Shares, subject to forfeiture on the same terms and conditions as
the original grant of the restricted shares to the employee.
(2) The purchase of any such Additional Restricted
Shares shall be made either (x) through the Corporation's
Dividend Reinvestment and Stock Purchase Plan, in which event the
price of such shares so purchased through the reinvestment of
dividends shall be as determined in accordance with the
provisions of that plan and no stock certificate representing
such Additional Restricted Shares shall be registered in the
employee's name or (y) in accordance with such alternative
procedure as is determined by the Committee in which event the
price of such purchased shares shall be the closing price of the
Common Stock as reported on the New York Stock Exchange Composite
Tape for the date on which such purchase is made, or if there
were no sales on such date, the next preceding day on which there
were sales. In the event that the Committee shall not require
reinvestment, cash or stock dividends so withheld by the
Committee shall not be subject to forfeiture. Upon the
forfeiture of any restricted shares (including any Additional
12<PAGE>
Restricted Shares), such forfeited shares shall be transferred to
the Corporation without further action by the employee. The
employee shall have the same rights and privileges, and be
subject to the same restrictions, with respect to any shares
received pursuant to paragraph 13.
(3) Notwithstanding anything herein to the contrary,
shares representing Restricted Shares or Additional Restricted
Shares may be issued as uncertificated shares.
(c) Upon the expiration or termination of the Restricted
Period and the satisfaction of any other conditions prescribed by
the Committee at the time of award, or at such earlier time as
provided for in paragraph 11, the restrictions applicable to
therestricted shares (including Additional Restricted Shares)
shall lapse and a stock certificate for the number of restricted
shares (including any Additional Restricted Shares) with respect
to which the restrictions have lapsed shall be delivered, free of
all such restrictions, except any that may be imposed by law, to
the employee or the employee's beneficiary or estate, as the case
may be. The Corporation shall not be required to deliver any
fractional share of Common Stock but will pay, in lieu thereof,
the fair market value (determined as of the date the restrictions
lapse) of such fractional share to the employee or the employee's
beneficiary or estate, as the case may be.
No payment will be required from the employee upon the
issuance or delivery of any restricted shares, except that any
amount necessary to satisfy applicable federal, state or local
tax requirements shall be withheld or paid promptly upon
notification of the amount due and prior to or concurrently with
the issuance or delivery of a certificate representing such
shares. The Committee may permit such amount to be paid in shares
of Common Stock previously owned by the employee, or a portion of
the shares of Common Stock that otherwise would be distributed to
such employee upon the lapse of the restrictions applicable to
the restricted shares, or a combination of cash and shares of
such Common Stock.
(d) In the case of an award of restricted units, no shares
of Common Stock shall be issued at the time the award is made,
and the Corporation shall not be required to set aside a fund for
the payment of any such award.
(e) Subject to subparagraph (g) below:
(i) Upon the expiration or termination of the
Restricted Period or the occurrence of an Acceleration Date
and the satisfaction of any other conditions prescribed by
the Committee or at such earlier time as provided for in
paragraph 11, the Corporation shall deliver to the employee
or the employee's beneficiary or estate, as the case may be,
one share of Common Stock for each restricted unit with
respect to which the restrictions have lapsed ("vested
unit").
13<PAGE>
(ii) In addition, if the Committee has not
required the deemed reinvestment of such Dividend
Equivalents pursuant to paragraph 4, at such time the
Corporation shall deliver to the employee cash equal to any
Dividend Equivalents or stock dividends credited with
respect to each such vested unit and, to the extent
determined by the Committee, the interest thereupon.
However, if the Committee has required such deemed
reinvestment in connection with such restricted unit, in
addition to the stock represented by such vested unit, the
Corporation shall deliver the number of Additional Deemed
Shares credited to the employee with respect to such vested
unit.
(iii) Notwithstanding the foregoing, the Committee
may, in its sole discretion, elect to pay cash or part cash
and part Common Stock in lieu of delivering only Common
Stock for the vested units and related Additional Deemed
Shares. If a cash payment is made in lieu of delivering
Common Stock, the amount of such cash payment shall be equal
to the closing price of the Common Stock as reported on the
New York Stock Exchange Composite Tape for the date on which
the Restricted Period lapsed with respect to such vested
unit and related Additional Deemed Shares, or if there are
no sales on such date, on the next preceding day on which
there were sales.
(f) Upon the occurrence of an Acceleration Date, all
outstanding vested units (including restricted units whose
restrictions have lapsed as a result of the occurrence of such
acceleration date) and credited Dividend Equivalents or related
Additional Deemed Shares shall be payable as soon as practicable
but in no event later than 90 days after such Acceleration Date
in cash, in shares of Common Stock, or part in cash and part in
Common Stock, as the Committee, in its sole discretion, shall
determine.
(i) Subject to subparagraph (g) below, to the extent
that an employee receives cash in payment for his or her
vested units and Additional Deemed Shares, such employees
shall receive an amount equal to the product of (x) the
number of vested units and Additional Deemed Shares credited
to such employee's account for which such employee is
receiving payment in cash multiplied by (y) the highest
closing price per share of Common Stock occurring during the
ninety (90) day period preceding and the ninety (90) day
period following the Acceleration Date (the "Multiplication
Factor").
(ii) Subject to subparagraph (g) below, to the extent
that an employee receives Common Stock in payment for his or
her vested units and Additional Deemed Shares, such employee
shall receive the number of shares of Common Stock
14<PAGE>
determined by dividing (x) the product of (I) the number of
vested units and Additional Deemed Shares credited to such
employee's account for which such employee is receiving
payment in Common Stock multiplied by (II) the
Multiplication Factor, by (y) the fair market value per
share of the Common Stock for the day preceding the payment
date, or if there are no sales on such date, on the next
preceding day on which there were sales.
(g) No payment will be required from the employee upon the
award of any restricted units, the crediting or payment of any
Dividend Equivalents or Additional Deemed Shares, or the delivery
of Common Stock or the payment of cash in respect of vested
units, except that any amount necessary to satisfy applicable
federal, state or local tax requirements shall be withheld or
paid promptly upon notification of the amount due. The Committee
may permit such amount to be paid in shares of Common Stock
previously owned by the employee, or a portion of the shares of
Common Stock that otherwise would be distributed to such employee
in respect of vested units and Additional Deemed Shares, or a
combination of cash and shares of such Common Stock.
(h) In addition, the Committee shall have the right, in its
absolute discretion, upon or prior to the vesting of any
restricted shares (including Additional Restricted Shares) and
restricted units (including Additional Deemed Shares) to award
cash compensation to the employee for the purpose of aiding the
employee in the payment of any and all federal, state and local
income taxes payable as a result of such vesting, if the
performance of the Corporation during the Restricted Period meets
such criteria as the Committee shall have prescribed.
(i) Notwithstanding any other provision in this paragraph
10 to the contrary, any payment of cash and/or delivery of any
shares of Common Stock otherwise required to be made hereunder on
any date with respect to any restricted units awarded to an
employee, or with respect to any cash compensation awarded to an
employee pursuant to subparagraph (h) above, may be deferred, at
the employee's election, either under this Plan or under the GPU
System Companies Deferred Compensation Plan for Elected Officers,
to the extent such deferral is permitted under, and upon such
terms and conditions as may be set forth in, the written
agreement between the employee and the Corporation (whether as
initially entered into, or as subsequently amended) evidencing
the award of such units, or cash compensation, to the employee.
11. Termination of Employment
In the event that the employment of an employee to whom an
option or right has been granted under the Plan shall be
terminated for any reason other than as set forth in paragraph
12, such option or right may, subject to the provisions of the
Plan, be exercised (but only to the extent that the employee was
entitled to do so at the termination of his or her employment) at
15<PAGE>
any time within three (3) months after such termination, but in
no case later than the date on which the option or right
terminates.
Unless otherwise determined by the Committee, if an employee
to whom restricted shares or restricted units have been granted
ceases to be an employee of the Corporation or of any subsidiary
prior to the end of the Restricted Period and the satisfaction of
any other conditions prescribed by the Committee at the time of
grant for any reason other than as set forth in paragraph 12, the
employee shall immediately forfeit all restricted shares and
restricted units, including all Additional Restricted Shares or
Additional Deemed Shares related thereto.
Any option, right, restricted share or restricted unit
agreement, or any rules and regulations relating to the Plan, may
contain such provisions as the Committee shall approve with
reference to the determination of the date employment terminates
and the effect of leaves of absence. Any such rules and
regulations with reference to any option agreement shall be
consistent with the provisions of the Code and any applicable
rules and regulations thereunder. Nothing in the Plan or in any
award granted pursuant to the Plan shall confer upon any employee
any right to continue in the employ of the Corporation of any of
its subsidiaries or interfere in any way with the right of the
Corporation or any such subsidiary to terminate such employment
at any time.
12. Eligible Retirement, Death or Total Disability of Employee
If any employee to whom an option, right, restricted share
or restricted unit has been granted under the Plan shall die, or
suffer a Total Disability, while employed by the Corporation or
any of its subsidiaries or if an employee terminates his or her
employment pursuant to an Eligible Retirement, such option or
right may be exercised, as set forth herein, or such restricted
shares or restricted unit shall be deemed to be vested, whether
or not the employee was otherwise entitled at such time to
exercise such option or right, or be treated as vested in such
share or unit. Subject to the restrictions otherwise set forth
in this Plan, such option or right shall be exercisable by the
employee, a legatee or legatees of the employee under the
employee's last will, or by the employee's personal
representatives or distributees, whichever is applicable, at any
time (but in no case later than the date on which the option or
right terminates in accordance with the terms of grant) within
three years after the date of the earlier of (i) the employee's
death or Total Disability (if the employee shall have died or
suffered a Total Disability while employed by the Corporation or
its subsidiaries), or (ii) such employee's Eligible Retirement.
For purposes of this paragraph 12, "Total Disability" is
defined as the permanent inability of an employee, as a result of
accident or sickness, to perform any and every duty pertaining
16<PAGE>
to such employee's occupation or employment for which the
employee is suited by reason of the employee's previous
training, education and experience.
13. Adjustments Upon Changes in Capitalization, etc.
Notwithstanding any other provision of the Plan, the
Committee may at any time make or provide for such adjustments to
the Plan, to the number and class of shares available thereunder
or to any outstanding options, restricted shares or restricted
units as it shall deem appropriate to prevent dilution or
enlargement of rights, including adjustments in the event of
distributions to holders of Common Stock other than a normal cash
dividend, changes in the outstanding Common Stock by reason of
stock dividends, split-ups, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, separations,
reorganizations, liquidations and the like. In the event of any
offer to holders of Common Stock generally relating to the
acquisition of their shares, the Committee may make such
adjustment as it deems equitable in respect of outstanding
options, rights, and restricted units including in the
Committee's discretion revision of outstanding options, rights,
and restricted units so that they may be exercisable for or
payable in the consideration payable in the acquisition
transaction. Any such determination by the Committee shall be
conclusive and binding on all parties. No adjustment shall be
made in the minimum number of shares with respect to which an
option may be exercised at any time. Any fractional shares
resulting from such adjustments to options, rights, limited
rights, or restricted units shall be eliminated.
14. Effective Date
The Plan as amended shall become effective as of June 1,
1990, subject to the approval of the Corporation's shareholders
at the Corporation's 1990 Annual Meeting of Shareholders. The
Committee may, in its discretion, grant awards under the Plan,
the grant, exercise or payment of which shall be expressly
subject to the conditions that to the extent required at the time
of grant, exercise or payment (i) the shares of Common Stock
covered by such awards shall be duly listed, upon official notice
of issuance, upon the New York Stock Exchange, and (ii) if the
Corporation deems it necessary or desirable a Registration
Statement under the Securities Act of 1933 with respect to such
shares shall be effective.
15. Termination and Amendment
The Board of Directors of the Corporation may suspend,
terminate, modify or amend the Plan, provided that if any such
amendment requires shareholder approval to meet the requirement
of the then applicable rules under Section 16(b) of the Exchange
17<PAGE>
Act, such amendment shall be subject to the approval of the
Corporation's shareholders; and provided further that no
amendment or modification to the penultimate sentence of Section
3(c), to Section 7(c) or to this Section 15, nor any suspension
or termination of the Plan, effectuated (i) at the request of a
third party who has indicated an intention or taken steps to
effect a Change in Control and who effectuates a Change in
Control, (ii) within six (6) months prior to, or otherwise in
connection with, or in anticipation of, a Change in Control which
has been threatened or proposed and which actually occurs, or
(iii) following a Change in Control, shall be effective if the
amendment, modification, suspension or termination adversely
affects the rights of any employee under the Plan. If the Plan
is terminated, the terms of the Plan shall, notwithstanding such
termination, continue to apply to awards granted prior to such
termination. In addition, no amendment, modification, suspension
or termination of the Plan shall adversely affect the rights of
any employee with respect to any award (including without
limitation any right with respect to the timing and method of
payment of any award) granted to the employee prior to the date
of the adoption of such amendment, modification, suspension or
termination without such employee's written consent.
16. Written Agreements
Each award of options, rights, restricted shares or
restricted units shall be evidenced by a written agreement,
executed by the employee and the Corporation, which shall contain
such restrictions, terms and conditions as the Committee may
require.
17. Effect on Other Stock Plans
The adoption of the Plan shall have no effect on awards made
or to be made pursuant to other stock plans covering employees of
the Corporation, its subsidiaries, or any successors thereto.
18<PAGE>
Exhibit C-4
PERFORMANCE UNITS AGREEMENT UNDER
THE 1990 STOCK PLAN FOR EMPLOYEES OF
GENERAL PUBLIC UTILITIES CORPORATION
AND SUBSIDIARIES
(1996 AGREEMENT)<PAGE>
AGREEMENT made as of , by and
between General Public Utilities Corporation (the "Corporation")
and (the "Recipient"):
WHEREAS, the Corporation maintains the 1990 Stock Plan for
Employees of General Public Utilities Corporation and
Subsidiaries (the "Plan") under which the Personnel, Compensation
and Nominating Committee of the Corporation's Board of Directors
(the "Committee") may, among other things, award units
("Performance Units") representing rights to acquire shares of
the Corporation's Common Stock, $2.50 par value ("Common Stock")
to such employees of the Corporation and its subsidiaries as the
Committee may determine, subject to such terms, conditions or
restrictions as it may deem appropriate;
WHEREAS, pursuant to the Plan, the Committee has granted to the
Recipient an award of Performance Units subject to the terms and
conditions set forth in this Agreement; and
WHEREAS, the Plan requires that an award of Performance Units be
evidenced by a written agreement between the Corporation and the
Recipient that contains such restrictions, terms and conditions
as the Committee may require;
NOW, THEREFORE, the parties hereto agree as follows:
1. AWARD OF PERFORMANCE UNITS; NATURE OF RIGHTS
(a) In accordance with the provisions of the Plan, the
Committee awarded to the Recipient on
(the "Award Date") Performance
Units. Each unit so awarded, and each additional
Performance Unit credited to the Recipient pursuant to
Section 2 (the Performance Units so awarded and the
additional Performance Units so credited are
hereinafter referred to collectively as the Recipient's
"Units"), shall entitle the Recipient, upon the vesting
of such units as provided in Section 3 hereof, to
receive one share of Common Stock, or a cash payment in
lieu of such share, subject to the terms, conditions,
and restrictions set forth herein.
(b) Prior to the issuance, as provided in Section 4
hereof, of shares of Common Stock with respect to the
Recipient's Units, or with respect to the Recipient's
"Deferred Vested Units" as defined in Section 4(g)(ii)
hereof, the Recipient shall not be entitled to any of
the rights of a stockholder of the Corporation by
reason of such Units or Deferred Vested Units.
(c) Notwithstanding anything in this Agreement to the
contrary, the Recipient shall have the status of a mere
unsecured creditor of the Corporation with respect to
his or her right to receive any payment hereunder; and
this Agreement shall constitute a mere promise by the
2<PAGE>
Corporation to make payments in the future in
accordance with the terms hereof. It is the intention
of the parties hereto that the arrangements set forth
in this Agreement be treated as unfunded for tax
purposes and, if it should be determined that Title I
of ERISA is applicable to such arrangements, for
purposes of Title I of ERISA.
2. ADDITIONAL PERFORMANCE UNITS
(a) As of each date prior to the Vesting Date (as
defined in Section 3(a) below) on which a dividend is
paid on the Common Stock ("Dividend Payment Date"),
there shall be credited to the Recipient hereunder a
number of additional Performance Units determined by
multiplying (i) the aggregate number of Units standing
to the Recipient's credit immediately prior to such
Dividend Payment Date, by (ii) the quotient resulting
from dividing (A) the per share amount of the dividend
so paid by (B) the price per share used for the
reinvestment of dividends paid on such Dividend Payment
Date under the provisions of the Corporation's Dividend
Reinvestment and Stock Purchase Plan.
(b) Any additional Performance Units credited to the
Recipient pursuant to this Section 2 shall be subject
to the same terms, conditions and restrictions as are
applicable with respect to the Recipient's initially
awarded Performance Units.
3. ADJUSTMENT AND VESTING OF UNITS
(a) For purposes of this Agreement, the Recipient's
"Vesting Date" shall mean the earliest to occur of the
following dates:
(i) the fifth anniversary of the Award Date,
if the Recipient's employment with the Corporation
or any subsidiary has not terminated before such
anniversary for any reason other than as a result
of the Recipient's "Eligible Retirement" or "Total
Disability", as defined in the Plan;
(ii) the date as of which the Recipient's
employment with the Corporation or any subsidiary
terminates as a result of the Recipient's death;
or
(iii) an "Acceleration Date," as defined in
the Plan.
(b) As of the Recipient's Vesting Date, the aggregate
number of Units then standing to the Recipient's credit
shall be adjusted in accordance with the following
provisions:
3<PAGE>
(i) The aggregate number of the Recipient's
Units shall be adjusted by multiplying such
aggregate number by the Performance Percentage
determined pursuant to the following table:
If the Corporation's TSR The Performance
TSR Percentile Ranking Percentage
is in the: Percentage shall be:
90th percentile - or above 200%
85th to 89th 175
80th to 84th 160
75th to 79th 145
70th to 74th 130
65th to 69th 120
60th to 64th 110
55th to 59th 100
50th to 54th 90
45th to 49th 75
40th to 44th 50
below 40th 0
For purposes of the foregoing, the Corporation's
TSR Percentile Ranking shall be determined by (A)
ascertaining, for each company (including the
Corporation) included in the Standard & Poor's
Electric Utility Companies Index (the "Index") on
the last day of the Performance Period (as defined
below), such company's average quarterly total
shareholder return ("TSR") for all calendar
quarters in the Performance Period, as reported in
the Index; (B) ascertaining the number of such
companies whose average quarterly TSR for the
Performance Period is lower than the
Corporation's; and (C) dividing such number by the
total number of companies included in the Index on
such last day. The "Performance Period" shall
mean the period from January 1, 1996 through
December 31, 2000.
(ii) Notwithstanding the foregoing, (A) if
the Recipient's Vesting Date occurs by reason of
the Recipient's death prior to the first day of
the calendar year which includes the fifth
anniversary of the Award Date, the Recipient's
Units shall not be adjusted in the manner
described in subparagraph (i) above; and (B) if
the Recipient's Vesting Date occurs by reason of
an Acceleration Date's occurring prior to such
first day, the adjustment with respect to the
Recipient's Units required under subparagraph (i)
above shall be made using 200% as the applicable
Performance Percentage.
4<PAGE>
(iii) If the Recipient's employment with the
Corporation or any subsidiary terminates prior to
the fifth anniversary of the Award Date as a
result of the Recipient's death, Eligible
Retirement or Total Disability, the number of
Units standing to the Recipient's credit as of the
Recipient's Vesting Date (after taking into
account any adjustment required under subparagraph
(i) above) shall be adjusted (or further adjusted)
by multiplying such number of Units by the
Recipient's Service Percentage. The Recipient's
"Service Percentage" shall mean the percentage
determined by dividing by 60 the number of months
in the period beginning on the Award Date and
ending on the date of such termination of the
Recipient's employment; and for this purpose, any
fraction of a month included in such period shall
be treated as a full month. This subparagraph
(iii) shall not apply if the Recipient's Vesting
Date occurs by reason of the occurrence of an
Acceleration Date.
(c) As of the Recipient's Vesting Date, all Units then
standing to the Recipient's credit (after taking into
account any adjustments required under subparagraphs
(i), (ii) and (iii) of paragraph (b) above) shall
become vested. If the number of Units standing to the
Recipient's credit immediately prior to any adjustments
made pursuant to subparagraphs (i), (ii) and (iii) of
paragraph (b) above exceed the number of Units standing
to the Recipient's credit after giving effect to such
adjustments, all of the Recipient's rights with respect
to such excess number of Units shall be forfeited as of
the Vesting Date. If the Recipient's employment with
the Corporation or any subsidiary should terminate
before the Recipient's Vesting Date for any reason
other than as a result of the Recipient's Eligible
Retirement or Total Disability, all of the Recipient's
rights with respect to any Units credited to the
Recipient hereunder shall be forfeited as of the date
of such termination.
(d) For purposes of this Agreement, (i) the term
"subsidiary" shall have the same meaning as in
paragraph 4(a) of the Plan and (ii) the transfer of a
Recipient's employment from one subsidiary to another
shall not be treated as a termination of the
Recipient's employment.
4. PAYMENT FOR VESTED UNITS
(a) Upon the Vesting Date, the Recipient shall become
entitled to receive payment with respect to the Units
which have become vested on such date (such Units are
hereafter referred to as the Recipient's "Vested
5<PAGE>
Units"). Payment shall be made as soon as practicable
after the Vesting Date, in the manner hereinafter set
forth in this Section 4.
(b) Except as otherwise provided in paragraph (c)
below, payment with respect to the Recipient's Vested
Units shall be made by the issuance to the Recipient of
shares of Common Stock. Except as otherwise provided in
paragraph (d) (ii) below, one share of Common Stock
shall be issued for each of the Recipient's Vested
Units. The Recipient shall own any shares of Common
Stock so issued free and clear of any restrictions and
shall be free to hold or dispose of such shares at
will, subject, however, to the restriction provided in
paragraph 9(b)(ii) of the Plan and any other
restriction that may be imposed by law.
(c) The Committee, in its sole discretion, may
determine that payment with respect to any or all of
the Recipient's Vested Units shall be made in cash
instead of in shares of Common Stock, and payment with
respect to any fractional part of a Vested Unit shall
be made in cash. Except as otherwise provided in
paragraph (d) (i) below, the amount of the cash payment
to be made with respect to any Vested Units shall be
equal to (and the amount of the cash payment to be made
with respect to any fractional part of a Vested Unit
shall be based upon) the per share closing price of one
share of Common Stock as reported on the New York Stock
Exchange Composite Tape for the Vesting Date, or if
there are no sales of Common Stock on such date, for
the next preceding day on which there were sales of
Common Stock.
(d) Upon the occurrence of an Acceleration Date, the
amount payable with respect to the Recipient's Vested
Units (including any Units that became vested prior to
such date but for which payment hereunder has not been
made as of such date but not including any Deferred
Vested Units as defined in Section 4(g)(ii) hereof
standing to the Recipient's credit on such date) shall
be determined as follows:
(i) To the extent that the payment for any
of the Recipient's Vested Units is to be made in
cash pursuant to paragraph (c) above, the amount
of cash to be paid for such Vested Units shall be
equal to the product of (A) the number of such
Vested Units, multiplied by (B) the highest
closing price per share of the Common Stock, as
reported on the New York Stock Exchange Composite
Tape, occurring during the 90-day period preceding
and the 90-day period following the Acceleration
Date (the "Multiplication Factor").
(ii) To the extent that payment for any of
6<PAGE>
the Recipient's Vested Units is to be made in
shares of Common Stock pursuant to paragraph (b)
above, the number of shares of Common Stock to be
issued with respect to such Vested Units shall be
determined by dividing (A) the product of (y) the
number of such Vested Units multiplied by (z) the
Multiplication Factor, by (B) the per share
closing price of the Common Stock as reported on
the New York Stock Exchange Composite Tape for the
day preceding the payment date, or if there are no
sales of Common Stock on such date, for the next
preceding day on which there were sales of Common
Stock.
(e) If the Recipient has died prior to the date on
which any payment is to be made hereunder with respect
to the Recipient's Vested Units or Deferred Vested
Units, the payment otherwise required to be made to the
Recipient shall be made to the Recipient's beneficiary
or estate, as the case may be.
(f) Notwithstanding any provision herein to the
contrary, any payment required to be made with respect
to the Recipient's Vested Units (but not including any
Deferred Vested Units standing to the Recipient's
credit hereunder) as a result of or following the
occurrence of an Acceleration Date shall be made as
soon as practicable after such date but in the case of
any cash payment to an Officer Participant (as defined
in the Plan) no less than six months following the
Award Date.
(g) Notwithstanding any other provisions of this
Section 4 to the contrary, payment with respect to part
or all of the Recipient's Vested Units shall be
deferred, and shall be made at the time and in the
manner hereinafter set forth, if the Recipient so
elects in accordance with the following provisions:
(i) An election by the Recipient hereunder
shall be made in writing, on a form furnished to
the Recipient for such purpose by the Committee.
The form shall be filed with the Committee at
least one year prior to the Vesting Date.
(ii) In the Recipient's election form, the
Recipient shall specify the number of Vested Units
payment with respect to which the Recipient wishes
to defer (such number, and the number of
additional units credited to the Recipient
pursuant to subparagraph (vi) below are
hereinafter collectively referred to as the
Recipient's "Deferred Vested Units"); the date on
which payment with respect to the Recipient's
Deferred Vested Units shall be made, or commence
7<PAGE>
(the "Payment Commencement Date") in accordance
with subparagraph (iii) below; and the method by
which payment with respect to the Recipient's
Deferred Vested Units shall be made (the "Payment
Method") in accordance with subparagraph (iv)
below.
(iii) The Recipient may select, as the Payment
Commencement Date, the first business day of any
of the following: (A) the third calendar year
following the calendar year in which the Vesting
Date occurs, or any later calendar year; (B) the
earlier of (x) any calendar year which the
Recipient is permitted to select under clause (A),
or (y) the calendar year following the later of
the Vesting Date or the date of the termination of
the Recipient's employment with the Corporation or
any subsidiary or the Recipient's Total
Disability; or (C) the calendar year following the
later of the Vesting Date or the date of the
termination of the Recipient's employment with the
Corporation or any subsidiary or the Recipient's
Total Disability, or any later calendar year.
(iv) The Recipient may select, as the Payment
Method, either (A) a single lump sum payment, or
(B) payment in annual installments, over a period
of at least five years, or such greater number of
years as the Recipient specifies in the
Recipient's election form. With each such annual
installment, payment shall be made with respect to
a number of the Recipient's Deferred Vested Units
equal to the quotient resulting from dividing (C)
the total number of Deferred Vested Units standing
to the Recipient's credit hereunder on the
applicable payment date, by (D) the number of
installment payments remaining to be made on such
date. Immediately after each annual installment
payment has been made, the number of Deferred
Vested Units standing to the Recipient's credit
hereunder shall be reduced by the number of
Deferred Vested Units with respect to which such
payment was made.
(v) Any election made hereunder by the
Recipient shall be irrevocable.
(vi) Until payment has been made with respect
to all of the Recipient's Deferred Vested Units
(including those credited to the Recipient under
this subparagraph), there shall be credited to the
Recipient hereunder, as of each Dividend Payment
Date, a number of additional Deferred Vested Units
determined by multiplying (A) the number of
Deferred Vested Units (including any additional
8<PAGE>
Deferred Vested Units previously credited to the
Recipient under this subparagraph) standing to the
Recipient's credit hereunder on the day
immediately preceding such Dividend Payment Date,
by (B) the quotient referred to in Section
2(a)(ii) hereof.
(vii) Payment with respect to the Recipient's
Deferred Vested Units shall be made in cash, or in
shares of Common Stock, or in any combination of
cash or such shares, as the Committee shall
determine in its sole discretion. The amount of
the cash payment to be made with respect to any
Deferred Vested Units shall be equal to (and with
respect to any fractional part of a Deferred
Vested Unit, shall be based upon) the per share
closing price of one share of Common Stock as
reported on the New York Stock Exchange Composite
Tape for the last business day immediately
preceding the date on which such cash payment is
to be made.
(viii) A deferral election otherwise permitted
to be made hereunder shall be subject to the
following limitations:
(A) If the Recipient's Vesting Date should
occur within one year following the date on
which the Recipient's election form is filed
with the Committee, or if the Vesting Date
occurs more than one year from such date but
occurs as a result of the occurrence of an
Acceleration Date, the Recipient's deferral
election shall not be given effect, and
payment with respect to the Recipient's
Vested Units shall be made in accordance with
the other applicable provisions of this
Section 4.
(B) No deferral election shall be effective
hereunder if at any time during the 12-month
period ending on the Vesting Date, the
Recipient received a hardship withdrawal
under Section 7.1(e) of the General Public
Utilities Corporation and Subsidiary System
Companies Employee Savings Plan for
Nonbargaining Employees.
(C) No amount may be deferred with respect
to the Recipient's Vested Units pursuant to
the Recipient's deferral election hereunder
to the extent that any tax is required to be
withheld with respect to such amount pursuant
to applicable federal, state or local law.
9<PAGE>
(ix) Notwithstanding any other provision in
this paragraph (g) to the contrary, to the extent
the Committee in its sole discretion so
determines, payment with respect to any part or
all of the Recipient's Deferred Vested Units may
be made to the Recipient or to the Recipient's
beneficiary or estate, on any date earlier than
the date on which such payment is to be made
pursuant to the Recipient's election hereunder, in
the following circumstances: (A) in the event of
the Recipient's death prior to the Payment
Commencement Date specified in the Recipient's
election hereunder; (B) in the event the Recipient
becomes entitled to receive payments under the
Long-Term Disability Plan or Employee Pension Plan
of any GPU System Company as a result of incurring
a Total Disability; and (C) in the event the
Recipient requests such early payment and the
Committee, in its sole discretion, determines that
such early payment is necessary to help the
Recipient meet some severe financial need arising
from circumstances which were beyond the
Recipient's control and which were not foreseen by
the Recipient at the time of the Recipient's
election hereunder.
5. WITHHOLDING TAXES
In connection with the issuance of any Common Stock or
the making of any cash payment in accordance with the
provisions of this Agreement, the Corporation shall
withhold the taxes then required by applicable federal,
state and local law to be so withheld. In lieu
thereof, the Corporation may require the Recipient (or,
in the event of the Recipient's death, the Recipient's
beneficiary or estate) to pay to the Corporation an
amount equal to the amount of taxes so required to be
withheld. Such payment to the Corporation shall be
made in cash, in shares of Common Stock with a market
value equal to such withholding obligation, or in any
combination thereof, as determined by the Committee.
6. ADMINISTRATION
(a) The Committee shall have full authority and sole
discretion (subject only to the express provisions of
the Plan) to decide all matters relating to the
administration and interpretation of the Plan and this
Agreement. All such Committee determinations shall be
final, conclusive, and binding upon the Corporation,
the Recipient, the Recipient's estate and any and all
other interested parties. Notwithstanding the
foregoing, any determination made by the Committee
after the occurrence of a "Change in Control" (as
defined in the Plan) shall be subject to judicial
10<PAGE>
review under a "de novo" rather than a deferential
standard. The Recipient hereby acknowledges receipt of
the Corporation's Prospectus which includes the text of
the Plan.
(b) This Agreement shall be subject to the terms of
the Plan, and in the case of any inconsistency between
the Plan and this Agreement, the provisions of the Plan
shall govern.
7. NONASSIGNABILITY
The Recipient's rights to payments under this Agreement
shall not be subject in any manner to anticipation,
alienation, sale, transfer (other than transfer by will
or by the laws of descent and distribution),
assignment, pledge, encumbrance, attachment or
garnishment by the Recipient's creditors or the
creditors of the Recipient's spouse or any other
beneficiary.
8. RIGHT TO CONTINUED EMPLOYMENT
Nothing in the Plan or this Agreement shall confer on
the Recipient any right to continue as an employee of
the Corporation or any subsidiary or in any way affect
the Corporation or any subsidiary's right to terminate
the Recipient's employment at any time.
9. FORCE AND EFFECT
The various provisions of this Agreement are severable
in their entirety. Any determination of invalidity or
unenforceability of any one provision shall have no
effect on the continuing force and effect of the
remaining provisions.
10. PREVAILING LAWS
This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania applicable to contracts
made, and to be enforced, within the Commonwealth of
Pennsylvania.
11. SUCCESSORS
This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the
respective parties.
11<PAGE>
12. NOTICE
Any notice to the Corporation hereunder shall be in
writing addressed to:
Vice President, Human Resources
GPU Service Corporation
100 Interpace Parkway
Parsippany, NJ 07054
Any notice to the Recipient hereunder shall be in
writing addressed to:
or such other address as the Recipient shall specify to
the Corporation in writing.
13. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the
parties and shall not be modified or amended except in
writing and duly signed by each of the parties hereto.
No waiver by either party of any default under this
Agreement shall be deemed a waiver of any later default
set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the date set forth above.
GENERAL PUBLIC UTILITIES CORPORATION
By:
James R. Leva
Chairman, President and Chief
Executive Officer
(Recipient)
12<PAGE>
Exhibit C-5
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
GPU SERVICE, INC.
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of GPU Service, Inc. (the "Plan") is to attract
and retain highly qualified employees, to obtain from each the
best possible performance, and to underscore the importance to
them of achieving particular business objectives established for
GPU Service, Inc. and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc. unless
otherwise specified.
C. Change in Control. A "Change in Control" shall
mean the occurrence of:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the
Corporation ("Common Stock") or other voting
securities of the Corporation entitled to vote
generally for the election of directors (the
"Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as<PAGE>
amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or
more of the then outstanding shares of Common
Stock or the combined voting power of the
Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change
in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control.
A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a
trust forming a part thereof) maintained by (i)
the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or
its voting equity securities or equity interest is
owned, directly or indirectly, by the Corporation
(for purposes of this definition, a "Subsidiary"),
(B) the Corporation or its Subsidiaries, or (C)
any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996,
are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least
seventy percent (70%) of the members of the Board;
provided, however, that if the election, or
2<PAGE>
nomination for election by the Corporation's
shareholders, of any new director was approved by
a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of
this Plan, be considered as a member of the
Incumbent Board; provided further, however, that
no individual shall be considered a member of the
Incumbent Board if such individual initially
assumed office as a result of either an actual or
threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than
the Board (a "Proxy Contest") including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in
which securities of the Corporation are issued,
unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A
"Non-Control Transaction" shall mean a merger,
consolidation or reorganization with or into the
Corporation or in which securities of the
Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
3<PAGE>
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty
percent (60%) of the combined voting power of the
outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their
ownership of the Voting Securities immediately
before such merger, consolidation or
reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately prior
to the execution of the agreement providing for
such merger, consolidation or reorganization
constitute at least seventy percent (70%) of the
members of the board of directors of the Surviving
Corporation, or a corporation, directly or
indirectly, beneficially owning a majority of the
Voting Securities of the Surviving Corporation,
and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger,
consolidation or reorganization, was maintained by
the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger,
4<PAGE>
consolidation or reorganization had Beneficial
Ownership of twenty percent (20%) or more of the
then outstanding Voting Securities or common stock
of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined
voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of
the Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation
to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the
then outstanding Common Stock or Voting Securities
as a result of the acquisition of Common Stock or
Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or
Voting Securities then outstanding, increases the
proportional number of shares Beneficially Owned
by the Subject Persons, provided that if a Change
in Control would occur (but for the operation of
this sentence) as a result of the acquisition of
shares of Common Stock or Voting Securities by the
Corporation, and after such share acquisition by
5<PAGE>
the Corporation, the Subject Person becomes the
Beneficial Owner of any additional shares of
Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of
Common Stock or Voting Securities Beneficially
Owned by the Subject Person, then a Change in
Control shall occur.
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
E. Company. GPU Service, Inc.
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the active
salaried payroll of the Company or an affiliate of
the Company at any time during the period for
which an Award is made.
H. Executive Committee. The Executive Committee of
the Board of Directors of the Company.
I. Officer. An Officer of the Company who is elected
by the Company's Board of Directors and is an
Employee of the Company, but not including
Assistant Comptrollers, Assistant Secretaries and
Assistant Treasurers.
J. Performance Period. The fiscal year (currently
the calendar year) for which Awards are made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
6<PAGE>
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
7<PAGE>
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
8<PAGE>
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
9<PAGE>
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
10<PAGE>
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in his discretion all questions that may arise as to the
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
11<PAGE>
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
ERISA.
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
12<PAGE>
Exhibit C-6
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
GPU NUCLEAR, INC.
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of GPU Nuclear, Inc. (the "Plan") is to attract
and retain highly qualified employees, to obtain from each the
best possible performance, and to underscore the importance to
them of achieving particular business objectives established for
GPU Nuclear, Inc. and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc. unless
otherwise specified.
C. Change in Control. A "Change in Control" shall
mean the occurrence of:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the
Corporation ("Common Stock") or other voting
securities of the Corporation entitled to vote
generally for the election of directors (the
"Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as<PAGE>
amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or
more of the then outstanding shares of Common
Stock or the combined voting power of the
Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change
in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control.
A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a
trust forming a part thereof) maintained by (i)
the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or
its voting equity securities or equity interest is
owned, directly or indirectly, by the Corporation
(for purposes of this definition, a "Subsidiary"),
(B) the Corporation or its Subsidiaries, or (C)
any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996,
are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least
seventy percent (70%) of the members of the Board;
provided, however, that if the election, or
2<PAGE>
nomination for election by the Corporation's
shareholders, of any new director was approved by
a vote of at least two-thirds of the Incumbent
Board, such new director shall, for purposes of
this Plan, be considered as a member of the
Incumbent Board; provided further, however, that
no individual shall be considered a member of the
Incumbent Board if such individual initially
assumed office as a result of either an actual or
threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than
the Board (a "Proxy Contest") including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation
or in which securities of the Corporation are
issued, unless such merger, consolidation or
reorganization is a "Non-Control
Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or
reorganization with or into the Corporation
or in which securities of the Corporation are
issued where:
3<PAGE>
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly
or indirectly immediately following such
merger, consolidation or reorganization, at
least sixty percent (60%) of the combined
voting power of the outstanding voting
securities of the corporation resulting from
such merger or consolidation or
reorganization (the "Surviving Corporation")
in substantially the same proportion as their
ownership of the Voting Securities
immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately
prior to the execution of the agreement
providing for such merger, consolidation or
reorganization constitute at least seventy
percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly,
beneficially owning a majority of the Voting
Securities of the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any
employee benefit plan (or any trust forming a
part thereof) that, immediately prior to such
4<PAGE>
merger, consolidation or reorganization, was
maintained by the Corporation or any
Subsidiary, or (z) any Person who,
immediately prior to such merger,
consolidation or reorganization had
Beneficial Ownership of twenty percent (20%)
or more of the then outstanding Voting
Securities or common stock of the
Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined
voting power of the Surviving Corporation's
then outstanding voting securities or its
common stock.
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely
because any Person (the "Subject Person")
acquired Beneficial Ownership of more than
the permitted amount of the then outstanding
Common Stock or Voting Securities as a result
of the acquisition of Common Stock or Voting
Securities by the Corporation which, by
reducing the number of shares of Common Stock
5<PAGE>
or Voting Securities then outstanding,
increases the proportional number of shares
Beneficially Owned by the Subject Persons,
provided that if a Change in Control would
occur (but for the operation of this
sentence) as a result of the acquisition of
shares of Common Stock or Voting Securities
by the Corporation, and after such share
acquisition by the Corporation, the Subject
Person becomes the Beneficial Owner of any
additional shares of Common Stock or Voting
Securities which increases the percentage of
the then outstanding shares of Common Stock
or Voting Securities Beneficially Owned by
the Subject Person, then a Change in Control
shall occur.
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any
successor thereto.
E. Company. GPU Nuclear, Inc.
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the
active salaried payroll of the Company or an
affiliate of the Company at any time during
the period for which an Award is made.
H. Executive Committee. The Executive Committee
of the Board of Directors of the Company.
6<PAGE>
I. Officer. An Officer of the Company who is
elected by the Company's Board of Directors
and is an Employee of the Company, but not
including Assistant Comptrollers, Assistant
Secretaries and Assistant Treasurers.
J. Performance Period. The fiscal year
(currently the calendar year) for which
Awards are made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
7<PAGE>
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
8<PAGE>
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
9<PAGE>
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
10<PAGE>
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in its discretion all questions that may arise as to the
11<PAGE>
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
12<PAGE>
ERISA.
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
13<PAGE>
Exhibit C-7
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
GPU GENERATION, INC.
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of GPU Generation, Inc. (the "Plan") is to
attract and retain highly qualified employees, to obtain from
each the best possible performance, and to underscore the
importance to them of achieving particular business objectives
established for GPU Generation, Inc. and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc.
unless otherwise specified.
C. Change in Control. A "Change in Control"
shall mean the occurrence of:
(1) An acquisition (other than directly from
the Corporation) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election
of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934,
1<PAGE>
as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the
then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding
Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a trust
forming a part thereof) maintained by (i) the
Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting
equity securities or equity interest is owned, directly
or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1,
1996, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least seventy
percent (70%) of the members of the Board; provided,
however, that if the election, or nomination for
election by the Corporation's shareholders, of any new
director was approved by a vote of at least two-thirds
2<PAGE>
of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy
Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such
merger, consolidation or reorganization is a "Non-
Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
3<PAGE>
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w)
the Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
4<PAGE>
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change
in Control shall not be deemed to occur solely because
any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a
result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities
then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but
for the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor thereto.
5<PAGE>
E. Company. GPU Generation, Inc.
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the
active salaried payroll of the Company or an affiliate
of the Company at any time during the period for which
an Award is made.
H. Executive Committee. The Executive Committee
of the Board of Directors of the Company.
I. Officer. An Officer of the Company who is
elected by the Company's Board of Directors and is an
Employee of the Company, but not including Assistant
Comptrollers, Assistant Secretaries and Assistant
Treasurers.
J. Performance Period. The fiscal year
(currently the calendar year) for which Awards are
made.
3. Effective Date.
The effective date of the Plan is January 1, 1996.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
6<PAGE>
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
7<PAGE>
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
8<PAGE>
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9<PAGE>
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
10<PAGE>
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in its discretion all questions that may arise as to the
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
11<PAGE>
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
ERISA.
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
12<PAGE>
Exhibit C-10
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
GPU SERVICE, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective February 6, 1997)
Foreword
Effective as of January l, 1988, GPU Service, Inc. (referred to
in this document as the "Company") established a supplemental
pension plan for the benefit of certain of its employees. This
GPU Service, Inc. Supplemental and Excess Benefits Plan (the
"Plan") is a continuation of that plan as adopted effective
January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after February 6, 1997.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to February 6,
1997 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the GPU
Service, Inc. Employee Pension Plan ("Pension Plan") and their
surviving spouses with the amount of company-provided benefits
that would have been provided to them under the Pension Plan but
for the limitation on benefits imposed under Section 415 of the
Internal Revenue Code, as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
1<PAGE>
The term Company shall include GPU International, Inc.
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least two-
2<PAGE>
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
3<PAGE>
securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
4<PAGE>
1.10 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
5<PAGE>
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee
retires in accordance with Section 3.1, 3.2,
3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving
spouse on account of the Employee's death
before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension
under the applicable provisions of Section 9
of the Pension Plan could commence, without
regard to any election by such spouse to
defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
6<PAGE>
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits
were payable in the same form, and with the
same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in
marital status occurring subsequent to the
date on which payment of Pension Plan
benefits commence,
7<PAGE>
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as
described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by
the complement of the reduction percentage
applied to Pension Plan benefits in
accordance with such Section 10.1, to convert
such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form
other than as a single life annuity, reduce
the amount determined in (ii) by the
reduction percentage that would be applicable
under Section 10.1 of the Pension Plan to an
annuity payable thereunder to the Employee in
the same form as the form in which payment of
the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the
same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employees Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
8<PAGE>
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary s death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess
and/orSupplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
the first day of the month following the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
9<PAGE>
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
10<PAGE>
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
11<PAGE>
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
12<PAGE>
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-11
GPU NUCLEAR, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
GPU NUCLEAR, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective February 6, 1997)
Foreword
Effective as of January l, 1988, GPU Nuclear, Inc. (referred to
in this document as the "Company") established a supplemental
pension plan for the benefit of certain of its employees. This
GPU Nuclear, Inc. Supplemental and Excess Benefits Plan (the
"Plan") is a continuation of that plan as adopted effective
January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after February 6, 1997.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to February 6,
1997 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the GPU
Nuclear, Inc. Employee Pension Plan ("Pension Plan") and their
surviving spouses with the amount of company-provided benefits
that would have been provided to them under the Pension Plan but
for the limitation on benefits imposed under Section 415 of the
Internal Revenue Code, as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
1<PAGE>
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
2<PAGE>
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
3<PAGE>
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
4<PAGE>
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
5<PAGE>
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee
retires in accordance with Section 3.1, 3.2,
3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving
spouse on account of the Employee's death
before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension
under the applicable provisions of Section 9
of the Pension Plan could commence, without
regard to any election by such spouse to
defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
6<PAGE>
Employee who becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits
were payable in the same form, and with the
same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in
marital status occurring subsequent to the
date on which payment of Pension Plan
benefits commence,
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as
described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by
the complement of the reduction percentage
applied to Pension Plan benefits in
7<PAGE>
accordance with such Section 10.1, to convert
such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form
other than as a single life annuity, reduce
the amount determined in (ii) by the
reduction percentage that would be applicable
under Section 10.1 of the Pension Plan to an
annuity payable thereunder to the Employee in
the same form as the form in which payment of
the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the
same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
8<PAGE>
Starting Date, in the form of a single life annuity.
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess and/or
Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
the first day of the month following the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
9<PAGE>
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
10<PAGE>
employment for disability, for cause, or by the
Employee other than for Good Reason;
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
11<PAGE>
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
12<PAGE>
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-12
GPU GENERATION, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
GPU GENERATION, INC.
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As adopted effective March 1, 1996
and amended effective February 6, 1997)
Foreword
This document is the GPU Generation, Inc. Supplemental and Excess
Benefits Plan (the "Plan"), as adopted effective March 1, 1996
and amended effective February 6, 1997. GPU Generation, Inc.
(formerly GPU Generation Corporation) is referred to in this
document as the "Company".
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after March 1, 1996.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the GPU
Generation, Inc. Employee Pension Plan ("Pension Plan") and their
surviving spouses with the amount of company-provided benefits
that would have been provided to them under the Pension Plan but
for the limitation on benefits imposed under Section 415 of the
Internal Revenue Code, as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.<PAGE>
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
2<PAGE>
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
3<PAGE>
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in the
Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
4<PAGE>
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
5<PAGE>
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable,or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee retires in
accordance with Section 3.1, 3.2, 3.3 or 3.4 of the
Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance with Section
3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving spouse on
account of the Employee's death before the Employee has
received any Benefit payment hereunder, on the earliest
date as of which payment of such spouse's Basic Pension
under the applicable provisions of Section 9 of the
Pension Plan could commence, without regard to any
election by such spouse to defer the commencement of
payment of such Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
6<PAGE>
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits were
payable in the same form, and with the same
beneficiary, if any, as Pension Plan benefits, and
disregarding any change in marital status occurring
subsequent to the date on which payment of Pension Plan
benefits commence,
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as described
in Section 10.1 of the Pension Plan, divide the amount
determined in (i) by the complement of the reduction
percentage applied to Pension Plan benefits in
accordance with such Section 10.1, to convert such
amount into a benefit payable in the form of a single
life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form other
than as a single life annuity, reduce the amount
determined in (ii) by the reduction percentage that
7<PAGE>
would be applicable under Section 10.1 of the Pension
Plan to an annuity payable thereunder to the Employee
in the same form as the form in which payment of the
Employee's Excess and/or Supplemental Benefits is to be
made hereunder and with the same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess and/or
Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
8<PAGE>
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
the first day of the month following the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
9<PAGE>
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
10<PAGE>
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
11<PAGE>
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuantto a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
12<PAGE>
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-13
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS OF GPU, INC.
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 6, 1997)
1. Purpose
1.1 The purpose of this document is to set forth the
Deferred Remuneration Plan for Outside Directors, as
amended and restated effective February 6, 1997. The
Plan will be implemented by individual elections by
each Director.
2. Plan Summary
2.1 This Plan provides for deferral by Directors of
all or a portion of current Remuneration.
2.2 Funds being deferred will be credited with the
equivalent of interest in accordance with Section 6.
2.3 Each component of the deferred funds will be
distributed as follows:
(a) for a Director who elects deferral until a
date or dates following his or her Retirement, to
the Director, in accordance with his or her latest
effective election.
(b) for a Director who elects deferral until a
date or dates preceding his or her Retirement, to
the Director, in accordance with his or her
initial election; or
(c) if a Director dies before the deferred funds
have been fully distributed, to his or her
designated beneficiary, in accordance with the
option in effect for the Director under Section
7.2 for each component except as the Board may
otherwise determine, based on the circumstances at
the time the distribution is to commence.
3. Definition of Terms
3.1 Account - refers to both Pre-Retirement and
Retirement Accounts established for Directors unless
specifically designated one or the other in the text of
this Plan.
3.2 Board of Directors - refers to the Board of
Directors of GPU, Inc.<PAGE>
3.3 Change in Control - A "Change in Control" shall
mean the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc.
(the "Corporation")) of any common stock of the
Corporation ("Common Stock") or other voting securities
of the Corporation entitled to vote generally for the
election of directors of the Corporation (the "Voting
Securities") by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person
has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of
Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an
employee benefit plan (or a trust forming a part
thereof) maintained by (i) the Corporation or (ii) any
corporation or other Person of which a majority of its
voting power or its voting equity securities or equity
interest is owned, directly or indirectly, by the
Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries,
or (C) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the Board of Directors (the "Incumbent
Board"), cease for any reason to constitute at least
seventy percent (70%) of the members of the Board of
Directors; provided, however, that if the election, or
nomination for election by the Corporation's
shareholders, of any new director was approved by a
vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided
further, however, that no individual shall be
considered a member of the Incumbent Board if such
individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other
than the board of directors of the Corporation (a
"Proxy Contest") including by reason of any agreement
intended to avoid or settle any Election Contest or
Proxy Contest; or
2<PAGE>
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued, unless such merger,
consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into
the Corporation or in which securities of the
Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of
the Incumbent Board immediately prior to the execution
of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock;
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to
any Person (other than a transfer to a Subsidiary).
3<PAGE>
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of
more than the permitted amount of the then outstanding
Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the
Corporation which, by reducing the number of shares of
Common Stock or Voting Securities then outstanding,
increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that
if a Change in Control would occur (but for the
operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3.4 Committee - refers to the Personnel, Compensation
and Nominating Committee of the Corporation.
3.5 Director - refers to a member of the Board of
Directors who is not an employee of the Corporation or
any of its subsidiaries.
3.6 Plan - refers to this Deferred Remuneration Plan
for Outside Directors as described in this document and
as it may be amended in the future.
3.7 Remuneration - refers to all cash amounts earned
during a calendar year by a Director for services
performed as a Director (including services performed
as a member of a committee of the Board of Directors),
but does not include consulting fees, reimbursement for
travel or other expenses or Corporation contributions
to other benefit plans.
3.8 Pre-Retirement Account - refers to the memorandum
account which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date prior to his or her
Retirement. A separate Pre-Retirement Account shall be
established and maintained for the Remuneration for
each Plan Year which the Director so elects to defer.
3.9 Retirement Account - refers to the memorandum
account which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date after his or her
Retirement. All amounts deferred pursuant to elections
4<PAGE>
made on or before December 31, 1985 under the Plan by a
Director, together with all interest equivalents earned
by such election and credited to such amounts prior to
December 31, 1986, shall be treated, on or after such
date, as part of the Director's Retirement Account.
3.10 Retirement - refers to the retirement from service
on the Board of Directors, on account of resignation,
death, or any other reason, without becoming an
employee of the Corporation or any of its subsidiaries.
3.11 Plan Year - refers to the period October 1, 1986
through December 31, 1986; and each twelve (12) month
period from January 1 through December 31 thereafter.
4. Administration
4.1 The Board of Directors has established this Plan.
The Board of Directors may in its sole discretion
modify the provisions of the Plan from time-to-time,
or, may terminate the entire Plan at any time;
provided, however, that Section 3.3, this Section 4.1,
Section 4.4, the last sentence in the first paragraph
of Section 6 and the last paragraph in Section 7.2 may
not be amended or modified, and the Plan may not be
terminated, (i) at the request of a third party who has
indicated an intention or taken steps to effect a
Change in Control and who effectuates a Change in
Control, (ii) within six (6) months prior to, or
otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed
and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification or
termination adversely affects the rights of any
Director under the Plan. No modification or
termination of the Plan shall adversely affect the
rights of any Director with respect to any amounts
standing to the Director's credit in any Account
immediately prior to the date of the adoption of such
modification or termination, including without
limitation any rights with respect to the time and
method of payment of, or the crediting of interest
equivalents with respect to, any such amounts.
4.2 Responsibility for the ongoing administration of
this Plan rests with the Committee.
4.3 The Committee may delegate the daily
administration of this Plan, including the maintenance
of appropriate records, receiving notifications, making
filings, and maintaining related documentation, to the
Vice President - Human Resources of GPU Service
Corporation and to the Vice President's staff.
5<PAGE>
4.4 All questions concerning the Plan, as well as any
dispute over accounting or administrative procedures or
interpretation of the Plan, will be resolved at the
sole discretion of the Committee, except that no member
of the Committee shall vote on any matter which affects
that member but not all other members of the Committee.
Notwithstanding the foregoing, any determination made
by the Committee after the occurrence of a "Change in
Control" that denies in whole or in part any claim made
by any individual for benefits under the Plan shall be
subject to judicial review, under a "de novo", rather
than a deferential, standard.
4.5 All provisions of this Plan, its administration
and interpretation, are intended to be in compliance
with appropriate Internal Revenue Service Rulings and
judicial decisions regarding the construction and
operation of a deferred compensation program, so that
deferred Remuneration and interest equivalents thereon
will not constitute income constructively received
prior to being distributed under the terms of this
Plan.
4.6 A Director's election to voluntarily defer
Remuneration, selection of a distribution commencement
date and distribution option, and designation of a
beneficiary and contingent beneficiary, made pursuant
to this Plan shall be made in writing, on a form
furnished to the Director by the Corporation for such
purposes, signed and delivered personally or by first
class mail to:
Corporate Secretary
GPU Service Corporation
100 Interpace Parkway
Parsippany, New Jersey 07054
Any such election, selection, designation, or change
therein, shall not become effective unless and until
received by the Corporate Secretary. A change in a
distribution election made after April 30, 1987 will
not be effective unless made at least twenty-four (24)
months prior to his or her Retirement or Disability.
5. Deferral Election
5.1 A Director may elect to defer all or any portion
of his or her Remuneration for any Plan Year, providing
such portion is three thousand dollars ($3,000) or
more. A separate deferral election shall be made with
respect to a Director's Remuneration for each Plan
Year. An election to defer Remuneration for the 1986
6<PAGE>
amended Plan Year shall be made on or prior to
September 30. In subsequent years, the election shall
be made on or before December 31 of the year preceding
the Plan Year. Notwithstanding, the foregoing, (a)
Directors who are initially elected prior to December
1st of any Plan Year may, within 30 days of such
initial election, make a deferral election for the then
current Plan Year, and (b) Directors who are initially
elected after December 1st of any Plan Year may
immediately make a deferral election for both the then
current Plan Year and for the immediately succeeding
Plan Year; provided, however, that any deferral
election made pursuant to clause (a) or (b) hereof
shall be effective only with respect to Remuneration
earned after such election has become effective. All
elections under this Section 5.1 shall be irrevocable.
5.2 In his or her election to defer Remuneration for
any Plan Year, a Director shall specify the amount or
portion of the Remuneration to be deferred, and shall
indicate whether the Remuneration so deferred is to be
credited to a Pre-Retirement Account, or to a
Retirement Account.
5.3 With respect to Remuneration deferred hereunder
for a Plan Year which a Director elects to have
credited to his or her Pre-Retirement Account, the
Director shall specify in the election form the date on
which distribution of the Pre-Retirement Account shall
be made or commence. The date so selected shall be no
earlier than 24 months from the close of the Plan Year.
In the election form for the Plan Year, the Director
shall also select an option under Section 7.2 for the
distribution of the Pre-Retirement Account. Except as
provided in Section 7.2 or 7.4, the date so specified,
and the option so selected, may not thereafter be
changed by the Director.
5.4 With respect to any Remuneration deferred
hereunder which a Director elects to have credited to
his or her Retirement Account, the Director shall, at
the time he or she first elects to have an amount
credited to that account, also elect a distribution
commencement date and a distribution option under
Section 7.2 for the distribution of the Retirement
Account. A Director may, subject to the provisions of
Section 4.6, change any election as to the distribution
commencement date and distribution option for the
Retirement Account previously made by the Director.
The distribution commencement date so elected shall be
either January 15 of the calendar year following the
Director's Retirement, or January 15 of any subsequent
calendar year.
7<PAGE>
5.5 In the case of a Director who, prior to January 1,
1986, made a deferral election under the Plan with
respect to his or her Remuneration for the calendar
year 1986, any deferral election made by the Director
hereunder with respect to the period commencing October
1, 1986 and ending December 31, 1986 shall be
effective, for that period, only with respect to the
excess, if any, of the amount he or she so elects to
defer for said period over the amount of Remuneration
for said period deferred pursuant to the Director's
prior election.
5.6 The amounts which are deferred, including interest
equivalents, will be credited to a Director's Account.
Prior to distribution, all amounts deferred including
interest equivalents, will constitute general assets of
the Corporation for use as it deems necessary, and will
be subject to the claims of the Corporation's
creditors. A Director shall have the status of a mere
unsecured creditor of the Corporation with respect to
his or her right to receive any payment under the Plan.
The Plan shall constitute a mere promise by the
Corporation to make payments in the future of the
benefits provided for herein. It is intended that the
arrangements reflected in this Plan be treated as
unfunded for tax purposes.
6. Interest
Interest equivalents, compounded monthly on deposits treated
as monthly transactions, will be credited at the end of each
quarter in the calendar year. Such credit will be made to
the balance of each account maintained for a Director
hereunder, including the undistributed balance of any such
account from which payments are being made in installments.
The rate used in calculation of interest equivalents will be
no less than the rate equal to the simple average of
Citibank N.A. of New York Prime Rates for the last business
day of each of the three months in the calendar quarter or,
if greater, such other rate as established from time to time
by the Committee.
The Corporation may, but shall not be required to, purchase
a life insurance policy, or policies, to assist it in
funding its payment obligations under the Plan. If a
policy, or policies, is so purchased, it shall, at all
times, remain the exclusive property of the Corporation and
subject to the claims of its creditors. Neither the
Director nor any beneficiary or contingent beneficiary
designated by him or her shall have any interest in, or
rights with respect to such policy.
8<PAGE>
7. Distribution of Deferred Funds
7.1 A Director's Pre-Retirement Account shall be
distributed to the Director, or distributions from such
Pre-Retirement Accounts shall commence, on the date or
dates specified in the elections made by the Director
with respect to such accounts. A Director's Retirement
Account shall be distributed to the Director, or
distributions from such Retirement Account shall
commence, on the date specified in the Director's
latest effective election.
7.2 The options for distribution are:
(a) A single lump sum payment.
(b) Annual Installments over any fixed number of
years selected by the Director, with a minimum of
five annual installments required for the
Retirement Account.
(c) Other option, in equal or unequal payments,
as specifically approved by the Committee.
If distribution of a Director's Account is to be made
in annual installments under Option (b) of Section 7.2,
the amount of each installment will equal the total
amount in said Account on the date the installment is
payable, divided by the number of installments
remaining to be paid. In addition, if the
distributions are made in installments under Option (b)
of Section 7.2, the interest equivalent accrued on each
Account each year after the date the first installment
is payable will be distributed on each anniversary of
such date.
Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected, each Director shall be permitted to
make a special distribution election to have the entire
balance of his or her Accounts distributed in the form
of a single lump sum payment in the event of the
Director's Retirement following a Change in Control;
provided, however, that such election shall be
effective only if it is made at least twelve (12)
months prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made at least twelve (12)
months prior to a Change in Control. Any special
election, or revocation of a special election, that may
be made hereunder shall be made in the manner set forth
in Section 4.6. The lump sum payment to be made
pursuant to a Director's special election hereunder
9<PAGE>
shall be made by no later than thirty (30) days
following the date of the Director's Retirement.
7.3 Except as the Committee may otherwise determine
based on the circumstances at the time the distribution
to the beneficiary is to commence:
(a) If a Director should die after distribution
of his/her Account maintained for the Director has
commenced, but before the entire balance has been
fully distributed, distributions will continue to
be made to the Director's designated beneficiary
or contingent beneficiary, in accordance with the
distribution option in effect for such Account at
the time of the Director's death.
(b) If a Director should die before any
distribution from an Account maintained for the
Director hereunder has been made to him or her,
distribution to the Director's designated
beneficiary or contingent beneficiary shall be
made, or shall commence, as soon as practicable
after the Director's death, in accordance with the
distribution option in effect for such Account at
the time of the Director's death.
Amounts remaining to be paid, after the death of the
Director, to the designated beneficiary and the
contingent beneficiary, will be paid in a lump sum to
the estate of the last of such persons to die.
7.4 Notwithstanding anything herein to the contrary,
any Account maintained for a Director hereunder may be
distributed, in whole or in part, to such Director on
any date earlier than the date on which distribution is
to be made, or commence, pursuant to the Director's
election if:
(a) the Director requests early distribution, and
(b) the Committee, in its sole discretion,
determines that early distribution is necessary to
help the Director meet some severe financial need
arising from circumstances which were beyond the
Director's control and which were not foreseen by
the Director at the time he or she made the
election as to the date or dates for distribution.
A request by a Director for an early distribution
shall be made in writing, shall set forth
sufficient information as to the Director's needs
for such distribution to enable the Committee to
take action on his or her request, and shall be
mailed or delivered to the Corporation's Corporate
Secretary.
10<PAGE>
8. Non-Assignment of Deferred Remuneration
8.1 A Director's rights to payments under this Plan
shall not be subject to any manner to anticipation,
alienation, sale, transfer (other than transfer by will
or by the laws of descent and distribution, in the
absence of a beneficiary designation), assignment,
pledge, encumbrance, attachment or garnishment by
creditors of the Director or his or her spouse or other
beneficiary.
8.2 All amounts paid under the Plan, including the
interest equivalents credited to a Director's Account,
are considered to be Remuneration. The crediting of
interest equivalents is intended to preserve the value
of the Remuneration so deferred for the Director.
11<PAGE>
Exhibit C-14
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS
OF GPU NUCLEAR, INC.
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 6, 1997)
1. Purpose
1.1 The purpose of this document is to set forth the
Deferred Remuneration Plan for Outside Directors, as
amended and restated effective February 6, 1997. The
Plan will be implemented by individual elections by
each Director.
2. Plan Summary
2.1 This Plan provides for deferral by Directors of all or
a portion of current Remuneration.
2.2 Funds being deferred will be credited with the
equivalent of interest in accordance with Section 6.
2.3 Each component of the deferred funds will be
distributed as follows:
(a) for a Director who elects deferral until a date or
dates following his or her Retirement, to the
Director, in accordance with his or her latest
effective election.
(b) for a Director who elects deferral until a date or
dates preceding his or her Retirement, to the
Director, in accordance with his or her initial
election; or
(c) if a Director dies before the deferred funds have
been fully distributed, to his or her designated
beneficiary, in accordance with the option in
effect for the Director under Section 7.2 for each
component except as the Board may otherwise
determine, based on the circumstances at the time
the distribution is to commence.
3. Definition of Terms
3.1 Account - refers to both Pre-Retirement and Retirement
Accounts established for Directors unless specifically
designated one or the other in the text of this Plan.
3.2 Board of Directors - refers to the Board of Directors
of the Company<PAGE>
3.3 Change in Control - A "Change in Control" shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc.
(the "Corporation")) of any common stock of the
Corporation ("Common Stock") or other voting securities
of the Corporation entitled to vote generally for the
election of directors of the Corporation (the "Voting
Securities") by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person
has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of
Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an
employee benefit plan (or a trust forming a part
thereof) maintained by (i) the Corporation or (ii) any
corporation or other Person of which a majority of its
voting power or its voting equity securities or equity
interest is owned, directly or indirectly, by the
Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries,
or (C) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the board of directors of the Corporation
(the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the
members of the board of directors of the Corporation;
provided, however, that if the election, or nomination
for election by the Corporation's shareholders, of any
new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of
the Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the board of directors of
the Corporation (a "Proxy Contest") including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
2<PAGE>
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued, unless such merger,
consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into
the Corporation or in which securities of the
Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of
the Incumbent Board immediately prior to the execution
of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock;
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to
any Person (other than a transfer to a Subsidiary).
3<PAGE>
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of
more than the permitted amount of the then outstanding
Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the
Corporation which, by reducing the number of shares of
Common Stock or Voting Securities then outstanding,
increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that
if a Change in Control would occur (but for the
operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3.4 Committee - refers to the Personnel, Compensation and
Nominating Committee of the Corporation's board of
directors.
3.5 Company - refers to GPU Nuclear, Inc.
3.6 Director - refers to a member of the Board of Directors
who is not an employee of the Company, the Corporation
or any of its subsidiaries.
3.7 Plan - refers to this Deferred Remuneration Plan for
Outside Directors as described in this document and as
it may be amended in the future.
3.8 Remuneration - refers to all cash amounts earned during
a calendar year by a Director for services performed as
a Director (including services performed as a member of
a committee of the Board of Directors), but does not
include consulting fees, reimbursement for travel or
other expenses or Company contributions to other
benefit plans.
3.9 Pre-Retirement Account - refers to the memorandum
account which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date prior to his or her
Retirement. A separate Pre-Retirement Account shall be
established and maintained for the Remuneration for
each Plan Year which the Director so elects to defer.
3.10 Retirement Account - refers to the memorandum account
which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
4<PAGE>
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date after his or her
Retirement. All amounts deferred pursuant to elections
made on or before December 31, 1985 under the Plan by a
Director, together with all interest equivalents earned
by such election and credited to such amounts prior to
December 31, 1986, shall be treated, on or after such
date, as part of the Director's Retirement Account.
3.11 Retirement - refers to the retirement from service on
the Board of Directors, on account of resignation,
death, or any other reason, without becoming an
employee of the Company, the Corporation or any of its
subsidiaries.
3.12 Plan Year - refers to the period October 1, 1986
through December 31, 1986; and each twelve (12) month
period from January 1 through December 31 thereafter.
4. Administration
4.1 The Board of Directors has established this Plan. The
Board of Directors may in its sole discretion modify
the provisions of the Plan from time-to-time, or, may
terminate the entire Plan at any time; provided,
however, that Section 3.3, this Section 4.1, Section
4.3, the last sentence in the first paragraph of
Section 6 and the last paragraph in Section 7.2 may not
be amended or modified, and the Plan may not be
terminated, (i) at the request of a third party who has
indicated an intention or taken steps to effect a
Change in Control and who effectuates a Change in
Control, (ii) within six (6) months prior to, or
otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed
and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification or
termination adversely affects the rights of any
Director under the Plan. No modification or
termination of the Plan shall adversely affect the
rights of any Director with respect to any amounts
standing to the Director's credit in any Account
immediately prior to the date of the adoption of such
modification or termination, including without
limitation any rights with respect to the time and
method of payment of, or the crediting of interest
equivalents with respect to, any such amounts.
4.2 Responsibility for the ongoing administration of this
Plan rests with the Corporate Secretary's Department.
4.3 All questions concerning the disclosure of information
relating to this Plan, as well as any dispute over
accounting or administrative procedures or
interpretation of the Plan, will be resolved at the
5<PAGE>
sole discretion of the Corporate Secretary.
The Corporate Secretary will not be liable to any
person for any action taken or omitted in connection
with the interpretation and the administration of the
Plan unless attributable to willful misconduct or lack
of good faith. Notwithstanding the foregoing, any
determination made by the Corporate Secretary after the
occurrence of a "Change in Control" that denies in
whole or in part any claim made by any individual for
benefits under the Plan shall be subject to judicial
review, under a "de novo", rather than a deferential,
standard.
4.4 All provisions of this Plan, its administration and
interpretation, are intended to be in compliance with
appropriate Internal Revenue Service Rulings and
judicial decisions regarding the construction and
operation of a deferred compensation program, so that
deferred Remuneration and interest equivalents thereon
will not constitute income constructively received
prior to being distributed under the terms of this
Plan.
4.5 A Director's election to voluntarily defer
Remuneration, selection of a distribution commencement
date and distribution option, and designation of a
beneficiary and contingent beneficiary, made pursuant
to this Plan shall be made in writing, on a form
furnished to the Director by the Company for such
purposes, signed and delivered personally or by first
class mail to:
Corporate Secretary
GPU Nuclear, Inc.
One Upper Pond Rd.
Parsippany, New Jersey 07054
Any such election, selection, designation, or change
therein, shall not become effective unless and until
received by the Corporate Secretary. A change in a
distribution election made after April 30, 1987 will
not be effective unless made at least twenty-four (24)
months prior to his or her Retirement or Disability.
5. Deferral Election
5.1 A Director may elect to defer all or any portion of his
or her Remuneration for any Plan Year, providing such
portion is three thousand dollars ($3,000) or more. A
separate deferral election shall be made with respect
to a Director's Remuneration for each Plan Year. An
election to defer Remuneration for the 1986 amended
Plan Year shall be made on or prior to September 30.
In subsequent years, the election shall be made on or
6<PAGE>
before December 31 of the year preceding the Plan Year.
Notwithstanding, the foregoing, (a) Directors who are
initially elected prior to December 1st of any Plan
Year may, within 30 days of such initial election, make
a deferral election for the then current Plan Year, and
(b) Directors who are initially elected after December
1st of any Plan Year may immediately make a deferral
election for both the then current Plan Year and for
the immediately succeeding Plan Year; provided,
however, that any deferral election made pursuant to
clause (a) or (b) hereof shall be effective only with
respect to Remuneration earned after such election has
become effective. All elections under this Section 5.1
shall be irrevocable.
5.2 In his or her election to defer Remuneration for any
Plan Year, a Director shall specify the amount or
portion of the Remuneration to be deferred, and shall
indicate whether the Remuneration so deferred is to be
credited to a Pre-Retirement Account, or to a
Retirement Account.
5.3 With respect to Remuneration deferred hereunder for a
Plan Year which a Director elects to have credited to
his or her Pre-Retirement Account, the Director shall
specify in the election form the date on which
distribution of the Pre-Retirement Account shall be
made or commence. The date so selected shall be no
earlier than 24 months from the close of the Plan Year.
In the election form for the Plan Year, the Director
shall also select an option under Section 7.2 for the
distribution of the Pre-Retirement Account. Except as
provided in Section 7.2 or 7.4, the date so specified,
and the option so selected, may not thereafter be
changed by the Director.
5.4 With respect to any Remuneration deferred hereunder
which a Director elects to have credited to his or her
Retirement Account, the Director shall, at the time he
or she first elects to have an amount credited to that
account, also elect a distribution commencement date
and a distribution option under Section 7.2 for the
distribution of the Retirement Account. A Director
may, subject to the provisions of Section 4.5, change
any election as to the distribution commencement date
and distribution option for the Retirement Account
previously made by the Director. The distribution
commencement date so elected shall be either January 15
of the calendar year following the Director's
Retirement, or January 15 of any subsequent calendar
year.
7<PAGE>
5.5 In the case of a Director who, prior to January 1,
1986, made a deferral election under the Plan with
respect to his or her Remuneration for the calendar
year 1986, any deferral election made by the Director
hereunder with respect to the period commencing October
1, 1986 and ending December 31, 1986 shall be
effective, for that period, only with respect to the
excess, if any, of the amount he or she so elects to
defer for said period over the amount of Remuneration
for said period deferred pursuant to the Director's
prior election.
5.6 The amounts which are deferred, including interest
equivalents, will be credited to a Director's Account.
Prior to distribution, all amounts deferred including
interest equivalents, will constitute general assets of
the Company for use as it deems necessary, and will be
subject to the claims of the Company's creditors. A
Director shall have the status of a mere unsecured
creditor of the Company with respect to his or her
right to receive any payment under the Plan. The Plan
shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for
herein. It is intended that the arrangements reflect
in this Plan be treated as unfunded for tax purposes.
6. Interest
Interest equivalents, compounded monthly on deposits treated
as monthly transactions, will be credited at the end of each
quarter in the calendar year. Such credit will be made to
the balance of each account maintained for a Director
hereunder, including the undistributed balance of any such
account from which payments are being made in installments.
The rate used in calculation of interest equivalents will be
no less than the rate equal to the simple average of
Citibank N.A. of New York Prime Rates for the last business
day of each of the three months in the calendar quarter or,
if greater, such other rate as established from time to time
by the Committee.
The Company may, but shall not be required to, purchase a
life insurance policy, or policies, to assist it in funding
its payment obligations under the Plan. If a policy, or
policies, is so purchased, it shall, at all times, remain
the exclusive property of the Company and subject to the
claims of its creditors. Neither the Director nor any
beneficiary or contingent beneficiary designated by him or
her shall have any interest in, or rights with respect to
such policy.
7. Distribution of Deferred Funds
7.1 A Director's Pre-Retirement Account shall be
distributed to the Director, or distributions from such
8<PAGE>
Pre-Retirement Accounts shall commence, on the date or
dates specified in the elections made by the Director
with respect to such accounts. A Director's Retirement
Account shall be distributed to the Director, or
distributions from such Retirement Account shall
commence, on the date specified in the Director's
latest effective election.
7.2 The options for distribution are:
(a) A single lump sum payment.
(b) Annual Installments over any fixed number of years
selected by the Director, with a minimum of five
annual installments required for the Retirement
Account.
(c) Other option, in equal or unequal payments, as
specifically approved by the Committee.
If distribution of a Director's Account is to be made
in annual installments under Option (b) of Section 7.2,
the amount of each installment will equal the total
amount in said Account on the date the installment is
payable, divided by the number of installments
remaining to be paid. In addition, if the
distributions are made in installments under Option (b)
of Section 7.2, the interest equivalent accrued on each
Account each year after the date the first installment
is payable will be distributed on each anniversary of
such date.
Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected, each Director shall be permitted to
make a special distribution election to have the entire
balance of his or her Accounts distributed in the form
of a single lump sum payment in the event of the
Director's Retirement following a Change in Control;
provided, however, that such election shall be
effective only if it is made at least twelve (12)
months prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made at least twelve (12)
months prior to a Change in Control. Any special
election, or revocation of a special election, that may
be made hereunder shall be made in the manner set forth
in Section 4.6. The lump sum payment to be made
pursuant to a Director's special election hereunder
shall be made by no later than thirty (30) days
following the date of the Director's Retirement.
9<PAGE>
7.3 Except as the Board may otherwise determine based on
the circumstances at the time the distribution to the
beneficiary is to commence:
(a) If a Director should die after distribution of
his/her Account maintained for the Director has
commenced, but before the entire balance has been
fully distributed, distributions will continue to
be made to the Director's designated beneficiary
or contingent beneficiary, in accordance with the
distribution option in effect for such Account at
the time of the Director's death.
(b) If a Director should die before any distribution
from an Account maintained for the Director
hereunder has been made to him or her,
distribution to the Director's designated
beneficiary or contingent beneficiary shall be
made, or shall commence, as soon as practicable
after the Director's death, in accordance with the
distribution option in effect for such Account at
the time of the Director's death.
Amounts remaining to be paid, after the death of the
Director, to the designated beneficiary and the
contingent beneficiary, will be paid in a lump sum to
the estate of the last of such persons to die.
7.4 Notwithstanding anything herein to the contrary, any
Account maintained for a Director hereunder may be
distributed, in whole or in part, to such Director on
any date earlier than the date on which distribution is
to be made, or commence, pursuant to the Director s
election if:
(a) the Director requests early distribution, and
(b) the Board, in its sole discretion, determines that
early distribution is necessary to help the
Director meet some severe financial need arising
from circumstances which were beyond the
Director's control and which were not foreseen by
the Director at the time he or she made the
election as to the date or dates for distribution.
A request by a Director for an early distribution
shall be made in writing, shall set forth
sufficient information as to the Director's needs
for such distribution to enable the Committee to
take action on his or her request, and shall be
mailed or delivered to the Company's Corporate
Secretary.
10<PAGE>
8. Non-Assignment of Deferred Remuneration
8.1 A Director's rights to payments under this Plan shall
not be subject to any manner to anticipation,
alienation, sale, transfer (other than transfer by will
or by the laws of descent and distribution, in the
absence of a beneficiary designation), assignment,
pledge, encumbrance, attachment or garnishment by
creditors of the Director or his or her spouse or other
beneficiary.
8.2 All amounts paid under the Plan, including the interest
equivalents credited to a Director's Account, are
considered to be Remuneration. The crediting of
interest equivalents is intended to preserve the value
of the Remuneration so deferred for the Director.
11<PAGE>
Exhibit C-15
RETIREMENT PLAN FOR OUTSIDE DIRECTORS OF GPU, INC.
AS AMENDED AND RESTATED AS OF February 6, 1997<PAGE>
RETIREMENT PLAN FOR OUTSIDE DIRECTORS OF GPU, INC.
As Amended and Restated as of February 6, 1997
1. Purpose
The Retirement Plan for Outside Directors of GPU, Inc. (the
"Plan") is designed to enhance the ability of GPU, Inc. (the
"Corporation") to attract and retain competent and experienced
Outside Directors by providing retirement benefits and death
benefits for Eligible Outside Directors who retire or die after
the Plan's Effective Date.
2. Definitions
Except as otherwise specified or as the context may
otherwise require, the following terms have the meanings
indicated below for all purposes of this Plan:
"Board of Directors" means the board of directors of the
Corporation.
"Outside Director" means a member of the Board of Directors
who, during the period involved, is not or was not an Officer or
an employee of the Corporation or a subsidiary thereof.
"Board Service" means service as an Outside Director of the
Corporation both before and after the Effective Date.
"Change in Control" means the occurrence during the term of
the Plan of:
1. An acquisition (other than directly from the
Corporation) of any Common Stock or other voting securities of
the Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of twenty percent (20%) or more of the then
outstanding shares of Common Stock or the combined voting power
of the Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-
Control Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained by
(i) the Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting equity
securities or equity interest is owned, directly or indirectly,
by the Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries, or (C)
any Person in connection with a "Non-Control Transaction" (as
hereinafter defined);<PAGE>
2. The individuals who, as of August 1, 1996,
are members of the Board of Directors (the "Incumbent Board"),
cease for any reason to constitute at least seventy percent (70%)
of the members of the Board of Directors; provided, however, that
if the election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual
shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board of Directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
3. The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such merger,
consolidation or reorganization is a "Non-Control Transaction."
A "Non-Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately following
such merger, consolidation or reorganization, at least sixty
percent (60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from such merger
or consolidation or reorganization (the "Surviving Corporation")
in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation
or reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately prior to the execution
of the agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of the
members of the board of directors of the Surviving Corporation,
or a corporation, directly or indirectly, beneficially owning a
majority of the Voting Securities of the Surviving Corporation,
and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit plan
(or any trust forming a part thereof) that, immediately prior to
such merger, consolidation or reorganization, was maintained by
the Corporation or any Subsidiary, or (z) any Person who,
immediately prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or more of the
2<PAGE>
then outstanding Voting Securities or Common Stock, has
Beneficial Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's then
outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of
the Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any Person
(other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or Voting
Securities as a result of the acquisition of Common Stock or
Voting Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities then
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of shares of Common
Stock or Voting Securities by the Corporation, and after such
share acquisition by the Corporation, the Subject Person becomes
the Beneficial Owner of any additional shares of Common Stock or
Voting Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
"Compensation" means the sum of: (a) the monthly
retainer paid in cash to an Outside Director as compensation for
services as a Director of the Corporation, excluding any fees
paid for attendance at meetings of the Board of Directors or any
committee of the Board of Directors, and also excluding any
additional retainer paid for service as a Committee Chairman, and
(b) one-twelfth of the cash value of all shares awarded to, the
Outside Director pursuant to the Restricted Stock Plan for
Outside Directors as the annual award thereunder for the year
preceding his or her Retirement, and not subsequently forfeited.
The cash value of a share shall be its closing price as
reported for New York Stock Exchange-Composite Transactions on
the date of award.
"Effective Date" means the date of initial adoption of
this Plan by the Board of Directors.
"Retirement or Retires" means the cessation of service
as an Outside Director for any reason other than (i) acceptance
of employment as an officer or employee of the Corporation or a
subsidiary thereof or (ii) death.
3<PAGE>
3. Eligibility
An Outside Director who has completed at least fifty-
four (54) months of Board Service, whether or not continuous, and
who Retires or dies before Retirement on or after the Effective
Date shall be eligible for benefits as provided herein. After
the occurrence of a Change in Control, any person who was an
Outside Director immediately prior to such Change in Control
shall be eligible for benefits as provided herein upon Retirement
or death before Retirement, whether or not such Outside Director
has completed at least fifty-four (54) months of Board Service.
4. Pension Benefits of Eligible Retired Outside Directors
Before Death
The accumulated amount of pension benefits payable to
an Outside Director eligible to receive benefits hereunder shall
be equal to the product of (a) the number of months of such
Outside Director's Board Service under this Plan times (b) the
monthly compensation of such Outside Director at the date of such
Outside Director's Retirement under the Plan. Such pension
benefits shall be paid in monthly installments equal to the
monthly compensation of each Outside Director at the date of such
Outside Director's Retirement. Such pension benefits shall
commence on the first day of the month following the Director's
60th birthday or the Director's Retirement under the Plan,
whichever is later, and shall continue during the Retired Outside
Director's life until the date when the total payments to the
Retired Outside Director shall be equal to the Outside Director's
accumulated pension benefits at the date of such Director's
Retirement. Notwithstanding the foregoing, in the case of any
retired Outside Director who again becomes an Outside Director
after payment of his pension benefits hereunder has commenced, no
further payments shall be made with respect to his pension
benefits after the date on which he resumes Board Service, until
his subsequent Retirement or death. The pension benefits payable
under this Section 4 or under Section 5 upon such Outside
Director's subsequent Retirement or death (i) shall be determined
by taking into account only the excess of (A) his total number of
months of Board Service prior to July 1, 1997 over (B) the number
of months for which he received pension benefit payments
hereunder prior to his resumption of Board Service, and (ii)
shall be based on his monthly compensation at the date of his
subsequent Retirement or death.
Notwithstanding any other provision of the Plan to the
contrary, each Outside Director shall be permitted to make a
special distribution election to have his or her pension benefits
distributed in the form of a single lump sum payment in the event
of the Outside Director's Retirement following a Change in
Control; provided, however, that such election shall be effective
only if it is made at least twelve (12) months prior to such
Change in Control. Any special election made hereunder may be
revoked, and a new special election may be made at any time;
provided, however, that any such revocation or new election shall
4<PAGE>
be effective only if it is made at least twelve (12) months prior
to a Change in Control. Any special election, or revocation of a
special election, that may be made hereunder shall be made in
writing, on a form furnished to the Outside Director for such
purpose by the Personnel, Compensation and Nominating Committee.
The lump sum payment to be made hereunder to an Outside Director
shall be in an amount that is Actuarially Equivalent (as defined
in the GPU Service, Inc. Employee Pension Plan or any successor
thereto and determined as of the date of the Outside Director's
Retirement) to the pension benefits that otherwise would be
payable hereunder if such pension benefits were to commence upon
the Outside Director's Retirement or 60th birthday, whichever is
later. The lump sum payment to be made hereunder with respect to
any Outside Director shall be made by no later than 30 days
following the date of the Outside Director's Retirement.
5. Benefits Payable by Reason of Death of Eligible Outside
Director
In the event that an Outside Director who is eligible
to receive benefits hereunder should die prior to receiving
payment of the full amount of his or her accumulated pension
benefits, the remaining portion of such Outside Director's
accumulated pension benefits shall be paid as follows:
(a) If the Outside Director dies after Retirement, the
monthly payments previously made to the Outside Director shall
continue to be made to the Outside Director's surviving spouse
(or, if applicable, designated beneficiary) until the aggregate
of the payments to the Outside Director and such surviving spouse
or beneficiary shall be equal to the Outside Director's
accumulated pension benefits at the date of such Director's
Retirement.
(b) If the Outside Director dies prior to Retirement,
there shall be paid to the Outside Director's surviving spouse
(or, if applicable, designated beneficiary) monthly installments
equal to the monthly compensation of such Outside Director at the
date of such Outside Director's death until the aggregate of the
payments to such surviving spouse (or, if applicable, designated
beneficiary) shall be equal to the Outside Director's accumulated
amount of pension benefits at the date of the Outside Director's
death. Payment of such monthly installments shall begin on the
first day of the month next following the Outside Director's
death or, if later, the first day of the month in which the
Outside Director's 60th birthday would have occurred if the
outside Director had survived.
6. Designated Beneficiary of Eligible Outside Director
If an Eligible Outside Director shall die without
leaving a surviving spouse or if the Outside Director's surviving
spouse shall die prior to payment in full of the outside
Director's accumulated pension benefits, the payments which would
otherwise have been made to the Outside Director's surviving
5<PAGE>
spouse shall be made to the Outside Director's designated
beneficiary (or beneficiaries). Such designations shall be made
in writing on forms provided by the Corporation to the Outside
Director. Any such designation by an Outside Director may be
revoked by the Outside Director at any time before or after
Retirement. Any such revocation shall be made in writing on a
form provided by the Corporation to the Outside Director.
7. Provision for Benefits
All benefits payable hereunder shall be provided from
the general assets of the Corporation. No Outside Director shall
acquire any interest in any specific assets of the Corporation by
reason of this Plan. An Outside Director shall have the status
of a mere unsecured creditor of the Corporation with respect to
his or her right to receive any payment under the Plan. The Plan
shall constitute a mere promise by the Corporation to make
payments in the future of the benefits provided for herein. It
is intended that the arrangements reflected in this Plan be
treated as unfunded for tax purposes.
8. Amendment and Termination
The Board of Directors reserves the right to terminate
this Plan or amend this Plan prospectively in any respect at any
time, but no such amendment may reduce (a) the benefits of any
Outside Director who has previously Retired hereunder, or (b) the
benefits accrued hereunder by any Outside Director prior to the
effective date of such termination or amendment. In addition,
the definition of Change in Control in Section 2, the last
sentence in Section 3, the last paragraph in Section 4, this
Section 8, and the last sentence of Section 9 may not be amended
or modified, and the Plan may not be terminated, (i) at the
request of a third party who has indicated an intention or taken
steps to effect a Change in Control and who effectuates a Change
in Control, (ii) within six (6) months prior to, or otherwise in
connection with, or in anticipation of, a Change in Control which
has been threatened or proposed and which actually occurs, or
(iii) following a Change in Control, if the amendment,
modification or termination adversely affects the rights of any
Outside Director under the Plan.
9. Administration
This Plan shall be administered by the Personnel,
Compensation, and Nominating Committee of the Board of Directors.
Such Committee's final decision, in making any determination or
construction under this Plan and in exercising any discretionary
power, shall in all instances be final and binding on all persons
having or claiming any rights under this Plan. Notwithstanding
the foregoing, any determination made by the Committee after the
occurrence of a Change in Control that denies in whole or in part
any claim made by any individual for benefits under the Plan
shall be subject to judicial review, under a "de novo," rather
than a deferential, standard.
6<PAGE>
10. Miscellaneous
Nothing herein contained shall be deemed to give any
Outside Director the right to be retained as a director of the
Corporation, nor shall it interfere with the Outside Director's
right to terminate such directorship at any time. An Outside
Director's rights to payments under this Plan shall not be
subject in any manner to anticipation, alienation, sale, transfer
(other than transfer by will or by the laws of descent and
distribution, in the absence of a beneficiary designation),
assignment, pledge, encumbrance, attachment or garnishment by
creditors of the Outside Director or his or her spouse or other
beneficiary.
11. Phase Out of Plan
Notwithstandng any other provision in this Plan to the
contrary, the provisions of this Section 11 shall apply on or
after July 1, 1997.
(a) No individual who first becomes an Outside
Director on or after July 1, 1997 shall be entitled to receive
any pension benefits under this Plan.
(b) For purposes of determining the amount of pension
benefits payable under Section 4 or 5 with respect to any
individual who is an Outside Director on July 1, 1997, the number
of months of such Outside Director's Board Service shall be
determined by taking into account only months of Board Service
completed prior to July 1, 1997.
(c) In the case of any individual who is an Outside
Director on July 1, 1997, his or her Board Service on and after
such date shall be taken into account for purposes of determining
his or her eligibility under Section 3 for benefits payable under
the Plan.
7<PAGE>
Exhibit C-16
GPU COMPANIES
DEFERRED COMPENSATION PLAN
(as amended through February 6, 1997)<PAGE>
TABLE OF CONTENTS
Purpose 1
Definition of Terms 1
Administration 6
Deferral Election 8
Supplemental Savings Plan Benefits 10
Interest 11
Distribution of Deferred Funds 11
Non-Assignment of Deferred Compensation 16
Termination of Participation or Employment 16
Transfer of Employment 16<PAGE>
GPU COMPANIES
DEFERRED COMPENSATION PLAN
(as amended through February 6, 1997)
1. Purpose
This document sets forth the GPU Companies Deferred
Compensation Plan, as amended and restated, effective February 6,
1997.
The Plan provides Elected Officers of each Company, as
defined herein, with an opportunity to defer part or all of their
Compensation, pursuant to their elections made in accordance with
the provisions hereof. The Plan also provides Elected Officers
and Other Eligible Employees with an opportunity to be credited
with additional deferred amounts that are intended to approximate
the Company Matching Contributions that otherwise might have been
made on their behalf to the GPU, Inc. and Subsidiary System
Companies Employee Savings Plan for Nonbargaining Employees (the
"Savings Plan") but for the limitation on the amount of
compensation that can be taken into account under the Savings
Plan pursuant to section 401(a)(17) of the Internal Revenue Code
of 1986, as amended (the "Compensation Limit").
The Plan is intended to constitute an unfunded plan of
deferred compensation for "a select group of management or highly
compensated employees" within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
Each Company has adopted this Plan as its own Plan.
Accordingly, each Company shall be obligated hereunder only with
respect to amounts distributable from the Accounts it maintains
for Participants who are its own employees; and the right to
receive any amount distributable hereunder with respect to any
Participant shall be enforceable only against the Company with
which such Participant is or was last employed.
2. Definition of Terms
2.1 Account - refers, as the context may require, to the
Retirement Account, or the Pre-Retirement Account or Accounts, or
to the Retirement Account and all Pre-Retirement Accounts,
established for a Participant hereunder.
2.2 Board - refers to the Board of Directors of a Company.
2.3 Chairman - refers to the Chairman of the Board or the
Chairman, as appropriate for each Company that has adopted the
Plan.
2.4 Change in Control - A "Change in Control" shall mean
the occurrence during the term of the Plan of:<PAGE>
(1) An acquisition (other than directly from GPU, Inc.
(the "Corporation") of any common stock of the Corporation
("Common Stock") or other voting securities of the Corporation
entitled to vote generally for the election of directors (the
"Voting Securities") by any "Person" (as the term person is used
for purposes of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of Common
Stock or the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting Securities which
are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a
Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a trust forming a
part thereof) maintained by (i) the Corporation or (ii) any
corporation or other Person of which a majority of its voting
power or its voting equity securities or equity interest is
owned, directly or indirectly, by the Corporation (for purposes
of this definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the board of directors of the Corporation (the
"Incumbent Board"), cease for any reason to constitute at least
seventy percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders, of any
new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this
Plan, be considered as a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member
of the Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
board of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle
any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of the
Corporation are issued where:
2<PAGE>
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization,
at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the
corporation resulting from such merger or consolidation
or reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of
the Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of
the agreement providing for such merger, consolidation
or reorganization constitute at least seventy percent
(70%) of the members of the board of directors of the
Surviving Corporation, or a corporation, directly or
indirectly, beneficially owning a majority of the
Voting Securities of the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any Person
(other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or Voting
Securities as a result of the acquisition of Common Stock or
Voting Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities then
outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Persons, provided that if a
Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of shares of Common
Stock or Voting Securities by the Corporation, and after such
share acquisition by the Corporation, the Subject Person becomes
3<PAGE>
the Beneficial Owner of any additional shares of Common Stock or
Voting Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
2.5 Committee - refers to the Personnel, Compensation and
Nominating Committee of the Board of Directors of GPU, Inc.
2.6 Company - refers, as the context may require,
singularly and not jointly, to any Company, a majority of the
outstanding common stock of which is owned, directly or
indirectly, by GPU, Inc., that has adopted the Plan. When used
in reference to a Participant, the term "Company" shall mean the
Company with which such Participant is or was last employed
unless the context otherwise requires.
2.7 Compensation - refers to all amounts which, but for an
election hereunder, would be paid in cash during a Plan Year to a
Participant for services performed on behalf of the Company, but
does not include reimbursement for travel or other expenses,
Company contributions to retirement programs or other employee
benefit plans, payments under the Company's Short-Term or Long-
Term Disability Income Plans, any amounts distributed to the
Elected Officer from any Pre-Retirement Account. A Participant's
Compensation for any Plan Year includes any Performance Award
that becomes payable to the Participant during such year, but
does not include any other amounts that are paid or that become
payable to the Participant under the 1990 Stock Plan for
Employees of GPU, Inc. and Subsidiaries (the "Stock Plan"). A
Participant's Compensation for any Plan Year beginning on or
after April 1, 1991, shall not include any severance payments
made to the Participant in connection with his or her termination
of employment.
2.8 Disability - refers to entitlement to benefits under
the Company's Long-Term Disability Income Plan or Employee
Pension Plan as a result of a disability which, in the opinion of
the Board, is considered to be a permanent disability.
2.9 Elected Officer - refers to an individual who, pursuant
to election by the Board, is serving as an officer of the Company
other than as an Assistant Controller, an Assistant Secretary, or
an Assistant Treasurer; provided, however, that the Board of any
Company may limit participation in the Plan to such of that
Company's elected officers as the Board may designate, and in
such case, the term "Elected Officer" shall refer only to any
elected officer of such Company so designated by the Board.
2.10 "Excess Compensation" - refers, in the case of any
Participant for any month beginning on or after January 1, 1995,
to the amount by which (i) the aggregate amount of the
Participant's Regular Compensation and Incentive Compensation
for such month and for all prior months within the Plan Year of
the Savings Plan ("ESP Plan Year" ) that includes such month
4<PAGE>
exceeds the sum of (ii) the Compensation Limit in effect for such
ESP Plan Year and (iii) the aggregate amount of the Participant's
"Excess Compensation" (as determined under clause (i) and (ii)
hereof) for all prior months within such Plan Year.
2.11 Incentive Compensation - refers to the portion of a
Participant's Compensation for a Plan Year that consists of
amounts awarded to the Participant during such year under the
Company's Incentive Compensation Plan for Elected Officers,
Employee Incentive Compensation Plan, or Annual Performance Award
Plan.
2.12 Other Eligible Employee - refers, with respect to any
Plan Year, to any employee of a Company who is not an Elected
Officer of such Company but who is expected to have "Excess
Compensation" for any one or more months during such Plan Year
and who has been designated by the Chairman of such Company as
eligible to make a deferral election for such Plan Year under
Section 4.3.
2.13 Participant - refers to any Elected Officer or Other
Eligible Employee who has made a deferral election for any Plan
Year under Section 4.1 or 4.3. For all purposes of the Plan
other than for purposes of continuing entitlement to make
deferral elections under Section 4.1 or 4.3, an Elected Officer
who at any time ceases to be such, or a Participant whose
employment is terminated or whose participation in the Plan is
terminated pursuant to Section 9, shall, notwithstanding such
cessation or termination, continue to be treated as a
"Participant" until all amounts credited to his or her Accounts
under the Plan have been distributed pursuant to Section 7, or
transferred pursuant to Section 10.1.
2.14 Performance Award - refers to the portion of a
Participant's Compensation for a Plan Year that consists of any
Performance Cash Incentive Award that becomes payable to the
Elected Officer during such year under the Stock Plan. For this
purpose, a Performance Award shall be treated as becoming payable
to a Participant on the "Vesting Date" for the restricted shares
or restricted units with respect to which the Performance Award
becomes payable; and the "Vesting Date" shall mean the date on
which such restricted shares or restricted units become vested
under the terms of the written agreement between the Elected
Officer and GPU, Inc. evidencing the award of such shares or
units to the Elected Officer.
2.15 Plan - refers to the GPU Companies Deferred
Compensation Plan as set forth in this document and as it may be
amended in the future.
2.16 Plan Year - refers to each 12-month period from April 1
through March 31. In the case of any Company that adopts the
Plan as of a date after the start of a Plan Year, as so defined,
the initial "Plan Year," with respect to such Company's Elected
Officers and Other Eligible Employees, shall be the period
5<PAGE>
commencing on the date as of which the Plan is so adopted and
ending on the next following March 31.
2.17 Pre-Retirement Account - refers to the memorandum
account which shall be established and maintained for a
Participant who elects, pursuant to Section 4.5, to have payment
of any portion of his or her Compensation for any Plan Year
deferred to a date which is expected to occur prior to his or her
Retirement or Disability. A separate Pre-Retirement Account
shall be established and maintained for the Compensation for each
Plan Year which the Participant so elects to defer.
2.18 Regular Compensation - refers to a Participant's
Compensation for a Plan Year, exclusive of any Incentive
Compensation awarded to the Participant during such Plan Year,
and exclusive of any Performance Award that becomes payable to
the Participant during such Plan Year.
2.19 Retirement - refers to termination of service with the
Company on account of retirement under the Company's Employee
Pension Plan, resignation, death or any other reason other than
employment by any other Company. A Participant will not be
deemed to have retired until he or she ceases to be employed with
any Company.
2.20 Retirement Account - refers to the memorandum account
which shall be established and maintained for a Participant who
elects, pursuant to Section 4.5, to have payment of any portion
of his or her Compensation for any Plan Year deferred to a date
after his or her Retirement or Disability. The term Retirement
Account shall also refer to the memorandum account that shall be
established and maintained for a Participant pursuant to Section
5.3.
3. Administration
3.1 Subject to the concurrence of the Committee, the
Company may modify the provisions of the Plan from time-to-time,
or, may terminate the entire Plan at any time; provided, however,
that Section 2.4, this Section 3.1, Section 3.4, Paragraph (d) of
Section 6 and the last paragraph of Section 7.2 may not be
amended or modified, and the Plan may not be terminated, (i) at
the request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who effectuates a
Change in Control, (ii) within six (6) months prior to, or
otherwise in connection with, or in anticipation of, a Change in
Control which has been threatened or proposed and which actually
occurs, or (iii) following a Change in Control, if the amendment,
modification or termination adversely affects the rights of any
Participant under the Plan. Action to amend the Plan may be
taken by the Company either by resolution duly adopted by the
Company's Board, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board. No modification
6<PAGE>
or termination of the Plan shall adversely affect the rights of
any Participant with respect to any amounts standing to the
Participant's credit in any Account immediately prior to the date
of the adoption of such modification or termination, including
without limitation any rights with respect to the time and method
of payment of, or the crediting of interest equivalents with
respect to, any such amounts.
3.2 Responsibility for the ongoing administration of this
Plan rests with the Board.
3.3 The Board may delegate the day-to-day administration of
this Plan, including the maintenance of appropriate records,
receiving notifications, making filings, and maintaining related
documentation, to the officer or other employee of the Company in
charge of the Company's Human Resources division or function, and
to his or her staff.
3.4 The Board shall have exclusive authority to resolve all
questions concerning the Plan, including any dispute over
accounting or administrative procedures or interpretation of the
Plan.
Notwithstanding the foregoing, any determination made
by the Board after the occurrence of a Change in Control that
denies in whole or in part any claim made by any individual for
benefits under the Plan shall be subject to judicial review,
under a "de novo", rather than a deferential, standard.
3.5 A Participant's election to defer Compensation,
selection of a distribution commencement date and distribution
option, or designation of a beneficiary and contingent
beneficiary, made pursuant to this Plan, shall be made in
writing, on a form furnished to the Participant for such purpose
by the officer or other employee of the Company in charge of the
Company's Human Resources division or function. The form shall
be signed by the Participant and delivered personally or by first
class mail to:
Vice President-Human Resources
GPU Service, Inc.
100 lnterpace Parkway
Parsippany, New Jersey 07054
Any such election, selection, designation, or any
change therein, shall not become effective unless and until
received by the Vice President-Human Resources.
Except as provided in Section 7.4 or Section 7.5, a
change in the selection of a distribution commencement date or
distribution option shall not be effective unless made at least
twenty-four (24) months prior to the Participant's Retirement or
Disability.
7<PAGE>
4. Deferral Election
4.1 For each Plan Year beginning on and after April 1,
1991, an Elected Officer may elect, separately, to defer (a) any
part or all of his or her Regular Compensation for such year, (b)
any part or all of his or her Incentive Compensation for such
year, and/or (c) any part or all of any Performance Award that
becomes payable to the Elected Officer during such year; subject,
however, in each case to the limitations set forth in Section
4.4.
4.2 An election to defer Regular Compensation for any Plan
Year beginning on and after April 1, 1991, shall be made on or
prior to October 31 of the year preceding such Plan Year. An
election to defer Incentive Compensation for any Plan Year
beginning on or after April 1, 1991, shall be made on or prior to
October 31 of such Plan Year. Notwithstanding the foregoing, (a)
Elected Officers who are initially elected prior to November 1st
of any Plan Year may, within 30 days of such initial election,
or, if later, the date the Elected Officer's Regular Compensation
is fixed by the Board, make a deferral election for his or her
Regular Compensation for the then current Plan Year, and (b)
Elected Officers who are initially elected after November 1st of
any Plan Year may, within 30 days of such initial election, or,
if later, the date the Elected Officer's Regular Compensation is
fixed by the Board, make a deferral election for both his or her
Regular Compensation and Incentive Compensation (if any) for the
then current Plan Year, as well as for his or her Regular
Compensation for the immediately succeeding Plan Year; provided,
however, that any deferral election made pursuant to clause (a)
or (b) hereof shall be effective only with respect to
Compensation earned after such deferral election has become
effective. An election to defer any part of a Performance Award
shall be made at least one year prior to the Vesting Date for the
restricted shares or restricted units with respect to which such
Performance Award is payable. All deferral elections made under
Section 4.1 or 4.3 shall be irrevocable.
4.3 For each Plan Year beginning on or after April 1, 1996,
any Other Eligible Employee may elect to defer any part or all of
any "Excess Compensation" that may become payable to such Other
Eligible Employee for any month during such Plan Year, subject to
the limitations set forth in Section 4.4. Such election shall be
made on or prior to October 31 of the year preceding such Plan
Year.
4.4 Deferral elections otherwise permitted to be made under
the Plan for Plan Years beginning on or after April 1, 1995 shall
be subject to the following limitations:
(a) No amount may be deferred pursuant to a
Participant's election under this Plan for a period of 12 months
following the Participant's receipt of a hardship withdrawal
under Section 7.2(e) of the Savings Plan.
8<PAGE>
(b) No Incentive Compensation for a Plan Year may be
deferred pursuant to a Participant's election hereunder if the
Participant's Retirement or Disability occurs after the date on
which he or she made such election but prior to the first day of
the calendar year next following the date on which the
Participant made the election for such Plan Year.
(c) No portion of a Participant's Compensation for a
Plan Year may be deferred pursuant to the Participant's election
hereunder to the extent such portion is required to be applied to
payment of any tax or other obligation of the Participant.
4.5 In any election to defer Regular Compensation or
Incentive Compensation for any Plan Year, in any election to
defer any Performance Award that becomes payable during a Plan
Year, and in any election by any Other Eligible Employee to defer
any Excess Compensation for any Plan Year, the Participant shall
specify the amount or portion of such Compensation to be
deferred, and shall indicate whether the Compensation so deferred
is to be credited to a Pre-Retirement Account, or to a Retirement
Account. If an Elected Officer elects to defer Incentive
Compensation for any Plan Year to a Pre-Retirement Account, the
Compensation so deferred shall be credited to the Elected
Officer's Pre-Retirement Account for the Plan Year next following
the Plan Year in which such Incentive Compensation is awarded to
the Elected Officer.
4.6 With respect to Compensation deferred hereunder for a
Plan Year which a Participant elects to have credited to his or
her Pre-Retirement Account, he or she shall specify in his or her
election form the date on which distribution of such account
shall be made or commence. The date so selected shall be no
earlier than January 15 of the third calendar year beginning
after the close of such Plan Year, and may be the January 15 of
any subsequent calendar year. Notwithstanding the foregoing, a
Participant may elect to have distribution of any Pre-Retirement
Account made or commence on the earlier of any date selected by
the Participant in accordance with the preceding sentence, or
January 15 of the calendar year following the Participant's
Retirement or Disability. In his or her election form for the
Plan Year, the Participant shall also select an option under
Section 7.2 for the distribution of the Pre-Retirement Account.
Except as provided in Section 7.4 or Section 7.5, the date so
specified, and the option so selected, may not thereafter be
changed by the Participant.
4.7 With respect to any Compensation deferred hereunder
which a Participant elects to have credited to his or her
Retirement Account, he or she shall, at the time he or she first
elects to have an amount credited to such account, also elect a
distribution commencement date and a distribution option under
Section 7.2 for the distribution of such account. A Participant
may, subject to the provisions of Section 3.5, change any
election as to the distribution commencement date and
distribution option for the Retirement Account previously made by
9<PAGE>
him or her. The distribution commencement date so elected shall
be either January 15 of the calendar year following the
Participant's Retirement or Disability, or January 15 of any
subsequent calendar year.
5. Supplemental Savings Plan Benefits
5.1 Beginning on or after April 1, 1992, for each month for
which an Elected Officer has Excess Compensation, and beginning
on or after April 1, 1996, for each month for which any Other
Eligible Employee has Excess Compensation, there shall be
credited to such Participant's Retirement Account an amount
determined by multiplying the Participant's Excess Compensation
for such month by his or her Matching Percentage for such month.
5.2 For purposes of Section 5.1, the following definitions
and rules shall apply beginning on or after January 1, 1995:
(a) In determining the amount of a Participant's
"Excess Compensation" for any month, only the Participant's
Regular Compensation for those months during which he or she is
eligible to participate in the Savings Plan shall be taken into
account.
(b) A Participant's Regular Compensation for any month
shall include the total amount of Regular Compensation that would
have been paid to the Participant in such month but for any
deferral election made by the Participant hereunder. A
Participant's Incentive Compensation for any month shall include
the total amount of Incentive Compensation awarded to the
Participant during such month whether or not paid to the
Participant in such month.
(c) A Participant's "Matching Percentage" for any
month shall mean the percentage, not in excess of 4%, determined
by dividing the aggregate amount of the Participant's Regular
Compensation and Incentive Compensation for such month, and for
all prior months within the ESP Plan Year that includes such
month, that is deferred pursuant to elections made by the
Participant hereunder, by (ii) the aggregate amount of the
Participant's Excess Compensation for such month and for all
prior months within the ESP Plan Year that includes such month.
5.3 If, on the first date as of which an amount is to be
credited to a Participant's Retirement Account under Section 5.1,
a Retirement Account had not previously been established for such
Participant pursuant to Section 4.5, a Retirement Account shall
be established for such Participant as of such date. By no later
than 30 days after such date, such Participant shall elect a
distribution commencement date and a distribution option for his
Retirement Account, and may thereafter change any such election,
in accordance with the provisions set forth in Section 4.7.
10<PAGE>
6. Interest
Interest equivalents will be calculated and credited to
Accounts at the end of each quarter in the calendar year. Such
interest equivalents shall be determined in accordance with the
following rules:
(a) The amount of Regular Compensation deferred each month
pursuant to an Elected Officer's election hereunder, the amount
of Excess Compensation for any month that is deferred pursuant to
any Other Eligible Employee's election hereunder, and any amount
credited to a Participant's Retirement Account for any month
under Section 5.1, shall be treated as having been credited to
the Participant's Account in two equal installments during such
month, one at midmonth, and the other at month's end; and
interest equivalents thereon shall be compounded monthly on each
quarter's beginning balance with proportionate monthly
compounding for any amounts so deferred or credited during any
calendar quarter.
(b) The amount of Incentive Compensation deferred pursuant
to an Elected Officer's election hereunder shall be treated as
having been credited to the Elected Officer's Account as of the
15th day, or the last day of the month (whichever is earlier),
following the date on which such amount would have been paid to
the Elected Officer in the absence of such election, and interest
equivalents thereon shall be compounded monthly.
(c) Any part of a Performance Award deferred pursuant to an
Elected Officer's election hereunder shall be treated as having
been credited to the Elected Officer's Account as of the 15th
day, or the last day of the month (whichever is earlier),
following the Vesting Date for the restricted shares or
restricted units with respect to which such Performance Award
became payable.
(d) The rate used in calculation of interest equivalents
will be the rate equal to the simple average of Citibank N.A. of
New York Prime Rates for the last business day of each of the
three months in the calendar quarter or, if greater, such other
rate as established from time to time by the Committee.
Interest equivalents will be credited to the balance of each
Account maintained for a Participant hereunder, including the
undistributed balance of any such Account from which payments are
being made in installments. However, if a Participant elects
Option (c) under Section 7.2 below, no interest equivalents will
be credited to the Participant's Account for any period after the
date on which distribution under such Option is to commence.
7. Distribution of Deferred Funds
7.1 Subject to Sections 7.4 and 7.5, a Participant's Pre-
Retirement Accounts shall be distributed to him or her, or
distributions from such Pre-Retirement Accounts shall commence,
11<PAGE>
on the date or dates specified in the elections made by the
Participant pursuant to Section 4.6 with respect to such
accounts. Subject to Sections 7.4 and 7.5, a Participant's
Retirement Account shall be distributed to him or her, or
distributions from such Retirement Account shall commence, on the
date specified in the most recent effective election made by the
Participant pursuant to Section 4.7 with respect to such Account.
7.2 The options available for distribution are:
(a) A single lump sum payment.
(b) Annual installments over any fixed number of years
selected by the Participant, with a minimum of five annual
installments required for the Retirement Account.
(c) With the prior consent of the Committee and
subject to such terms and conditions as it may require, a
lifetime annuity payable in annual or more frequent installments,
the amount of which shall be determined by reference to mortality
tables and interest and dividend rates applicable under
individual whole life insurance policies being issued at the time
of the Committee's approval by such life insurance companies as
the Committee may designate.
(d) Any other form of distribution, in equal or
unequal payments, as specifically approved by the Committee.
If distribution of any of a Participant's Accounts is
to be made in annual installments under Option (b) of this
Section 7.2, the amount of each installment will equal the total
amount in said Account on the date the installment is payable,
divided by the number of installments remaining to be paid. In
addition, if the distributions are made in installments under
Option (b) of this Section 7.2, the interest equivalent accrued
on each Account each year after the date the first installment is
payable will be distributed on each anniversary of such date.
7.3 Except as the Board may otherwise determine based on
the circumstances at the time the distribution to the beneficiary
is to commence:
(a) If a Participant should die after distribution of
any Account maintained for him or her hereunder has commenced,
but before the entire balance of such Account has been fully
distributed, distributions will continue to be made from such
Account to the Participant's designated beneficiary or contingent
beneficiary, in accordance with the distribution option in effect
for such Account at the time of the Participant's death.
(b) If a Participant should die before any
distribution from an Account maintained for him or her hereunder
has been made to him or her, distribution of such Account to the
Participant's designated beneficiary or contingent beneficiary
shall be made, or shall commence, as soon as practicable after
12<PAGE>
the Participant's death, in accordance with the distribution
option in effect for such Account at the time of the
Participant's death.
Any amounts remaining to be paid to a Participant's
designated beneficiary at the time of the designated
beneficiary's death shall be paid to the Participant's contingent
beneficiary or, if such contingent beneficiary has predeceased
the Participant's designated beneficiary, to the estate of the
designated beneficiary. Any amounts remaining to be paid to a
Participant's contingent beneficiary at the time of such
contingent beneficiary's death shall be paid to the estate of the
contingent beneficiary. If the Participant's designated
beneficiary and contingent beneficiary have both predeceased the
Participant, any amounts remaining to be paid to the Participant
at the time of his or her death shall be paid to the
Participant's estate.
7.4 Notwithstanding anything herein to the contrary, any
Account maintained for a Participant hereunder may be
distributed, in whole or in part, to such Participant on any date
earlier than the date on which distribution from such Account is
to be made or commence pursuant to the Participant's election
with respect to such Account, if (a) the Participant requests
such early distribution, and (b) the Board, in its sole
discretion, determines that such early distribution is necessary
to help the Participant meet some severe financial need arising
from circumstances which were beyond the Participant's control
and which were not foreseen by him or her at the time he or she
made his or her election as to the date or dates for distribution
from such Account. A request by a Participant for an early
distribution shall be made in writing, shall set forth sufficient
information as to the Participant's need for such distribution to
enable the Board to take action on his or her request, and shall
be mailed or delivered to the Company's Corporate Secretary.
7.5 Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution otherwise
elected, each Participant shall be permitted to make a special
distribution election to have the entire balance of each of his
or her Accounts distributed in the form of a single lump sum
payment in the event of the Participant's termination of
employment (1) by the Company (A) within twelve (12) months prior
to a Change in Control or (B) prior to a Change in Control but
which the Participant reasonably demonstrates (i) was at the
request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control and who
effectuates a Change in Control, or (ii) otherwise arose in
connection with, or in anticipation of, a Change in Control which
has been threatened or proposed and which actually occurs, or (2)
for any reason within the two (2) year period following a Change
in Control; provided, however, that such election shall be
effective only if it is made either (x) at least twenty-four (24)
months prior to such termination of Participant's employment, or
(y) if such termination of employment constitutes an "Involuntary
13<PAGE>
Termination" as defined below, at least one year prior to such
Change in Control. Any special election made hereunder may be
revoked, and a new special election may be made at any time;
provided, however, that any such revocation or new election shall
be effective only if it is made within the election period
specified in clause (x) or (y) of the preceding sentence. Any
special election, or revocation of a special election, that may
be made hereunder shall be made in the manner set forth in
Section 3.5.
The lump sum payment to be made pursuant to a
Participant's election under this Section 7.5 shall be made by no
later than (r) thirty (30) days after the date on which the
Participant's employment terminates or (s), if the Participant's
employment terminates prior to the Change in Control, thirty (30)
days after the date on which the Change in Control occurs;
provided, however, that if any payment with respect to any of
such Participant's Accounts would have been made on any date
prior to the Change in Control pursuant to the Participant's
election under Section 4.6 or 4.7 if the Participant had not made
a special election under this Section 7.5, such payment shall be
made on such prior date notwithstanding the Participant's special
election hereunder and, in such case, the payment required to be
made pursuant to the Participant's special election hereunder
shall be an amount equal to the balance, if any, remaining in the
Participant's Accounts at the time of the Change in Control.
For purposes of this Section 7.5, an "Involuntary
Termination" shall mean the termination of a Participant's
employment (A) as a result of the Participant's death, (B) by the
Company, for any reason, or (C) by the Participant for "Good
Reason" as defined below.
For purposes of this Section 7.5, "Good Reason" shall
mean the occurrence after a Change in Control of any of the
following events or conditions:
(A) a change in the Participant's status, title,
position or responsibilities (including reporting
responsibilities) which, in the Participant's reasonable
judgment, represents an adverse change from his or her status,
title, position or responsibilities as in effect immediately
prior thereto; the assignment to the Participant of any duties or
responsibilities which, in the Participant's reasonable judgment,
are inconsistent with his or her status, title, position or
responsibilities; or any removal of the Participant from or
failure to reappoint or reelect him or her to any of such offices
or positions, other than in connection with the termination of
his or her employment for disability, for cause, or by the
Participant other than for Good Reason;
(B) a reduction in the Participant's annual base
salary below the rate of the Participant's annual base salary in
effect as of the date of the Change in Control or, if greater, at
any time thereafter, determined without regard to any salary
14<PAGE>
reduction or deferred compensation elections made by the
Participant;
(C) the relocation of the offices of the Company
at which the Participant is principally employed to a location
more than twenty-five (25) miles from the location of such
offices immediately prior to the Change in Control, or the
Company's requiring the Participant to be based anywhere other
than such offices, except to the extent the Participant was not
previously assigned to a principal location and except for
required travel on the Company's business to an extent
substantially consistent with the Participant's business travel
obligations at the time of the Change in Control;
(D) the failure by the Company to pay to the
Participant any amount of the Participant's current compensation,
or any amount payable under this Plan, within seven (7) days of
the date on which payment of such amount is due; or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or reward
opportunities) any material compensation or employee benefit plan
in which the Participant was participating immediately prior to
the Change in Control unless a substitute or replacement plan has
been implemented which provides substantially identical
compensation or benefits to the Participant or (2) provide the
Participant with compensation and benefits, in the aggregate, at
least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under all other compensation
or employee benefit plans, programs and practices in which the
Participant was participating immediately prior to the Change in
Control.
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12) months
prior to a Change in Control or (2) prior to a Change in Control
but which (x) was at the request of a third party who has
indicated an intention or taken steps reasonably calculated to
effect a Change in Control and who effectuates a Change in
Control, or (y) otherwise arose in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, shall constitute Good Reason
for purposes of this Section 7.5 notwithstanding that it occurred
prior to a Change in Control.
7.6 The Company may, but shall not be required to, purchase
a life insurance policy, or policies, to assist in funding any of
its payment obligations under the Plan. If any policy is so
purchased, it shall, at all times, remain the exclusive property
of the Company and subject to the claims of its creditors.
Neither the Participant nor any beneficiary or contingent
beneficiary designated by him or her shall have any interest in,
or rights with respect to, such policy.
15<PAGE>
7.7 A Participant shall have the status of a mere unsecured
creditor of the Company with respect to his or her right to
receive any payment under the Plan. The Plan shall constitute a
mere promise by the Company to make payments in the future of the
benefits provided for herein. It is intended that the
arrangements reflected in this Plan be treated as unfunded for
tax purposes and for purposes of Title I of ERISA.
8. Non-Assignment of Deferred Compensation
A Participant's rights to payments under this Plan shall not
be subject in any manner to anticipation, alienation, sale,
transfer (other than transfer by will or by the laws of descent
and distribution, in the absence of a beneficiary designation),
assignment, pledge, encumbrance, attachment or garnishment by
creditors of the Participant or his or her spouse or other
beneficiary.
9. Termination of Participation or Employment
A Participant's participation in the Plan may be terminated
by the Board at any time. No promise or representation, either
express or implied, is made with respect to continued employment,
transfer or promotion because of participation in the Plan, and
the employment of a Participant may be terminated at any time.
10. Transfer of Employment
10.1 If a Participant transfers employment to any other
Company that maintains this Plan for such Company's Elected
Officers and Other Eligible Employees and the Participant is or
becomes an Elected Officer or Other Eligible Employee of such
other Company, the balance to the Participant's credit in each
Account maintained for the Participant under this Plan shall be
transferred to the comparable account established for the
Participant under the Plan maintained by such other Company,
effective as of the date on which the Participant's employment is
so transferred or, if later, the date on which the Participant
first becomes an Elected Officer or Other Eligible Employee of
such other Company. Upon the transfer of the Participant's
Account balances, the Company making the transfer shall have no
further obligation to the Participant or his or her designated
beneficiaries with respect to payment of the Account balances so
transferred.
10.2 If an Elected Officer or Other Eligible Employee of any
other Company that maintains this Plan for its Elected Officers
or Other Eligible Employee transfers employment to the Company
and is or becomes an Elected Officer or Other Eligible Employee
of the Company, as of the date on which such Elected Officer's or
Other Eligible Employee's employment is so transferred or, if
later, the date on which such Elected Officer or Other Eligible
Employee first becomes an Elected Officer or Other Eligible
Employee of the Company, there shall be established for the
Elected Officer or Other Eligible Employee under this Plan an
16<PAGE>
Account or Accounts comparable to each account maintained for
such Elected Officer or Other Eligible Employee under such other
Company's Plan, and there shall be transferred to each Account so
established an amount equal to the balance to such Elected
Officer's or Other Eligible Employee's credit in the comparable
account maintained for the Elected Officer or Other Eligible
Employee under such other Company's Plan.
In addition, on and after the date on which an Elected
Officer's or Other Eligible Employee's Account balances are so
transferred, any election to defer Compensation, any election as
to the date of commencement or form of distribution of Account
balances, and any designation of a beneficiary, made by the
Participant under such other Company's Plan shall be treated as
having been made under this Plan.
17<PAGE>
Exhibit C-17
GPU SYSTEM COMPANIES
MASTER DIRECTORS' BENEFITS PROTECTION TRUST
As Amended and Restated Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Article Title Page No.
ARTICLE 1 Definitions 2
ARTICLE 2 Establishment of the Trusts 8
ARTICLE 3 Contributions and Accounts 9
ARTICLE 4 Payments to Participants and
Beneficiaries 12
ARTICLE 5 Legal Defense Fund 17
ARTICLE 6 Insolvency 21
ARTICLE 7 Payments to Company 22
ARTICLE 8 Investment Authority and Disposition
of Income 22
ARTICLE 9 General Powers and Duties of Trustee 24
ARTICLE 10 Taxes, Expenses, and Compensation
of Trustee 28
ARTICLE 11 Accounting by Trustee 29
ARTICLE 12 Communications 30
ARTICLE 13 Resignation or Removal of Trustee 31
ARTICLE 14 Amendments and Termination 32
ARTICLE 15 Miscellaneous 33
1<PAGE>
THIS TRUST AGREEMENT, Amended and Restated as of February 6,
1997, by and between GPU, INC., a Pennsylvania corporation (the
"Corporation"), JERSEY CENTRAL POWER & LIGHT COMPANY, a New
Jersey corporation, and GPU NUCLEAR, INC., a New Jersey
corporation (each such corporation is hereinafter referred to
individually as a "Company", and all such corporations are
hereinafter referred to collectively as the "Companies"), and
SUMMIT BANK (formerly UNITED JERSEY BANK), a New Jersey state
chartered bank (hereinafter referred to as the "Trustee").
W I T N E S S E T H :
WHEREAS, each Company has adopted one or more Plans (as
hereinafter defined) under which it has incurred or expects to
incur liability under the terms of such Plans with respect to
Benefits (as hereinafter defined) payable to individuals
participating in such Plans; and
WHEREAS, pursuant to a Trust Agreement dated as of
September 1, 1995 between the Companies and the Trustee (the
"Prior Agreement"), each of the Companies has established a trust
(hereinafter called the "Trust") and has contributed to the Trust
assets that shall be held therein, subject to the claims of the
Company's creditors in the event of the Company's Insolvency (as
hereinafter defined) until paid to Plan participants and their
beneficiaries in such manner and at such times as specified in
the Plans; and
WHEREAS, it is the intention of the parties that each
Trust shall constitute an unfunded arrangement and shall not
affect the status of each of the Plans as unfunded for federal
income tax purposes; and
WHEREAS, it is the intention of each Company to make
contributions to its Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under its
Plans; and
WHEREAS, the Trustee is not a party to any of the Plans
and makes no representations with respect thereto; and
WHEREAS, the parties hereto wish to amend and restate
the Prior Agreement to make certain changes thereto; and
NOW, THEREFORE, the Prior Agreement is hereby amended
and restated to read in its entirety as follows:
ARTICLE 1
Definitions
1.1 As used herein, the following terms shall have the
following meanings, unless the context clearly indicates a
2<PAGE>
contrary meaning:
(a) "Agreement" shall mean this instrument, as the
same may be amended from time to time as permitted herein.
(b) "Applicable Company" shall mean, with respect to
any Trust established hereunder, or any Plan, the Company
that established such Trust, or that has adopted or
maintains such Plan.
(c) "Beneficiary", with respect to a Participant,
shall mean the person or entity designated by such
Participant under a Plan, or such other person or entity
with respect to such Participant as may be designated under
the terms of such Plan, to receive the Benefits, if any,
payable from such Plan following such Participant's death.
(d) "Benefits" shall mean those amounts specified in
Exhibit B that are payable under a Plan to (or with respect
to) a Participant, or, upon his death, to his Beneficiary.
(e) "Benefit Valuation Date" shall mean the first day
of each calendar year.
(f) "Board" shall mean the board of directors of the
Corporation.
(g) "Change in Control" shall mean the occurrence of
any of the following:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the Corporation ("Common
Stock") or other voting securities of the Corporation
entitled to vote generally for the election of directors
(the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of
the then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a
Change in Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would
cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the
Corporation or (ii) any corporation or other Person of which
a majority of its voting power or its voting equity
securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
3<PAGE>
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996,
are members of the Board (the "Incumbent Board"), cease for
any reason to constitute at least seventy percent (70%) of
the members of the Board; provided, however, that if the
election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of
at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Trust, be considered as
a member of the Incumbent Board; provided further, however,
that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office
as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than
the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest
or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the stockholders of the
Corporation, immediately before such merger, consolidation
or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of
the Incumbent Board immediately prior to the execution of
the agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
4<PAGE>
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities or its common stock;
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than
the permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(h) "Code" shall mean the Internal Revenue Code of
1986 as the same may be amended from time to time.
(i) "Insolvent"--A Company shall be considered
"Insolvent" for purposes of this Agreement if (i) the
Company is unable to pay its debts as they become due, or
(ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(j) "Participant" shall mean any person who is or may
become entitled to receive Benefits under a Plan and who is
included in the list of persons who are to be treated as
Participants for purposes of this Agreement, as set forth in
Exhibit A hereto.
(k) "Permitted Investments" shall mean direct
obligations of the United States of America or agencies or
instrumentalities thereof or obligations unconditionally and
5<PAGE>
fully guaranteed as to principal and interest by the United
States of America ("Obligations"), and certificates of
deposit and bankers' acceptances of a bank organized and
existing under the laws of the United States of America or
any State thereof that has a combined capital and surplus of
at least $100,000,000, all having respective maturities of
not more than one year when purchased. The term "Permitted
Investments" shall also mean any fund or portfolio
maintained by any open-end investment company registered
under the Investment Company Act of 1940, the assets of
which are invested exclusively in Obligations, certificates
of deposit and/or bankers' acceptances of the kind described
in the preceding sentence including, without limitation, any
such fund or portfolio for which the Trustee or any
affiliate of the Trustee serves as investment adviser.
(l) "Plan" or "Plans" shall mean, with respect to any
Company, any (or if the context requires, all) of the plans,
programs or policies maintained by such Company, and
agreements entered into by such Company, that are included
in the list set forth in Exhibit B hereto.
(m) "Present Value" shall mean, with respect to any
Benefit, the single sum actuarial present value of such
Benefit, as determined by an enrolled actuary on the basis
of the actuarial assumptions most recently adopted by the
Applicable Company for use in connection with this
Agreement. Notwithstanding the foregoing, any determination
of the Present Value of Benefits to be made hereunder at any
time after a Change in Control or during a Threatened Change
in Control Period shall be made on the basis of the
actuarial assumptions that were used in determining the
Present Value of such Benefits as of the most recent Benefit
Valuation Date preceding the Change in Control or Threatened
Change in Control Period, unless the Applicable Company has
notified the Trustee in writing prior to the Change in
Control or the Threatened Change in Control Period of its
adoption of different actuarial assumptions for use
hereunder after the Change in Control or during the
Threatened Change in Control Period; provided, however, that
if any Plan specifies (either expressly or by reference) the
actuarial assumptions that are to be used to calculate the
Benefits provided under such Plan, the actuarial assumptions
so specified shall be used to determine the Present Value of
Benefits under that Plan for purposes of this Agreement.
(n) "Threatened Change in Control" shall mean the
occurrence of any of the following events (but no event
other than the following events), except as otherwise
provided below: Any Person
(1) becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing
fifteen percent (15%) or more of the then-outstanding Common
Stock or of the combined voting power of the Corporation's
6<PAGE>
then-outstanding voting securities, or
(2) initiates a tender offer or exchange offer to
acquire securities of the Corporation representing twenty
percent (20%) or more of the then-outstanding Common Stock
or of the combined voting power of the Corporation's then-
outstanding voting securities, or
(3) solicits proxies for the election within any
single twelve (12)-month period of three or more directors,
whose election or nomination is not approved by a majority
of the Incumbent Board then serving as members of the Board,
to serve on the Board.
Notwithstanding the foregoing, a Threatened Change in
Control shall not be deemed to occur pursuant to this
Section 1.1(n) solely because of an acquisition or tender
offer made or effected in connection with a Non-Control
Acquisition.
(o) "Threatened Change in Control Period" shall mean
the period commencing on the date on which a Threatened
Change in Control has occurred and ending (i) on the date on
which a Change in Control has occurred, or (ii), if earlier,
on whichever of the following dates is applicable:
(1) in the case of a Threatened Change in Control
described in Section 1.1(n)(1), the date as of which any
Person described in Section 1.l(n)(1) ceases to be the
Beneficial Owner, directly or indirectly, of securities of
the Corporation representing fifteen percent (15%) or more
of the Common Stock or of the combined voting power of the
Corporation's then-outstanding voting securities, or
(2) in the case of a Threatened Change in Control
described in Section 1.l(n)(2), the date as of which the
tender offer or exchange offer described in Section
1.1(n)(2) is terminated without any securities described
therein of the Corporation being purchased thereunder, or
(3) in the case of a Threatened Change in Control
described in Section 1.l(n)(3), the date as of which any
Person described in Section 1.1(n)(3) fails to effect the
election within any single twelve (12)-month period of three
or more directors, whose election or nomination is not
approved by a majority of the Incumbent Board then serving
as members of the Board, to serve on the Board.
(p) "Valuation Date" shall mean the last business day
of each calendar quarter.
7<PAGE>
ARTICLE 2
Establishment of the Trusts
2.1 Each Company hereby establishes with the Trustee,
and the Trustee hereby accepts, a Trust consisting of such sums
of money and other property acceptable to the Trustee as such
Company shall pay or deliver to the Trustee from time to time.
All such money and other property, all investments and
reinvestments made therewith or proceeds thereof and all earnings
and profits thereon, less all payments therefrom and charges
thereto as authorized herein, are hereinafter referred to as the
"Trust Fund" for such Trust. Each Trust Fund shall be held,
administered and disposed of by the Trustee as provided in this
Agreement.
2.2 Prior to a Change in Control, each Trust
established hereunder may be revoked, in whole or in part, by the
Applicable Company giving to the Trustee written notice of such
revocation; provided, however, that no Trust established
hereunder may be revoked (i) at the request of a third party who
has indicated an intention or taken steps to effect a Change in
Control and who effectuates a Change in Control, (ii) in
connection with, or in anticipation of, a Change in Control which
has been threatened or proposed and which actually occurs or
(iii) during a Threatened Change in Control Period, any such
attempted revocation being null and void. If a Trust is so
revoked in its entirety, all of the assets of the Trust (after
payment of any unpaid fees and expenses of the Trustee properly
chargeable to such Trust) shall be transferred by the Trustee to
the Applicable Company or to such other person or entity as the
Applicable Company may direct in writing. If a Trust is so
revoked in part, the Trustee shall transfer to the Applicable
Company such of the assets of the Trust as the Applicable Company
shall have specified in its written notice to the Trustee of the
partial revocation of such Trust. Upon a Change in Control, each
Trust shall become irrevocable.
2.3 Each Trust established hereunder is intended to
constitute a "grantor trust", of which the Company is the
grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Code, and shall be construed
accordingly.
2.4 The principal of each Trust, and any earnings
thereon, shall be held separate and apart from other funds of the
Applicable Company, and shall be used exclusively for the uses
and purposes of Participants under such Company's Plans and
general creditors of such Company, as herein set forth.
Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of
any Trust. Any rights created under the Plans and this Agreement
shall be mere unsecured contractual rights of Participants and
their Beneficiaries against the Applicable Company. Any assets
8<PAGE>
held by each Trust will be subject to the claims of the
Applicable Company's general creditors under federal and state
law in the event of the Applicable Company's Insolvency, as
defined in Section 1.1(h) herein.
2.5 Each Trust established hereunder shall be
maintained by the Trustee as a separate trust. However, the
assets of any Trust may be commingled with the assets of any
other Trust, solely for investment purposes.
ARTICLE 3
Contributions and Accounts
3.1 Prior to a Change in Control, each Company may
make contributions to its Trust in such amounts, and at such
times, as such Company may determine in its sole discretion.
Such contributions may be in the form of cash, or such other
property as may be determined by the Company and as may be
acceptable to the Trustee.
3.2 Required Contributions.
3.2.1 Upon the occurrence of a Change in
Control, each Company shall be required to make contributions to
its Trust as follows:
(a) Upon a Change in Control, the Company
shall, as soon as possible but in no event later than 30 days
following the Change in Control, make an irrevocable contribution
to its Trust in an amount that, when added to the value of the
Trust Fund for such Trust (exclusive of the value of the Legal
Defense Fund, if any, maintained within such Trust Fund)
determined as of the most recent Valuation Date preceding such
contribution, will equal the sum of (i) the aggregate Present
Value of all Benefits accrued for all Participants under all of
such Company's Plans determined as of the most recent Benefit
Valuation Date preceding the date on which the Change in Control
occurred; and (ii) the aggregate Present Value of all other
Benefits for all Participants under all of such Company's Plans
that accrue as a result of the occurrence of the Change in
Control, determined as of the first day of the month coincident
with or immediately following the date on which the Change in
Control occurred.
(b) Within 60 days after each Benefit
Valuation Date following the occurrence of a Change in Control,
each Company shall make an irrevocable contribution to its Trust
in an amount that, when added to the value of the Trust Fund for
such Trust (exclusive of the value of the Legal Defense Fund, if
any, maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
aggregate Present Value of all Benefits accrued for all
Participants under all of such Company's Plans determined as of
9<PAGE>
such Benefit Valuation Date.
3.2.2 Upon the occurrence of a Threatened
Change in Control, each Company shall be required to make
contributions to its Trust as follows:
(a) Upon a Threatened Change in Control, the
Company shall, as soon as practicable but in no event later than
30 days following the Threatened Change in Control, make a
contribution to its Trust in an amount that, when added to the
value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust
Fund) determined as of the most recent Valuation Date preceding
such contribution, will equal the sum of (i) the aggregate
Present Value of all Benefits accrued for all Participants under
all of such Company's Plans, determined as of the most recent
Benefit Valuation Date preceding the date on which the Threatened
Change in Control occurred; and (ii) the aggregate Present Value,
determined as of the first day of the month coincident with or
immediately following the date on which the Threatened Change in
Control occurred, of all other Benefits for all Participants
under all of such Company's Plans that would have accrued as a
result of a Change in Control if such Change in Control had
occurred on the date on which the Threatened Change in Control
occurs.
(b) Within 60 days after each Benefit
Valuation Date during a Threatened Change in Control Period, each
Company shall make a contribution to its Trust in an amount that,
when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any,
maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
sum of (i) the aggregate Present Value of all Benefits accrued
for all Participants under all of such Company's Plans,
determined as of such Benefit Valuation Date and (ii) the
aggregate Present Value, determined as of such Benefit Valuation
Date, of all other Benefits for all Participants under all of
such Company's Plans that would have accrued as a result of a
Change in Control, if such Change in Control had occurred on such
Benefit Valuation Date.
3.3 Within the Trust Fund for each Trust, the Trustee
shall establish and maintain a separate account (hereinafter
referred to as a "Plan Account") for each of the Applicable
Company's Plans. The Trustee also shall establish within each
Plan Account a separate sub-account (hereinafter referred to as a
"Participant Account") for each Participant of such Plan. The
Trustee shall hold all Plan Accounts and Participant Accounts
maintained within the Trust Fund for any Trust as a single
consolidated fund.
3.4 With respect to each contribution that is made to
a Trust prior to a Change in Control but not during any
Threatened Change in Control Period, the amount, or property, so
10<PAGE>
contributed to such Trust shall be allocated by the Trustee to
the Plan Accounts, and to the Participant Accounts, maintained
within such Trust in such manner as the Applicable Company
directs in written instructions delivered by the Applicable
Company to the Trustee at the time of the contribution.
3.5 As of each Valuation Date, the Trust Fund for each
Trust shall be revalued by the Trustee at its then current fair
market value, as determined by the Trustee. The net investment
gains and losses of each Trust Fund for each calendar year that
ends prior to a Change in Control but not during a Threatened
Change in Control shall be allocated by the Trustee, as of the
last Valuation Date occurring in such year, among the Plan
Accounts and Participant Accounts maintained within such Trust,
in such manner as the Applicable Company shall specify in written
instructions furnished by it to the Trustee. As of each
Valuation Date following the occurrence of a Change in Control,
or that falls within a Threatened Change in Control Period, the
net investment gains and losses of each Trust Fund for the
calendar year ending on such Valuation Date shall be allocated by
the Trustee proportionately among the Plan Accounts and
Participant Accounts maintained within such Trust, based on the
value of such Accounts as of the immediately preceding Valuation
Date. In making the foregoing allocation, the value of Plan
Accounts and Participant Accounts in existence on the immediately
preceding Valuation Date but not in existence on the current
Valuation Date shall be disregarded.
3.6 Notwithstanding the provisions of Sections 3.4 and
3.5, as of each Benefit Valuation Date occurring prior to a
Change in Control, but not during any Threatened Change in
Control Period, the Trustee shall, in accordance with such
written instructions as it has received from the Applicable
Companies, record adjustments to the balance of each Participant
Account maintained within a Plan Account to the extent necessary
for such balance to equal the amount determined by multiplying
(a) the balance of such Plan Account determined as of the most
recent Valuation Date preceding such Benefit Valuation Date, by
(b) a fraction the numerator of which is the Present Value of the
Benefits accrued for the applicable Participant under the Plan in
question, determined as of such Benefit Valuation Date, and the
denominator of which is the aggregate Present Value of all of the
Benefits accrued for all Participants under such Plan, determined
as of such Benefit Valuation Date.
3.7 Any contribution made by a Company to its Trust
pursuant to Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b)
shall be allocated to the Plan Accounts maintained under such
Trust in proportion to the respective amounts by which the
aggregate Present Value of all Benefits accrued (or, in the case
of contributions made under clause (ii) of Section 3.2.2(a) or
3.2.2(b), deemed to have accrued) for all Participants under each
of the Plans in question, determined as of the dates specified in
Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b), exceeds the
balance of the Plan Account maintained hereunder with respect to
11<PAGE>
each such Plan, determined as of the Valuation Date immediately
preceding such contribution. The amount so allocated to any Plan
Account shall be further allocated to the Participant Accounts
maintained within such Plan Account in proportion to the
respective amounts by which the Present Value of the Benefits
accrued (or, in the case of contributions made under clause(ii)
of Section 3.2.2(a) or 3.2.2(b), deemed to have accrued) for each
Participant under the Plan in question, determined as of the
dates specified in Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or
3.2.2(b), exceeds the balance of the Participant Account
maintained for such Participant, determined as of the Valuation
Date immediately preceding such contribution.
3.8 The determinations of the Present Value of
Benefits required to be made hereunder as of any Benefit
Valuation Date, or other date, occurring prior to a Change in
Control shall be made by an enrolled actuary selected by the
Applicable Companies. As soon as practicable after each such
determination has been made, each Company shall furnish the
Trustee with a schedule setting forth the Present Value so
determined of the Benefits accrued (or, if applicable, deemed to
have accrued) for each Participant under each of the Company's
Plans. The determinations of the Present Value of Benefits
required to be made hereunder as of any Benefit Valuation Date,
or other date, occurring after a Change in Control shall be made
by an enrolled actuary selected by the Trustee. In making any
allocation of contributions the Trustee is required to make under
Section 3.7, the Trustee shall be entitled to rely, and shall be
fully protected in relying, on any written determination of the
Present Value of any Benefit furnished to it in accordance with
the provisions of this Section 3.8. In making any allocation of
net investment gains and losses pursuant to the second sentence
of Section 3.5, and in recording any adjustments to the balance
of any Participant Account pursuant to Section 3.6, the Trustee
shall be entitled to rely, and shall be fully protected in
relying, on any written instructions furnished to it by the
Applicable Companies.
ARTICLE 4
Payments to Participants and Beneficiaries
4.1 Prior to a Change in Control, the Trustee shall
make payments from the Trust Fund for any Trust to such
Participants and Beneficiaries, in such manner, at such times,
and in such amounts, as the Applicable Company shall direct in
written instructions delivered to the Trustee.
4.2. After a Change in Control, the Trustee shall make
payments from the Trust Fund of any Trust to Participants and
Beneficiaries in accordance with the following provisions:
(a) Prior to a Change in Control, each Company
shall deliver to the Trustee a schedule ("Payment Schedule")
12<PAGE>
substantially in the form annexed hereto as Exhibit C for each
Participant of each Plan whose Benefits under such Plan may be
paid from such Company's Trust after a Change in Control. The
Payment Schedule shall
(i) describe the events that must occur in
order for the Participant's Benefits to become payable under
the terms of the Plan;
(ii) specify the amount of the Participant's
Benefits accrued under the Plan, as of the date on which the
Payment Schedule is furnished to the Trustee, and provide a
formula or such other instructions as will enable the
Trustee to determine the amount of the Participant's
Benefits as of the time they become payable under the terms
of the Plan;
(iii) specify the form in which the
Participant's Benefits are to be paid, as provided for or
available under the Plan;
(iv) specify the time of commencement for
payment of the Participant's Benefits under the Plan; and
(v) specify the address and social security
number of the Participant as well as the name, address,
social security number and relation to the Participant of
the Participant's Beneficiary.
Prior to a Change in Control the Applicable Company may
from time to time substitute a new Payment Schedule for, or
amend, an existing Payment Schedule by delivering a new or
amended Payment Schedule to the Trustee. Upon receipt of such
new or amended Payment Schedule, the previous Payment Schedule
shall be deemed revoked. Prior to a Change in Control, any
Payment Schedule previously filed with the Trustee may be revoked
by the Applicable Company by filing written notice of such
revocation with the Trustee without delivering a new or amended
Payment Schedule to the Trustee. Notwithstanding the foregoing,
no Payment Schedule may be amended or revoked after a Change in
Control or during a Threatened Change in Control Period;
provided, however, that during a Threatened Change in Control
Period, a Payment Schedule with respect to a Participant's
Benefits under any Plan may be amended so as to reflect any
amendment to the Plan made during such Threatened Change in
Control Period that has the effect of increasing the amount of
the Benefits payable under the Plan with respect to the
Participant, or that permits payment of such Benefits to be made
in a form, or to commence at a time, more favorable to the
Participant or his or her Beneficiary than as provided under the
Plan prior to such amendment. Except as otherwise provided
herein, after a Change in Control the Trustee shall make payments
with respect to a Participant's Benefits under any Plan only in
accordance with the Payment Schedule with respect to such
Participant's Benefits under such Plan that is on file with the
13<PAGE>
Trustee, and that has not been revoked, at the time such payments
are to be made.
(b) Any Participant or Beneficiary seeking to
obtain payments from the Trust Fund for any Trust after a Change
in Control shall first file with the Trustee a written request
for payment in substantially the form annexed hereto as Exhibit D
("Payment Request Form"). In the Payment Request Form so filed,
the Participant or Beneficiary shall
(i) identify the Plan or Plans under which
the Participant or Beneficiary has become entitled to
payment of Benefits;
(ii) describe the events that entitle the
Participant or Beneficiary to receive payment of Benefits
under the terms of the Plan or Plans, and affirm under oath
that such events have occurred;
(iii) affirm under oath that no amount of the
Benefits with respect to which payment from the Trust Fund
is sought was previously paid by the Applicable Company; and
(iv) provide such information (including,
without limitation, information as to the Participant's
period of service, compensation and conditions of employment
after a Change in Control) as will enable the Trustee to
determine the amount of the Benefits that the Participant or
Beneficiary is entitled to receive in accordance with the
Payment Schedules furnished to the Trustee with respect to
the Participant's Benefits under the Plan or Plans.
In the case of any Beneficiary seeking payments from a
Trust Fund, the Beneficiary shall furnish to the Trustee, along
with the Payment Request Form, a certified copy of the death
certificate of the Participant, an inheritance tax waiver and
such other documents as the Trustee may reasonably require,
including, without limitation, certified copies of letters
testamentary. For all purposes under this Agreement, the Trustee
may rely, and shall be fully protected in relying, on the
information contained in any Payment Request Form (and in any
documents accompanying such form) filed with it by any
Participant or Beneficiary.
(c) As soon as practicable after a Payment
Request Form has been filed with it by a Participant or
Beneficiary, the Trustee, solely out of the applicable Trust Fund
and with no obligation otherwise to make any payments, shall make
payments to such Participant or Beneficiary in such manner, and
at such times, and in such amounts, as the Trustee shall
determine to be payable to such Participant or Beneficiary under
the relevant Plan or Plans based on the most recent Payment
Schedules applicable to the Participant or Beneficiary that were
furnished to the Trustee by the Applicable Company prior to a
Change in Control, and on the information contained in the
14<PAGE>
Payment Request Form (and in any documents accompanying such
Form) filed by the Participant or Beneficiary. The Trustee is
authorized to retain an enrolled actuary to assist it in
determining the amount of any Benefits payable to any Participant
or Beneficiary pursuant to any Payment Request Form or Payment
Schedules filed by or for such Participant or Beneficiary and, in
any case in which a Participant or Beneficiary has filed a
Payment Request Form with respect to Benefits under any Plan for
which an unrevoked Payment Schedule is not on file with the
Trustee, to assist it in determining such Participant's or
Beneficiary's entitlement to Benefits under such Plan. For all
purposes under this Agreement, the Trustee may rely, and shall be
fully protected in relying, on any advice given to it by such
actuary as to the amount of Benefits payable hereunder to any
Participant or Beneficiary.
(d) Following the occurrence of a Change in
Control, the Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of Benefits
to be made from any Trust pursuant to the terms of this
Agreement, and shall pay amounts withheld by it to the
appropriate taxing authorities or determine that the amounts
required to be withheld with respect to such payments have been
reported, withheld and paid by the Applicable Company. Prior to
a Change in Control, the Trustee shall report and withhold any
federal, state or local taxes that may be required to be withheld
with respect to any payment of Benefits to be made from any Trust
pursuant to Section 4.1, but only to the extent that the
Applicable Company has furnished to the Trustee, in the written
instructions delivered to the Trustee pursuant to Section 4.1
directing it to make such payment, the amount of the federal,
state or local taxes required to be withheld with respect to such
payment. The Trustee shall be entitled to rely, and shall be
fully protected in relying, upon the information so furnished to
it as to the amount of taxes to be withheld.
4.3. The entitlement of a Participant or Beneficiary to
Benefits under any Plan shall be determined by the Applicable
Company or such other party as may have been designated under the
Plan, and any claim for such Benefits shall be considered and
reviewed under the procedures set out in the Plan.
Notwithstanding the foregoing, after a Change in Control, any
Participant or Beneficiary for whom any unrevoked Payment
Schedule is on file with the Trustee at the time of the Change in
Control shall be presumed conclusively, for all purposes of this
Agreement, to be entitled to any Benefit that the Trustee
determines to be payable to such Participant or Beneficiary on
the basis of the information contained in such Payment Schedule
and in any Payment Request Form filed by the Participant or
Beneficiary; and in such case, the provisions set forth in the
immediately preceding sentence shall apply only with respect to
any claim by the Participant or Beneficiary for Benefits that are
in addition to, or in excess of, the Benefits that the Trustee
has so determined to be payable to the Participant or
15<PAGE>
Beneficiary.
4.4. Each payment made from the Trust Fund for any
Trust with respect to a Participant's Benefits under any Plan
shall be payable only from, and shall be charged against, the
Plan Account maintained within such Trust Fund with respect to
such Plan and the Participant Account established within such
Plan Account for the applicable Participant. Notwithstanding any
other provision herein to the contrary, the Trustee shall not
make a payment with respect to a Participant's Benefits under any
Plan to the extent that the amount of the payment otherwise
required to be made exceeds the amount then held in the Plan
Account for such Plan or the amount then held in the Participant
Account established within such Plan Account for the applicable
Participant.
If, because of the provisions of this Section 4.4, any
amount otherwise required to be paid by the Trustee to a
Participant or Beneficiary with respect to a Participant's
Benefits under any Plan cannot be paid by the Trustee, such
amount shall be paid to the Participant or Beneficiary by the
Applicable Company.
4.5. At such time after a Change in Control as the
aggregate amount of the payments made hereunder from the
Participant Account maintained within any Plan Account for any
Participant shall equal the maximum amount that may be paid from
such Participant Account pursuant to the most recent Payment
Schedule filed with respect to such Participant's Benefits under
the Plan in question, the balance then remaining in such
Participant Account shall be allocated and credited, on a pro
rata basis, to all other Participant Accounts maintained within
such Plan Account, based on the respective values of such other
Participant Accounts determined as of the most recent Valuation
Date.
At such time after a Change in Control as the aggregate
amount of the payments made from any Plan Account shall equal the
maximum amount that may be paid from such Plan Account pursuant
to the most recent Payment Schedules filed with respect to
Participants' Benefits under the Plan for which such Plan Account
was established, the balance then remaining in such Plan Account
shall be allocated and credited, on a pro rata basis, to all
other Plan Accounts and Participant Accounts maintained within
the same Trust Fund, based on the respective values of such other
Plan Accounts and Participant Accounts determined as of the most
recent Valuation Date.
4.6 Notwithstanding any other provision of this
Agreement to the contrary, if at any time any Trust is finally
determined by the Internal Revenue Service (the "IRS") not to be
a "grantor trust," with the result that the income of such Trust
is not treated as income of the Applicable Company pursuant to
Sections 671 through 679 of the Code, such Trust shall
immediately terminate and the amounts allocated to each Plan
16<PAGE>
Account and Participant Account within such Trust shall be paid
in a cash lump sum as soon as practicable by the Trustee to the
Participants for whom such Accounts were maintained. If any
Company should receive notice of such final determination from
the IRS, such Company shall promptly furnish written notice of
such final determination to the Trustee.
4.7 Notwithstanding any other provision of this
Agreement to the contrary, if the IRS should finally determine
that any amounts held in any Trust are includible in the gross
income of any Participant or Beneficiary prior to payment of such
amounts from the Trust, the Trustee shall, as soon as
practicable, pay such amounts to such Participant or Beneficiary
from such Trust. For purposes of this Section 4.7, the Trustee
shall be entitled to rely on an affidavit by a Participant or
Beneficiary to the effect that such a determination has occurred.
4.8 Each Company may make payment of Benefits directly
to Participants or their Beneficiaries as they become due under
the terms of the Applicable Plans. After a Change in Control, a
Company that decides to make payment of Benefits directly shall
notify the Trustee in writing of its decision prior to the time
amounts are payable to the Participants or their Beneficiaries.
In addition, each Company shall remain primarily liable to pay
all of the Benefits provided for under its Plans, to the extent
such Benefits are not payable from such Company's Trust pursuant
to this Agreement. Accordingly, if the principal of the
Applicable Company's Trust, and any earnings thereon, are not
sufficient to make payments of Benefits in accordance with the
terms of such Company's Plans, the Company shall make the balance
of each such payment as it falls due. The Trustee shall notify
the Applicable Company in writing where principal and earnings of
the Company's Trust are not sufficient.
ARTICLE 5
Legal Defense Fund
5.1. On the written direction of a Company, the Trustee
shall establish within the Trust Fund for such Company's Trust a
separate fund, hereinafter referred to as a "Legal Defense Fund".
A Company's Legal Defense Fund shall consist of such portions of
its contributions to its Trust as the Company shall specify in
writing at the time of contribution, together with all income,
gains and losses and proceeds from the investment, reinvestment
and sale thereof, less all payments therefrom and expenses
charged thereto in accordance with the provisions of this Article
5. Subject to Article 6, a Company's Legal Defense Fund shall be
held and administered by the Trustee exclusively for the purpose
of defraying the costs and expenses incurred by the Trustee in
performing its duties under Sections 5.3 and 5.4.
5.2. A Company's Legal Defense Fund shall be maintained
and administered as a separate segregated account, provided,
17<PAGE>
however, that the assets of any Legal Defense Fund may be
commingled with all other assets of the same Trust, and with the
assets of any other Trust, solely for investment purposes.
5.3. If, at any time after a Change in Control, a
Participant or Beneficiary notifies the Trustee in writing that a
Company has refused to pay a claim asserted by such Participant
or Beneficiary under any of such Company's Plans, the Trustee
shall promptly review such claim and determine whether it has any
basis in law and fact. If the Trustee determines that the claim
has no basis in law and fact, the Trustee shall notify the
Participant or Beneficiary of such determination, and thereafter
shall take no further action with respect to the claim. If the
Trustee determines that there is a basis in law and fact for the
Participant's or Beneficiary's claim, the Trustee shall take the
following actions to assist the Participant or Beneficiary
(hereafter referred to as the "Claimant") to recover on such
claim:
(a) The Trustee shall promptly attempt to negotiate
with the Applicable Company to obtain payment, settlement or
other disposition of the claim, subject to the Claimant's
consent.
(b) If (i) negotiations fail after 60 days of their
commencement to result in a payment, settlement or other
disposition acceptable to the Claimant, (ii) the Trustee at
any time reasonably believes that further negotiations would
not be in the Claimant's best interest or (iii) any
applicable statute of limitations would otherwise expire
within 60 days, the Trustee shall advise the Claimant of
such fact. Thereupon, the Claimant may, by filing with the
Trustee a written authorization in substantially the form
attached hereto as Exhibit E, direct the Trustee to
institute and maintain legal proceedings (the "Litigation")
against the Applicable Company to recover on the claim on
behalf of the Claimant.
(c) The Trustee shall direct the course of any
Litigation and shall keep the Claimant informed of the
progress thereof at such intervals as the Trustee deems
appropriate, but no less frequently than quarterly. The
Trustee shall have the discretion to determine the form and
nature that any Litigation shall take, and the procedural
rules and laws applicable to such Litigation shall supersede
any inconsistent provision of this Agreement.
(d) If the Claimant directs in writing that the
Litigation be settled or discontinued, the Trustee shall
take all appropriate action to follow such direction,
provided that such written direction specifies the terms and
conditions of the settlement or discontinuance and provided
further that the Claimant, if requested to do so by the
Trustee, executes and delivers to the Trustee a document in
a form acceptable to the Trustee releasing the Trustee and
18<PAGE>
holding it harmless from any liability resulting from its
following such direction. If the Claimant refuses to
consent to a settlement or other disposition of the
Litigation on terms recommended in writing by the Trustee,
the Trustee may proceed, in its sole and absolute
discretion, to take such action as it deems appropriate in
the Litigation, including settlement or discontinuance of
the Litigation; provided, however, that the Trustee shall
afford the Claimant at least 14 days' advance notice in
writing of any decision by the Trustee to settle or
otherwise discontinue the Litigation.
(e) A Claimant may at any time revoke the
authorization of the Trustee to continue any Litigation on
his behalf by delivering to the Trustee a written revocation
in substantially the form attached as Exhibit F hereto, and
notifying the Trustee in writing that the Claimant has
appointed his own counsel (whose fees and expenses shall not
be paid from any Legal Defense Fund) to represent the
Claimant in the Litigation in lieu of counsel retained by
the Trustee. Upon the Trustee's receipt of such revocation
and notice, the Trustee shall have no obligation to proceed
further on behalf of the Claimant in the Litigation, or to
pay any costs or expenses incurred in the Litigation after
the date on which such revocation and notice is delivered to
the Trustee.
(f) The Trustee shall be empowered to retain counsel
and other appropriate experts, including actuaries and
accountants, to assist it in making any determination under
this Section 5.3, in determining whether to pursue, settle
or discontinue any Litigation, and to prosecute and maintain
any such Litigation on behalf of any Claimant.
Notwithstanding the foregoing, each Company, prior to a
Change in Control, may designate in writing the counsel to
be retained by the Trustee after a Change in Control to
assist in enforcing the rights of Claimants under such
Company's Plans in accordance with the provisions of this
Section 5.3. If the counsel so designated declines to
provide representation, or if such counsel's representation
would involve a conflict of interest with the Trustee, or if
the Trustee is not satisfied with the quality of
representation provided, the Trustee may dismiss such
counsel and engage another qualified law firm for this
purpose; provided, however, that any law firm so engaged may
not be the same law firm that represents any Company after a
Change in Control. No Company may dismiss or engage such
counsel, or cause the Trustee to engage or dismiss such
counsel, after a Change in Control.
(g) All costs and expenses incurred by the Trustee in
connection with the performance of its duties under this
Section 5.3, including, without limitation, the payment of
reasonable fees, costs and disbursements of any counsel,
actuaries, accountants or other experts retained by the
19<PAGE>
Trustee pursuant to Section 5.3(f), shall be charged to and
paid from the Applicable Company's Legal Defense Fund.
(h) Notwithstanding any provision herein to the
contrary, the Trustee shall be required to act under this
Section 5.3, including, without limitation, instituting or
continuing any Litigation, only to the extent there are
sufficient amounts available in the Applicable Company's
Legal Defense Fund to defray the costs and expenses the
Trustee reasonably anticipates will be incurred in
connection with such action. If, at any time after a
Claimant has filed a written notice with the Trustee under
Section 5.3(a) the Trustee determines that there will not be
sufficient amounts in the Applicable Company's Legal Defense
Fund to defray such costs and expenses, the Trustee shall
promptly advise the Claimant of such fact. Unless within 30
days after it has given such notice to the Claimant the
Trustee receives from the Claimant assurances, in such form
as may be satisfactory to the Trustee, that any costs and
expenses in excess of amounts available in the Applicable
Company's Legal Defense Fund will be paid by the Claimant,
the Trustee shall have no obligation to take any further
action on behalf of the Claimant pursuant to this Section
5.3; and, if a Litigation on behalf of the Claimant is then
pending, the Trustee may discontinue such Litigation on such
terms and conditions as it deems appropriate in its sole
discretion.
5.4. If, at any time after a Change in Control or
during a Threatened Change in Control Period, legal proceedings
are brought against the Trustee by a Company or other party
seeking to invalidate any of the provisions of this Agreement as
they relate to a Company's Trust, or seeking to enjoin the
Trustee from paying any amounts from any Trust or from taking any
other action otherwise required or permitted to be taken by the
Trustee under this Agreement with respect to any Trust, the
Trustee shall take all steps that may be necessary in such
proceeding to uphold the validity and enforceability of the
provisions of this Agreement as they relate to such Trust. All
costs and expenses incurred by the Trustee in connection with any
such proceeding (including, without limitation, the payment of
reasonable fees, costs and disbursements of any counsel,
actuaries, accountants or other experts retained by the Trustee
in connection with such proceeding) shall be charged to and paid
from the Applicable Company's Legal Defense Fund. Any costs and
expenses so incurred by the Trustee in excess of amounts
available in the Applicable Company's Legal Defense Fund shall be
charged to and paid from the other assets of such Company's
Trust. Any such excess costs and expenses so charged shall be
allocated to the Plan Accounts maintained within such Trust, and
to the Participant Accounts maintained within such Plan Accounts,
on a pro rata basis.
20<PAGE>
5.5. Each Company's Legal Defense Fund shall continue
to be held and administered by the Trustee for the purposes
described in Section 5.1 until such time as all Benefits to which
all Participants are entitled under all of such Company's Plans
shall have been paid in full to such Participants or their
Beneficiaries. Any balance then remaining in a Company's Legal
Defense Fund shall be distributed to such Company.
ARTICLE 6
Insolvency
6.1. The Trustee shall cease making payment hereunder
of Benefits payable to Participants and their Beneficiaries
pursuant to a Company's Plans if the Company is Insolvent.
6.2. At all times during the continuance of each Trust,
as provided in Section 2.4 hereof, the principal and income of
the Trust shall be subject to claims of general creditors of the
Applicable Company under federal and state law as set forth
below:
(a) The Board of Directors and Chief Executive Officer
of each Company shall have the duty to inform the Trustee in
writing of such Company's Insolvency. If a person claiming
to be a creditor of a Company alleges in writing to the
Trustee that such Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent and,
pending such determination, the Trustee shall discontinue
making payment from such Company's Trust to Participants and
Beneficiaries.
(b) Unless the Trustee has actual knowledge of a
Company's Insolvency, or has received notice from a Company
or a person claiming to be a creditor of such Company
alleging that the Company is Insolvent, the Trustee shall
have no duty to inquire whether the Company is Insolvent.
The Trustee may in all events rely on such evidence
concerning a Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning the Company's
solvency.
(c) If at any time the Trustee has determined that a
Company is Insolvent, the Trustee shall discontinue making
payments from such Company's Trust to Participants and their
Beneficiaries and shall hold the assets of such Trust for
the benefit of the Company's general creditors. Nothing in
this Agreement shall in any way diminish any rights of
Participants or their Beneficiaries to pursue their rights
as general creditors of the Applicable Company with respect
to Benefits due under the Company's Plans or otherwise.
21<PAGE>
(d) The Trustee shall resume making payment from a
Company's Trust of Benefits to Participants or their
Beneficiaries in accordance with Article 4 of this Trust
Agreement only after the Trustee has determined that the
Company is not Insolvent, or is no longer Insolvent.
6.3 Provided that there are sufficient assets, if the
Trustee discontinues the payment of Benefits from any Trust
pursuant to Section 6.2 hereof and subsequently resumes such
payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants
or their Beneficiaries under the terms of the Applicable
Company's Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their
Beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance.
ARTICLE 7
Payments to Company
7.1 Prior to a Change in Control (but not during a
Threatened Change in Control Period), a Company may, by written
notice to the Trustee, direct the Trustee to pay to such Company,
out of the Trust Fund for such Company's Trust, such amount as is
specified in the notice. Any such notice shall specify the Plan
Accounts and the Participant Accounts, if any, which shall be
debited with respect to such payment. If the amount that would
remain in the Trust Fund after any such payment would be less
than the unpaid fees and expenses of the Trustee properly
chargeable to such Trust Fund, the Trustee may deduct such fees
and expenses from the payment that otherwise would be made to the
Company.
7.2 Except as provided in Article 6 hereof, during
such time as the Trust is irrevocable, the Applicable Company
shall have no right or power to direct the Trustee to return to
the Company or to divert to others any of the Trust assets before
all payment of Benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Company's Plans.
ARTICLE 8
Investment Authority and Disposition of Income
8.1 Except as otherwise provided in Sections 8.2, 8.4,
and 8.5, the Trustee, prior to a Change in Control, shall invest
and reinvest the assets of each Trust, in its sole discretion, in
such investments as may be permitted in accordance with any
written investment guidelines that may be delivered to the
Trustee from time to time by the Applicable Company and that are
acceptable to the Trustee or, at any time when no such investment
guidelines are in effect, in Permitted Investments.
22<PAGE>
8.2 Prior to a Change in Control, the Applicable
Company may in its sole discretion appoint an investment manager
to manage the investment of any part or all of the Trust Fund for
any Trust. The Applicable Company shall promptly inform the
Trustee in writing of any such appointment, shall furnish the
Trustee with a copy of the instrument pursuant to which any
investment manager is so appointed, and shall inform the Trustee
in writing as to the specific portions of the Trust Fund for its
Trust that will be subject to the management of such investment
manager. During the term of any such appointment, the investment
manager shall have the sole responsibility for the investment and
reinvestment of that portion of any Trust Fund subject to its
investment management, and the Trustee shall have no
responsibility for, or liability with respect to, the investment
of such portion of such Trust Fund.
In exercising the powers granted to it hereunder, the
Trustee shall follow the directions of any investment manager
with respect to the portion of any Trust Fund subject to
management by such investment manager. All directions given by
an investment manager to the Trustee shall be in writing, signed
by an officer (or a partner) of the investment manager, or by
such other person or persons as may be designated by an officer
(or a partner) of the investment manager. The investment manager
may directly place orders for the purchase or sale of securities,
subject to such conditions as may be approved by the Applicable
Company in authorizing the investment manager to effect
transactions directly with respect to the portion of the Trust
Fund for any Trust subject to its management, provided that the
Trustee shall nevertheless retain custody of the assets
comprising such portion of the Trust Fund.
The Applicable Company, by written notice to the
Trustee, may at any time terminate its appointment of any
investment manager. In such event, the Applicable Company shall
either appoint a successor investment manager for the portion of
the Trust Fund in question, or direct that such portion of the
Trust Fund thereafter be invested and reinvested by the Trustee
in accordance with the provisions of Section 8.1. Until receipt
of such written notice, the Trustee shall be fully protected in
relying upon the most recent prior written notice of appointment
of an investment manager.
8.3 After a Change in Control, the Trustee shall have
exclusive authority and discretion to manage and control the
investment and reinvestment of the Trust Fund for each Trust;
provided, however, that the Trust Fund for each Trust shall be so
invested and reinvested only in Permitted Investments.
8.4 In no event may the assets of any Trust be
invested in securities (including stock or rights to acquire
stock) or obligations issued by any Company, other than a de
minimis amount held in common investment vehicles in which the
Trustee invests. All rights associated with assets of each Trust
shall be exercised by the Trustee or an Investment Manager
23<PAGE>
appointed under Section 8.2, and shall in no event be exercisable
by or rest with Participants.
8.5 During the term of each Trust, all income received
by the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
ARTICLE 9
General Powers and Duties of Trustee
9.1 In addition to the other powers granted to it
under this Agreement, the Trustee shall have the following
administrative powers and authority with respect to the property
comprising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant
options for the purchase or exchange thereof, including call
options for property held in the Trust Fund and put options
for the purchase of such property, including, without
limitation, at any time to sell any asset other than cash
held in the Trust Fund to pay Benefits if there is not
sufficient cash in the Trust Fund to pay Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other
similar plan relating to any such property, and to consent
to or oppose any such plan or any action thereunder, or any
contract, lease, mortgage, purchase, sale or other action by
any corporation or other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate
discretionary power to any such committee; and to pay part
of the expenses and compensation of any such committee and
any assessments levied with respect to any property so
deposited.
(d) To exercise any conversion privilege or
subscription right available in connection with any such
property; to oppose or to consent to the reorganization,
consolidation, merger or readjustment of the finances of any
corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any
corporation, company or association of any of the securities
of which may at any time be held in the Trust Fund and to do
any act with reference thereto, including the exercise of
options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may
be deemed necessary or advisable in connection therewith,
and to hold and retain any securities or other property
which it may so acquire.
24<PAGE>
(e) To commence or defend suits or legal proceedings
and to represent the Trust in all suits or legal
proceedings; to settle, compromise or submit to arbitration,
any claims, debts or damages, due or owing to or from the
Trust.
(f) To exercise, personally or by general or limited
power of attorney, any right, including the right to vote,
appurtenant to any securities or other such property.
(g) To borrow money from any lender in such amounts
and upon such terms and conditions as shall be deemed
advisable or proper to carry out the purposes of the Trust
and to pledge any securities or other property for the
repayment of any such loan.
(h) To engage any legal counsel, including (except
after the occurrence of a Change in Control) counsel to any
Company, any enrolled actuary, any accountant or any other
suitable agents, to consult with such counsel, enrolled
actuary, accountant or agents with respect to the
construction hereof, the duties of the Trustee hereunder,
the transactions contemplated by this Agreement or any act
which the Trustee proposes to take or omit, to rely upon the
advice of such counsel, enrolled actuary, accountant or
agents, and to pay its reasonable fees, expenses and
compensation from the Trust Fund.
(i) To register any securities held by it in its own
name or in the name of any custodian of such property or of
its nominee, including the nominee of any system for the
central handling of securities, with or without the addition
of words indicating that such securities are held in a
fiduciary capacity, to deposit or arrange for the deposit of
any such securities with such a system and to hold any
securities in bearer form; provided, however, that no such
holding shall relieve the Trustee of its responsibility for
the safe custody and disposition of the Trust Fund in
accordance with the provisions of this Agreement, the
Trustee's books and records shall at all times show that
such property is part of the Trust Fund, and the Trustee
shall be absolutely liable for any loss occasioned by the
acts of its nominee or nominees with respect to securities
registered in the name of the nominee or nominees.
(j) To make, execute and deliver, as Trustee, any and
all deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
accomplishment of any of the powers granted herein.
(k) To transfer assets of the Trust Fund to a
successor trustee as provided in Section 13.4 hereof.
25<PAGE>
(l) To exercise, generally, any of the powers which an
individual owner might exercise in connection with property
either real, personal or mixed held in the Trust Fund, and
to do all other acts that the Trustee may deem necessary or
proper to carry out any of the powers granted to it
hereunder or that otherwise may be in the best interests of
the Trust Fund.
(m) To hold any portion of the Trust Fund in cash
pending investment, or for the payment of expenses and
Benefits, without liability for interest.
(n) To vote personally or by proxy and to delegate
power and discretion over such proxy on account of
securities held in the Trust Fund.
(o) To hold assets in time or demand deposits
(including deposits with the Trustee in its individual
capacity that pay a reasonable rate of interest).
(p) To invest and reinvest all or any specified
portion of any Trust Fund through the medium of any common,
collective, or commingled trust fund that has been or may
hereafter be established and maintained by the Trustee.
(q) To invest in mutual funds registered with the
Securities Exchange Commission under the Investment Company
Act of 1940.
The Trustee also shall have, without exclusion, all
powers conferred on Trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that if an
insurance policy is held as an asset of any Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor
trustee, or to loan to any person the proceeds of any borrowing
against such policy.
Prior to a Change in Control, the Trustee shall
exercise the powers referred to in Section 9.1(h) only as
directed by the Applicable Company; and, with respect to the
portion of any Trust Fund for which an investment manager has
been appointed under Section 8.2, the Trustee shall exercise any
power referred to in this Section 9.1, as it relates to the
investment management of such portion of the Trust Fund, only as
directed by such investment manager. After a Change in Control,
the Trustee may exercise such powers in its sole and absolute
discretion, except as otherwise provided in Article 8.
Notwithstanding any powers granted to the Trustee
pursuant to this Agreement or to applicable law, the Trustee
shall not have any power that could give any Trust the objective
of carrying on a business and dividing the gains therefrom,
within the meaning of section 301.7701-2 of the Procedure and
26<PAGE>
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall,
subject to Article 6 hereof, discharge its duties under this
Agreement solely in the interest of the beneficiaries of each
Trust and (i) for the exclusive purpose of providing Benefits to
such beneficiaries and defraying reasonable expenses of
administering such Trust; (ii) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims; and (iii) by diversifying the investments of the
Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not
to do so.
9.3 The Trustee shall not be required to give any bond
or any other security for the faithful performance of its duties
under this Agreement, except as required by law.
9.4 Except as otherwise expressly provided herein, the
Trustee shall not be responsible in any respect for administering
any Plan; nor shall the Trustee be responsible for the adequacy
of the Trust Fund for any Trust to meet and discharge all
payments and liabilities under any Plan.
9.5 The Trustee shall be under no duties whatsoever
except such duties as are specifically set forth as such in this
Agreement, and no implied covenant or obligation shall be read
into this Agreement against the Trustee. Except as otherwise
provided in Article 5, the Trustee shall not be required to take
any action toward the execution or performance of any Trust
created hereunder or to prosecute or defend any suit or claim in
respect thereof, unless indemnified to its satisfaction against
loss, liability, and reasonable costs and expenses. The Trustee
shall be under no liability or obligation to anyone with respect
to any failure on the part of any Company to perform any of its
obligations under any Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall
protect, indemnify and save harmless the Trustee and its
officers, directors or trustees, employees and agents from and
against any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages,
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any nature arising
from or relating to any action or failure to act by the Trustee,
its officers, directors or trustees, employees and agents with
respect to any Trust, or arising from or relating to the
transactions contemplated by this Agreement that pertain to or
affect such Trust, except to the extent that any such loss,
liability, action, suit, demand, damage, cost or expense is the
result of the negligence or willful misconduct of the Trustee,
its officers, directors or trustees, employees or agents.
27<PAGE>
If the Trustee shall become entitled to indemnification
by any Company pursuant to this Section 9.6 and such Company
fails to provide such indemnification to the Trustee within 30
days of the Company's receipt of a written request from the
Trustee for such indemnification, the Trustee may apply assets of
such Company's Trust in full satisfaction of the Company's
obligation to make such indemnification. Promptly after any
assets of any Trust are so applied, the Trustee shall institute
legal proceedings on behalf of the Trust to recover from the
Applicable Company an amount equal to the amount of any Trust
assets so applied.
ARTICLE 10
Taxes, Expenses, and Compensation of Trustee
10.1 Each Company shall pay any federal, state, local
or other taxes imposed or levied with respect to the corpus
and/or income of its Trust or any part thereof under existing or
future laws and such Company in its discretion, or the Trustee in
its discretion, may contest the validity or amount of any tax,
assessment, claim or demand respecting such Trust or any part
thereof.
10.2 Each Company shall pay to the Trustee its
allocable share of the compensation that is payable to the
Trustee for its services hereunder pursuant to the schedule of
fees annexed hereto as Exhibit G. Each Company shall also pay
its allocable share of the reasonable and necessary expenses
incurred by the Trustee in the performance of its duties under
this Agreement, including reasonable fees of any counsel,
actuary, accountant or other agent engaged by the Trustee
pursuant to this Agreement. Any such compensation or expenses
shall be allocated among the Companies as follows: in the case
of any such compensation that is specifically chargeable to, or
any such expenses that were specifically incurred with respect
to, a particular Trust, the amount of such compensation or
expenses shall be allocated solely to the Applicable Company; in
the case of any such compensation that is not specifically
chargeable to, or any such expenses that were not specifically
incurred with respect to, a particular Trust, the amount of such
compensation or expenses shall be allocated to the Companies in
proportion to the respective values of the Trust Funds for the
Companies' Trusts as of the Valuation Date immediately preceding
the date as of which the Trustee bills the Companies for such
compensation or expenses. Each Company's allocable share of such
compensation and expenses shall be charged against and paid from
the Trust Fund for such Company's Trust, to the extent not paid
by such Company within 45 days after the date on which the
Trustee bills the Company for such compensation and expenses.
Any amount so charged against and paid from the Trust Fund for
any Company's Trust shall be further allocated to and charged
against the Plan Accounts and Participant Accounts maintained
within such Trust (a) in such manner as the Applicable Company
28<PAGE>
directs in written instructions delivered by it to the Trustee,
in the case of any amount so charged and paid prior to a Change
in Control; and (b) in proportion to the respective balances of
such Accounts as determined as of the most recent Valuation Date,
in the case of any amount so charged and paid after a Change in
Control.
ARTICLE 11
Accounting by Trustee
11.1 For each Trust, the Trustee shall keep accurate
and detailed accounts of all its investments, receipts, and
disbursements under this Agreement. Such person or persons as
the Applicable Company shall designate shall be allowed to
inspect the books of account relating to such Company's Trust
upon request at any reasonable time during the business hours of
the Trustee.
11.2 Within 90 days after the close of each calendar
year, the Trustee shall transmit to each Company, and certify the
accuracy of, a written statement of the assets and liabilities of
the Trust Fund for such Company's Trust at the close of that
year, showing the current value of each asset at that date, and a
written account of all the Trustee's transactions relating to
such Trust Fund during the period from the last previous
accounting to the close of that year. For the purposes of this
Section 11.2, the date of the Trustee's resignation or removal as
provided in Article 13 hereof shall be deemed to be the close of
a calendar year.
11.3 Unless a Company shall have filed with the Trustee
written exceptions or objections to any such statement and
account within 90 days after receipt thereof, such Company shall
be deemed to have approved such statement and account; and in
such case or upon the written approval by such Company of any
such statement and account, the Trustee shall be forever released
and discharged with respect to all matters and things embraced in
such statement and account as though it had been settled by
decree of a court of competent jurisdiction in an action or
proceeding to which the Company and all persons having any
beneficial interest in its Trust were parties.
11.4 Nothing contained in this Agreement or in any Plan
shall deprive the Trustee of the right to have a judicial
settlement of its accounts with respect to any Trust. In any
proceeding for a judicial settlement of the Trustee's accounts or
for instructions in connection with any Trust, the only other
necessary party thereto in addition to the Trustee shall be the
Applicable Company. If the Trustee so elects, it may bring in as
a party or parties defendant any other person or persons. No
person interested in any Trust, other than the Applicable
Company, shall have a right to compel an accounting, judicial or
otherwise, by the Trustee, and each such person shall be bound by
29<PAGE>
all accounting by the Trustee to such Company, as herein
provided, as if the account had been settled by decree of a court
of competent jurisdiction in an action or proceeding to which
such person was a party.
ARTICLE 12
Communications
12.1 With respect to any Trust, the Trustee shall be
fully protected in relying upon any written notice, instruction,
direction or other communication signed by an officer of the
Applicable Company. Each Company from time to time shall furnish
the Trustee with the names and specimen signatures of the
officers of the Company authorized to act or give directions
hereunder and shall promptly notify the Trustee of the
termination of office of any such officer of the Company and the
appointment of a successor thereto. Until notified in writing to
the contrary, the Trustee shall be fully protected in relying
upon the most recent list of the officers of the Company
furnished to it by the Company.
12.2 Any action required by any provision of this
Agreement to be taken by the board of directors of a Company
shall be evidenced by a resolution of such board of directors
certified to the Trustee by the Secretary or an Assistant Secre
tary of the Company under its corporate seal, and the Trustee
shall be fully protected in relying upon any resolution so
certified to it. Unless other evidence with respect thereto has
been specifically prescribed in this Agreement, any other action
of a Company under any provision of this Agreement, including any
approval of or exceptions to the Trustee's accounts, shall be
evidenced by a certificate signed by an officer of the Company,
and the Trustee shall be fully protected in relying upon such
certificate. The Trustee may accept a certificate signed by an
authorized officer of a Company as proof of any fact or matter
that it deems necessary or desirable to have established in the
administration of such Company's Trust (unless other evidence of
such fact or matter is expressly prescribed herein) and the
Trustee shall be fully protected in relying upon the statements
in the certificate.
12.3 The Trustee shall be entitled conclusively to rely
upon any written notice, instruction, direction, certificate or
other communication 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 investigation or inquiry as to the truth or
accuracy of any statement contained therein.
12.4 Until notice be given to the contrary,
communications to the Trustee shall be sent to it at its office
at 210 Main Street, Hackensack, New Jersey 07601, Attention:
Corporate Agency Administration, Investment Management Division;
and communications to any Company shall be sent to it c/o GPU
30<PAGE>
Service, Inc., 100 Interpace Parkway, Parsippany, New Jersey
07054-1149, Attention: Treasurer.
ARTICLE 13
Resignation or Removal of Trustee
13.1 The Trustee may resign as trustee of any Trust at
any time by written notice to the Applicable Company, which
resignation shall be effective 60 days after the Company's
receipt of such notice unless the Company and the Trustee agree
otherwise. The Trustee may be removed as trustee of any Trust by
action of the board of directors of the Applicable Company, at
any time upon 60 days' written notice to the Trustee, or upon
shorter notice if acceptable to the Trustee. In the event it
resigns or is removed, the Trustee shall have a right to have its
accounts settled as provided in Article 11 hereof.
13.2 Notwithstanding the provisions of Section 13.1,
the Trustee may not be removed as trustee of any Trust after a
Change in Control or during a Threatened Change in Control Period
without the written consent of at least two-thirds in number of
the Participants who are, or who may become, entitled to receive
payments from such Trust. The Applicable Company shall furnish
the Trustee with evidence to establish that such majority in
number of such Participants has granted written consent to such
removal.
13.3 If the Trustee resigns or is removed as trustee of
any Trust, a successor shall be appointed by the Applicable
Company, by action of its board of directors, by the effective
date of such resignation or removal. Any successor trustee so
appointed shall be a bank as defined under the Investment
Advisers Act of 1940, having a net worth in excess of
$100,000,000 or having assets in excess of $2,000,000,000. After
a Change in Control or during a Threatened Change in Control
Period, such appointment of a successor trustee shall be approved
in writing by at least two-thirds in number of the Participants
who are or may become entitled to receive payments from such
Trust. Notwithstanding the foregoing, if no such appointment of
a successor trustee has been made by the effective date of such
resignation or removal, the Trustee may apply to a court of
competent jurisdiction for appointment of a successor trustee or
for instructions. All expenses of the Trustee in connection with
such proceeding shall be allowed as administrative expenses of
the Trust and shall be paid by the Applicable Company.
13.4 Each successor trustee shall have the powers and
duties conferred upon the Trustee in this Agreement, and the term
"Trustee" as used in this Agreement, except where the context
otherwise requires, shall be deemed to include any successor
trustee. Upon designation or appointment of a successor trustee
for any Trust, the Trustee shall transfer and deliver the Trust
Fund for such Trust to the successor trustee, reserving such sums
31<PAGE>
as the Trustee shall deem necessary to defray its expenses in
settling its accounts with respect to such Trust, to pay any of
its compensation with respect to such Trust that is due and
unpaid, and to discharge any obligation of such Trust for which
the Trustee may be liable. If the sums so reserved are not
sufficient for these purposes, the Trustee shall be entitled to
recover the amount of any deficiency from either the Applicable
Company or the successor trustee, or both. When the Trust Fund
for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust
have been settled as provided in Article 11 hereof, the Trustee
shall be released and discharged from all further accountability
or liability for the Trust Fund for such Trust and shall not be
responsible in any way for the further disposition of such Trust
Fund or any part thereof.
ARTICLE 14
Amendments and Termination
14.1 Subject to Section 14.2, any or all of the
provisions of this Agreement and any Exhibits annexed hereto, as
they relate to any Company's Trust, may be amended at any time,
without the consent of any Participant or Beneficiary, by a
written instrument of amendment, duly executed by the Applicable
Company and the Trustee. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Applicable
Company's Plans or shall make the Applicable Company's Trust
revocable after it has become irrevocable in accordance with
Section 2.2 hereof.
14.2 No amendment may be made to delete a Participant
from Exhibit A or to delete a Plan from Exhibit B and no other
provision of this Agreement may be amended (i) during a
Threatened Change in Control Period, (ii) after a Change in
Control, (iii) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control or (iv) otherwise in connection
with, or in anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs unless in any
such case the written consent of at least two-thirds in number of
the Participants who are or may become entitled to payments from
each Trust affected by such amendment is obtained, in which case
such amendment may be made. The Trustee may request that the
Applicable Company or Companies furnish evidence to establish
that at least two-thirds of the Participants have granted written
consent to such an amendment.
14.3 Unless sooner revoked in accordance with Section
2.2 hereof, each Trust shall terminate on the date on which
Participants and their Beneficiaries are no longer entitled to
receive Benefits pursuant to the terms of the Applicable
Company's Plans. Upon termination of any Trust, any assets
remaining in the Trust Fund for such Trust shall be paid by the
32<PAGE>
Trustee to the Applicable Company.
ARTICLE 15
Miscellaneous
15.1 Any provision of this Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
15.2 Benefits payable to Participants and their
Beneficiaries under this Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
15.3 This Agreement shall be governed by, and shall be
construed in accordance with, and each Trust hereby created shall
be administered in accordance with, the laws of the State of New
Jersey.
15.4 The titles to Articles of this Agreement are
placed herein for convenience of reference only, and this
Agreement is not to be construed by reference thereto.
15.5 This Agreement shall bind and inure to the benefit
of the successors and assigns of each Company and the Trustee,
respectively, and all Participants and Beneficiaries under the
Companies' Plans.
15.6 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute but one instrument, which
may be sufficiently evidenced by any counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly
authorized officers under their corporate seals as of the day and
year first above written.
GPU INC.
By:
J. R. Leva, Chairman
and Chief Executive Officer
ATTEST:
JERSEY CENTRAL POWER & LIGHT COMPANY
33<PAGE>
By:
J. R. Leva, Chairman of the Board and
Chief Executive Officer
ATTEST:
GPU NUCLEAR, INC.
By:
T.G. Broughton, President and Chief
Executive Officer
ATTEST:
SUMMIT BANK, Trustee
By:
ATTEST:
34<PAGE>
EXHIBIT A
List of Participants
Set forth below is a list, for each Company, of the persons
who are to be treated as Participants for purposes of the annexed
Agreement.
Company Participants
GPU Inc. L. J. Appell, Jr.
D. J. Bainton
T. H. Black
J. F. Burditt
D. L. Grove
T. B. Hagen
H. F. Henderson, Jr.
H. R. O'Leary
J. W. Oswald
J. M. Pietruski
C. A. Rein
P. R. Roedel
C. A. Trost
P. K. Woolf
Jersey Central Power
& Light Company G. E. Persson
S. C. Van Ness
S. B. Wiley
GPU Nuclear, Inc. L. L. Humphreys
R. V. Laney
J. D. Townsend
C. A. Trost
W. A. Wilson
W. F. Witzig<PAGE>
EXHIBIT B
Covered Plans and Benefits
Set forth below is a list, for each Company, of the plans,
programs, policies or agreements that are to be treated as
"Plans", and the amounts payable under the Plans that are to be
treated as "Benefits", for purposes of the annexed Agreement.
GPU, Inc.
1. All benefit amounts payable under the Deferred Remuneration
Plan for Outside Directors of GPU, Inc.
2. All benefit amounts payable under the Retirement Plan for
Outside Directors of GPU Inc.
Jersey Central Power & Light Company
1. All benefit amounts payable under the Deferred Remuneration
Plan for Outside Directors of Jersey Central Power & Light
Company.
GPU Nuclear, Inc.
1. All benefit amounts payable under the Deferred Remuneration
Plan for Outside Directors of GPU Nuclear, Inc.
EXHIBIT C
Payment Schedule
[Material To Be Added.]
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
I, _______________________________________________, a
Participant [or Beneficiary] in the GPU System Companies Master
Directors' Benefits Protection Trust (the "Trust"), adopted
September 1, 1995 and amended November 7, 1996 and February 6,
1997, pursuant to Section 4.3 thereof, hereby request that [Name
of Bank], as Trustee thereunder, make payment to me of the
Benefits to which I am entitled as [Participant or Beneficiary]
in accordance with the terms of the Trust Agreement and the
following [Company Name] Plans:
_______________________________
_______________________________<PAGE>
_______________________________
_______________________________
I hereby attest, certify and affirm that to the best of my
knowledge and belief the following events, upon which entitlement
to and payment of Benefits under said Plans is conditioned, have
occurred:
[Insert Description of events that have occurred]
I further attest, certify and affirm that [Name of Company]
has not paid any of the Benefits claimed herein under said plans.
I am [or The Participant was] ____ years of age, having been
born on [Date of Birth]. I have been/was [or the Participant
was] employed by [Name of Company] from [Date] to [Date]. The
[Name of Company] records detailing my [his/her] compensation and
the terms and conditions of employment, if any, are attached
hereto and made a part hereof.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
[Address & Telephone No.]
EXHIBIT E
AUTHORIZATION TO TRUSTEE
TO COMMENCE LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Directors'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended November 7, 1996 and February 6, 1997, pursuant
to Section 5.3(b) thereof, hereby request and authorize [Name of
Bank], as Trustee thereunder, to institute and prosecute legal
proceedings (the "Litigation"), on my behalf, against [Name of
GPU System Company] to recover upon my claim against said company
for unpaid benefits under [Name of Plan under which claim is
asserted].
It is understood that, pursuant to Section 5.3(e) of the
Trust Agreement, I may revoke this authorization to prosecute or
continue to prosecute such Litigation, at any time, upon written
notification to the Trustee in the appropriate form.
Dated:_________________ ___________________________<PAGE>
[Name of Participant]
___________________________
___________________________
___________________________
[Address & Telephone No.]
EXHIBIT F
REVOCATION OF TRUSTEE'S AUTHORITY
TO MAINTAIN LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Directors'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended November 7, 1996 and February 6, 1997, pursuant
to Section 5.3(e) thereof, hereby revoke the authorization
previously granted by me to [Name of Bank], as Trustee
thereunder, to institute and prosecute legal proceedings (the
"Litigation), on my behalf, against [Name of GPU System Company]
for unpaid Benefits under [Name of Plan under which claim is
asserted].
I hereby notify the Trustee that I have appointed and
retained [Name Attorney ] of [Address
] to represent me and my interests in such Litigation. I
understand that the fees and expenses of my attorney in
connection with the Litigation or otherwise shall be my sole
responsibility and that neither me nor my attorney will be
entitled to direct payment for any such fees or expenses out of
the Trust fund or any portion thereof.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
___________________________
[Address & Telephone No.]
EXHIBIT G
Trustee's Fee Schedule
[Material to be added, including provision for automatic
annual COLA adjustments after a Change in Control.]<PAGE>
GPU RABBI TRUST
PARTICIPANT INFORMATION
NAME ADDRESS SOCIAL SECURITY NUMBER
Appell, 1700 Powder Mill Rd ###-##-####
L. J., Jr. York, Pa 17403
Bainton, D. J. 39 West Brother Dr ###-##-####
Greenwich, Ct 06830
Black, T. H. 543 Carter Street ###-##-####
New Canaan, Ct 06840
Burditt, J. F. P. O. Box 1327 ###-##-####
Manchester Ctr, Vt 05255
Grove, D. L. 5 The Knoll ###-##-####
Armonk, New York 10504
Hagen, T. B. 5727 Grubb Road ###-##-####
Erie, Pa 16505
Henderson, 315 Rifle Camp Road ###-##-####
H. F., Jr. West Paterson, NJ 07424
Humphreys, L. L. 217 Lasiandra Court ###-##-####
Richland, Wa 99352
Laney, R. V. 24 Trout Farm Road ###-##-####
Duxburn, Md 02332
O'Leary, H. R. 5610 Wisc. Ave. PH20C ###-##-####
O'Leary, J. Chevy Chase, Md 20815
(deceased)
Oswald, R. O. 600 E. Cathedral Rd, ###-##-####
Oswald, J. W. Apt. J-304
(deceased) Philadelphia, Pa 19128
Persson, G. E. 27 Greenfields Drive ###-##-####
Lakewood, NJ 08701
Pietruski, J. M. 27 Paddock Lane ###-##-####
Colts Neck, NJ 07722<PAGE>
GPU RABBI TRUST
PARTICIPANT INFORMATION
NAME ADDRESS SOCIAL SECURITY NUMBER
Rein, C. A. 21 East 22nd St ###-##-####
Apt. 8-B
New York, NY 10010
Roedel, P. R. 416 Wheatland Ave. ###-##-####
Shillington, Pa 19607
Townsend, J. D. 190 Red Rock Cove Dr ###-##-####
Sedona, AZ 86351
Trost, C. A. H. 10405 Windsor View Dr ###-##-####
Potomac, Md 20854
Van Ness, S. C. 503 South Street ###-##-####
Brielle, NJ 08730
Wiley, S. B. Canfield Road ###-##-####
Covenant Station, NJ 07961
Wilson, W. A. 115 Wilton Woods Lane ###-##-####
Media, Pa 19063
Witzig, W. F. 1330 Park Hills Ave Ea ###-##-####
State College, Pa 16801
Woolf, P. K. 506 Quaker Road ###-##-####
Princeton, NJ 08540<PAGE>
Exhibit C-18
GPU SYSTEM COMPANIES
MASTER EXECUTIVES' BENEFITS PROTECTION TRUST
As Amended and Restated Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Article Title Page No.
ARTICLE 1 Definitions 2
ARTICLE 2 Establishment of the Trusts 7
ARTICLE 3 Contributions and Accounts 8
ARTICLE 4 Payments to Participants and
Beneficiaries 12
ARTICLE 5 Legal Defense Fund 16
ARTICLE 6 Insolvency 20
ARTICLE 7 Payments to Company 21
ARTICLE 8 Investment Authority and Disposition
of Income 22
ARTICLE 9 General Powers and Duties
of Trustee 23
ARTICLE 10 Taxes, Expenses, and Compensation
of Trustee 27
ARTICLE 11 Accounting by Trustee 28
ARTICLE 12 Communications 29
ARTICLE 13 Resignation or Removal of Trustee 30
ARTICLE 14 Amendments and Termination 31
ARTICLE 15 Miscellaneous 32<PAGE>
THIS TRUST AGREEMENT, Amended and Restated as of
February 6, 1997, by and between GPU, INC., a Pennsylvania
corporation (the "Corporation"), JERSEY CENTRAL POWER & LIGHT
COMPANY, a New Jersey corporation, METROPOLITAN EDISON COMPANY, a
Pennsylvania corporation, PENNSYLVANIA ELECTRIC COMPANY, a
Pennsylvania corporation, GPU SERVICE, INC., a Pennsylvania
corporation, GPU NUCLEAR, INC., a New Jersey corporation, GPU
GENERATION, INC., a Pennsylvania corporation ("Genco"), and GPU
INTERNATIONAL, INC., a Delaware Corporation (each such
corporation is hereinafter referred to individually as a
"Company", and all such corporations are hereinafter referred to
collectively as the "Companies"), and SUMMIT BANK (formerly
UNITED JERSEY BANK), a New Jersey state chartered bank
(hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS each Company has adopted one or more Plans (as
hereinafter defined) under which it has incurred or expects to
incur liability under the terms of such Plans with respect to
Benefits (as hereinafter defined) payable to individuals
participating in such Plans; and
WHEREAS, pursuant to a Trust Agreement dated as of
September 1, 1995 between the Corporation, each of the Companies
other than Genco, and the Trustee (the "Prior Agreement"), each
of such Companies has established a trust (hereinafter called the
"Trust") and has contributed to the Trust assets that shall be
held therein, subject to the claims of the Company's creditors in
the event of the Company's Insolvency (as hereinafter defined)
until paid to Plan participants and their beneficiaries in such
manner and at such times as specified in the Plans; and
WHEREAS, Genco wishes to establish a Trust hereunder
and to become a party to this Agreement and agrees to be bound by
all of its terms and provisions; and
WHEREAS, it is the intention of the parties that each
Trust established hereunder or under the Prior Agreement shall
constitute an unfunded arrangement and shall not affect the
status of each of the Plans as unfunded for purposes of those
provisions of Title I of the Employee Retirement Income Security
Act of 1974 that may apply to such Plan; and
WHEREAS, it is the intention of each Company to make
contributions to its Trust to provide itself with a source of
funds to assist it in the meeting of its liabilities under its
Plans; and
WHEREAS, the Trustee is not a party to any of the Plans
and makes no representations with respect thereto; and
WHEREAS, the parties hereto wish to amend and restate
the Prior Agreement to permit Genco to become a party hereto and
1<PAGE>
to make certain other changes in the Prior Agreement;
NOW, THEREFORE, the Prior Agreement is hereby amended
and restated to read in its entirety as follows:
ARTICLE 1
Definitions
1.1 As used herein, the following terms shall have the
following meanings, unless the context clearly indicates a
contrary meaning:
(a) "Agreement" shall mean this instrument, as the
same may be amended from time to time as permitted herein.
(b) "Applicable Company" shall mean, with respect to
any Trust established hereunder, or any Plan, the Company
that established such Trust, or that has adopted or
maintains such Plan.
(c) "Beneficiary", with respect to a Participant,
shall mean the person or entity designated by such
Participant under a Plan, or such other person or entity
with respect to such Participant as may be designated under
the terms of such Plan, to receive the Benefits, if any,
payable from such Plan following such Participant's death.
(d) "Benefits" shall mean those amounts specified in
Exhibit B that are payable under a Plan to (or with respect
to) a Participant, or, upon his death, to his Beneficiary.
(e) "Benefit Valuation Date" shall mean the first day
of each calendar year.
(f) "Board" shall mean the board of directors of the
Corporation.
(g) "Change in Control" shall mean the occurrence of
any of the following:
(1) An acquisition (other than directly from the
Corporation) of any common stock of the Corporation ("Common
Stock") or other voting securities of the Corporation
entitled to vote generally for the election of directors
(the "Voting Securities") by any "Person" (as the term
person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of
the then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a
2<PAGE>
Change in Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would
cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (A) an employee benefit plan
(or a trust forming a part thereof) maintained by (i) the
Corporation or (ii) any corporation or other Person of which
a majority of its voting power or its voting equity
securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996,
are members of the Board (the "Incumbent Board"), cease for
any reason to constitute at least seventy percent (70%) of
the members of the Board; provided, however, that if the
election, or nomination for election by the Corporation's
shareholders, of any new director was approved by a vote of
at least two-thirds of the Incumbent Board, such new
director shall, for purposes of this Trust, be considered as
a member of the Incumbent Board; provided further, however,
that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office
as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than
the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest
or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such
merger, consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into the
Corporation or in which securities of the Corporation are
issued where:
(i) the stockholders of the
Corporation, immediately before such merger, consolidation
or reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
3<PAGE>
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least seventy
percent (70%) of the members of the board of directors of
the Surviving Corporation, or a corporation, directly or
indirectly, beneficially owning a majority of the Voting
Securities of the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities or its common stock.
(B) A complete liquidation or dissolution of
the Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than
the permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
(h) "Code" shall mean the Internal Revenue Code of
1986 as the same may be amended from time to time.
(i) "Insolvent"--A Company shall be considered
"Insolvent" for purposes of this Agreement if (i) the
4<PAGE>
Company is unable to pay its debts as they become due, or
(ii) the Company is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
(j) "Participant" shall mean any person who is or may
become entitled to receive Benefits under a Plan and who is
included in the list of persons who are to be treated as
Participants for purposes of this Agreement, as set forth in
Exhibit A hereto.
(k) "Permitted Investments" shall mean direct
obligations of the United States of America or agencies or
instrumentalities thereof or obligations unconditionally and
fully guaranteed as to principal and interest by the United
States of America ("Obligations"), and certificates of
deposit and bankers' acceptances of a bank organized and
existing under the laws of the United States of America or
any State thereof that has a combined capital and surplus of
at least $100,000,000, all having respective maturities of
not more than one year when purchased. The term "Permitted
Investments" shall also mean any fund or portfolio
maintained by any open-end investment company registered
under the Investment Company Act of 1940, the assets of
which are invested exclusively in Obligations, certificates
of deposit and/or bankers' acceptances of the kind described
in the preceding sentence including, without limitation, any
such fund or portfolio for which the Trustee or any
affiliate of the Trustee serves as investment adviser.
(l) "Present Value" shall mean, with respect to any
Benefit, the single sum actuarial present value of such
Benefit, as determined by an enrolled actuary on the basis
of the actuarial assumptions most recently adopted by the
Applicable Company for use in connection with this
Agreement. Notwithstanding the foregoing, any determination
of the Present Value of Benefits to be made hereunder at any
time after a Change in Control or during a Threatened Change
in Control Period shall be made on the basis of the
actuarial assumptions that were used in determining the
Present Value of such Benefits as of the most recent Benefit
Valuation Date preceding the Change in Control or Threatened
Change in Control Period, unless the Applicable Company has
notified the Trustee in writing prior to the Change in
Control or the Threatened Change in Control Period of its
adoption of different actuarial assumptions for use
hereunder after the Change in Control or during the
Threatened Change in Control Period; provided, however, that
if any Plan specifies (either expressly or by reference) the
actuarial assumptions that are to be used to calculate the
Benefits provided under such Plan, the actuarial assumptions
so specified shall be used to determine the Present Value of
Benefits under that Plan for purposes of this Agreement.
(m) "Plan" or "Plans" shall mean, with respect to any
Company, any (or if the context requires, all) of the plans,
5<PAGE>
programs or policies maintained by such Company, and
agreements entered into by such Company, that are included
in the list set forth in Exhibit B hereto.
(n) "Threatened Change in Control" shall mean the
occurrence of any of the following events (but no event
other than the following events), except as otherwise
provided below: Any Person
(1) becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation representing
fifteen percent (15%) or more of the then-outstanding Common
Stock or of the combined voting power of the Corporation's
then-outstanding voting securities, or
(2) initiates a tender offer or exchange offer to
acquire securities of the Corporation representing twenty
percent (20%) or more of the then-outstanding Common Stock
or of the combined voting power of the Corporation's then-
outstanding voting securities, or
(3) solicits proxies for the election within any
single twelve (12)-month period of three or more directors,
whose election or nomination is not approved by a majority
of the Incumbent Board then serving as members of the Board,
to serve on the Board.
Notwithstanding the foregoing, a Threatened Change
in Control shall not be deemed to occur pursuant to this
Section 1.1(n) solely because of an acquisition or tender
offer made or effected in connection with a Non-Control
Acquisition.
(o) "Threatened Change in Control Period" shall mean
the period commencing on the date on which a Threatened
Change in Control has occurred and ending (i) on the date on
which a Change in Control has occurred, or (ii), if earlier,
on whichever of the following dates is applicable:
(1) in the case of a Threatened Change in Control
described in Section 1.1(n)(1), the date as of which any
Person described in Section 1.l(n)(1) ceases to be the
Beneficial Owner, directly or indirectly, of securities of
the Corporation representing fifteen percent (15%) or more
of the Common Stock or of the combined voting power of the
Corporation's then-outstanding voting securities, or
(2) in the case of a Threatened Change in Control
described in Section 1.l(n)(2), the date as of which the
tender offer or exchange offer described in Section
1.1(n)(2) is terminated without any securities described
therein of the Corporation being purchased thereunder, or
(3) in the case of a Threatened Change in Control
described in Section 1.l(n)(3), the date as of which any
6<PAGE>
Person described in Section 1.1(n)(3) fails to effect the
election within any single twelve (12)-month period of three
or more directors, whose election or nomination is not
approved by a majority of the Incumbent Board then serving
as members of the Board, to serve on the Board.
(p) "Valuation Date" shall mean the last business day
of each calendar quarter.
ARTICLE 2
Establishment of the Trusts
2.1 Each Company hereby establishes with the Trustee,
and the Trustee hereby accepts, a Trust consisting of such sums
of money and other property acceptable to the Trustee as such
Company shall pay or deliver to the Trustee from time to time.
All such money and other property, all investments and
reinvestments made therewith or proceeds thereof and all earnings
and profits thereon, less all payments therefrom and charges
thereto as authorized herein, are hereinafter referred to as the
"Trust Fund" for such Trust. Each Trust Fund shall be held,
administered and disposed of by the Trustee as provided in this
Agreement.
2.2 Prior to a Change in Control, each Trust
established hereunder may be revoked, in whole or in part, by the
Applicable Company giving to the Trustee written notice of such
revocation; provided, however, that no Trust established
hereunder may be revoked (i) at the request of a third party who
has indicated an intention or taken steps to effect a Change in
Control and who effectuates a Change in Control, (ii) in
connection with, or in anticipation of, a Change in Control which
has been threatened or proposed and which actually occurs or
(iii) during a Threatened Change in Control Period, any such
attempted revocation being null and void. If a Trust is so
revoked in its entirety, all of the assets of the Trust (after
payment of any unpaid fees and expenses of the Trustee properly
chargeable to such Trust) shall be transferred by the Trustee to
the Applicable Company or to such other person or entity as the
Applicable Company may direct in writing. If a Trust is so
revoked in part, the Trustee shall transfer to the Applicable
Company such of the assets of the Trust as the Applicable Company
shall have specified in its written notice to the Trustee of the
partial revocation of such Trust. Upon a Change in Control, each
Trust shall become irrevocable.
2.3 Each Trust established hereunder is intended to
constitute a "grantor trust", of which the Company is the
grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Code, and shall be construed
accordingly.
7<PAGE>
2.4 The principal of each Trust, and any earnings
thereon, shall be held separate and apart from other funds of the
Applicable Company, and shall be used exclusively for the uses
and purposes of Participants under such Company's Plans and
general creditors of such Company, as herein set forth.
Participants and their Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of
any Trust. Any rights created under the Plans and this Agreement
shall be mere unsecured contractual rights of Participants and
their Beneficiaries against the Applicable Company. Any assets
held by each Trust will be subject to the claims of the
Applicable Company's general creditors under federal and state
law in the event of the Applicable Company's Insolvency, as
defined in Section 1.1(h) herein.
2.5 Each Trust established hereunder shall be
maintained by the Trustee as a separate trust. However, the
assets of any Trust may be commingled with the assets of any
other Trust, solely for investment purposes.
ARTICLE 3
Contributions and Accounts
3.1 Prior to a Change in Control, each Company may
make contributions to its Trust in such amounts, and at such
times, as such Company may determine in its sole discretion.
Such contributions may be in the form of cash, or such other
property as may be determined by the Company and as may be
acceptable to the Trustee.
3.2 Required Contributions.
3.2.1 Upon the occurrence of a Change in Control,
each Company shall be required to make contributions to its Trust
as follows:
(a) Upon a Change in Control, the Company
shall, as soon as possible but in no event later than 30 days
following the Change in Control, make an irrevocable contribution
to its Trust in an amount that, when added to the value of the
Trust Fund for such Trust (exclusive of the value of the Legal
Defense Fund, if any, maintained within such Trust Fund)
determined as of the most recent Valuation Date preceding such
contribution, will equal the sum of (i) the aggregate Present
Value of all Benefits accrued for all Participants under all of
such Company's Plans determined as of the most recent Benefit
Valuation Date preceding the date on which the Change in Control
occurred; and (ii) the aggregate Present Value of all other
Benefits for all Participants under all of such Company's Plans
that accrue as a result of the occurrence of the Change in
Control, determined as of the first day of the month coincident
with or immediately following the date on which the Change in
Control occurred.
8<PAGE>
(b) Within 60 days after each Benefit
Valuation Date following the occurrence of a Change in Control,
each Company shall make an irrevocable contribution to its Trust
in an amount that, when added to the value of the Trust Fund for
such Trust (exclusive of the value of the Legal Defense Fund, if
any, maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
aggregate Present Value of all Benefits accrued for all
Participants under all of such Company's Plans determined as of
such Benefit Valuation Date.
3.2.2 Upon the occurrence of a Threatened Change
in Control, each Company shall be required to make contributions
to its Trust as follows:
(a) Upon a Threatened Change in Control, the
Company shall, as soon as practicable but in no event later than
30 days following the Threatened Change in Control, make a
contribution to its Trust in an amount that, when added to the
value of the Trust Fund for such Trust (exclusive of the value of
the Legal Defense Fund, if any, maintained within such Trust
Fund) determined as of the most recent Valuation Date preceding
such contribution, will equal the sum of (i) the aggregate
Present Value of all Benefits accrued for all Participants under
all of such Company's Plans, determined as of the most recent
Benefit Valuation Date preceding the date on which the Threatened
Change in Control occurred; and (ii) the aggregate Present Value,
determined as of the first day of the month coincident with or
immediately following the date on which the Threatened Change in
Control occurred, of all other Benefits for all Participants
under all of such Company's Plans that would have accrued as a
result of a Change in Control if such Change in Control had
occurred on the date on which the Threatened Change in Control
occurs.
(b) Within 60 days after each Benefit
Valuation Date during a Threatened Change in Control Period, each
Company shall make a contribution to its Trust in an amount that,
when added to the value of the Trust Fund for such Trust
(exclusive of the value of the Legal Defense Fund, if any,
maintained within such Trust Fund) determined as of the most
recent Valuation Date preceding such contribution, will equal the
sum of (i) the aggregate Present Value of all Benefits accrued
for all Participants under all of such Company's Plans,
determined as of such Benefit Valuation Date and (ii) the
aggregate Present Value, determined as of such Benefit Valuation
Date, of all other Benefits for all Participants under all of
such Company's Plans that would have accrued as a result of a
Change in Control, if such Change in Control had occurred on such
Benefit Valuation Date.
3.3 Within the Trust Fund for each Trust, the Trustee
shall establish and maintain a separate account (hereinafter
referred to as a "Plan Account") for each of the Applicable
Company's Plans. The Trustee also shall establish within each
9<PAGE>
Plan Account a separate sub-account (hereinafter referred to as a
"Participant Account") for each Participant of such Plan. The
Trustee shall hold all Plan Accounts and Participant Accounts
maintained within the Trust Fund for any Trust as a single
consolidated fund.
3.4 With respect to each contribution that is made to
a Trust prior to a Change in Control but not during any
Threatened Change in Control Period, the amount, or property, so
contributed to such Trust shall be allocated by the Trustee to
the Plan Accounts, and to the Participant Accounts, maintained
within such Trust in such manner as the Applicable Company
directs in written instructions delivered by the Applicable
Company to the Trustee at the time of the contribution.
3.5 As of each Valuation Date, the Trust Fund for each
Trust shall be revalued by the Trustee at its then current fair
market value, as determined by the Trustee. The net investment
gains and losses of each Trust Fund for each calendar year that
ends prior to a Change in Control but not during a Threatened
Change in Control shall be allocated by the Trustee, as of the
last Valuation Date occurring in such year, among the Plan
Accounts and Participant Accounts maintained within such Trust,
in such manner as the Applicable Company shall specify in written
instructions furnished by it to the Trustee. As of each
Valuation Date following the occurrence of a Change in Control,
or that falls within a Threatened Change in Control Period, the
net investment gains and losses of each Trust Fund for the
calendar year ending on such Valuation Date shall be allocated by
the Trustee proportionately among the Plan Accounts and
Participant Accounts maintained within such Trust, based on the
value of such Accounts as of the immediately preceding Valuation
Date. In making the foregoing allocation, the value of Plan
Accounts and Participant Accounts in existence on the immediately
preceding Valuation Date but not in existence on the current
Valuation Date shall be disregarded.
3.6 Notwithstanding the provisions of Sections 3.4 and
3.5, as of each Benefit Valuation Date occurring prior to a
Change in Control, but not during any Threatened Change in
Control Period, the Trustee shall, in accordance with such
written instructions as it has received from the Applicable
Companies, record adjustments to the balance of each Participant
Account maintained within a Plan Account to the extent necessary
for such balance to equal the amount determined by multiplying
(a) the balance of such Plan Account determined as of the most
recent Valuation Date preceding such Benefit Valuation Date, by
(b) a fraction the numerator of which is the Present Value of the
Benefits accrued for the applicable Participant under the Plan in
question, determined as of such Benefit Valuation Date, and the
denominator of which is the aggregate Present Value of all of the
Benefits accrued for all Participants under such Plan, determined
as of such Benefit Valuation Date.
10<PAGE>
3.7 Any contribution made by a Company to its Trust
pursuant to Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b)
shall be allocated to the Plan Accounts maintained under such
Trust in proportion to the respective amounts by which the
aggregate Present Value of all Benefits accrued (or, in the case
of contributions made under clause (ii) of Section 3.2.2(a) or
3.2.2(b), deemed to have accrued) for all Participants under each
of the Plans in question, determined as of the dates specified in
Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or 3.2.2(b), exceeds the
balance of the Plan Account maintained hereunder with respect to
each such Plan, determined as of the Valuation Date immediately
preceding such contribution. The amount so allocated to any Plan
Account shall be further allocated to the Participant Accounts
maintained within such Plan Account in proportion to the
respective amounts by which the Present Value of the Benefits
accrued (or, in the case of contributions made under clause (ii)
of Section 3.2.2(a) or 3.2.2(b), deemed to have accrued) for each
Participant under the Plan in question, determined as of the
dates specified in Sections 3.2.1(a), 3.2.1(b), 3.2.2(a) or
3.2.2(b), exceeds the balance of the Participant Account
maintained for such Participant, determined as of the Valuation
Date immediately preceding such contribution.
3.8 The determinations of the Present Value of
Benefits required to be made hereunder as of any Benefit
Valuation Date, or other date, occurring prior to a Change in
Control shall be made by an enrolled actuary selected by the
Applicable Companies. As soon as practicable after each such
determination has been made, each Company shall furnish the
Trustee with a schedule setting forth the Present Value so
determined of the Benefits accrued (or, if applicable, deemed to
have accrued) for each Participant under each of the Company's
Plans. The determinations of the Present Value of Benefits
required to be made hereunder as of any Benefit Valuation Date,
or other date, occurring after a Change in Control shall be made
by an enrolled actuary selected by the Trustee. In making any
allocation of contributions the Trustee is required to make under
Section 3.7, the Trustee shall be entitled to rely, and shall be
fully protected in relying, on any written determination of the
Present Value of any Benefit furnished to it in accordance with
the provisions of this Section 3.8. In making any allocation of
net investment gains and losses pursuant to the second sentence
of Section 3.5, and in recording any adjustments to the balance
of any Participant Account pursuant to Section 3.6, the Trustee
shall be entitled to rely, and shall be fully protected in
relying, on any written instructions furnished to it by the
Applicable Companies.
11<PAGE>
ARTICLE 4
Payments to Participants and Beneficiaries
4.1 Prior to a Change in Control, the Trustee shall
make payments from the Trust Fund for any Trust to such
Participants and Beneficiaries, in such manner, at such times,
and in such amounts, as the Applicable Company shall direct in
written instructions delivered to the Trustee.
4.2 After a Change in Control, the Trustee shall make
payments from the Trust Fund of any Trust to Participants and
Beneficiaries in accordance with the following provisions:
(a) Prior to a Change in Control, each Company shall
deliver to the Trustee a schedule ("Payment Schedule")
substantially in the form annexed hereto as Exhibit C for each
Participant of each Plan whose Benefits under such Plan may be
paid from such Company's Trust after a Change in Control. The
Payment Schedule shall
(i) describe the events that must occur in order for
the Participant's Benefits to become payable under the terms
of the Plan;
(ii) specify the amount of the Participant's Benefits
accrued under the Plan, as of the date on which the Payment
Schedule is furnished to the Trustee, and provide a formula
or such other instructions as will enable the Trustee to
determine the amount of the Participant's Benefits as of the
time they become payable under the terms of the Plan;
(iii) specify the form in which the Participant's
Benefits are to be paid, as provided for or available under
the Plan;
(iv) specify the time of commencement for payment of
the Participant's Benefits under the Plan; and
(v) specify the address and social security number of
the Participant as well as the name, address, social
security number and relation to the Participant of the
Participant's Beneficiary.
Prior to a Change in Control the Applicable Company may
from time to time substitute a new Payment Schedule for, or
amend, an existing Payment Schedule by delivering a new or
amended Payment Schedule to the Trustee. Upon receipt of such
new or amended Payment Schedule, the previous Payment Schedule
shall be deemed revoked. Prior to a Change in Control, any
Payment Schedule previously filed with the Trustee may be revoked
by the Applicable Company by filing written notice of such
revocation with the Trustee without delivering a new or amended
Payment Schedule to the Trustee. Notwithstanding the foregoing,
no Payment Schedule may be amended or revoked after a Change in
12<PAGE>
Control or during a Threatened Change in Control Period;
provided, however, that during a Threatened Change in Control, a
Payment Schedule with respect to a Participant's Benefits under
any Plan may be amended so as to reflect any amendment to the
Plan made during such Threatened Change in Control period that
has the effect of increasing the amount of the Benefits payable
under the Plan with respect to the Participant, or that permits
payment of such Benefits to be made in a form, or to commence at
a time, more favorable to the Participant or his or her
Beneficiary than as provided under the Plan prior to such
amendment. Except as otherwise provided herein, after a Change
in Control, the Trustee shall make payments with respect to a
Participant's Benefits under any Plan only in accordance with the
Payment Schedule with respect to such Participant's Benefits
under such Plan that is on file with the Trustee, and that has
not been revoked, at the time such payments are to be made.
(b) Any Participant or Beneficiary seeking to obtain
payments from the Trust Fund for any Trust after a Change in
Control shall first file with the Trustee a written request for
payment in substantially the form annexed hereto as Exhibit D
("Payment Request Form"). In the Payment Request Form so filed,
the Participant or Beneficiary shall
(i) identify the Plan or Plans under which the
Participant or Beneficiary has become entitled to payment of
Benefits;
(ii) describe the events that entitle the Participant
or Beneficiary to receive payment of Benefits under the
terms of the Plan or Plans, and affirm under oath that such
events have occurred;
(iii) affirm under oath that no amount of the Benefits
with respect to which payment from the Trust Fund is sought
was previously paid by the Applicable Company; and
(iv) provide such information (including, without
limitation, information as to the Participant's period of
service, compensation and conditions of employment after a
Change in Control) as will enable the Trustee to determine
the amount of the Benefits that the Participant or
Beneficiary is entitled to receive in accordance with the
Payment Schedules furnished to the Trustee with respect to
the Participant's Benefits under the Plan or Plans.
In the case of any Beneficiary seeking payments from a Trust
Fund, the Beneficiary shall furnish to the Trustee, along with
the Payment Request Form, a certified copy of the death
certificate of the Participant, an inheritance tax waiver and
such other documents as the Trustee may reasonably require,
including, without limitation, certified copies of letters
testamentary. For all purposes under this Agreement, the Trustee
may rely, and shall be fully protected in relying, on the
information contained in any Payment Request Form (and in any
13<PAGE>
documents accompanying such form) filed with it by any
Participant or Beneficiary.
(c) As soon as practicable after a Payment Request
Form has been filed with it by a Participant or Beneficiary, the
Trustee, solely out of the applicable Trust Fund and with no
obligation otherwise to make any payments, shall make payments to
such Participant or Beneficiary in such manner, and at such
times, and in such amounts, as the Trustee shall determine to be
payable to such Participant or Beneficiary under the relevant
Plan or Plans based on the most recent Payment Schedules
applicable to the Participant or Beneficiary that were furnished
to the Trustee by the Applicable Company prior to a Change in
Control, and on the information contained in the Payment Request
Form (and in any documents accompanying such Form) filed by the
Participant or Beneficiary. The Trustee is authorized to retain
an enrolled actuary to assist it in determining the amount of any
Benefits payable to any Participant or Beneficiary pursuant to
any Payment Request Form or Payment Schedules filed by or for
such Participant or Beneficiary and, in any case in which a
Participant or Beneficiary has filed a Payment Request Form with
respect to Benefits under any Plan for which an unrevoked Payment
Schedule is not on file with the Trustee, to assist it in
determining such Participant's or Beneficiary's entitlement to
Benefits under such Plan. For all purposes under this Agreement,
the Trustee may rely, and shall be fully protected in relying, on
any advice given to it by such actuary as to the amount of
Benefits payable hereunder to any Participant or Beneficiary.
(d) Following the occurrence of a Change in Control,
the Trustee shall make provision for the reporting and
withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of Benefits
to be made from any Trust pursuant to the terms of this
Agreement, and shall pay amounts withheld by it to the
appropriate taxing authorities or determine that the amounts
required to be withheld with respect to such payments have been
reported, withheld and paid by the Applicable Company. Prior to
a Change in Control, the Trustee shall report and withhold any
federal, state or local taxes that may be required to be withheld
with respect to any payment of Benefits to be made from any Trust
pursuant to Section 4.1, but only to the extent that the
Applicable Company has furnished to the Trustee, in the written
instructions delivered to the Trustee pursuant to Section 4.1
directing it to make such payment, the amount of the federal,
state or local taxes required to be withheld with respect to such
payment. The Trustee shall be entitled to rely, and shall be
fully protected in relying, upon the information so furnished to
it as to the amount of taxes to be withheld.
4.3 The entitlement of a Participant or Beneficiary to
Benefits under any Plan shall be determined by the Applicable
Company or such other party as may have been designated under the
Plan, and any claim for such Benefits shall be considered and
reviewed under the procedures set out in the Plan.
14<PAGE>
Notwithstanding the foregoing, after a Change in Control, any
Participant or Beneficiary for whom any unrevoked Payment
Schedule is on file with the Trustee at the time of the Change in
Control shall be presumed conclusively, for all purposes of this
Agreement, to be entitled to any Benefit that the Trustee
determines to be payable to such Participant or Beneficiary on
the basis of the information contained in such Payment Schedule
and in any Payment Request Form filed by the Participant or
Beneficiary; and in such case, the provisions set forth in the
immediately preceding sentence shall apply only with respect to
any claim by the Participant or Beneficiary for Benefits that are
in addition to, or in excess of, the Benefits that the Trustee
has so determined to be payable to the Participant or
Beneficiary.
4.4 Each payment made from the Trust Fund for any
Trust with respect to a Participant's Benefits under any Plan
shall be payable only from, and shall be charged against, the
Plan Account maintained within such Trust Fund with respect to
such Plan and the Participant Account established within such
Plan Account for the applicable Participant. Notwithstanding any
other provision herein to the contrary, the Trustee shall not
make a payment with respect to a Participant's Benefits under any
Plan to the extent that the amount of the payment otherwise
required to be made exceeds the amount then held in the Plan
Account for such Plan or the amount then held in the Participant
Account established within such Plan Account for the applicable
Participant.
If, because of the provisions of this Section 4.4, any
amount otherwise required to be paid by the Trustee to a
Participant or Beneficiary with respect to a Participant's
Benefits under any Plan cannot be paid by the Trustee, such
amount shall be paid to the Participant or Beneficiary by the
Applicable Company.
4.5. At such time after a Change in Control as the
aggregate amount of the payments made hereunder from the
Participant Account maintained within any Plan Account for any
Participant shall equal the maximum amount that may be paid from
such Participant Account pursuant to the most recent Payment
Schedule filed with respect to such Participant's Benefits under
the Plan in question, the balance then remaining in such
Participant Account shall be allocated and credited, on a pro
rata basis, to all other Participant Accounts maintained within
such Plan Account, based on the respective values of such other
Participant Accounts determined as of the most recent Valuation
Date.
At such time after a Change in Control as the aggregate
amount of the payments made from any Plan Account shall equal the
maximum amount that may be paid from such Plan Account pursuant
to the most recent Payment Schedules filed with respect to
Participants' Benefits under the Plan for which such Plan Account
was established, the balance then remaining in such Plan Account
15<PAGE>
shall be allocated and credited, on a pro rata basis, to all
other Plan Accounts and Participant Accounts maintained within
the same Trust Fund, based on the respective values of such other
Plan Accounts and Participant Accounts determined as of the most
recent Valuation Date.
4.6 Notwithstanding any other provision of this
Agreement to the contrary, if at any time any Trust is finally
determined by the Internal Revenue Service (the "IRS") not to be
a "grantor trust," with the result that the income of such Trust
is not treated as income of the Applicable Company pursuant to
Sections 671 through 679 of the Code, such Trust shall
immediately terminate and the amounts allocated to each Plan
Account and Participant Account within such Trust shall be paid
in a cash lump sum as soon as practicable by the Trustee to the
Participants for whom such Accounts were maintained. If any
Company should receive notice of such final determination from
the IRS, such Company shall promptly furnish written notice of
such final determination to the Trustee.
4.7 Notwithstanding any other provision of this
Agreement to the contrary, if the IRS should finally determine
that any amounts held in any Trust are includible in the gross
income of any Participant or Beneficiary prior to payment of such
amounts from the Trust, the Trustee shall, as soon as
practicable, pay such amounts to such Participant or Beneficiary
from such Trust. For purposes of this Section 4.7, the Trustee
shall be entitled to rely on an affidavit by a Participant or
Beneficiary to the effect that such a determination has occurred.
4.8 Each Company may make payment of Benefits directly
to Participants or their Beneficiaries as they become due under
the terms of the Applicable Plans. After a Change in Control, a
Company that decides to make payment of Benefits directly shall
notify the Trustee in writing of its decision prior to the time
amounts are payable to the Participants or their Beneficiaries.
In addition, each Company shall remain primarily liable to pay
all of the Benefits provided for under its Plans, to the extent
such Benefits are not payable from such Company's Trust pursuant
to this Agreement. Accordingly, if the principal of the
Applicable Company's Trust, and any earnings thereon, are not
sufficient to make payments of Benefits in accordance with the
terms of such Company's Plans, the Company shall make the balance
of each such payment as it falls due. The Trustee shall notify
the Applicable Company in writing where principal and earnings of
the Company's Trust are not sufficient.
ARTICLE 5
Legal Defense Fund
5.1 On the written direction of a Company, the Trustee
shall establish within the Trust Fund for such Company's Trust a
separate fund, hereinafter referred to as a "Legal Defense Fund".
16<PAGE>
A Company's Legal Defense Fund shall consist of such portions of
its contributions to its Trust as the Company shall specify in
writing at the time of contribution, together with all income,
gains and losses and proceeds from the investment, reinvestment
and sale thereof, less all payments therefrom and expenses
charged thereto in accordance with the provisions of this Article
5. Subject to Article 6, a Company's Legal Defense Fund shall be
held and administered by the Trustee exclusively for the purpose
of defraying the costs and expenses incurred by the Trustee in
performing its duties under Sections 5.3 and 5.4.
5.2 A Company's Legal Defense Fund shall be maintained
and administered as a separate segregated account, provided,
however, that the assets of any Legal Defense Fund may be
commingled with all other assets of the same Trust, and with the
assets of any other Trust, solely for investment purposes.
5.3 If, at any time after a Change in Control, a
Participant or Beneficiary notifies the Trustee in writing that a
Company has refused to pay a claim asserted by such Participant
or Beneficiary under any of such Company's Plans, the Trustee
shall promptly review such claim and determine whether it has any
basis in law and fact. If the Trustee determines that the claim
has no basis in law and fact, the Trustee shall notify the
Participant or Beneficiary of such determination, and thereafter
shall take no further action with respect to the claim. If the
Trustee determines that there is a basis in law and fact for the
Participant's or Beneficiary's claim, the Trustee shall take the
following actions to assist the Participant or Beneficiary
(hereafter referred to as the "Claimant") to recover on such
claim:
(a) The Trustee shall promptly attempt to negotiate
with the Applicable Company to obtain payment, settlement or
other disposition of the claim, subject to the Claimant's
consent.
(b) If (i) negotiations fail after 60 days of their
commencement to result in a payment, settlement or other
disposition acceptable to the Claimant, (ii) the Trustee at
any time reasonably believes that further negotiations would
not be in the Claimant's best interest or (iii) any
applicable statute of limitations would otherwise expire
within 60 days, the Trustee shall advise the Claimant of
such fact. Thereupon, the Claimant may, by filing with the
Trustee a written authorization in substantially the form
attached hereto as Exhibit E, direct the Trustee to
institute and maintain legal proceedings (the "Litigation")
against the Applicable Company to recover on the claim on
behalf of the Claimant.
(c) The Trustee shall direct the course of any
Litigation and shall keep the Claimant informed of the
progress thereof at such intervals as the Trustee deems
appropriate, but no less frequently than quarterly. The
17<PAGE>
Trustee shall have the discretion to determine the form and
nature that any Litigation shall take, and the procedural
rules and laws applicable to such Litigation shall supersede
any inconsistent provision of this Agreement.
(d) If the Claimant directs in writing that the
Litigation be settled or discontinued, the Trustee shall
take all appropriate action to follow such direction,
provided that such written direction specifies the terms and
conditions of the settlement or discontinuance and provided
further that the Claimant, if requested to do so by the
Trustee, executes and delivers to the Trustee a document in
a form acceptable to the Trustee releasing the Trustee and
holding it harmless from any liability resulting from its
following such direction. If the Claimant refuses to
consent to a settlement or other disposition of the
Litigation on terms recommended in writing by the Trustee,
the Trustee may proceed, in its sole and absolute
discretion, to take such action as it deems appropriate in
the Litigation, including settlement or discontinuance of
the Litigation; provided, however, that the Trustee shall
afford the Claimant at least 14 days' advance notice in
writing of any decision by the Trustee to settle or
otherwise discontinue the Litigation.
(e) A Claimant may at any time revoke the
authorization of the Trustee to continue any Litigation on
his behalf by delivering to the Trustee a written revocation
in substantially the form attached as Exhibit F hereto, and
notifying the Trustee in writing that the Claimant has
appointed his own counsel (whose fees and expenses shall not
be paid from any Legal Defense Fund) to represent the
Claimant in the Litigation in lieu of counsel retained by
the Trustee. Upon the Trustee's receipt of such revocation
and notice, the Trustee shall have no obligation to proceed
further on behalf of the Claimant in the Litigation, or to
pay any costs or expenses incurred in the Litigation after
the date on which such revocation and notice is delivered to
the Trustee.
(f) The Trustee shall be empowered to retain counsel
and other appropriate experts, including actuaries and
accountants, to assist it in making any determination under
this Section 5.3, in determining whether to pursue, settle
or discontinue any Litigation, and to prosecute and maintain
any such Litigation on behalf of any Claimant.
Notwithstanding the foregoing, each Company, prior to a
Change in Control, may designate in writing the counsel to
be retained by the Trustee after a Change in Control to
assist in enforcing the rights of Claimants under such
Company's Plans in accordance with the provisions of this
Section 5.3. If the counsel so designated declines to
provide representation, or if such counsel's representation
would involve a conflict of interest with the Trustee, or if
the Trustee is not satisfied with the quality of
18<PAGE>
representation provided, the Trustee may dismiss such
counsel and engage another qualified law firm for this
purpose; provided, however, that any law firm so engaged may
not be the same law firm that represents any Company after a
Change in Control. No Company may dismiss or engage such
counsel, or cause the Trustee to engage or dismiss such
counsel, after a Change in Control.
(g) All costs and expenses incurred by the Trustee in
connection with the performance of its duties under this
Section 5.3, including, without limitation, the payment of
reasonable fees, costs and disbursements of any counsel,
actuaries, accountants or other experts retained by the
Trustee pursuant to Section 5.3(f), shall be charged to and
paid from the Applicable Company's Legal Defense Fund.
(h) Notwithstanding any provision herein to the
contrary, the Trustee shall be required to act under this
Section 5.3, including, without limitation, instituting or
continuing any Litigation, only to the extent there are
sufficient amounts available in the Applicable Company's
Legal Defense Fund to defray the costs and expenses the
Trustee reasonably anticipates will be incurred in
connection with such action. If, at any time after a
Claimant has filed a written notice with the Trustee under
Section 5.3(a) the Trustee determines that there will not be
sufficient amounts in the Applicable Company's Legal Defense
Fund to defray such costs and expenses, the Trustee shall
promptly advise the Claimant of such fact. Unless within 30
days after it has given such notice to the Claimant the
Trustee receives from the Claimant assurances, in such form
as may be satisfactory to the Trustee, that any costs and
expenses in excess of amounts available in the Applicable
Company's Legal Defense Fund will be paid by the Claimant,
the Trustee shall have no obligation to take any further
action on behalf of the Claimant pursuant to this Section
5.3; and, if a Litigation on behalf of the Claimant is then
pending, the Trustee may discontinue such Litigation on such
terms and conditions as it deems appropriate in its sole
discretion.
5.4. If, at any time after a Change in Control or
during a Threatened Change in Control Period, legal proceedings
are brought against the Trustee by a Company or other party
seeking to invalidate any of the provisions of this Agreement as
they relate to a Company's Trust, or seeking to enjoin the
Trustee from paying any amounts from any Trust or from taking any
other action otherwise required or permitted to be taken by the
Trustee under this Agreement with respect to any Trust, the
Trustee shall take all steps that may be necessary in such
proceeding to uphold the validity and enforceability of the
provisions of this Agreement as they relate to such Trust. All
costs and expenses incurred by the Trustee in connection with any
such proceeding (including, without limitation, the payment of
reasonable fees, costs and disbursements of any counsel,
19<PAGE>
actuaries, accountants or other experts retained by the Trustee
in connection with such proceeding) shall be charged to and paid
from the Applicable Company's Legal Defense Fund. Any costs and
expenses so incurred by the Trustee in excess of amounts
available in the Applicable Company's Legal Defense Fund shall be
charged to and paid from the other assets of such Company's
Trust. Any such excess costs and expenses so charged shall be
allocated to the Plan Accounts maintained within such Trust, and
to the Participant Accounts maintained within such Plan Accounts,
on a pro rata basis.
5.5 Each Company's Legal Defense Fund shall continue
to be held and administered by the Trustee for the purposes
described in Section 5.1 until such time as all Benefits to which
all Participants are entitled under all of such Company's Plans
shall have been paid in full to such Participants or their
Beneficiaries. Any balance then remaining in a Company's Legal
Defense Fund shall be distributed to such Company.
ARTICLE 6
Insolvency
6.1 The Trustee shall cease making payment hereunder
of Benefits payable to Participants and their Beneficiaries
pursuant to a Company's Plans if the Company is Insolvent.
6.2 At all times during the continuance of each Trust,
as provided in Section 2.4 hereof, the principal and income of
the Trust shall be subject to claims of general creditors of the
Applicable Company under federal and state law as set forth
below:
(a) The Board of Directors and Chief Executive Officer
of each Company shall have the duty to inform the Trustee in
writing of such Company's Insolvency. If a person claiming
to be a creditor of a Company alleges in writing to the
Trustee that such Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent and,
pending such determination, the Trustee shall discontinue
making payment from such Company's Trust to Participants and
Beneficiaries.
(b) Unless the Trustee has actual knowledge of a
Company's Insolvency, or has received notice from a Company
or a person claiming to be a creditor of such Company
alleging that the Company is Insolvent, the Trustee shall
have no duty to inquire whether the Company is Insolvent.
The Trustee may in all events rely on such evidence
concerning a Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable
basis for making a determination concerning the Company's
solvency.
20<PAGE>
(c) If at any time the Trustee has determined that a
Company is Insolvent, the Trustee shall discontinue making
payments from such Company's Trust to Participants and their
Beneficiaries and shall hold the assets of such Trust for
the benefit of the Company's general creditors. Nothing in
this Agreement shall in any way diminish any rights of
Participants or their Beneficiaries to pursue their rights
as general creditors of the Applicable Company with respect
to Benefits due under the Company's Plans or otherwise.
(d) The Trustee shall resume making payment from a
Company's Trust of Benefits to Participants or their
Beneficiaries in accordance with Article 4 of this Trust
Agreement only after the Trustee has determined that the
Company is not Insolvent, or is no longer Insolvent.
6.3 Provided that there are sufficient assets, if the
Trustee discontinues the payment of Benefits from any Trust
pursuant to Section 6.2 hereof and subsequently resumes such
payments, the first payment following such discontinuance shall
include the aggregate amount of all payments due to Participants
or their Beneficiaries under the terms of the Applicable
Company's Plan for the period of such discontinuance, less the
aggregate amount of any payments made to Participants or their
Beneficiaries by the Company in lieu of the payments provided for
hereunder during any such period of discontinuance.
ARTICLE 7
Payments to Company
7.1 Prior to a Change in Control (but not during a
Threatened Change in Control Period), a Company may, by written
notice to the Trustee, direct the Trustee to pay to such Company,
out of the Trust Fund for such Company's Trust, such amount as is
specified in the notice. Any such notice shall specify the Plan
Accounts and the Participant Accounts, if any, which shall be
debited with respect to such payment. If the amount that would
remain in the Trust Fund after any such payment would be less
than the unpaid fees and expenses of the Trustee properly
chargeable to such Trust Fund, the Trustee may deduct such fees
and expenses from the payment that otherwise would be made to the
Company.
7.2 Except as provided in Article 6 hereof, during
such time as the Trust is irrevocable, the Applicable Company
shall have no right or power to direct the Trustee to return to
the Company or to divert to others any of the Trust assets before
all payment of Benefits have been made to Participants and their
Beneficiaries pursuant to the terms of the Company's Plans.
21<PAGE>
ARTICLE 8
Investment Authority and Disposition of Income
8.1 Except as otherwise provided in Sections 8.2, 8.4,
and 8.5, the Trustee, prior to a Change in Control, shall invest
and reinvest the assets of each Trust, in its sole discretion, in
such investments as may be permitted in accordance with any
written investment guidelines that may be delivered to the
Trustee from time to time by the Applicable Company and that are
acceptable to the Trustee or, at any time when no such investment
guidelines are in effect, in Permitted Investments.
8.2 Prior to a Change in Control, the Applicable
Company may in its sole discretion appoint an investment manager
to manage the investment of any part or all of the Trust Fund for
any Trust. The Applicable Company shall promptly inform the
Trustee in writing of any such appointment, shall furnish the
Trustee with a copy of the instrument pursuant to which any
investment manager is so appointed, and shall inform the Trustee
in writing as to the specific portions of the Trust Fund for its
Trust that will be subject to the management of such investment
manager. During the term of any such appointment, the investment
manager shall have the sole responsibility for the investment and
reinvestment of that portion of any Trust Fund subject to its
investment management, and the Trustee shall have no
responsibility for, or liability with respect to, the investment
of such portion of such Trust Fund.
In exercising the powers granted to it hereunder, the
Trustee shall follow the directions of any investment manager
with respect to the portion of any Trust Fund subject to
management by such investment manager. All directions given by
an investment manager to the Trustee shall be in writing, signed
by an officer (or a partner) of the investment manager, or by
such other person or persons as may be designated by an officer
(or a partner) of the investment manager. The investment manager
may directly place orders for the purchase or sale of securities,
subject to such conditions as may be approved by the Applicable
Company in authorizing the investment manager to effect
transactions directly with respect to the portion of the Trust
Fund for any Trust subject to its management, provided that the
Trustee shall nevertheless retain custody of the assets
comprising such portion of the Trust Fund.
The Applicable Company, by written notice to the
Trustee, may at any time terminate its appointment of any
investment manager. In such event, the Applicable Company shall
either appoint a successor investment manager for the portion of
the Trust Fund in question, or direct that such portion of the
Trust Fund thereafter be invested and reinvested by the Trustee
in accordance with the provisions of Section 8.1. Until receipt
of such written notice, the Trustee shall be fully protected in
relying upon the most recent prior written notice of appointment
of an investment manager.
22<PAGE>
8.3 After a Change in Control, the Trustee shall have
exclusive authority and discretion to manage and control the
investment and reinvestment of the Trust Fund for each Trust;
provided, however, that the Trust Fund for each Trust shall be so
invested and reinvested only in Permitted Investments.
8.4 In no event may the assets of any Trust be
invested in securities (including stock or rights to acquire
stock) or obligations issued by any Company, other than a de
minimis amount held in common investment vehicles in which the
Trustee invests. All rights associated with assets of each Trust
shall be exercised by the Trustee or an Investment Manager
appointed under Section 8.2, and shall in no event be exercisable
by or rest with Participants.
8.5 During the term of each Trust, all income received
by the Trust, net of expenses and taxes, shall be accumulated and
reinvested.
ARTICLE 9
General Powers and Duties of Trustee
9.1 In addition to the other powers granted to it
under this Agreement, the Trustee shall have the following
administrative powers and authority with respect to the property
comprising the Trust Fund for each Trust:
(a) To sell, exchange or transfer any such property at
public or private sale for cash or on credit and grant
options for the purchase or exchange thereof, including call
options for property held in the Trust Fund and put options
for the purchase of such property, including, without
limitation, at any time to sell any asset other than cash
held in the Trust Fund to pay Benefits if there is not
sufficient cash in the Trust Fund to pay Benefits.
(b) To participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other
similar plan relating to any such property, and to consent
to or oppose any such plan or any action thereunder, or any
contract, lease, mortgage, purchase, sale or other action by
any corporation or other entity.
(c) To deposit any such property with any protective,
reorganization or similar committee; to delegate
discretionary power to any such committee; and to pay part
of the expenses and compensation of any such committee and
any assessments levied with respect to any property so
deposited.
(d) To exercise any conversion privilege or
subscription right available in connection with any such
property; to oppose or to consent to the reorganization,
23<PAGE>
consolidation, merger or readjustment of the finances of any
corporation, company or association, or to the sale,
mortgage, pledge or lease of the property of any
corporation, company or association of any of the securities
of which may at any time be held in the Trust Fund and to do
any act with reference thereto, including the exercise of
options, the making of agreements or subscriptions and the
payment of expenses, assessments or subscriptions, which may
be deemed necessary or advisable in connection therewith,
and to hold and retain any securities or other property
which it may so acquire.
(e) To commence or defend suits or legal proceedings
and to represent the Trust in all suits or legal
proceedings; to settle, compromise or submit to arbitration,
any claims, debts or damages, due or owing to or from the
Trust.
(f) To exercise, personally or by general or limited
power of attorney, any right, including the right to vote,
appurtenant to any securities or other such property.
(g) To borrow money from any lender in such amounts
and upon such terms and conditions as shall be deemed
advisable or proper to carry out the purposes of the Trust
and to pledge any securities or other property for the
repayment of any such loan.
(h) To engage any legal counsel, including (except
after the occurrence of a Change in Control) counsel to any
Company, any enrolled actuary, any accountant or any other
suitable agents, to consult with such counsel, enrolled
actuary, accountant or agents with respect to the
construction hereof, the duties of the Trustee hereunder,
the transactions contemplated by this Agreement or any act
which the Trustee proposes to take or omit, to rely upon the
advice of such counsel, enrolled actuary, accountant or
agents, and to pay its reasonable fees, expenses and
compensation from the Trust Fund.
(i) To register any securities held by it in its own
name or in the name of any custodian of such property or of
its nominee, including the nominee of any system for the
central handling of securities, with or without the addition
of words indicating that such securities are held in a
fiduciary capacity, to deposit or arrange for the deposit of
any such securities with such a system and to hold any
securities in bearer form; provided, however, that no such
holding shall relieve the Trustee of its responsibility for
the safe custody and disposition of the Trust Fund in
accordance with the provisions of this Agreement, the
Trustee's books and records shall at all times show that
such property is part of the Trust Fund, and the Trustee
shall be absolutely liable for any loss occasioned by the
acts of its nominee or nominees with respect to securities
24<PAGE>
registered in the name of the nominee or nominees.
(j) To make, execute and deliver, as Trustee, any and
all deeds, leases, notes, bonds, guarantees, mortgages,
conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
accomplishment of any of the powers granted herein.
(k) To transfer assets of the Trust Fund to a
successor trustee as provided in Section 13.4 hereof.
(l) To exercise, generally, any of the powers which an
individual owner might exercise in connection with property
either real, personal or mixed held in the Trust Fund, and
to do all other acts that the Trustee may deem necessary or
proper to carry out any of the powers granted to it
hereunder or that otherwise may be in the best interests of
the Trust Fund.
(m) To hold any portion of the Trust Fund in cash
pending investment, or for the payment of expenses and
Benefits, without liability for interest.
(n) To vote personally or by proxy and to delegate
power and discretion over such proxy on account of
securities held in the Trust Fund.
(o) To hold assets in time or demand deposits
(including deposits with the Trustee in its individual
capacity that pay a reasonable rate of interest).
(p) To invest and reinvest all or any specified
portion of any Trust Fund through the medium of any common,
collective, or commingled trust fund that has been or may
hereafter be established and maintained by the Trustee.
(q) To invest in mutual funds registered with the
Securities Exchange Commission under the Investment Company
Act of 1940.
The Trustee also shall have, without exclusion, all
powers conferred on Trustees by applicable law, unless expressly
provided otherwise herein; provided, however, that if an
insurance policy is held as an asset of any Trust, the Trustee
shall have no power to name a beneficiary of the policy other
than the Trust, to assign the policy (as distinct from conversion
of the policy to a different form) other than to a successor
trustee, or to loan to any person the proceeds of any borrowing
against such policy.
Prior to a Change in Control, the Trustee shall
exercise the powers referred to in Section 9.1(h) only as
directed by the Applicable Company; and, with respect to the
portion of any Trust Fund for which an investment manager has
been appointed under Section 8.2, the Trustee shall exercise any
25<PAGE>
power referred to in this Section 9.1, as it relates to the
investment management of such portion of the Trust Fund, only as
directed by such investment manager. After a Change in Control,
the Trustee may exercise such powers in its sole and absolute
discretion, except as otherwise provided in Article 8.
Notwithstanding any powers granted to the Trustee
pursuant to this Agreement or to applicable law, the Trustee
shall not have any power that could give any Trust the objective
of carrying on a business and dividing the gains therefrom,
within the meaning of section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Code.
9.2 After a Change in Control, the Trustee shall,
subject to Article 6 hereof, discharge its duties under this
Agreement solely in the interest of the beneficiaries of each
Trust and (i) for the exclusive purpose of providing Benefits to
such beneficiaries and defraying reasonable expenses of
administering such Trust; (ii) with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in a like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims; and (iii) by diversifying the investments of the
Trust Fund for each Trust so as to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not
to do so.
9.3 The Trustee shall not be required to give any bond
or any other security for the faithful performance of its duties
under this Agreement, except as required by law.
9.4 Except as otherwise expressly provided herein, the
Trustee shall not be responsible in any respect for administering
any Plan; nor shall the Trustee be responsible for the adequacy
of the Trust Fund for any Trust to meet and discharge all
payments and liabilities under any Plan.
9.5 The Trustee shall be under no duties whatsoever
except such duties as are specifically set forth as such in this
Agreement, and no implied covenant or obligation shall be read
into this Agreement against the Trustee. Except as otherwise
provided in Article 5, the Trustee shall not be required to take
any action toward the execution or performance of any Trust
created hereunder or to prosecute or defend any suit or claim in
respect thereof, unless indemnified to its satisfaction against
loss, liability, and reasonable costs and expenses. The Trustee
shall be under no liability or obligation to anyone with respect
to any failure on the part of any Company to perform any of its
obligations under any Plan or under this Agreement.
9.6 The Applicable Company shall pay and shall
protect, indemnify and save harmless the Trustee and its
officers, directors or trustees, employees and agents from and
against any and all losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages,
26<PAGE>
reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) of any nature arising
from or relating to any action or failure to act by the Trustee,
its officers, directors or trustees, employees and agents with
respect to any Trust, or arising from or relating to the
transactions contemplated by this Agreement that pertain to or
affect such Trust, except to the extent that any such loss,
liability, action, suit, demand, damage, cost or expense is the
result of the negligence or willful misconduct of the Trustee,
its officers, directors or trustees, employees or agents.
If the Trustee shall become entitled to indemnification
by any Company pursuant to this Section 9.6 and such Company
fails to provide such indemnification to the Trustee within 30
days of the Company's receipt of a written request from the
Trustee for such indemnification, the Trustee may apply assets of
such Company's Trust in full satisfaction of the Company's
obligation to make such indemnification. Promptly after any
assets of any Trust are so applied, the Trustee shall institute
legal proceedings on behalf of the Trust to recover from the
Applicable Company an amount equal to the amount of any Trust
assets so applied.
ARTICLE 10
Taxes, Expenses, and Compensation of Trustee
10.1 Each Company shall pay any federal, state, local
or other taxes imposed or levied with respect to the corpus
and/or income of its Trust or any part thereof under existing or
future laws and such Company in its discretion, or the Trustee in
its discretion, may contest the validity or amount of any tax,
assessment, claim or demand respecting such Trust or any part
thereof.
10.2 Each Company shall pay to the Trustee its
allocable share of the compensation that is payable to the
Trustee for its services hereunder pursuant to the schedule of
fees annexed hereto as Exhibit G. Each Company shall also pay
its allocable share of the reasonable and necessary expenses
incurred by the Trustee in the performance of its duties under
this Agreement, including reasonable fees of any counsel,
actuary, accountant or other agent engaged by the Trustee
pursuant to this Agreement. Any such compensation or expenses
shall be allocated among the Companies as follows: in the case
of any such compensation that is specifically chargeable to, or
any such expenses that were specifically incurred with respect
to, a particular Trust, the amount of such compensation or
expenses shall be allocated solely to the Applicable Company; in
the case of any such compensation that is not specifically
chargeable to, or any such expenses that were not specifically
incurred with respect to, a particular Trust, the amount of such
compensation or expenses shall be allocated to the Companies in
proportion to the respective values of the Trust Funds for the
27<PAGE>
Companies' Trusts as of the Valuation Date immediately preceding
the date as of which the Trustee bills the Companies for such
compensation or expenses. Each Company's allocable share of such
compensation and expenses shall be charged against and paid from
the Trust Fund for such Company's Trust, to the extent not paid
by such Company within 45 days after the date on which the
Trustee bills the Company for such compensation and expenses.
Any amount so charged against and paid from the Trust Fund for
any Company's Trust shall be further allocated to and charged
against the Plan Accounts and Participant Accounts maintained
within such Trust (a) in such manner as the Applicable Company
directs in written instructions delivered by it to the Trustee,
in the case of any amount so charged and paid prior to a Change
in Control; and (b) in proportion to the respective balances of
such Accounts as determined as of the most recent Valuation Date,
in the case of any amount so charged and paid after a Change in
Control.
ARTICLE 11
Accounting by Trustee
11.1 For each Trust, the Trustee shall keep accurate
and detailed accounts of all its investments, receipts, and
disbursements under this Agreement. Such person or persons as
the Applicable Company shall designate shall be allowed to
inspect the books of account relating to such Company's Trust
upon request at any reasonable time during the business hours of
the Trustee.
11.2 Within 90 days after the close of each calendar
year, the Trustee shall transmit to each Company, and certify the
accuracy of, a written statement of the assets and liabilities of
the Trust Fund for such Company's Trust at the close of that
year, showing the current value of each asset at that date, and a
written account of all the Trustee's transactions relating to
such Trust Fund during the period from the last previous
accounting to the close of that year. For the purposes of this
Section 11.2, the date of the Trustee's resignation or removal as
provided in Article 13 hereof shall be deemed to be the close of
a calendar year.
11.3 Unless a Company shall have filed with the
Trustee written exceptions or objections to any such statement
and account within 90 days after receipt thereof, such Company
shall be deemed to have approved such statement and account; and
in such case or upon the written approval by such Company of any
such statement and account, the Trustee shall be forever released
and discharged with respect to all matters and things embraced in
such statement and account as though it had been settled by
decree of a court of competent jurisdiction in an action or
proceeding to which the Company and all persons having any
beneficial interest in its Trust were parties.
28<PAGE>
11.4 Nothing contained in this Agreement or in any
Plan shall deprive the Trustee of the right to have a judicial
settlement of its accounts with respect to any Trust. In any
proceeding for a judicial settlement of the Trustee's accounts or
for instructions in connection with any Trust, the only other
necessary party thereto in addition to the Trustee shall be the
Applicable Company. If the Trustee so elects, it may bring in as
a party or parties defendant any other person or persons. No
person interested in any Trust, other than the Applicable
Company, shall have a right to compel an accounting, judicial or
otherwise, by the Trustee, and each such person shall be bound by
all accounting by the Trustee to such Company, as herein
provided, as if the account had been settled by decree of a court
of competent jurisdiction in an action or proceeding to which
such person was a party.
ARTICLE 12
Communications
12.1 With respect to any Trust, the Trustee shall be
fully protected in relying upon any written notice, instruction,
direction or other communication signed by an officer of the
Applicable Company. Each Company from time to time shall furnish
the Trustee with the names and specimen signatures of the
officers of the Company authorized to act or give directions
hereunder and shall promptly notify the Trustee of the
termination of office of any such officer of the Company and the
appointment of a successor thereto. Until notified in writing to
the contrary, the Trustee shall be fully protected in relying
upon the most recent list of the officers of the Company
furnished to it by the Company.
12.2 Any action required by any provision of this
Agreement to be taken by the board of directors of a Company
shall be evidenced by a resolution of such board of directors
certified to the Trustee by the Secretary or an Assistant
Secretary of the Company under its corporate seal, and the
Trustee shall be fully protected in relying upon any resolution
so certified to it. Unless other evidence with respect thereto
has been specifically prescribed in this Agreement, any other
action of a Company under any provision of this Agreement,
including any approval of or exceptions to the Trustee's
accounts, shall be evidenced by a certificate signed by an
officer of the Company, and the Trustee shall be fully protected
in relying upon such certificate. The Trustee may accept a
certificate signed by an authorized officer of a Company as proof
of any fact or matter that it deems necessary or desirable to
have established in the administration of such Company's Trust
(unless other evidence of such fact or matter is expressly
prescribed herein) and the Trustee shall be fully protected in
relying upon the statements in the certificate.
29<PAGE>
12.3 The Trustee shall be entitled conclusively to
rely upon any written notice, instruction, direction, certificate
or other communication 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 investigation or inquiry as to the truth or
accuracy of any statement contained therein.
12.4 Until notice be given to the contrary,
communications to the Trustee shall be sent to it at its office
at 210 Main Street, Hackensack, New Jersey 07601, Attention:
Corporate Agency Administration, Investment Management Division;
and communications to any Company shall be sent to it c/o GPU
Service Corporation, 100 Interpace Parkway, Parsippany, New
Jersey 07054-1149, Attention: Treasurer.
ARTICLE 13
Resignation or Removal of Trustee
13.1 The Trustee may resign as trustee of any Trust at
any time by written notice to the Applicable Company, which
resignation shall be effective 60 days after the Company's
receipt of such notice unless the Company and the Trustee agree
otherwise. The Trustee may be removed as trustee of any Trust by
action of the board of directors of the Applicable Company, at
any time upon 60 days' written notice to the Trustee, or upon
shorter notice if acceptable to the Trustee. In the event it
resigns or is removed, the Trustee shall have a right to have its
accounts settled as provided in Article 11 hereof.
13.2 Notwithstanding the provisions of Section 13.1,
the Trustee may not be removed as trustee of any Trust after a
Change in Control or during a Threatened Change in Control Period
without the written consent of at least two-thirds in number of
the Participants who are, or who may become, entitled to receive
payments from such Trust. The Applicable Company shall furnish
the Trustee with evidence to establish that such majority in
number of such Participants has granted written consent to such
removal.
13.3 If the Trustee resigns or is removed as trustee
of any Trust, a successor shall be appointed by the Applicable
Company, by action of its board of directors, by the effective
date of such resignation or removal. Any successor trustee so
appointed shall be a bank as defined under the Investment
Advisers Act of 1940, having a net worth in excess of
$100,000,000 or having assets in excess of $2,000,000,000. After
a Change in Control or during a Threatened Change in Control
Period, such appointment of a successor trustee shall be approved
in writing by at least two-thirds in number of the Participants
who are or may become entitled to receive payments from such
Trust. Notwithstanding the foregoing, if no such appointment of
a successor trustee has been made by the effective date of such
resignation or removal, the Trustee may apply to a court of
30<PAGE>
competent jurisdiction for appointment of a successor trustee or
for instructions. All expenses of the Trustee in connection with
such proceeding shall be allowed as administrative expenses of
the Trust and shall be paid by the Applicable Company.
13.4 Each successor trustee shall have the powers and
duties conferred upon the Trustee in this Agreement, and the term
"Trustee" as used in this Agreement, except where the context
otherwise requires, shall be deemed to include any successor
trustee. Upon designation or appointment of a successor trustee
for any Trust, the Trustee shall transfer and deliver the Trust
Fund for such Trust to the successor trustee, reserving such sums
as the Trustee shall deem necessary to defray its expenses in
settling its accounts with respect to such Trust, to pay any of
its compensation with respect to such Trust that is due and
unpaid, and to discharge any obligation of such Trust for which
the Trustee may be liable. If the sums so reserved are not
sufficient for these purposes, the Trustee shall be entitled to
recover the amount of any deficiency from either the Applicable
Company or the successor trustee, or both. When the Trust Fund
for such Trust shall have been transferred and delivered to the
successor trustee and the accounts of the Trustee for such Trust
have been settled as provided in Article 11 hereof, the Trustee
shall be released and discharged from all further accountability
or liability for the Trust Fund for such Trust and shall not be
responsible in any way for the further disposition of such Trust
Fund or any part thereof.
ARTICLE 14
Amendments and Termination
14.1 Subject to Section 14.2, any or all of the
provisions of this Agreement and any Exhibits annexed hereto, as
they relate to any Company's Trust, may be amended at any time,
without the consent of any Participant or Beneficiary, by a
written instrument of amendment, duly executed by the Applicable
Company and the Trustee. Notwithstanding the foregoing, no such
amendment shall conflict with the terms of the Applicable
Company's Plans or shall make the Applicable Company's Trust
revocable after it has become irrevocable in accordance with
Section 2.2 hereof.
14.2 No amendment may be made to delete a Participant
from Exhibit A or to delete a Plan from Exhibit B and no other
provision of this Agreement may be amended (i) during a
Threatened Change in Control Period, (ii) after a Change in
Control, (iii) at the request of a third party who has indicated
an intention or taken steps to effect a Change in Control and who
effectuates a Change in Control or (iv) otherwise in connection
with, or in anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs unless in any
such case the written consent of at least two-thirds in number of
the Participants who are or may become entitled to payments from
31<PAGE>
each Trust affected by such amendment is obtained, in which case
such amendment may be made. The Trustee may request that the
Applicable Company or Companies furnish evidence to establish
that at least two-thirds of the Participants have granted written
consent to such an amendment.
14.3 Unless sooner revoked in accordance with Section
2.2 hereof, each Trust shall terminate on the date on which
Participants and their Beneficiaries are no longer entitled to
receive Benefits pursuant to the terms of the Applicable
Company's Plans. Upon termination of any Trust, any assets
remaining in the Trust Fund for such Trust shall be paid by the
Trustee to the Applicable Company.
ARTICLE 15
Miscellaneous
15.1 Any provision of this Agreement prohibited by law
shall be ineffective to the extent of any such prohibition,
without invalidating the remaining provisions hereof.
15.2 Benefits payable to Participants and their
Beneficiaries under this Agreement may not be anticipated,
assigned (either at law or in equity), alienated, pledged,
encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
15.3 This Agreement shall be governed by, and shall be
construed in accordance with, and each Trust hereby created shall
be administered in accordance with, the laws of the State of New
Jersey.
15.4 The titles to Articles of this Agreement are
placed herein for convenience of reference only, and this
Agreement is not to be construed by reference thereto.
15.5 This Agreement shall bind and inure to the
benefit of the successors and assigns of each Company and the
Trustee, respectively, and all Participants and Beneficiaries
under the Companies' Plans.
15.6 This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but
all of which together shall constitute but one instrument, which
may be sufficiently evidenced by any counterpart.
32<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed in their respective names by their duly
authorized officers under their corporate seals as of the day and
year first above written.
GPU, INC.
GPU SERVICE, INC.
GPU GENERATION, INC.
ENERGY INITIATIVES, INC.
By:_________________________________
J. R. Leva, Chairman and
Chief Executive Officer
ATTEST:
__________________________
JERSEY CENTRAL POWER & LIGHT COMPANY
METROPOLITAN EDISON COMPANY
PENNSYLVANIA ELECTRIC COMPANY
By:_________________________________
J. R. Leva, Chairman of the Board
and Chief Executive Officer
ATTEST:
_________________________
GPU NUCLEAR, INC.
By:_________________________________
T.G. Broughton, President and
Chief Executive Officer
ATTEST:
__________________________
GPU INTERNATIONAL, INC.
By:_________________________________
B. L. Levy, President and
Chief Executive Officer
ATTEST:
___________________________
Summit Bank, Trustee
By: _________________________________
ATTEST:
__________________________
1<PAGE>
Exhibit A
List of Participants
Company Participants
Jersey Central Power
& Light Company Dennis P. Baldassari
Metropolitan Edison Company Dennis P. Baldassari
Pennsylvania Electric Company Dennis P. Baldassari
GPU Service, Inc. Robert C. Arnold
Verner M. Condon (Retired)
Herman Dieckamp (Retired)
F. Allen Donofrio
John G. Graham
Fred D. Hafer
Ira H. Jolles
William G. Kuhns (Retired)
James R. Leva
James B. Liberman (Retired)
Philip C. Mezey
Hazel R. O'Leary (Retired)
GPU Nuclear, Inc. Philip R. Clark (Retired)
Thomas G. Broughton
GPU International, Inc. Bruce L. Levy
GPU Generation, Inc. Robert L. Wise<PAGE>
Exhibit B
Covered Plans and Benefits
Set forth below is a list, for each Company, of the
plans, programs, policies or agreements that are to be treated as
"Plans", and the amounts payable under the Plans that are to be
treated as "Benefits", for purposes of the annexed Agreement.
Jersey Central Power & Light Company
1. The severance payment benefit provided under Jersey
Central Power & Light Company's Severance Procedure.
2. The excess pension benefit payable to James R. Leva
pursuant to the amended Agreement dated August 1, 1996, between
Jersey Central Power & Light Company and Mr. Leva.
3. All benefit amounts payable under the Jersey
Central Power & Light Company Supplemental and Excess Benefits
Plan.
4. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
5. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of Jersey Central Power &
Light Company.
6. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
7. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Jersey
Central Power & Light Company pursuant to Split Dollar Agreement
with Dennis P. Baldassari.
8. The severance payment benefit payable to Dennis P.
Baldassari provided under the Severance Agreement, dated August
1, 1996, between Mr. Baldassari, Jersey Central Power & Light
Company and GPU, Inc.
Metropolitan Edison Company
1. The severance payment benefit provided under
Metropolitan Edison Company's Severance Procedure.
2. All benefit amounts payable under the Metropolitan
Edison Company Supplemental and Excess Benefits Plan.<PAGE>
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan for Elected Officers.
4. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of Metropolitan Edison
Company.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Metropolitan
Edison Company pursuant to Split Dollar Agreement with Fred D.
Hafer.
Pennsylvania Electric Company
1. The severance payment benefit provided under
Pennsylvania Electric Company's Severance Procedure.
2. All benefit amounts payable under the Pennsylvania
Electric Company Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan for Elected Officers.
4. Awards for Performance Period preceding Change in
Control payable under the Incentive Compensation Plan for Elected
Officers of Pennsylvania Electric Company.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by Pennsylvania
Electric Company pursuant to Split Dollar Agreement with Robert
L. Wise.
GPU Service, Inc.
1. The severance payment benefit provided under GPU
Service Corporation's Severance Procedure.
2. The additional retirement pension and the
supplemental pension payable to Ira H. Jolles pursuant to
Sections 3 and 4 of the Agreement among GPU, Inc., GPU Service,
Inc. and Mr. Jolles.
3. The additional retirement pension payable to Philip
C. Mezey pursuant to the Agreement among GPU, Inc., GPU Service,<PAGE>
Inc. and Mr. Mezey.
4. The pension payable to Hazel R. O'Leary pursuant to
the Agreement among GPU, Inc., GPU Service, Inc. and Mrs.
O'Leary.
5. All benefit amounts payable under the GPU Service,
Inc. Supplemental and Excess Benefits Plan.
6. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
7. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of GPU Service, Inc.
8. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
9. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU Service,
Inc. pursuant to Split Dollar Agreements with Messrs. Leva,
Jolles, Graham, Arnold, Donofrio and Mezey, and pursuant to
Letter Agreements with Messrs. Kuhns and Dieckamp.
10. Supplemental pension payable to William G. Kuhns
pursuant to the Agreement among GPU, Inc., GPU Service, Inc. and
Mr. Kuhns.
11. The retirement annuity payable to James B.
Liberman pursuant to the Agreement between GPU Service, Inc. and
Mr. Liberman.
12. The supplemental pension payable to Herman
Dieckamp pursuant to the Agreement among GPU, Inc., GPU Service,
Inc. and Mr. Dieckamp.
13. Annuities payable to Messrs. Kuhns, Dieckamp and
Condon under the Deferred Compensation Plan for Senior Officers
of GPU Service, Inc.
14. The supplemental pension payable to Messrs. R. C.
Arnold, J. G. Graham and I. H. Jolles pursuant to Agreements
between GPU Service, Inc. and Messrs. Arnold, Graham and Jolles.
15. The severance payment benefit payable to Messrs.
James R. Leva, R. C. Arnold, J. G. Graham and I. H. Jolles
provided under the Severance Agreements, dated August 1, 1996,
between GPU, Inc., GPU Service, Inc. and each of Messrs. Leva,
Arnold, Graham and Jolles.
16. The severance payment benefit payable to Fred D.
Hafer provided under the Severance Agreement, dated August 1,
1996, between Mr. Hafer, GPU Service, Inc. and GPU, Inc.<PAGE>
GPU Nuclear, Inc.
1. The severance payment benefit provided under GPU
Nuclear, Inc.'s Severance Procedure.
2. All benefit amounts payable under the GPU Nuclear,
Inc. Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
4. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of GPU Nuclear, Inc.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU Nuclear,
Inc. pursuant to Split Dollar Agreements with Philip R. Clark and
Thomas G. Broughton.
7. The supplemental pension payable to Philip R. Clark
pursuant to the Agreement between GPU Nuclear, Inc. and Mr.
Clark.
8. The severance payment benefit payable to Thomas G.
Broughton provided under the Severance Agreement, dated August
1, 1996, between Mr. Broughton, GPU Nuclear, Inc. and GPU, Inc.
GPU Generation, Inc.
1. The severance payment benefit provided under GPU
Generation, Inc.'s Severance Procedure.
2. All benefit amounts payable under the GPU
Generation, Inc. Supplemental and Excess Benefits Plan.
3. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
4. Awards for Performance Periods preceding and
including Change in Control payable under the Incentive
Compensation Plan for Elected Officers of GPU Generation, Inc.
5. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
6. The severance payment benefit payable to Robert L.
Wise provided under the Severance Agreement, dated August 1,
1996, between Mr. Wise, GPU Generation, Inc. and GPU, Inc.<PAGE>
GPU International, Inc.
1. All benefit amounts payable under the GPU Service,
Inc. Supplemental and Excess Benefits Plan, as adopted by GPU
International, Inc.
2. All benefit amounts payable under the GPU System
Companies Deferred Compensation Plan.
3. Awards for Performance Periods preceding and
including Change in Control payable under the Annual Performance
Award Plan of GPU International, Inc.
4. Cash equivalency payments for Restricted Units and
Performance Units Awards, and non-deferred Performance Cash
Incentive Awards, payable under the 1990 Stock Plan for Employees
of GPU, Inc. and Subsidiaries.
5. Premiums on life insurance policies issued under
Senior Executive Life Insurance Program, payable by GPU
International, Inc. pursuant to Split Dollar Agreement with Bruce
L. Levy.
6. The severance payment benefit payable to Bruce L.
Levy provided under the Severance Agreement, dated August 1,
1996, between Mr. Levy, GPU International, Inc. and GPU, Inc.<PAGE>
EXHIBIT C-1
GPU RABBI TRUST
PARTICIPANT INFORMATION
SOCIAL
NAME ADDRESS SECURITY NUMBER
Arnold 7 Fernwood Trail ###-##-####
PO Box 151
Mountain Lakes, NJ 07046
Baldassari 9 Willow Spring Dr ###-##-####
Morristown, NJ 07960
Broughton 7 Knoll Top Court ###-##-####
Denville, NJ 07834
Clark 297 Morris Avenue ###-##-####
Mountain Lakes, NJ 07046
Condon Box 116 Young's Road ###-##-####
Basking Ridge, NJ 07920
Dieckamp 29 Crystal Road ###-##-####
Mountain Lakes, NJ 07046
Donofrio 40 Longview Avenue ###-##-####
Randolph, NJ 07869
Graham 21 Candace Lane ###-##-####
Chatham Township, NJ 07928
Hafer 1730 Meadowlark Road ###-##-####
Wyomissing, Pa 19610
Jolles 610 West End Avenue ###-##-####
New York, NY 10024
Kuhns 49 Creston Avenue ###-##-####
Tenafly, NJ 07670
Leva 2 Ryan Court ###-##-####
Chester, New Jersey 07930
Levy 5 Oak Ridge Court ###-##-####
Pomona, New York 10970
Liberman 205 East 69th Street ###-##-####
New York, New York 10021<PAGE>
Mezey 46 Gatehouse Road ###-##-####
Bedminster, New Jersey 07921
O'Leary 5610 Wisconsin Avenue PH20C ###-##-####
Chevy Chase, Maryland 20815
Wise 701 Tioga Street ###-##-####
Johnstown, Pennsylvania 15905<PAGE>
EXHIBIT C-2
GPU RABBI TRUST
SEVERANCE PLAN - ______
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
Weeks Base Pay Payment
FORM/TIMING OF PAYMENT: Lump sum.<PAGE>
EXHIBIT C-3
GPU RABBI TRUST
INCENTIVE COMPENSATION PLAN
TERM OF PAYMENT:
AMOUNT OF PAYMENT:
Payment
FORM/TIMING OF PAYMENT: Lump sum.<PAGE>
EXHIBIT C-4
GPU RABBI TRUST
SENIOR EXECUTIVE LIFE INSURANCE PLAN
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: Lump sum payment on or before
of indicated year to the Life Insurance Company of
Virginia.<PAGE>
EXHIBIT C-5
GPU RABBI TRUST
DEFERRED COMPENSATION PLAN
TERMS OF PAYMENT:
PAYMENT SCHEDULE:
Balance
FORM/TIMING OF PAYMENT: Lump sum amount on or before
of indicated year.<PAGE>
EXHIBIT C-6
GPU RABBI TRUST
EMPLOYEE STOCK PLAN
TERMS OF PAYMENT:
AMOUNT OF PAYMENT:
Gross-Up
Balance Percentage Payment
FORM/TIMING OF PAYMENT: Lump sum amount on or before
.<PAGE>
EXHIBIT C-7
GPU RABBI TRUST
DEFERRED COMPENSATION PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected Beneficiary
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.<PAGE>
EXHIBIT C-8
GPU RABBI TRUST
SPECIAL PENSION PLAN
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected Beneficiary
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.<PAGE>
EXHIBIT C-9
GPU RABBI TRUST
SUPPLEMENTAL AND EXCESS PENSIONS
TERMS OF PAYMENT: Each participant listed below is entitled to a
monthly payment for his/her life with continuing payments to
his/her beneficiary if he/she has elected a joint and survivor
option. The determination of amount payable is made in
accordance with the Company's Excess and Supplemental Benefits
Plan for Elected Officers.
AMOUNT OF PAYMENT:
AMOUNTS IN PAYMENT STATUS
Monthly Option
Payment Elected Beneficiary
OTHER AMOUNTS
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.<PAGE>
EXHIBIT C-10
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - MEZEY
TERMS OF PAYMENT: Mr. Philip Mezey shall be entitled to a
supplemental pension benefit in accordance with the retirement
provisions contained in his employment agreement with GPU, Inc.
(attached, amended 4/20/95, signed 4/20/95).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.<PAGE>
EXHIBIT C-11
GPU RABBI TRUST
SUPPLEMENTAL PENSION AGREEMENT - JOLLES
TERMS OF PAYMENT: Mr. Ira Jolles shall be entitled to a
supplemental pension benefit in accordance with the retirement
provisions contained in his employment agreement with GPU, Inc.
and GPU Service, Inc. (attached, amended 11/1/96).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
of each month the amount indicated above shall be paid to the
participant or his beneficiary.<PAGE>
EXHIBIT C-12
GPU RABBI TRUST
Severance Agreement Payment
TERMS OF PAYMENT: Mr. [Name of Officer] shall be entitled to a
severance payment benefit in accordance with the provisions
contained in his severance agreement with [Company Name] and GPU,
Inc. (_________).
AMOUNT OF PAYMENT:
FORM/TIMING OF PAYMENT: On or before
the amount indicated above shall be paid to the participant or
his beneficiary.<PAGE>
EXHIBIT D
PARTICIPANT'S PAYMENT REQUEST FORM
I, _______________________________________________, a
Participant [or Beneficiary] in the GPU System Companies Master
Executives' Benefits Protection Trust (the "Trust"), adopted
September 1, 1995 and amended August 1, 1996 and February 6,
1997, pursuant to Section 4.3 thereof, hereby request that [Name
of Bank], as Trustee thereunder, make payment to me of the
Benefits to which I am entitled as [Participant or Beneficiary]
in accordance with the terms of the Trust Agreement and the
following [Company Name] Plans:
_______________________________
_______________________________
_______________________________
_______________________________
I hereby attest, certify and affirm that to the best of my
knowledge and belief the following events, upon which entitlement
to and payment of Benefits under said Plans is conditioned, have
occurred:
[Insert Description of events that have occurred]
I further attest, certify and affirm that [Name of Company]
has not paid any of the Benefits claimed herein under said plans.
I am [or The Participant was] ____ years of age, having been
born on [Date of Birth]. I have been/was [or the Participant
was] employed by [Name of Company] from [Date] to [Date]. The
[Name of Company] records detailing my [his/her] compensation and
the terms and conditions of employment, if any, are attached
hereto and made a part hereof.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
[Address & Telephone No.] <PAGE>
EXHIBIT E
REQUEST AND AUTHORIZATION FOR LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Executives'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended August 1, 1996 and February 6, 1997, pursuant to
Section 5.3(b) thereof, hereby request and authorize [Name of
Bank], as Trustee thereunder, to institute and prosecute legal
proceedings (the "Litigation"), on my behalf, against [Name of
GPU System Company] to recover upon my claim against said company
for unpaid benefits under [Name of Plan under which claim is
asserted].
It is understood that, pursuant to Section 5.3(e) of the
Trust Agreement, I may revoke this authorization to prosecute or
continue to prosecute such Litigation, at any time, upon written
notification to the Trustee in the appropriate form.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
___________________________
[Address & Telephone No.]<PAGE>
EXHIBIT F
REVOCATION OF AUTHORITY TO CONTINUE LITIGATION
I, _______________________________________________, a
Participant in the GPU System Companies Master Executives'
Benefits Protection Trust (the "Trust"), adopted September 1,
1995 and amended August 1, 1996 and February 6, 1997, pursuant to
Section 5.3(e) thereof, hereby revoke the authorization
previously granted by me to [Name of Bank], as Trustee
thereunder, to institute and prosecute legal proceedings (the
"Litigation), on my behalf, against [Name of GPU System Company]
for unpaid Benefits under [Name of Plan under which claim is
asserted].
I hereby notify the Trustee that I have appointed and
retained [Name Attorney ] of [Address
] to represent me and my interests in such Litigation. I
understand that the fees and expenses of my attorney in
connection with the Litigation or otherwise shall be my sole
responsibility and that neither me nor my attorney will be
entitled to direct payment for any such fees or expenses out of
the Trust fund or any portion thereof.
Dated:_________________ ___________________________
[Name of Participant]
___________________________
___________________________
___________________________
[Address & Telephone No.] <PAGE>
Exhibit C-74
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
JERSEY CENTRAL POWER & LIGHT COMPANY
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of Jersey Central Power & Light Company (the
"Plan") is to attract and retain highly qualified employees, to
obtain from each the best possible performance, and to underscore
the importance to them of achieving particular business
objectives established for Jersey Central Power & Light Company
and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc.
unless otherwise specified.
C. Change in Control. A "Change in Control"
shall mean the occurrence of:
(1) An acquisition (other than directly from
the Corporation) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election
of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the
then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding
Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
1<PAGE>
acquisition by (A) an employee benefit plan (or a trust
forming a part thereof) maintained by (i) the
Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting
equity securities or equity interest is owned, directly
or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1,
1996, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least seventy
percent (70%) of the members of the Board; provided,
however, that if the election, or nomination for
election by the Corporation's shareholders, of any new
director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy
Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such
merger, consolidation or reorganization is a "Non-
Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
2<PAGE>
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w)
the Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a
result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities
then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but
for the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3<PAGE>
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
E. Company. Jersey Central Power & Light
Company.
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the
active salaried payroll of the Company or an affiliate
of the Company at any time during the period for which
an Award is made.
H. Executive Committee. The Executive Committee
of the Board of Directors of the Company.
I. Officer. An Officer of the Company who is
elected by the Company's Board of Directors and is an
Employee of the Company, but not including Assistant
Comptrollers, Assistant Secretaries and Assistant
Treasurers.
J. Performance Period. The fiscal year
(currently the calendar year) for which Awards are
made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
4<PAGE>
death, disability or other cause) during such Performance Period.
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
5<PAGE>
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
6<PAGE>
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in its discretion all questions that may arise as to the
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
7<PAGE>
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
ERISA.
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
8<PAGE>
Exhibit C-76
JERSEY CENTRAL POWER AND LIGHT COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
JERSEY CENTRAL POWER AND LIGHT COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective February 6, 1997)
Foreword
Effective as of January l, 1988, Jersey Central Power & Light
Company (referred to in this document as the "Company")
established a supplemental pension plan for the benefit of
certain of its employees. This Jersey Central Power & Light
Company Supplemental and Excess Benefits Plan (the "Plan") is a
continuation of that plan as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after February 6, 1997.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to February 6,
1997 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the Jersey
Central Power & Light Company Employee Pension Plan ("Pension
Plan") and the Jersey Central Power & Light Company Plan For
Retirement Annuities ("PRA") and their surviving spouses with the
amount of company-provided benefits that would have been provided
to them under the Pension Plan or the PRA but for the limitation
on benefits imposed under Section 415 of the Internal Revenue
Code, as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and <PAGE>
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
2<PAGE>
of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
3<PAGE>
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
4<PAGE>
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in
the Foreword.
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
5<PAGE>
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee
retires in accordance with Section 3.1, 3.2,
3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving
spouse on account of the Employee's death
before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension
under the applicable provisions of Section 9
of the Pension Plan could commence, without
regard to any election by such spouse to
defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
6<PAGE>
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits
were payable in the same form, and with the
same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in
marital status occurring subsequent to the
date on which payment of Pension Plan
benefits commence,
7<PAGE>
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as
described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by
the complement of the reduction percentage
applied to Pension Plan benefits in
accordance with such Section 10.1, to convert
such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form
other than as a single life annuity, reduce
the amount determined in (ii) by the
reduction percentage that would be applicable
under Section 10.1 of the Pension Plan to an
annuity payable thereunder to the Employee in
the same form as the form in which payment of
the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the
same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
8<PAGE>
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess and/or
Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
the first day of the month following the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
9<PAGE>
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
10<PAGE>
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
11<PAGE>
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
12<PAGE>
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-77
DEFERRED REMUNERATION PLAN FOR OUTSIDE DIRECTORS
OF JERSEY CENTRAL POWER & LIGHT COMPANY
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 6, 1997)
1. Purpose
1.1 The purpose of this document is to set forth the
Deferred Remuneration Plan for Outside Directors, as
amended and restated effective February 6, 1997. The
Plan will be implemented by individual elections by
each Director.
2. Plan Summary
2.1 This Plan provides for deferral by Directors of all or
a portion of current Remuneration.
2.2 Funds being deferred will be credited with the
equivalent of interest in accordance with Section 6.
2.3 Each component of the deferred funds will be
distributed as follows:
(a) for a Director who elects deferral until a date or
dates following his or her Retirement, to the
Director, in accordance with his or her latest
effective election, and subject to provisions of
Section 4.5;
(b) for a Director who elects deferral until a date or
dates preceding his or her Retirement, to the
Director, in accordance with his or her initial
election; or
(c) if a Director dies before the deferred funds have
been fully distributed, to his or her designated
beneficiary, in accordance with the option
selected by the Director under Section 7.2 for
each component except as the Board may otherwise
determine, based on the circumstances at the time
the distribution is to commence.
3. Definition of Terms
3.1 Board of Directors - refers to the Board of Directors
of Jersey Central Power & Light Company.<PAGE>
3.2 Change in Control - A "Change in Control" shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc.
(the "Corporation")) of any common stock of the
Corporation ("Common Stock") or other voting securities
of the Corporation entitled to vote generally for the
election of directors of the Corporation (the "Voting
Securities") by any "Person" (as the term person is
used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person
has "Beneficial Ownership" (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty
percent (20%) or more of the then outstanding shares of
Common Stock or the combined voting power of the
Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in
Control has occurred, Voting Securities which are
acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which
would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an
employee benefit plan (or a trust forming a part
thereof) maintained by (i) the Corporation or (ii) any
corporation or other Person of which a majority of its
voting power or its voting equity securities or equity
interest is owned, directly or indirectly, by the
Corporation (for purposes of this definition, a
"Subsidiary"), (B) the Corporation or its Subsidiaries,
or (C) any Person in connection with a "Non-Control
Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are
members of the board of directors of the Corporation
(the "Incumbent Board"), cease for any reason to
constitute at least seventy percent (70%) of the
members of the board of directors of the Corporation;
provided, however, that if the election, or nomination
for election by the Corporation's shareholders, of any
new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall,
for purposes of this Plan, be considered as a member of
the Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the board of directors of
the Corporation (a "Proxy Contest") including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
2<PAGE>
(3) The consummation of:
(A) A merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued, unless such merger,
consolidation or reorganization is a "Non-Control
Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into
the Corporation or in which securities of the
Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
(ii) the individuals who were members of
the Incumbent Board immediately prior to the execution
of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock;
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to
any Person (other than a transfer to a Subsidiary).
3<PAGE>
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of
more than the permitted amount of the then outstanding
Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by the
Corporation which, by reducing the number of shares of
Common Stock or Voting Securities then outstanding,
increases the proportional number of shares
Beneficially Owned by the Subject Person, provided that
if a Change in Control would occur (but for the
operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3.3 Company - refers to Jersey Central Power & Light
Company.
3.4 Director - refers to a member of the Board of Directors
who is not an employee of Jersey Central Power & Light
Company or any of its subsidiaries.
3.5 Plan - refers to this Deferred Remuneration Plan for
Outside Directors as described in this document and as
it may be amended in the future.
3.6 Remuneration - refers to all cash amounts earned during
a calendar year by a Director for services performed as
a Director (including services performed as a member of
a committee of the Board of Directors), but does not
include consulting fees, reimbursement for travel or
other expenses or Company contributions to other
benefit plans.
3.7 Pre-Retirement Account - refers to the memorandum
account which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date prior to his or her
Retirement. A separate Pre-Retirement Account shall be
established and maintained for the Remuneration for
each Plan Year which the Director so elects to defer.
3.8 Retirement Account - refers to the memorandum account
which shall be established and maintained for a
Director who elects, pursuant to Section 5.2, to have
payment of any portion of his or her Remuneration for
any Plan Year deferred to a date after his or her
Retirement. All amounts deferred pursuant to elections
4<PAGE>
made on or before December 31, 1985 under the Plan by a
Director, together with all interest equivalents earned
by such election and credited to such amounts prior to
December 31, 1986, shall be treated, on or after such
date, as part of the Director's Retirement Account.
3.9 Retirement - refers to the retirement from service on
the Board of Directors, on account of resignation,
death, or any other reason, without becoming an
employee of Jersey Central Power & Light Company, the
Corporation or any of its subsidiaries.
3.10 Plan Year - refers to the period October 1, 1986
through December 31, 1986; and each twelve (12) month
period from January 1 through December 31 thereafter.
4. Administration
4.1 The Board of Directors has established this Plan. The
Board of Directors may in its sole discretion modify
the provisions of the Plan from time-to-time, or, may
terminate the entire Plan at any time; provided,
however, that Section 3.2, this Section 4.1, Section
4.3, the last sentence of the first paragraph of
Section 6 and the last paragraph of Section 7.2 may not
be amended or modified, and the Plan may not be
terminated, (i) at the request of a third party who has
indicated an intention or taken steps to effect a
Change in Control and who effectuates a Change in
Control, (ii) within six (6) months prior to, or
otherwise in connection with, or in anticipation of, a
Change in Control which has been threatened or proposed
and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification or
termination adversely affects the rights of any
Director under the Plan. No modification or
termination of the Plan shall adversely affect the
rights of any Director with respect to any amounts
standing to the Director's credit in any Account
immediately prior to the date of the adoption of such
modification or termination, including without
limitation any rights with respect to the time and
method of payment of, or the crediting of interest
equivalents with respect to, any such amounts.
4.2 Responsibility for the ongoing administration of this
Plan rests with the Corporate Secretary's Department.
4.3 All questions concerning the disclosure of information
relating to this Plan, as well as any dispute over
accounting or administrative procedures or
interpretation of the Plan, will be resolved at the
sole discretion of the Corporate Secretary.
5<PAGE>
The Corporate Secretary will not be liable to any
person for any action taken or omitted in connection
with the interpretation and the administration of the
Plan unless attributable to willful misconduct or lack
of good faith. Notwithstanding the foregoing, any
determination made by the Corporate Secretary after the
occurrence of a "Change in Control" that denies in
whole or in part any claim made by any individual for
benefits under the Plan shall be subject to judicial
review, under a "de novo", rather than a deferential,
standard.
4.4 All provisions of this Plan, its administration and
interpretation, are intended to be in compliance with
appropriate Internal Revenue Service Rulings regarding
the construction and operation of a deferred
compensation program, so that deferred Remuneration and
interest equivalents thereon will not constitute income
constructively received prior to being distributed
under the terms of this Plan.
4.5 A Director's election to voluntarily defer
Remuneration, selection of a distribution commencement
date and distribution option, and designation of a
beneficiary and contingent beneficiary, made pursuant
to this Plan shall be made in writing, on a form
furnished to the Director by the Company for such
purposes, signed and delivered personally or by first
class mail to:
Corporate Secretary
Jersey Central Power & Light Company
300 Madison Avenue
Morristown, New Jersey 07962
Any such election, selection, designation, or change
therein, shall not become effective unless and until
received by the Corporate Secretary. A distribution
election or a change in a distribution election made
after May 31, 1987 will not be effective unless made at
least twenty-four (24) months prior to his or her
Retirement or Disability.
5. Deferral Election
5.1 A Director may elect to defer all or any portion of his
or her Remuneration for any Plan Year, providing such
portion is three thousand dollars ($3,000) or more. A
separate deferral election shall be made with respect
to a Director's Remuneration for each Plan Year. An
election to defer Remuneration for the 1986 amended
Plan Year shall be made on or prior to September 30. In
6<PAGE>
subsequent years, the election shall be made on or
before December 31 of the year preceding the Plan Year.
Notwithstanding, the foregoing, (a) Directors who are
initially elected prior to December 1st of any Plan
Year may, within 30 days of such initial election, make
a deferral election for the then current Plan Year, and
(b) Directors who are initially elected after December
1st of any Plan Year may immediately make a deferral
election for both the then current Plan Year and for
the immediately succeeding Plan Year; provided,
however, that any deferral election made pursuant to
clause (a) or (b) hereof shall be effective only with
respect to Remuneration earned after such election has
become effective. All elections under this Section 5.1
shall be irrevocable.
5.2 In his or her election to defer Remuneration for any
Plan Year, a Director shall specify the amount or
portion of the Remuneration to be deferred, and shall
indicate whether the Remuneration so deferred is to be
credited to a Pre-Retirement Account, or to a
Retirement Account.
5.3 With respect to Remuneration deferred hereunder for a
Plan Year which a Director elects to have credited to
his or her Pre-Retirement Account, the Director shall
specify in the election form the date on which
distribution of the Pre-Retirement Account shall be
made or commence. The date so selected shall be no
earlier than 24 months from the close of the Plan Year.
In the election form for the Plan Year, the Director
shall also select an option under Section 7.2 for the
distribution of the account. Except as provided in
Section 7.4, the date so specified, and the option so
selected, may not thereafter be changed by the
Director.
5.4 With respect to any Remuneration deferred hereunder
which a Director elects to have credited to his or her
Retirement Account, the Director may elect a
distribution commencement date and a distribution
option under Section 7.2 for the distribution of the
account, and may change, subject to the provisions of
Section 4.5, any election as to the distribution
commencement date and distribution option for the
account previously made by the Director, at any time
prior to his or her Retirement. The distribution
commencement date so elected shall be either January 15
of the calendar year following the Director's
Retirement, or January 15 of any subsequent calendar
year.
5.5 In the case of a Director who, prior to January 1,
1986, made a deferral election under the Plan with
respect to his or her Remuneration for the calendar
7<PAGE>
year 1986, any deferral election made by the Director
hereunder with respect to the period commencing October
1, 1986 and ending December 31, 1986 shall be
effective, for that period, only with respect to the
excess, if any, of the amount he or she so elects to
defer for said period over the amount of Remuneration
for said period deferred pursuant to the Director's
prior election.
5.6 The amounts which are deferred, including interest
equivalents, will be credited to a Director's Account.
Prior to distribution, all amounts deferred including
interest equivalents, will constitute general assets of
the Company for use as it deems necessary, and will be
subject to the claims of the Company's creditors. A
Director shall have the status of a mere unsecured
creditor of the Company with respect to his or her
right to receive any payment under the Plan. The Plan
shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for
herein. It is intended that the arrangements reflected
in this Plan be treated as unfunded for tax purposes.
6. Interest
Interest equivalents, compounded monthly on deposits treated
as monthly transactions, will be credited at the end of each
quarter in the calendar year. Such credit will be made to
the balance of each account maintained for a Director
hereunder, including the undistributed balance of any such
account from which payments are being made in installments.
The rate used in calculation of interest equivalents will be
no less than the rate equal to the simple average of
Citibank N.A. of New York Prime Rates for the last business
day of each of the three months in the calendar quarter or,
if greater, such other rate as established from time to time
by the Committee.
The Company may, but shall not be required to, purchase a
life insurance policy, or policies, to assist it in funding
its payment obligations under the Plan. If a policy, or
policies, is so purchased, it shall, at all times, remain
the exclusive property of the Company and subject to the
claims of its creditors. Neither the Director nor any
beneficiary or contingent beneficiary designated by him or
her shall have any interest in, or rights with respect to
such policy.
7. Distribution of Deferred Funds
7.1 A Director's Pre-Retirement Account shall be
distributed to the Director, or distributions from such
Pre-Retirement Accounts shall commence, on the date or
8<PAGE>
dates specified in the elections made by the Director
with respect to such accounts. A Director's Retirement
Account shall be distributed to the Director, or
distributions from such accounts shall commence, on the
date specified in the Director's latest effective
election. In such case a distribution election made
after May 31, 1987 will not be effective unless
selected at least twenty-four (24) months prior to his
or her Retirement.
7.2 The options for distribution are:
(a) A single lump sum payment.
(b) Annual Installments over any fixed number of years
selected by the Director, with a minimum of five
annual installments required for the Retirement
Account.
If distribution of a Director's Account is to be made
in annual installments under Option (b) of Section 7.2,
the amount of each installment will equal the total
amount in such account on the date the installment is
payable, divided by the number of installments
remaining to be paid. In addition, if the distributions
are made in installments under Option (b) of Section
7.2, the interest equivalent accrued on the Director's
memorandum account each year after the date the first
installment is payable will be distributed on each
anniversary of such date.
Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected, each Director shall be permitted to
make a special distribution election to have the entire
balance of his or her Accounts distributed in the form
of a single lump sum payment in the event of the
Director's Retirement following a Change in Control;
provided, however, that such election shall be
effective only if it is made at least twelve (12)
months prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made at least twelve (12)
months prior to a Change in Control. Any special
election, or revocation of a special election, that may
be made hereunder shall be made in the manner set forth
in Section 4.6. The lump sum payment to be made
pursuant to a Director's special election hereunder
shall be made by no later than thirty (30) days
following the date of the Director's Retirement.
9<PAGE>
7.3 Except as the Board may otherwise determine based on
the circumstances at the time the distribution to the
beneficiary is to commence:
(a) If a Director should die after distribution of any
account maintained for the Director has commenced,
but before the entire balance of such account has
been fully distributed, distributions will
continue to be made from such account to the
Director's designated beneficiary or contingent
beneficiary, in accordance with the distribution
option in effect for such Account at the time of
the Director's death.
(b) If a Director should die before any distribution
from an account maintained for the Director
hereunder has been made to him or her,
distribution of such account to the Director's
designated beneficiary or contingent beneficiary
shall be made, or shall commence, as soon as
practicable after the Director's death, in
accordance with the distribution option in effect
for such account at the time of the Director's
death.
Amounts remaining to be paid, after the death of the
Director, to the designated beneficiary and the
contingent beneficiary, will be paid in a lump sum to
the estate of the last of such persons to die.
7.4 Notwithstanding anything herein to the contrary, any
account maintained for a Director hereunder may be
distributed, in whole or in part, to such Director on
any date earlier than the date on which distribution is
to be made, or commence, pursuant to the Director's
election if:
(a) the Director requests early distribution, and
(b) the Board, in its sole discretion, determines that
early distribution is necessary to help the
Director meet some severe financial need arising
from circumstances which were beyond the
Director's control and which were not foreseen by
the Director at the time he or she made the
election as to the date or dates for distribution
from such account. A request by a Director for an
early distribution shall be made in writing, shall
set forth sufficient information as to the
Director's needs for such distribution to enable
the Board to take action on his or her request,
and shall be mailed or delivered to the Company's
Corporate Secretary.
10<PAGE>
8. Non-Assignment of Deferred Remuneration
8.1 A Director's rights to payments under this Plan shall
not be subject to any manner to anticipation,
alienation, sale, transfer (other than transfer by will
or by the laws of descent and distribution, in the
absence of a beneficiary designation), assignment,
pledge, encumbrance, attachment or garnishment by
creditors of the Director or his or her spouse or other
beneficiary.
8.2 All amounts paid under the Plan, including the interest
equivalents credited to a Director's memorandum
account, are considered to be Remuneration. The
crediting of interest equivalents is intended to
preserve the value of the Remuneration so deferred for
the Director.
11<PAGE>
Exhibit C-134
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
METROPOLITAN EDISON COMPANY
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of Metropolitan Edison Company (the "Plan") is
to attract and retain highly qualified employees, to obtain from
each the best possible performance, and to underscore the
importance to them of achieving particular business objectives
established for Metropolitan Edison Company and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc.
unless otherwise specified.
C. Change in Control. A "Change in Control"
shall mean the occurrence of:
(1) An acquisition (other than directly from
the Corporation) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election
of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the
then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding
Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a trust
1<PAGE>
forming a part thereof) maintained by (i) the
Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting
equity securities or equity interest is owned, directly
or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1,
1996, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least seventy
percent (70%) of the members of the Board; provided,
however, that if the election, or nomination for
election by the Corporation's shareholders, of any new
director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy
Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such
merger, consolidation or reorganization is a "Non-
Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
2<PAGE>
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w)
the Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a
result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities
then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but
for the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3<PAGE>
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
E. Company. Metropolitan Edison Company
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the
active salaried payroll of the Company or an affiliate
of the Company at any time during the period for which
an Award is made.
H. Executive Committee. The Executive Committee
of the Board of Directors of the Company.
I. Officer. An Officer of the Company who is
elected by the Company's Board of Directors and is an
Employee of the Company, but not including Assistant
Comptrollers, Assistant Secretaries and Assistant
Treasurers.
J. Performance Period. The fiscal year
(currently the calendar year) for which Awards are
made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
4<PAGE>
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
5<PAGE>
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
6<PAGE>
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in its discretion all questions that may arise as to the
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
ERISA.
7<PAGE>
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
8<PAGE>
Exhibit C-136
METROPOLITAN EDISON COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
METROPOLITAN EDISON COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective February 6, 1997)
Foreword
Effective as of January 1, 1988, Metropolitan Edison Company
(referred to in this document as the "Company") established a
supplemental pension plan for the benefit of certain of its
employees. This Metropolitan Edison Company Supplemental and
Excess Benefits Plan (the "Plan") is a continuation of that plan
as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after February 6, 1997.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to February 6,
1997 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the
Metropolitan Edison Company Employee Pension Plan ("Pension
Plan") and the Metropolitan Edison Company Plan For Retirement
Annuities ("PRA") and their surviving spouses with the amount of
company-provided benefits that would have been provided to them
under the Pension Plan or the PRA but for the limitation on
benefits imposed under Section 415 of the Internal Revenue Code,
as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
1<PAGE>
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
2<PAGE>
Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's thenoutstanding voting
securities or its common stock.
3<PAGE>
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any, of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in
the Foreword.
4<PAGE>
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
5<PAGE>
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee
retires in accordance with Section 3.1, 3.2,
3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving
spouse on account of the Employee's death
before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension
under the applicable provisions of Section 9
of the Pension Plan could commence, without
regard to any election by such spouse to
defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
6<PAGE>
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits
were payable in the same form, and with the
same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in
marital status occurring subsequent to the
date on which payment of Pension Plan
benefits commence,
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as
described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by
the complement of the reduction percentage
applied to Pension Plan benefits in
accordance with such Section 10.1, to convert
7<PAGE>
such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form
other than as a single life annuity, reduce
the amount determined in (ii) by the
reduction percentage that would be applicable
under Section 10.1 of the Pension Plan to an
annuity payable thereunder to the Employee in
the same form as the form in which payment of
the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the
same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
8<PAGE>
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess and/or
Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
the first day of the month following the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
9<PAGE>
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
10<PAGE>
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
11<PAGE>
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
12<PAGE>
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-191
INCENTIVE COMPENSATION PLAN FOR ELECTED OFFICERS OF
PENNSYLVANIA ELECTRIC COMPANY
(AS AMENDED AND RESTATED FEBRUARY 6, 1997)
1. Purpose.
The purpose of the Incentive Compensation Plan for
Elected Officers of Pennsylvania Electric Company (the "Plan") is
to attract and retain highly qualified employees, to obtain from
each the best possible performance, and to underscore the
importance to them of achieving particular business objectives
established for Pennsylvania Electric Company and its affiliates.
2. Definitions.
For the purposes of the Plan, the following terms shall
have the following meanings:
A. Awards. Incentive Compensation Awards made
pursuant to the Plan.
B. Board. The Board of Directors of GPU, Inc.
unless otherwise specified.
C. Change in Control. A "Change in Control"
shall mean the occurrence of:
(1) An acquisition (other than directly from
the Corporation) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election
of directors (the "Voting Securities") by any "Person"
(as the term person is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), immediately after
which such Person has "Beneficial Ownership" (within
the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (20%) or more of the
then outstanding shares of Common Stock or the combined
voting power of the Corporation's then outstanding
Voting Securities; provided, however, in determining
whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a trust
forming a part thereof) maintained by (i) the
1<PAGE>
Corporation or (ii) any corporation or other Person of
which a majority of its voting power or its voting
equity securities or equity interest is owned, directly
or indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1,
1996, are members of the Board (the "Incumbent Board"),
cease for any reason to constitute at least seventy
percent (70%) of the members of the Board; provided,
however, that if the election, or nomination for
election by the Corporation's shareholders, of any new
director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
individual shall be considered a member of the
Incumbent Board if such individual initially assumed
office as a result of either an actual or threatened
"Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board (a "Proxy
Contest") including by reason of any agreement intended
to avoid or settle any Election Contest or Proxy
Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued, unless such
merger, consolidation or reorganization is a "Non-
Control Transaction." A "Non-Control Transaction"
shall mean a merger, consolidation or reorganization
with or into the Corporation or in which securities of
the Corporation are issued where:
(i) the shareholders of the
Corporation, immediately before such merger,
consolidation or reorganization, own directly or
indirectly immediately following such merger,
consolidation or reorganization, at least sixty percent
(60%) of the combined voting power of the outstanding
voting securities of the corporation resulting from
such merger or consolidation or reorganization (the
"Surviving Corporation") in substantially the same
proportion as their ownership of the Voting Securities
immediately before such merger, consolidation or
reorganization,
2<PAGE>
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w)
the Corporation, (x) any Subsidiary, (y) any employee
benefit plan (or any trust forming a part thereof)
that, immediately prior to such merger, consolidation
or reorganization, was maintained by the Corporation or
any Subsidiary, or (z) any Person who, immediately
prior to such merger, consolidation or reorganization
had Beneficial Ownership of twenty percent (20%) or
more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial
Ownership of twenty percent (20%) or more of the
combined voting power of the Surviving Corporation's
then outstanding voting securities or its common stock.
(B) A complete liquidation or
dissolution of the Corporation; or
(C) The sale or other disposition of
all or substantially all of the assets of the
Corporation to any Person (other than a transfer to a
Subsidiary).
Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur solely because any
Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then
outstanding Common Stock or Voting Securities as a
result of the acquisition of Common Stock or Voting
Securities by the Corporation which, by reducing the
number of shares of Common Stock or Voting Securities
then outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but
for the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting
Securities by the Corporation, and after such share
acquisition by the Corporation, the Subject Person
becomes the Beneficial Owner of any additional shares
of Common Stock or Voting Securities which increases
the percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
3<PAGE>
D. Committee. The Personnel, Compensation and
Nominating Committee of the Board or any successor
thereto.
E. Company. Pennsylvania Electric Company.
F. Corporation. GPU, Inc.
G. Employee. An individual who was on the
active salaried payroll of the Company or an affiliate
of the Company at any time during the period for which
an Award is made.
H. Executive Committee. The Executive Committee
of the Board of Directors of the Company.
I. Officer. An Officer of the Company who is
elected by the Company's Board of Directors and is an
Employee of the Company, but not including Assistant
Comptrollers, Assistant Secretaries and Assistant
Treasurers.
J. Performance Period. The fiscal year
(currently the calendar year) for which Awards are
made.
3. Effective Date.
The effective date of the Plan is July 1, 1987.
4. Amounts Available for Awards.
A. The aggregate amount available for Awards for any
Performance Period shall be determined by the Board upon the
recommendation of the Committee.
B. No Awards shall be made for a Performance Period
if during such Performance Period no dividends were declared or
paid on shares of Common Stock.
5. Eligibility for Awards.
A. The Executive Committee shall determine the
Officers, if any, who are eligible for Awards for each
Performance Period, subject, in the case of the President and of
Officers who are also Officers of the Corporation, to the
concurrence of the Board.
B. The Executive Committee may include, among
Officers eligible for Awards for a Performance Period, Officers
whose employment terminated (whether by reason of retirement,
death, disability or other cause) during such Performance Period.
4<PAGE>
6. Determination of Amounts of Awards.
A. The Executive Committee shall determine the
amounts of Awards subject, in the case of Officers who are also
Officers of the Corporation, to the concurrence of the Board,
either at or following the end of the Performance Period to which
they relate. The amount of the Awards to be made for any
Performance Period shall be so determined in accordance with the
methods and procedures set forth in the GPU System Officer
Incentive Compensation Plan Administrative Manual as in effect
for such Performance Period (the "Manual").
B. Notwithstanding the foregoing or any other
provision herein or in the Manual to the contrary, if a Change in
Control occurs, then in respect of the Performance Period in
which the Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control occurs prior
to the time Awards for such Performance Period have been made),
the following provisions shall apply:
(i) each objective of the Company's for each
such Performance Period shall be deemed to have been 100%
achieved;
(ii) the Company's Final Pool for each such
Performance Period shall be deemed to be 100% of the Company's
Target Pool for each such Performance Period (or if, as of the
date of the Change in Control, the Target Pool has not been
determined for the Performance Period, the Target Pool for the
immediately preceding Performance Period);
(iii) each Officer who, prior to the
occurrence of such Change in Control, was determined to be
eligible for an Award for each such Performance Period ("Eligible
Officer") shall be entitled to receive an Award for each such
Performance Period;
(iv) the amount of the Award to be made to
each Eligible Officer shall be determined by multiplying the
Company's Final Pool for each such Performance Period by a
fraction the numerator of which is the amount of the Eligible
Officer's annual base salary that was taken into account in
determining the Company's Target Pool for each such Performance
Period, and the denominator of which is the aggregate amount of
the Annual Base Salaries of all Eligible Officers so taken into
account; provided, however, that in the event an Eligible Officer
is terminated by the Company without "Cause" (as defined below)
during the Performance Period in which a Change in Control
occurs, the amount of the Award to be made to such Eligible
Officer in respect of that Performance Period shall be the amount
determined above multiplied by a fraction, the numerator of which
is the number of days that have elapsed since the end of the
immediately preceding Performance Period through the date of
termination and the denominator of which is 365.
5<PAGE>
A termination is for Cause if the Eligible Officer is convicted
of a felony or where the Eligible Officer (1) intentionally and
continually failed substantially to perform his or her reasonably
assigned duties with the Company (other than a failure resulting
from the Eligible Officer's incapacity due to physical or mental
illness) which failure continued for a period of at least thirty
(30) days after a written notice of demand for substantial
performance, signed by a duly authorized officer, has been
delivered to the Eligible Officer specifying the manner in which
he or she has failed substantially to perform, or (2)
intentionally engaged in conduct which is demonstrably and
materially injurious to the Corporation or the Company. No act,
nor failure to act, on the Eligible Officer's part, shall be
considered "intentional" unless he or she has acted, or failed to
act, with a lack of good faith and with a lack of reasonable
belief that the Eligible Officer's action or failure to act was
in the best interest of the Corporation and the Company.
7. Form of Awards.
Awards shall be made in cash.
8. Payment of Awards.
Unless it has been deferred pursuant to the GPU System
Companies Deferred Compensation Plan, an Award shall be paid as
soon as practicable after it is made, but in any event by no
later than 60 days after the date on which the Award has been
made; provided, however, that if an Eligible Officer is entitled
to a pro-rated Award pursuant to the proviso in Section 6.B(iv),
such pro-rated Award shall be paid within twenty (20) days after
the Eligible Officer's date of termination.
9. Special Awards and Other Plans.
Nothing contained in the Plan shall prohibit the
Company from granting special performance or recognition awards
under such conditions, and in such form and manner as it sees
fit, or from establishing other incentive compensation plans
providing for the payment of incentive compensation to Employees;
provided, however, that an Officer who receives an Award under
this Plan shall not receive an award for the same Performance
Period under any other annual incentive plan.
10. Amendment and Interpretation of the Plan.
A. Action to amend, modify, suspend or terminate the
Plan may be taken by the Company either by resolution duly
adopted by the Company's Board of Directors, or by an instrument
in writing executed by an Officer of the Company to whom
authority to adopt or approve amendments to the Plan has been
6<PAGE>
delegated pursuant to a resolution duly adopted by the Company's
Board of Directors; provided, however, that any amendment to
Section 4, Section 6 or this Section 10.A shall be subject to the
concurrence of the Board; provided further, however, that Section
2.C, Section 6 and this Section 10 may not be amended or
modified, and the Plan may not be suspended or terminated, (i) at
the request of a third party who has indicated an intention or
taken steps reasonably calculated to effect a Change in Control
and who effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been threatened or
proposed and which actually occurs, or (iii) following a Change
in Control, if the amendment, modification, suspension or
termination adversely affects the rights of any Eligible Officer
under the Plan. No amendment or termination of the Plan shall
reduce or otherwise adversely affect an Award already made
hereunder without the consent of the Officer affected.
B. The Executive Committee is authorized to determine
in its discretion all questions that may arise as to the
construction or interpretation of the Plan, and to resolve any
claims that may arise with respect to any Officer's rights or
entitlement to any payment under the Plan. The decision of the
Executive Committee with respect to any such questions or claims
shall be final, conclusive and binding on all parties.
Notwithstanding the foregoing, any decision made by the Executive
Committee after the occurrence of a Change in Control shall be
subject to judicial review under a "de novo", rather than a
deferential, standard.
11. Miscellaneous.
A. All expenses and costs in connection with the
operation of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to
applicable withholding for federal, state and local taxes.
C. The Participation of any Officer in the Plan may
be terminated at any time. No promise or representation, either
express or implied, is made to any Officer with respect to
continued employment, transfer or promotion because of his or her
participation in the Plan.
D. Each Officer who is a participant in the Plan
shall have the status of a general unsecured creditor of the
Company with respect to any amounts payable to the Officer
hereunder. The Plan shall constitute a mere promise by the
Company to make payments in the future of the Awards provided for
herein. It is the intention of the Company that the arrangements
reflected in this Plan be treated as unfunded for tax purposes
and, if it should be determined that Title I of ERISA is
applicable to such arrangements, for purposes of Title I of
ERISA.
7<PAGE>
E. An Officer's rights to payments under the Plan
shall not be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by creditors of the Officer or the Officer's
beneficiary.
8<PAGE>
Exhibit C-193
PENNSYLVANIA ELECTRIC COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
As Amended, Effective February 6, 1997<PAGE>
TABLE OF CONTENTS
Page
Foreword 1
Section 1 - Definitions 2
Section 2 - Application and Basis of the Plan 5
Section 3 - Payment of Benefits 6
Section 4 - Administration 12
Section 5 - Amendment and Termination 13<PAGE>
PENNSYLVANIA ELECTRIC COMPANY
SUPPLEMENTAL AND EXCESS BENEFITS PLAN
(As amended effective February 6, 1997)
Foreword
Effective as of January l, 1988, Pennsylvania Electric Company
(referred to in this document as the "Company") established a
supplemental pension plan for the benefit of certain of its
employees. This Pennsylvania Electric Company Supplemental and
Excess Benefits Plan (the "Plan") is a continuation of that plan
as adopted effective January 1, 1988.
The Plan, as set forth herein, is applicable to all employees of
the Company who meet the requirements described in this Plan and
who are actively employed by the Company after February 6, 1997.
The benefits of any employee who ceased employment with the
Company, by retirement, death, or otherwise, prior to February 6,
1997 are determined in accordance with the terms of the
applicable predecessor to this Plan as in effect at the time of
such cessation of employment, except that the provisions of
Section 1.11 are retroactive and apply to any employee who ceased
employment on or after January 1, 1989.
It is intended that the "excess benefits" provided under the Plan
be an "excess benefits plan" as that term is defined in Section
3(36) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and that the "supplemental benefits" provided
under the Plan be a deferred compensation plan for "a select
group of management or highly compensated employees" as that term
is used in ERISA.
One purpose of the Plan is to provide participants of the
Pennsylvania Electric Company Employee Pension Plan ("Pension
Plan") and the Pennsylvania Electric Company Plan For Retirement
Annuities ("PRA") and their surviving spouses with the amount of
company-provided benefits that would have been provided to them
under the Pension Plan or the PRA but for the limitation on
benefits imposed under Section 415 of the Internal Revenue Code,
as amended.
The second purpose of the Plan is to provide elected officers and
certain other highly compensated employees of the Company and
their surviving spouses with the amount of company-provided
benefits that would have been provided to them under the Pension
Plan but for the following:
(a) the limitation on Earnings for purposes of the Pension Plan
imposed by Section 401(a)(17) of such Code, as amended, and
(b) the exclusion, from Earnings under the Pension Plan, of any
compensation deferred under the Deferred Compensation Plan.
1<PAGE>
Except to the extent otherwise indicated or inappropriate, the
Pension Plan is incorporated by reference.
SECTION 1
Definitions
1.1 Except to the extent otherwise indicated, the definitions
contained in Section l of the Pension Plan are applicable
under the Plan.
1.2 Board of Directors: The term Board of Directors shall mean
the Board of Directors of the Company.
1.3 Change in Control: The term Change in Control shall mean
the occurrence during the term of the Plan of:
(1) An acquisition (other than directly from GPU, Inc. (the
"Corporation")) of any common stock of the Corporation
("Common Stock") or other voting securities of the
Corporation entitled to vote generally for the election of
directors (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), immediately after which such Person has
"Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%)
or more of the then outstanding shares of Common Stock or
the combined voting power of the Corporation's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition"
(as hereinafter defined) shall not constitute an acquisition
which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (A) an employee
benefit plan (or a trust forming a part thereof) maintained
by (i) the Corporation or (ii) any corporation or other
Person of which a majority of its voting power or its voting
equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this
definition, a "Subsidiary"), (B) the Corporation or its
Subsidiaries, or (C) any Person in connection with a "Non-
Control Transaction" (as hereinafter defined);
(2) The individuals who, as of August 1, 1996, are members
of the board of directors of the Corporation (the "Incumbent
Board"), cease for any reason to constitute at least seventy
percent (70%) of the members of the board of directors of
the Corporation; provided, however, that if the election, or
nomination for election by the Corporation's shareholders,
of any new director was approved by a vote of at least two-
thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no
2<PAGE>
individual shall be considered a member of the Incumbent
Board if such individual initially assumed office as a
result of either an actual or threatened "Election Contest"
(as described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the board
of directors of the Corporation (a "Proxy Contest")
including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or reorganization with or
into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation or
reorganization with or into the Corporation or in which
securities of the Corporation are issued where:
(i) the shareholders of the Corporation,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization, at
least sixty percent (60%) of the combined voting power of
the outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were members of the
Incumbent Board immediately prior to the execution of the
agreement providing for such merger, consolidation or
reorganization constitute at least seventy percent (70%) of
the members of the board of directors of the Surviving
Corporation, or a corporation, directly or indirectly,
beneficially owning a majority of the Voting Securities of
the Surviving Corporation, and
(iii) no Person other than (w) the
Corporation, (x) any Subsidiary, (y) any employee benefit
plan (or any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization, was
maintained by the Corporation or any Subsidiary, or (z) any
Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty percent
(20%) or more of the then outstanding Voting Securities or
common stock of the Corporation, has Beneficial Ownership of
twenty percent (20%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities or its common stock.
3<PAGE>
(B) A complete liquidation or dissolution of the
Corporation; or
(C) The sale or other disposition of all or
substantially all of the assets of the Corporation to any
Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not
be deemed to occur solely because any Person (the "Subject
Person") acquired Beneficial Ownership of more than the
permitted amount of the then outstanding Common Stock or
Voting Securities as a result of the acquisition of Common
Stock or Voting Securities by the Corporation which, by
reducing the number of shares of Common Stock or Voting
Securities then outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for
the operation of this sentence) as a result of the
acquisition of shares of Common Stock or Voting Securities
by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner
of any additional shares of Common Stock or Voting
Securities which increases the percentage of the then
outstanding shares of Common Stock or Voting Securities
Beneficially Owned by the Subject Person, then a Change in
Control shall occur.
1.4 Company: The word Company shall have the meaning indicated
in the Foreword.
1.5 Deferred Compensation Plan: The term Deferred Compensation
Plan shall mean the GPU Companies Deferred Compensation
Plan, as adopted by the Company.
1.6 Earnings: The term Earnings shall mean an Employee's
"Earnings" as defined in the Pension Plan.
1.7 Excess Benefit: The term Excess Benefit shall mean the
excess, if any,of (i) each pension benefit which would be
payable to an Employee or to the Employee's surviving spouse
under the Pension Plan if the limitations on benefits
imposed by Section 18.1 of the Pension Plan were not
applicable over (ii) each pension benefit payable under the
Pension Plan.
1.8 Incentive Compensation Plan: The term Incentive
Compensation Plan shall mean the Company's Employee
Incentive Compensation Plan or its Incentive Compensation
Plan for Elected Officers or Annual Performance Award Plan.
1.9 Pension Plan: The term Pension Plan shall have the meaning
indicated in the Foreword.
1.10 Plan: The term Plan shall have the meaning indicated in
the Foreword.
4<PAGE>
1.11 Supplemental Benefit: The term Supplemental Benefit shall
mean the excess, if any, of (i) each pension benefit that
would be payable to an Employee or to an Employee's
surviving spouse under the Pension Plan if all amounts of
base compensation or Incentive Compensation Plan awards
deferred under the Deferred Compensation Plan were included
in Earnings (and if the limitations on benefits imposed by
Section 18.1 of the Pension Plan and on Earnings imposed by
Section 401(a)(17) of the Internal Revenue Code were not
applicable) over (ii) the sum of (a) each pension benefit
payable under the Pension Plan and (b) any Excess Benefit
payable under this Plan.
For purposes of clause (i) of this Section 1.11, any amount
of base compensation deferred under the Deferred
Compensation Plan shall be treated as Earnings for the
period in which such amount would have been paid to the
Employee in cash if the Employee had not elected to defer
such amount, and the amount of any award made to an Employee
under the Incentive Compensation Plan and deferred under the
Deferred Compensation Plan shall be treated as Earnings for
the period corresponding to the Performance Period for which
such award is made to the Employee. No amount of base
compensation so deferred, and no amount awarded under the
Incentive Compensation Plan, shall be treated as Earnings
for any period other than the period determined under the
preceding sentence.
For purposes of clause (i) of this Section 1.11, the amount
of any additional years of Creditable Service determined in
accordance with Section 5.9 of the Pension Plan will be
recalculated by replacing the Employee's annual base salary
rate of Earnings as of April 1, 1989 by (a) for purposes of
calculating projected Basic Pensions, the product of (i)
such rate before any reductions on account of the Deferred
Compensation Plan times (ii) 1.0 plus the target award
percentage as described under the Incentive Compensation
Plan and (b) for purposes of calculating the accumulation of
contributions of 2.25% or 2.10% of compensation, such rate
before any reductions on account of the Deferred
Compensation Plan.
SECTION 2
Application and Basis of the Plan
2.1 The Plan shall be applicable (i) in the case of the Excess
Benefit, to each Employee described in Section 2.1 of the
Pension Plan and (ii) in the case of the Supplemental
Benefit, to each Employee described in clause (i) who is an
elected officer of the Company and to each other Employee
described in clause (i) who for any calendar year has
Earnings (plus any Incentive Compensation Plan awards
deferred) in excess of the amount of compensation for such
5<PAGE>
year that can be taken into account for purposes of the
Pension Plan pursuant to Section 401(a)(17) of the Code.
SECTION 3
Payment of Benefits
3.1 The Company shall pay to each Employee to whom this Plan is
applicable, or to the surviving spouse of any such Employee,
the Excess Benefit and/or the Supplemental Benefit
determined for such Employee or surviving spouse under
Sections 1.7 and 1.11 hereof.
3.2 (a) The Excess Benefit and/or Supplemental Benefit payable
hereunder to an Employee or the Employee's surviving
spouse shall commence to be paid:
(i) on the first of the month following the
Employee's retirement, if the Employee
retires in accordance with Section 3.1, 3.2,
3.3 or 3.4 of the Pension Plan,
(ii) on Normal Retirement Date, if the Employee
becomes entitled to benefits in accordance
with Section 3.5 of the Pension Plan, or
(iii) in the case of a Benefit which becomes
payable hereunder to an Employee's surviving
spouse on account of the Employee's death
before the Employee has received any Benefit
payment hereunder, on the earliest date as of
which payment of such spouse's Basic Pension
under the applicable provisions of Section 9
of the Pension Plan could commence, without
regard to any election by such spouse to
defer the commencement of payment of such
Basic Pension.
(b) The Excess and/or Supplemental Benefit payable
hereunder to the Employee shall be paid in the form of
a single life annuity, unless the Employee is married
on the date on which payment of such Benefit is to
commence under Section 3.2(a) above, in which event it
shall be paid in the same form as Option 2, as
described in Section 10.1 of the Pension Plan, with the
Employee's spouse as the beneficiary thereunder.
(c) Notwithstanding the preceding provisions of this
Section 3.2, an Employee may elect (i) to delay
commencement of his or her Excess and Supplemental
Benefits to a specified date after the date applicable
under Section 3.2(a) but not later than the Employee's
Normal Retirement Date, or (ii) in the case of any
Employee who becomes entitled to benefits in accordance
6<PAGE>
with Section 3.5 of the Pension Plan, to accelerate
commencement of his or her Excess and Supplemental
Benefits to a specified date before the date applicable
under Section 3.2(a) but not earlier than the first day
of the month immediately following his or her 55th
birthday, and/or (iii) to be paid his or her Excess and
Supplemental Benefits in any form permitted (without
regard to any requirements for spousal consent) under
the Pension Plan other than the form applicable under
Section 3.2(b).
Any such election shall be made in writing, on a form
furnished to the Employee for such purpose by the
Administrative Committee. The form shall be signed by
the Employee and delivered to the Administrative
Committee. An election under this Section 3.2(c) shall
not be effective unless received by the Administrative
Committee at least twenty-four months prior to the
Employee's retirement or other termination of
employment.
(d) If payment of Excess and/or Supplemental Benefits
commences earlier or later than payment of Pension Plan
benefits, the amount of the Excess and/or Supplemental
Benefits to be paid hereunder shall be determined as
though payment of Pension Plan benefits commenced on
the same date as payment of such Benefits commences,
except that no increase in the dollar limitation of
section 415(b)(1)(A) of the Code occurring after
payment of Pension Plan benefits commences shall be
taken into account.
(e) If Excess and/or Supplemental Benefits commence to be
paid on or after the date Pension Plan benefits
commence to be paid, the amount of Excess and/or
Supplemental Benefits to be paid hereunder shall be
determined in accordance with the following additional
rules:
(i) determine the Employee's Excess and/or
Supplemental Benefits as though such Benefits
were payable in the same form, and with the
same beneficiary, if any, as Pension Plan
benefits, and disregarding any change in
marital status occurring subsequent to the
date on which payment of Pension Plan
benefits commence,
(ii) if the Employee's Pension Plan benefits are
payable in accordance with Option 1 or 2, as
described in Section 10.1 of the Pension
Plan, divide the amount determined in (i) by
the complement of the reduction percentage
applied to Pension Plan benefits in
accordance with such Section 10.1, to convert
7<PAGE>
such amount into a benefit payable in the
form of a single life annuity, and
(iii) if payment of the Employee's Excess and/or
Supplemental Benefits is to be made in a form
other than as a single life annuity, reduce
the amount determined in (ii) by the
reduction percentage that would be applicable
under Section 10.1 of the Pension Plan to an
annuity payable thereunder to the Employee in
the same form as the form in which payment of
the Employee's Excess and/or Supplemental
Benefits is to be made hereunder and with the
same beneficiary.
If Excess and/or Supplemental Benefits commence to be
paid before Pension Plan benefits commence to be paid,
the amount of such Benefits to be paid hereunder shall
be determined as though Pension Plan benefits were
being paid at the same time and in the same form as
Excess and/or Supplemental Benefits, until such time as
Pension Plan benefits commence to be paid, at which
time the amount of Excess and/or Supplemental Benefits
thereafter to be paid hereunder shall be adjusted, in a
manner consistent with the foregoing paragraph, to the
extent necessary to reflect any difference in the form
of payment for the Employee's Pension Plan benefits and
the form of payment for his or her Excess and/or
Supplemental Benefits.
(f) In determining the amount of the Excess and/or
Supplemental Benefit payable hereunder to an Employee
or the Employee's surviving spouse, there shall be
taken into account any increase in the amount of the
pension benefit that is payable, pursuant to Section 6
or Section 9 of the Pension Plan, to the Employee or
his or her surviving spouse for the first 12 months
during which such pension benefit is payable.
(g) If, pursuant to Section 3.2(b) or (c) above, an
Employee's Excess and/or Supplemental Benefit is
otherwise required to be paid in the same form as
Option 1 or Option 2 as described in Section 10.1 of
the Pension Plan, and if the person designated by the
Employee as his or her beneficiary for purposes of such
payment form should die at any time prior to the fifth
anniversary of the date on which the Employee's
Benefits hereunder commence to be paid (the Employee's
Benefit Starting Date"), the Benefit amounts payable to
the Employee hereunder after the date of such
beneficiary's death shall be equal to the Benefit
amounts that would have been payable to the Employee
hereunder after such date if such Benefit amounts had
been payable to the Employee, from his or her Benefit
Starting Date, in the form of a single life annuity.
8<PAGE>
(h) Notwithstanding any other provision of the Plan to the
contrary or any other optional form of distribution
otherwise elected or provided for hereunder, each
Employee shall be permitted to make a special
distribution election to have his or her Excess and/or
Supplemental Benefit distributed in the form of a
single lump sum payment in the event of the Employee's
termination of employment (1) by the Company (A) within
twelve (12) months prior to a Change in Control or (B)
prior to a Change in Control but which the Employee
reasonably demonstrates (i) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control or (ii)
otherwise arose in connection with, or in anticipation
of a Change in Control which has been threatened or
proposed and which actually occurs, or (2) for any
reason within the two (2) year period following a
Change in Control; provided, however, that such
election shall be effective only if it is made either
(I) at least twenty-four (24) months prior to such
termination of the Employee's employment, or (II) if
such termination of employment constitutes an
"Involuntary Termination" as defined below, at least
one year prior to such Change in Control. Any special
election made hereunder may be revoked, and a new
special election may be made at any time; provided,
however, that any such revocation or new election shall
be effective only if it is made within the election
period specified in clause (I) or (II) of the preceding
sentence. Any special election, or revocation of a
special election, that may be made hereunder shall be
made in the manner set forth in Section 3.2(c). The
lump sum payment to be made hereunder to an Employee
shall be in an amount that is Actuarially Equivalent
(as defined in the Pension Plan and determined as of
first day of the month following the the date of the
Employee's termination of employment or, if later, the
date on which the Change in Control occurs) to the
Excess and/or Supplemental Benefit that otherwise would
be payable hereunder to the Employee if (x) payment of
the Employee's Excess and/or Supplemental Benefit and
the benefits payable to the Employee under the Pension
Plan were to commence on the Employee's Normal
Retirement Date (as defined in the Pension Plan) or, if
earlier, on the earliest date as of which the Employee
could elect to have payment of his or her benefits
under the Pension Plan commence, (y) the Employee's
Excess and/or Supplemental Benefit were payable in the
form of a single life annuity, and (z) the Employee's
benefits under the Pension Plan were payable either (1)
in the same form as Option 2 as described in Section
10.1 of the Pension Plan with the Employee's spouse as
the beneficiary thereunder, if the Employee is married
on the date of his or her termination of employment, or
9<PAGE>
(2) in the form of a single life annuity, if the
Employee is not married on such date. The lump sum
payment to be made hereunder to the surviving spouse of
an Employee shall be in an amount that is Actuarially
Equivalent (as defined in the Pension Plan and
determined as of the date of the Employee's death) to
the Excess and/or Supplemental Benefit that otherwise
would be payable hereunder to such spouse by reason of
the Employee's death.
The lump sum payment to be made hereunder with respect
to any Employee shall be made by no later than thirty
(30) days following the date of the Employee's
termination of employment or, if the Employee's
employment terminates prior to the Change in Control,
thirty (30) days after the date on which the Change in
Control occurs; provided, however, that if any payment
with respect to the Employee's Excess and/or
Supplemental Benefit would have been made on any date
prior to the Change in Control pursuant to the other
provisions of this Section 3.2 if the Participant had
not made a special election under this Section 3.2(h),
such payment shall be made on such prior date
notwithstanding the Participant's special election
hereunder and, in such case, the payment otherwise
required to be made pursuant to the Participant's
special election hereunder shall be reduced by the
actuarial value of all such prior payments.
For purposes of this Section 3.2(h), an "Involuntary
Termination" shall mean the termination of an
Employee's employment (A) as a result of the Employee's
death, (B) by the Company, for any reason, or (C) by
the Employee, for "Good Reason" as defined below.
For purposes of the paragraph above, "Good Reason"
shall mean the occurrence after a Change in Control of
any of the following events or conditions:
(A) a change in the Employee's status, title, position
or responsibilities (including reporting
responsibilities) which, in the Employee's
reasonable judgement, represents an adverse change
from his or her status, title, position or
responsibilities as in effect immediately prior
thereto; the assignment to the Employee of any
duties or responsibilities which, in the
Employee's reasonable judgement, are inconsistent
with his or her status, title, position or
responsibilities; or any removal of the Employee
from or failure to reappoint or reelect him or her
to any of such offices or positions, other than in
connection with the termination of his or her
employment for disability, for cause, or by the
Employee other than for Good Reason;
10<PAGE>
(B) a reduction in the Employee's annual base salary
below the rate of the Employee's annual base
salary in effect as of the date of the Change in
Control or, if greater, at any time thereafter,
determined without regard to any salary reduction
or deferred compensation elections made by the
Employee;
(C) the relocation of the offices of the Company at
which the Employee is principally employed to a
location more than twenty-five (25) miles from the
location of such offices immediately prior to the
Change in Control, or the Company's requiring the
Employee to be based anywhere other than such
offices, except to the extent the Employee was not
previously assigned to a principal location and
except for required travel on the Company's
business to an extent substantially consistent
with the Employee's business travel obligations at
the time of the Change in Control;
(D) the failure by the Company to pay to the Employee
any amount of the Employee's current compensation,
or any amount payable under any deferred
compensation program of the Company in which the
Employee participated, within seven (7) days of
the date on which payment of such amount is due;
or
(E) the failure by the Company to (1) continue in
effect (without reduction in benefit level, and/or
reward opportunities) any material compensation or
employee benefit plan in which the Employee was
participating immediately prior to the Change in
Control unless a substitute or replacement plan
has been implemented which provides substantially
identical compensation or benefits to the Employee
or (2) provide the Employee with compensation and
benefits, in the aggregate, at least equal (in
terms of benefit levels and/or reward
opportunities) to those provided for under all
other compensation or employee benefit plans,
programs and practices in which the Employee was
participating immediately prior to the Change in
Control.
Any event or condition described in subparagraph (A)
through (E) above which occurs (1) within twelve (12)
months prior to a Change in Control or (2) prior to a
Change in Control but which (x) was at the request of a
third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in
Control and who effectuates a Change in Control, or (y)
otherwise arose in connection with, or in anticipation
of, a Change in Control which has been threatened or
11<PAGE>
proposed and which actually occurs, shall constitute
Good Reason for purposes of this Section 3.2(h)
notwithstanding that it occurred prior to a Change in
Control.
3.3 Each Employee entitled to benefits under the Plan shall have
the status of a mere unsecured creditor of the Company. The
Plan shall constitute a mere promise by the Company to make
payments in the future of the benefits provided for herein.
It is intended that the arrangements reflected in this Plan
be treated as unfunded for tax purposes and for purposes of
Title I of ERISA.
3.4 An Employee's rights to benefit payments under this Plan
shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by creditors of the Employee or
his or her spouse or other beneficiary.
SECTION 4
Administration
4.1 The Plan shall be administered by an Administrative
Committee. The Administrative Committee shall consist of
such persons as the Company from time to time may appoint to
serve thereon. Action to appoint or remove members of the
Committee may be taken by the Company either by resolution
duly adopted by its Board of Directors, or by an instrument
in writing executed by an officer of the Company to whom
authority to appoint or remove members of the Committee has
been delegated pursuant to a resolution duly adopted by the
Company's Board of Directors.
4.2 The Administrative Committee shall have the power to
interpret the Plan, to decide all questions that may arise
as to the construction or application of any of its
provisions, and make all determinations as to the rights of
Employees or other persons to benefits under the Plan. Any
determination made by the Administrative Committee prior to
a Change in Control as to the interpretation, construction
or application of the Plan, or as to the rights of any
Employee or other persons to benefits under the Plan, shall
be conclusive and binding on all parties. Any such
determination made by the Administrative Committee after the
occurrence of a Change in Control that denies, in whole or
in part, any claim made by any individual for benefits
hereunder shall be subject to judicial review, under a "de
novo", rather than a deferential, standard.
4.3 Each member of the Administrative Committee shall be
indemnified and held harmless by the Company for any
liability or loss (including legal fees or other expenses of
litigation) arising out of or in connection with his or her
12<PAGE>
services to the Plan in such capacity, to the extent that
such liability or loss (a) is not insured against under any
applicable policy of insurance (whether or not maintained by
the Company) and (b) is not determined to be due to the
gross negligence or willful misconduct of such member or
other person.
SECTION 5
Amendment and Termination
5.1 Subject to Section 5.3, the Company may amend the Plan at
any time. Any such amendment may be made with retroactive
effect to the extent not prohibited by law.
Action to amend the Plan may be taken by the Company either
by resolution duly adopted by the Company's Board of
Directors, or by an instrument in writing executed by an
officer of the Company to whom authority to adopt or approve
amendments to the Plan has been delegated pursuant to a
resolution duly adopted by the Company's Board of Directors.
5.2 Subject to the provisions of Section 5.3, the Plan may be
terminated at any time by the Board of Directors.
5.3 Notwithstanding the provisions of Sections 5.1 and 5.2, (a)
no amendment to or termination of the Plan shall impair any
rights to benefits which have accrued hereunder and (b) no
amendment to Section 3.2(h), Section 4.2 or to this Section
5.3, nor any termination of the Plan, effectuated (i) at the
request of a third party who has indicated an intention or
taken steps to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6) months
prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or (iii)
following a Change in Control, shall be effective if the
amendment or termination adversely affects the rights of any
Employee under the Plan.
13<PAGE>
Exhibit C-197
ANNUAL PERFORMANCE AWARD (APA) PLAN
OF GPU INTERNATIONAL, INC.
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 6, 1997)
1. Purpose
The purpose of the Annual Performance Award Plan of GPU
International, Inc. (the "Plan") is to attract and retain
highly qualified Employees, to obtain from each the best
possible performance, and to underscore the importance of
teamwork in the achievement of annual strategic goals.
2. Definitions
For the purpose of the Plan, the following terms shall have
the following meanings:
A. Awards. Annual Performance Awards made pursuant to the
Plan.
B. Base Salary. Salary as of 12/31/xx of the Performance
Period.
C. Board. The Board of Directors of GPU International,
Inc.
D. Change in Control. A "Change in Control" shall mean
the occurrence of:
(1) An acquisition (other than directly from GPU)
of any common stock of GPU ("Common Stock") or other
voting securities of GPU entitled to vote generally for
the election of directors (the "Voting Securities") by
any "Person" (as the term person is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent
(20%) or more of the then outstanding shares of Common
Stock or the combined voting power of GPU's then
outstanding Voting Securities; provided, however, in
determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control
Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in
Control. A "Non-Control Acquisition" shall mean an
acquisition by (A) an employee benefit plan (or a trust
forming a part thereof) maintained by (i) GPU or (ii)
any corporation or other Person of which a majority of
its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by<PAGE>
GPU (for purposes of this definition, a "Subsidiary"),
(B) GPU or its Subsidiaries, or (C) any Person in
connection with a "Non-Control Transaction" (as
hereinafter defined);
(2) The individuals who, as of August 1, 1996,
are members of the GPU Board of Directors (the
"Incumbent Board"), cease for any reason to constitute
at least seventy percent (70%) of the members of the
GPU Board of Directors; provided, however, that if the
election, or nomination for election by GPU's
shareholders, of any new director was approved by a
vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Plan, be
considered as a member of the Incumbent Board; provided
further, however, that no individual shall be
considered a member of the Incumbent Board if such
individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange
Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other
than the Board (a "Proxy Contest") including by reason
of any agreement intended to avoid or settle any
Election Contest or Proxy Contest; or
(3) The consummation of:
(A) A merger, consolidation or
reorganization with or into GPU or in which securities
of GPU are issued, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-
Control Transaction" shall mean a merger, consolidation
or reorganization with or into GPU or in which
securities of GPU are issued where:
(i) the shareholders of GPU,
immediately before such merger, consolidation or
reorganization, own directly or indirectly immediately
following such merger, consolidation or reorganization,
at least sixty percent (60%) of the combined voting
power of the outstanding voting securities of the
corporation resulting from such merger or consolidation
or reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of
the Voting Securities immediately before such merger,
consolidation or reorganization,
(ii) the individuals who were
members of the Incumbent Board immediately prior to the
execution of the agreement providing for such merger,
consolidation or reorganization constitute at least
seventy percent (70%) of the members of the board of
directors of the Surviving Corporation, or a
corporation, directly or indirectly, beneficially
2<PAGE>
owning a majority of the Voting Securities of the
Surviving Corporation, and
(iii) no Person other than (w) GPU,
(x) any Subsidiary, (y) any employee benefit plan (or
any trust forming a part thereof) that, immediately
prior to such merger, consolidation or reorganization,
was maintained by GPU or any Subsidiary, or (z) any
Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial
Ownership of twenty percent (20%) or more of the then
outstanding Voting Securities or common stock of GPU,
has Beneficial Ownership of twenty percent (20%) or
more of the combined voting power of the Surviving
Corporation's then outstanding voting securities or its
common stock.
(B) A complete liquidation or dissolution of
GPU; or
(C) The sale or other disposition of all or
substantially all of the assets of GPU to any Person
(other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control
shall not be deemed to occur solely because any Person
(the "Subject Person") acquired Beneficial Ownership of
more than the permitted amount of the then outstanding
Common Stock or Voting Securities as a result of the
acquisition of Common Stock or Voting Securities by GPU
which, by reducing the number of shares of Common Stock
or Voting Securities then outstanding, increases the
proportional number of shares Beneficially Owned by the
Subject Persons, provided that if a Change in Control
would occur (but for the operation of this sentence) as
a result of the acquisition of shares of Common Stock
or Voting Securities by GPU, and after such share
acquisition by GPU, the Subject Person becomes the
Beneficial Owner of any additional shares of Common
Stock or Voting Securities which increases the
percentage of the then outstanding shares of Common
Stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
E. Company. GPU International, Inc.
F. Employee. A regular, full-time employee of the
Company, who is on the active salaried payroll of the
Company at any time during the Performance Period for
which an Award is made. At the discretion of the
President, employees of the Company s affiliate
companies, GPU Power, Inc. and GPU Electric, Inc. and
their subsidiaries.
3<PAGE>
G. GPU. GPU, Inc.
H. Performance Period. The calendar year.
I. President. The President of the Company.
3. Effective Date
The effective date of the Plan is January 1, 1988, as
amended January 1, 1996, August 1, 1996, November 1, 1996
and _________, 1997.
4. Eligibility for Awards
A. The President shall be eligible to receive an Award for
each Performance Period.
B. The President shall determine the Employees (other than
the President), if any, who are eligible to receive
Awards for each Performance Period.
C. The President may include, among Employees eligible to
receive Awards for a Performance Period, Employees
whose employment terminated (whether by reason of
retirement, death, disability or other cause) during
such Performance Period, subject to the concurrence of
the Board.
5. Determination of Amounts of Awards
A. Individual and Company Awards with respect to each
Performance Period will be determined as set forth
below.
B. Award amounts will be based on the following Tables:
Table 1
Performance Weighting
Target
Organization Level Company Individual Percentage
Award
President 100% 0% 45%
Exec. VP, Development VP 70% 30% 25%
Controller, Other VPs, 50% 50% 20%
Gen. Mgrs.
Group Directors 50% 50% 15%
Business Development 50% 50% 15%
Managers
Other Professionals 50% 50% 10%
(Ops, Acctg, Admin)
Clerical 50% 50% 5%
4<PAGE>
Table 2
Company
Performance Points Award Percentage
<40 0%
41 - 200 x%
(where x=Company Performance
Points)
>200 200%
Table 3
Employee
Performance Award
Rating Performance Definitions Percentage
0 Employee has made no 0%
contribution to the Company
1- Employee has made a minimal 0%
contribution to the Company
1 Employee has made minimal 25%
contribution but is making
an effort to improve
1+ Employee has made some 50%
contribution to the Company
but has fallen short of
expectations
2- Employee has met most job 75%
expectations but has fallen
short in some areas
2 Employee has met job 100%
expectations
2+ Employee has met all job 115%
expectations and has exceeded
expectations in some areas
3- Employee has met all job 130%
expectations and has exceeded
expectation in key performance
areas
3 Employee has exceeded job 150%
expectations in most
performance areas
3+ Employee has exceeded job 165%
expectations in most
performance areas and has
taken over significant additional
responsibility during the year
4- Employee has exceeded job 180%
expectations in all
performance areas including
new responsibilities assumed
during the year
5<PAGE>
4 Employee has exceeded job 200%
expectations in all performance
areas including new responsibilities
assumed during the year and made
significant contribution to a
special project
C. The procedure to calculate an Employee's Award for a
Performance Period shall be as follows:
(i) At, or as soon as practicable after, the end
of the Performance Period, the Board will
determine the Company's Performance Points
for such period under Table 2. The Board
shall base such determination on the extent
to which the Company has achieved the
performance goals that the Board has set for
the Performance Period in question.
(ii) The Employee's Performance Rating under Table
3 for the Performance Period will be
determined by his/her immediate supervisor,
subject to the approval of the President and
review by the Board.
(iii) Two separate calculations are made--the first
relating to the Company's performance and the
second relating to the Employee's
performance:
(x) Company's Performance
The Employee's Base Salary for the
Performance Period is multiplied by the
applicable Award Percentage in Table 2
corresponding to the Company's
Performance Points under such Table. The
result of this calculation is then
multiplied by the Performance Weighting
of the Company as indicated in Table 1.
(y) Employee's Performance
The Employee's Base Salary for the
Performance Period is multiplied by the
applicable Award Percentage in Table 3
for such Employee for the Performance
Period. The result of this calculation
is then multiplied by the Performance
Weighting of the Individual in Table 1.
(iv) The amount of the Award for the Employee for
the Performance Period shall be the sum of
the amounts determined in (iii)(x) and
(iii)(y) above, multiplied by the applicable
6<PAGE>
Target Percentage Award of the individual as
indicated in Table 1 rounded to the nearest
hundred dollars.
D. No Award shall be made for any Performance Period
unless the Company is awarded at least 41 Company
Performance Points by the Board under Table 2 for such
period.
E. Notwithstanding the foregoing or any other provision
herein to the contrary, if a Change in Control occurs,
then in respect of the Performance Period in which the
Change in Control occurs (and in respect of the
previous Performance Period if the Change in Control
occurs prior to the time the Award, if any, for such
Performance Period has been paid to the President), the
following provisions shall apply with respect to the
Award payable to the President for such period:
(i) The Company's Performance Points under Table
2 for such Performance Period shall be deemed
to be 200;
(ii) The Target Percentage Award under Table 1
with regard to the President shall be
increased by 20% for such Performance Period;
(iii) The President shall be entitled to receive an
Award for such Performance Period without
regard to any requirement hereunder for any
person's approval or concurrence; and
(iv) In the event the President is terminated by
the Company without "Cause" (as defined
below) during the Performance Period in which
a Change in Control occurs, the amount of the
Award to be made to the President in respect
of that Performance Period shall be the
amount determined pursuant to Sections 5.D(i)
through (iii) multiplied by a fraction, the
numerator of which is the number of days that
have elapsed since the end of the immediately
preceding Performance Period through the date
of termination and the denominator of which
is 365.
A termination is for Cause if the President
is convicted of a felony or where the
President (1) intentionally and continually
failed substantially to perform his
reasonably assigned duties with the Company
(other than a failure resulting from the
President's incapacity due to physical or
mental illness) which failure continued for a
period of at least thirty (30) days after a
7<PAGE>
written notice of demand for substantial
performance, signed by a duly authorized
officer, has been delivered to the President
specifying the manner in which he has failed
substantially to perform, or (2)
intentionally engaged in conduct which is
demonstrably and materially injurious to the
Company. No act, nor failure to act, on the
President's part, shall be considered
"intentional" unless he has acted, or failed
to act, with a lack of good faith and with a
lack of reasonable belief that the
President's action or failure to act was in
the best interest of the Company.
6. Approval of Awards
All Awards under the Plan for any Performance Period are
subject to the approval of the Board, except that the
President's Award shall be subject to the approval of the
Chairman of the Board and subject to the concurrence of the
GPU Board of Directors.
7. Form of Awards
Awards under the Plan shall be paid in cash.
8. Payment of Awards
Unless it has been deferred under a plan of deferred
compensation maintained by the Company, an Award shall be
paid as soon as practicable after the close of the
Performance Period to which it relates, but in any event by
no later than 60 days after the close of such period;
provided, however, that if the President is entitled to a
prorated Award pursuant to Section 5.D(iv), such prorated
Award shall be paid within twenty (20) days after the
President's date of termination.
9. Special Awards and Other Plans
Nothing contained in the Plan shall prohibit the Company
from granting special performance or recognition awards
under such conditions, and in such form and manner, as it
sees fit, or from establishing other incentive compensation
plans providing for the payment of incentive compensation to
Employees.
10. Amendment and Interpretation of the Plan
A. The Board shall have the right to amend, modify,
suspend or terminate the Plan at any time or from time
to time; provided, however, that no amendment or
termination of the Plan shall reduce or otherwise
affect an Award already made hereunder without the
8<PAGE>
consent of the Employee affected; provided further,
however, that Section 2.C, Section 5.D, Section 8,
Section 9.B and this Section 10 may not be amended or
modified, and the Plan may not be suspended or
terminated, (i) at the request of a third party who has
indicated an intention or taken steps reasonably
calculated to effect a Change in Control and who
effectuates a Change in Control, (ii) within six (6)
months prior to, or otherwise in connection with, or in
anticipation of, a Change in Control which has been
threatened or proposed and which actually occurs, or
(iii) following a Change in Control, if the amendment,
modification, suspension or termination adversely
affects the rights of the President under the Plan.
B. The decision of the Board with respect to any questions
arising in connection with the administration or
interpretation of the Plan shall be final, conclusive
and binding.
11. Miscellaneous
A. All expenses and costs in connection with the operation
of the Plan shall be borne by the Company.
B. All Awards under the Plan are subject to withholding,
where applicable, for federal, state and local taxes.
C. The participation of any Employee in the Plan may be
terminated at any time. No promise or representation,
either express or implied, is made to any Employee with
respect to continued employment, transfer or promotion
because of his/her participation in the Plan, and the
employment of an Employee participating in the Plan may
be terminated at any time.
D. Each Employee who becomes entitled to receive an Award
from the Plan shall have the status of a general
unsecured creditor of the Company. The Plan shall
constitute a mere promise by the Company to make
payments in the future of the Awards provided for
herein. It is the intention of the Company that the
arrangements reflected in this Plan be treated as
unfunded for tax purposes and, if it should be
determined that Title 1 of ERISA is applicable to such
arrangements, for purposes of Title 1 of ERISA.
E. An Employee's rights to payments under the Plan shall
not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance, attachment or garnishment by creditors of
the Employee or the Employee's beneficiary.
9<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, GPU, Inc. ("GPU") and certain of its
subsidiaries have entered into the Agreement of GPU, Inc. and its
Subsidiaries related to Consolidated Federal Income Tax Returns,
dated May 26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST GPU Power Philippines, Inc.
By:/s/ W. S. Greengrove /s/ B. L. Levy
September 11, 1995
1<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, GPU, Inc. ("GPU") and certain of its
subsidiaries have entered into the Agreement of GPU, Inc. and its
Subsidiaries related to Consolidated Federal Income Tax Returns,
dated May 26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST Victoria Electric
Holdings, Inc.
By:/s/ W. S. Greengrove /s/ B. L. Levy
June 17, 1996
2<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, GPU, Inc. ("GPU") and certain of its
subsidiaries have entered into the Agreement of GPU, Inc. and its
Subsidiaries related to Consolidated Federal Income Tax Returns,
dated May 26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST EI UK Holdings, Inc.
By:/s/ W. S. Greengrove /s/ B. L. Levy
April 13, 1996
3<PAGE>
Exhibit D-1
Amendment to Agreement of
GPU, Inc. and Its Subsidiaries
Related to Consolidated Federal Income Tax Returns
Dated May 26, 1983
WHEREAS, GPU, Inc. ("GPU") and certain of its
subsidiaries have entered into the Agreement of GPU, Inc. and its
Subsidiaries related to Consolidated Federal Income Tax Returns,
dated May 26, 1983 ("Tax Allocation Agreement");
WHEREAS, subsequent to the execution of the Tax
Allocation Agreement, additional GPU subsidiary corporations have
been organized; and
WHEREAS, it is appropriate and desirable that such
additional subsidiaries formally become parties to the Tax
Allocation Agreement to evidence their agreement to the
allocation of consolidated federal income taxes as therein
provided.
NOW THEREFORE, in consideration of the provisions, and
other good and valuable consideration, receipt of which is hereby
acknowledged, the undersigned has hereby executed the Tax
Allocation Agreement as of the date indicated below:
ATTEST GPUI Lake Holdings, Inc.
By:/s/ W. S. Greengrove /s/ B. L. Levy
December 30, 1996
4<PAGE>
Exhibit E-1
VENTURE DISCLOSURES
Licensing of Computer Programs
to Nonassociated Companies
Pursuant to the provisions contained in the Securities and Exchange
Commission's (SEC) Order dated August 29, 1990 for SEC File No. 70-7675,
neither Jersey Central Power & Light Company, Metropolitan Edison Company nor
Pennsylvania Electric Company entered into any transactions nor recognized any
revenues during the calendar year 1996 for activity related to the licensing
of computer programs to nonassociated companies.
-1-<PAGE>
Exhibit E-2
VENTURE DISCLOSURES
Fiber Optic System Lease Agreements
with Nonassociated Companies
Pursuant to the provisions contained in the Securities and Exchange
Commission's (SEC) Order dated August 2, 1994 for SEC File No. 70-7850, the
following activity is reported thereunder related to the leasing of fiber
optic cable capacity to nonassociated companies:
Lease Agreement with MCI
(1) GPU Service, Inc. (GPUS), individually and as agent for Jersey Central
Power & Light Company (JCP&L) and Metropolitan Edison Company (Met-Ed),
entered into a agreement to lease some portion of reserve fiber optic
cable capacity to MCI Telecommunications Corporation, 1133 19th Street,
N.W., Washington D.C. 20036
(2) The initial term of the lease agreement with MCI is for a period of 3
1/2 years. On September 23, 1994, the initial term of this agreement
was extended through October 31, 1997.
(3) During 1996, JCP&L and Met-Ed's cumulative revenues and expenses related
to the leasing of fiber optic cable capacity were as follows:
(In Thousands)
Revenues Expenses
JCP&L $ 289 $ 31
Met-Ed 644 81
Total $ 933 $ 112
<PAGE>
-1-<PAGE>
Exhibit E-3
VENTURE DISCLOSURES
Services to Non-Affiliated Utilities
Pursuant to the provisions contained in the Securities and Exchange
Commission's (SEC) Order dated November 5, 1996 for SEC File No. 70-8805,
neither Jersey Central Power & Light Company, Metropolitan Edison Company nor
Pennsylvania Electric Company entered into any transactions nor recognized any
revenues during the calendar year 1996 for services provided to non-affiliated
utilities.
-1-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS Exhibit F-1
Part III.
The following pages consist of disclosures made in GPU, Inc.'s 1997 Proxy
Statement as well as disclosures made in GPU, Inc.'s 1996 Annual Report on
Form 10-K.
GPU, Inc.
Security Ownership of Certain Beneficial Owners and Management
The following table sets forth, as of February 3, 1997, the beneficial
ownership of equity securities (and stock-equivalent restricted units) of the
GPU Companies of each of the GPU directors, nominees for director and each of
the executive officers named in the Summary Compensation Table, and of all
directors and executive officers of GPU as a group. The shares of Common
Stock owned by all directors and executive officers as a group constitute less
than 1% of the total shares outstanding. No person to the knowledge of the
Corporation held beneficially 5% or more of the Corporation s outstanding
Common Stock on such date.
<TABLE>
Amount and Nature of Beneficial Ownership
Shares(1) Stock-Equivalent
Name Title of Security Direct Indirect Restricted Units(2)
<CAPTION>
<S> <C> <C> <C> <C>
Dennis Baldassari GPU Common Stock 1,081 10,839
Theodore H. Black GPU Common Stock 7,798
Fred D. Hafer GPU Common Stock 5,035 131 11,378
Thomas B. Hagen GPU Common Stock 10,041
Henry F. Henderson, Jr. GPU Common Stock 3,244 1,200
Ira H. Jolles GPU Common Stock 5,589 13,305
James R. Leva GPU Common Stock 4,450 100 44,905
Bruce L. Levy GPU Common Stock 1,349 6,995
John M. Pietruski GPU Common Stock 4,300
Catherine A. Rein GPU Common Stock 2,989
Paul R. Roedel GPU Common Stock 2,900
Bryan S. Townsend GPU Common Stock 604
Carlisle A. H. Trost GPU Common Stock 2,541
Patricia K. Woolf GPU Common Stock 3,624
All GPU Directors and
Executive Officers
as a Group GPU Common Stock 70,527 8,568 145,086
(1) The number of shares owned and the nature of such ownership, not being within the
knowledge of GPU, have been furnished by each individual.
(2) Restricted units, which do not have voting rights, represent rights (subject to
vesting) to receive shares of Common Stock under the 1990 Stock Plan for
Employees of GPU and Subsidiaries (the 1990 Stock Plan ). See Summary
Compensation Table on page 7 of this exhibit.
</TABLE>
-1-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Remuneration of Executive Officers
PERSONNEL, COMPENSATION AND NOMINATING COMMITTEE REPORT
The executive compensation program at GPU was modified in 1996 as a
continuation of efforts begun in 1995 to strengthen the link between executive
compensation and shareholder value. The overall program consists of three
interrelated programs - the Base Salary Program, the Incentive Compensation
Program and the 1990 Stock Plan. Modifications made in 1996 increased the
emphasis on portions of the overall program most directly linked to business
results and shareholder value.
Compensation Philosophy and Market Comparisons
Executive compensation programs continue to reflect the Corporation s
philosophy that increasing shareholder value requires the ability to attract
and retain high caliber executives and to reward them for the achievement of
business objectives. The program is designed to provide levels of
compensation that vary both with the achievement of business results and the
contribution of the individual executive to that achievement.
Executive pay levels are paid at the median or 50th percentile of the
competitive market when business results are at targeted levels. Actual pay
levels may vary from the median in any given year or for any individual
executive based on actual business results and executive performance.
In order to ensure an objective analysis, GPU is assisted by a major
compensation consulting firm in determining median competitive levels.
Comparisons are made with other companies with positions similar to those at
GPU and employing executives with comparable skills and experience. These
companies are primarily other large electric utilities, including the
companies in the S&P Electric Utility Index shown on page 10 of this exhibit.
Because GPU competes in a wider market for executive talent, however, other
companies, not included in the Index, are also considered.
Under Section 162(m) of the Internal Revenue Code of 1986, the amount
allowable as a tax deduction for compensation paid to the chief executive
officer and each of the four other highest paid officers of any publicly held
corporation generally is limited to $1 million per year for each such officer.
Although the Committee considers the effect of Section 162(m) in connection
with the Corporation s executive compensation programs, the Committee
considers it important to retain the flexibility to design compensation
programs that it believes are in the best interests of GPU and its
stockholders, even though the expense may not be fully deductible.
-2-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Base Salary Program
The Base Salary Program is designed to provide a range of salary
opportunities for each position with the middle of the range approximating the
market median for that position. Individual salaries within the established
range are determined based on the incumbent s performance, experience and
contribution. Each year the Board reviews executive salaries and considers
market data, individual performance and the Corporation s financial resources
in determining if salary increases are appropriate. Prior to 1995, this
process, which involves subjective judgment, usually resulted in approval of
merit salary increases for most executives.
In 1995 the Board embarked on a two-year program to eliminate normal
merit salary increases in favor of increased incentive compensation
opportunities. As part of this effort, neither Mr. Leva nor any of the named
executives received normal salary increases in 1996, although market data and
the assessment of individual performance would, in the opinion of the Board,
have justified such increases. Salary adjustments were granted to Mr. Hafer
and Mr. Baldassari to reflect the increased responsibilities they assumed as
part of the reorganization of GPU and the need to provide an orderly
transition upon Mr. Leva s retirement. Mr. Levy also received a salary
adjustment to reflect increased responsibilities resulting from the expansion
of the activities of GPU International.
In lieu of the normal salary increases which would otherwise have been
granted, the Board increased the opportunity for executives to earn incentive
compensation but only to the extent that targeted business results were
achieved.
Incentive Compensation Program
The Incentive Compensation Program, as indicated above, was modified in
1995 and 1996. The program is designed to provide executives with the
opportunity to earn additional compensation if business objectives are
achieved. Targeted levels of annual incentive compensation, which approximate
the market median, were again increased in 1996 to offset the elimination of
normal base salary increases.
For named executives other than Mr. Leva and Mr. Hafer, actual awards of
incentive compensation are based on the business results achieved by the GPU
Company to which the executive is assigned, the achievement of GPU s return on
equity objective, and the Board s assessment of the individual executive s
contribution. The Board uses subjective judgment in assessing individual
contribution.
Established objectives for GPU Energy were earnings (50%), management of
the capital expenditures budget (20%), all in price to customers per kilowatt-
hour sold (20%) and efforts to respond to the changing industry by
renegotiating non-utility generating (NUG) contracts and process improvement
-3-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
efforts (10%). For GPU International, objectives were net income (50%),
operational performance of existing facilities (25%), pursuit of new business
(15%) and organizational development efforts (10%). Objectives for the
corporate functions of GPU Service were system-wide budget management (40%),
efforts to position the Corporation for the future (30%) and efforts to
position the Corporation with regard to energy supply (30%).
Business objectives used to determine the 1996 incentive compensation
awards for Mr. Leva and Mr. Hafer were return on equity (40%), nuclear safety
(20%), efforts to position the Corporation for the changing and increasingly
competitive industry (20%) and future positioning of the Corporation with
regard to energy supply (20%). Some of these factors also are used in
determining incentive compensation for other named executives. The weightings
on these factors are different, however, reflecting Mr. Leva s and Mr. Hafer s
broader responsibility for the Corporation.
Achievement of 1996 Objectives
The Corporation s return on equity objective was exceeded in 1996 and,
in addition, each of the subsidiary companies exceeded its specific
objectives. At GPU Energy, the earnings objective was slightly below target
as was the all in price objective. Management of the capital expenditure
budget was significantly better than targeted and the achievements in managing
NUG contracts and process improvement efforts were also higher than expected.
GPU International achieved its organizational development goal and
exceeded each of its other objectives. For corporate functions at GPU
Service, each of the targeted objectives was significantly exceeded.
Award for Mr. Leva
Actual results for 1996 were above targeted levels for most of the
factors used to determine Mr. Leva s award, although the nuclear safety
objective was not fully achieved. As noted above, the Corporation s return on
equity objective was exceeded, reflecting an enhanced revenue stream and the
results of restructuring and cost reduction efforts.
Efforts to position GPU for an increasingly competitive and unregulated
industry were assessed as exceeding expectations. A major accomplishment in
maximizing the new opportunities and preparing for the future was the
acquisition of Midlands Electricity plc in the United Kingdom. Mr. Leva s
leadership was a critical factor in this acquisition which provides
opportunities for enhanced revenue and profits and, in addition, brings into
the Corporation experience and expertise in dealing with a competitive market
for electricity. Also under his leadership, GPU took a major role in efforts
to shape the regulations which will influence the Corporation s business
environment. On both the state and federal levels, GPU worked proactively to
ensure a competitive market that is fair to all customers while protecting the
interests of our shareholders.
-4-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Cultural change efforts directed by Mr. Leva included increasing the use
of incentive pay for GPU employees to link a larger portion of total pay to
the achievement of business results. In 1996, incentive pay programs were
extended to some employees who are members of bargaining units.
Efforts to position the Corporation for the future with regard to energy
supply and its costs were also assessed as exceeding expectations. In 1996,
Mr. Leva led the Corporation s successful efforts to restructure or buy out
uneconomic contracts for purchase of NUG power, resulting in significant
future cost savings. Rigorous analysis of the Corporation s current
generating facilities was continued to ensure that decisions on the future of
these facilities is based on sound economic analysis and realistic
projections.
Consistent with plan design, actual awards of incentive compensation for
1996 were above targeted levels and slightly above the competitive median
reflecting superior achievement of objectives for the year.
1990 Stock Plan
Under the terms of the 1990 Stock Plan, approved by stockholders, the
Board may use any of a number of different stock compensation vehicles based
on its judgment of which vehicles most appropriately link executive interests
to those of shareholders.
In 1996, the Board made grants of restricted performance units which
give executives the right to receive shares of GPU stock (or cash at the
discretion of the Committee) if established performance objectives are
achieved. The performance objective for the 1996 grants is GPU s total
shareholder return compared to the total return of the companies in the S&P
Electric Utility Index. The percentile ranking of GPU s total shareholder
return among the Index companies, calculated quarterly over the five-year
performance period and averaged, determines how many shares, if any, the
executive will receive at the end of the performance period.
Each executive who receives a grant is awarded a specific number of
units. Dividend equivalents are paid on these units and reinvested in
additional units. The number of units that will vest and be paid to the
executive at the end of the performance period, however, is not determined in
advance and may vary from the number initially awarded. If GPU s total return
is at the 55th percentile of the Index companies, the initially awarded number
of units (plus reinvested dividend equivalents) will vest. If total return is
higher than the 55th percentile, additional units will vest and if total
return is lower, fewer units will vest. If total return is below the 40th
percentile, no units will vest.
-5-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
The size of awards to individual executives reflects the Board s
assessment of individual performance, contribution and potential as well as
median competitive levels. The Board uses subjective judgment in determining
individual awards and the factors considered are not weighted.
Personnel, Compensation and Nominating
Committee Members
Theodore H. Black
Thomas B. Hagen
John M. Pietruski
Catherine A. Rein
Patricia K. Woolf
-6-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
<TABLE>
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation
Awards Payouts
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit LTIP Compen-
Position Year Salary Bonus sation(1) Awards(2) Payouts(3) sation
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
James R. Leva 1996 $585,000 $445,000 $ 2,510 $ - $ 81,978 $163,496(4)
Chairman and Chief 1995 585,000 333,450 1,499 - 44,131 125,032
Executive Officer, 1994 573,750 292,500 - 117,563 - 93,934
GPU, Inc.
Fred D. Hafer 1996 365,000 190,000 1,883 - 61,484 46,731(5)
President and Chief 1995 280,000 94,000 1,374 - 40,454 39,247
Operating Officer, 1994 275,250 77,000 - 39,841 - 32,935
GPU, Inc.
Ira H. Jolles 1996 331,000 120,000 2,510 - 91,087 52,673(6)
Senior Vice President 1995 331,000 116,000 1,749 - 57,207 47,388
and General Counsel, 1994 327,750 83,000 - 47,025 - 40,500
GPU, Inc.
Bruce L. Levy 1996 233,333 197,000 1,572(7) - 20,495 30,684(8)
President, GPU International, 1995 188,750 131,000 1,148(7) - 8,826 21,572
Inc., GPU Power, Inc, and 1994 177,500 60,100 754(7) 18,026 - 15,848
GPU Electric, Inc.
Dennis Baldassari 1996 305,000 110,000 812(9) - 21,724 39,697(10)
President, Jersey Central 1995 275,000 86,000 431(9) - 9,930 32,345
Power & Light Company, 1994 271,250 62,000 17(9) 39,188 - 24,837
Metropolitan Edison Company
and Pennsylvania Electric
Company (GPU Energy)
(1) Consists of earnings on Long-Term Incentive Plan ( LTIP ) compensation
paid in the year the award vests.
(2) The restricted units issued in 1995 and 1996 under the 1990 Stock Plan
are performance based. The 1996 awards are shown in Long-Term
Incentive Plans - Awards in Last Fiscal Year table (the LTIP table ).
Dividends are paid or accrued on the aggregate restricted stock/units
awarded under the 1990 Stock Plan and reinvested.
</TABLE>
-7-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
The aggregate number and value (based on the stock price per share at
December 31, 1996) of unvested stock-equivalent restricted units
(including reinvested dividends) includes the amounts shown on the LTIP
table, and at the end of 1996 were:
Aggregate Units Aggregate Value
James R. Leva 44,905 $1,509,931
Fred D. Hafer 11,378 382,585
Ira H. Jolles 13,305 447,381
Bruce L. Levy 6,995 235,207
Dennis Baldassari 10,839 364,461
(3) Consists of Performance Cash Incentive Awards paid on the 1990 and 1991
restricted stock awards which have vested under the 1990 Stock Plan.
These amounts are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that
are payable upon vesting of the restricted stock/unit awards.
(4) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($30,738), the benefit of interest-free use of the
non-term portion of employer paid premiums for split-dollar life
insurance ($36,423), above-market interest accrued on the retirement
portion of deferred compensation ($6,291), and earnings on LTIP
compensation not paid in the current year ($84,044).
(5) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($12,360), the benefit of interest-free use of the
non-term portion of employer paid premiums for split-dollar life
insurance ($9,188), above-market interest accrued on the retirement
portion of deferred compensation ($357), and earnings on LTIP
compensation not paid in the current year ($18,826).
(6) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($11,880), the benefit of interest-free use of the
non-term portion of employer paid premiums for split-dollar life
insurance ($12,161), above-market interest accrued on the retirement
portion of deferred compensation ($568), and earnings on LTIP
compensation not paid in the current year ($22,064).
(7) In addition to the earnings on LTIP compensation noted in (1) above,
these amounts include the above-market interest accrued on the pre-
retirement portion of deferred compensation in the amounts of $944, $848
and $754 for the years 1996, 1995 and 1994 respectively.
-8-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
(8) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($8,577), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($5,510), above-market interest accrued on the retirement portion of
deferred compensation ($69), and earnings on LTIP compensation not paid
in the current year ($10,528).
(9) In addition to the earnings on LTIP compensation noted in (1) above,
these amounts include the above-market interest accrued on the pre-
retirement portion of deferred compensation in the amounts of $147, $94
and $17 for the years 1996, 1995 and 1994 respectively.
(10) Consists of the Corporation's matching contributions under the Savings
Plan ($6,000), matching contributions under the non-qualified deferred
compensation plan ($9,640), the benefit of interest-free use of the non-
term portion of employer paid premiums for split-dollar life insurance
($5,981), above-market interest accrued on the retirement portion of
deferred compensation ($147), and earnings on LTIP compensation not paid
in the current year ($17,929).
NOTE: The split-dollar life insurance amounts reported in the "All Other
Compensation" column are equal to the present value of the interest-free use
of the current year Corporation paid premiums to the projected date the
premiums will be refunded to the Corporation.
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
Performance Estimated future payouts under
Number of or other non-stock price based plans(1)
shares, period until
units or maturation Threshold Target Maximum
Name other rights or payout (#) (#) (#)
Fred D. Hafer 2,620 5 year vesting 0 2,620 5,240
Ira H. Jolles 3,010 5 year vesting 0 3,010 6,020
Bruce L. Levy 2,720 5 year vesting 0 2,720 5,440
Dennis Baldassari 2,500 5 year vesting 0 2,500 5,000
-9-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
(1) The restricted units awarded in 1996 under the 1990 Stock Plan provide
for a performance adjustment to the aggregate number of units vesting
for the recipient, including the accumulated reinvested dividends, based
on the annualized GPU Total Shareholder Return (TSR) percentile ranking
against all companies in the Standard & Poor's Electric Utility Index
for the period between the award and vesting dates. With a 55th
percentile ranking, the performance adjustment would be 100% as
reflected in the Target column. In the event that the percentile
ranking is below the 55th percentile, the performance adjustment would
be reduced in steps reaching 0% at the 39th percentile as reflected in
the Threshold column. Should the TSR percentile ranking exceed the
59th percentile, then the performance adjustment would be increased in
steps reaching 200% at the 90th percentile as reflected in the Maximum
column. Under the 1990 Stock Plan, regular quarterly dividends are
reinvested in additional units that are subject to the vesting
restrictions of the award. Actual payouts under the Plan would be based
on the aggregate number of units awarded and the units accumulated
through dividend reinvestment at the time the restrictions lapse.
Comparison of Five Year Cumulative Total Return*
GPU, S&P 500 Index and S&P Electric Utility Index
($)
Amount
Invested
1/1/92 1992 1993 1994 1995 1996
GPU 100 108 127 115 159 166
S&P 500 100 108 118 120 165 203
S&P Electric Utility 100 106 119 104 136 136
* Assumes $100 invested in GPU Common Stock, S&P 500 Index and S&P
Electric Utility Index. Cumulative Total Return includes
reinvestment of dividends.
Employment, Termination and Change in Control Arrangements
Severance Arrangements
The Corporation has entered into Severance Protection Agreements with
Messrs. Leva, Hafer, Jolles, Levy and Baldassari which provide certain
severance benefits to the executive if his employment is terminated following
a change in control of GPU (as defined). These agreements are intended to
induce the executives to remain in the employ of the Corporation and help
ensure that the Corporation will have the benefit of their services without
distraction in the face of a potential change in control.
<PAGE>
-10-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Under the agreements, benefits are paid if, in connection with a change
in control, the Corporation terminates the employment of the executive for
reasons other than cause or disability or death, or if the executive resigns
following certain actions (specified in the agreements) by the Corporation
such as a reduction in salary or change in position. In addition, Mr. Hafer
receives severance benefits if he resigns for any reason within six months
following a change in control.
The benefits payable to all executives other than Mr. Leva consist of,
in general, (a) the executive's base salary through the termination date and a
pro rata portion of his target incentive bonus; (b) severance compensation
equal to twice the sum of the executive's base salary and target incentive
bonus, provided that if the executive's normal retirement date is within two
years of his termination date, his benefits will be proportionately reduced;
(c) a continuation of insurance benefits for up to two years; (d)
reimbursement of certain expenses subject to specified limitations; and (e)
such additional amount as is necessary to pay any excise tax under Section
4999 of the Internal Revenue Code (and any related interest and penalties) on
amounts payable under the agreements. If Mr. Leva's employment terminates
prior to his scheduled retirement on May 31, 1997 following a change in
control, he would receive a severance payment equal to the base salary and
bonus award which he would have received had he remained employed through that
date and the payment described in (e) above.
The agreements have an initial term of two years and automatically renew
annually unless earlier terminated by the executive or GPU.
Under the Corporation s severance policy for employees, if the
employment of Messrs. Leva, Hafer, Jolles, Levy and Baldassari is
involuntarily terminated, as defined, other than in connection with a change
in control, he is entitled to receive, in general, severance compensation
equal to one week s pay for each full year of service. Premium payments will
also be made under the executive s split-dollar life insurance policy for
specified periods following the executive s termination of employment and
following a change in control of GPU.
Lump Sum Distributions
If the executive s employment terminates in connection with a change in
control, the executive may elect to receive a lump sum distribution of all
amounts payable to him under GPU System supplemental retirement and deferred
compensation plans and arrangements, including those described below for Mr.
Jolles.
Mr. Jolles
Retirement and Disability - If Mr. Jolles retires on or after his normal
retirement date (the last day of the month in which he attains age 65), he
will receive (in addition to his benefits under GPUS employee retirement
plans) a supplemental retirement pension from GPU Company sources equal to the
-11-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
additional pension he would have received under the GPUS employee retirement
plans as if he had an additional 20 years of past creditable service. If Mr.
Jolles reaches his normal retirement date while he is receiving disability
income under GPUS disability income plans, he will thereafter receive a
supplemental retirement pension from GPU Company sources equal to the
additional pension he would have been paid under GPUS employee retirement
plans as if he had an additional 20 years of past creditable service. Upon
retirement, Mr. Jolles will also receive an extension of health insurance
benefits to the later of his 62nd birthday and the third anniversary of
retirement.
Termination - (i) If Mr. Jolles' employment with the GPU Companies
terminates "involuntarily," as defined, under circumstances involving a
"change in control" of GPU, as defined, or without cause, he shall receive
from GPU Company sources a supplemental retirement pension which would have
been paid to him under GPUS employee retirement plans as if he had an
additional 20 years of past creditable service. (ii) If, however, his
employment terminates for any other reason (except upon retirement or death),
he will receive from GPU System sources a supplemental retirement pension
equal to the additional pension he would have been paid under GPUS employee
retirement plans as if he had additional years of creditable service ranging,
as of December 31, 1996, from eight and one-half years up to a maximum of 20
years depending upon his years of actual employment by GPUS at the time of
termination.
Mr. Jolles will also be entitled to receive such additional monthly
payment, if any, to ensure that the aggregate monthly pension amount otherwise
payable to him under GPUS retirement plans is not less than: (a) $10,825.75
for each month beginning after retirement and before the month beginning after
Mr. Jolles' 62nd birthday or (b) $10,325.75 for each month beginning after the
later of his retirement date and his 62nd birthday.
Death - In the event of Mr. Jolles' death before he begins receiving
benefits under GPUS employee retirement plans, his surviving spouse, if any,
shall receive such benefits during her lifetime, together with the
supplemental retirement pension benefits which would have been payable to him
as described in paragraph (ii) above.
Other - To the extent relevant to the level of benefits payable to Mr.
Jolles under other benefit plans provided for senior GPU executives, he will
be treated as having the years of creditable service as described in paragraph
(ii) above.
Benefit Protection Trusts
The Corporation has entered into benefit protection trust agreements to
be used to fund the Corporation's obligations to executive officers and
directors under deferred compensation and incentive programs and agreements,
and with respect to certain retirement and termination benefits, in the event
of a change in control. The trusts may also be used for the purpose of paying
legal expenses incurred in pursuing benefit claims under such programs and
agreements following a change in control. The trusts are currently partially
funded.
-12-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
Retirement Plans
The GPU Companies pension plans provide for pension benefits, payable
for life after retirement, based upon years of creditable service with the GPU
Companies and the employee's career average compensation as defined below.
Federal law limits the amount of an employee's pension benefits that may be
paid from a qualified trust established pursuant to a qualified pension plan
(such as the GPU Companies plans). The GPU Companies also have adopted
non-qualified plans providing that the portion of a participant's pension
benefits which, by reason of such limitations, cannot be paid from such a
qualified trust shall be paid directly on an unfunded basis by the
participant's employer.
The following table illustrates the amount of aggregate annual pension
from funded and unfunded sources resulting from employer contributions to the
qualified trust and direct payments payable upon retirement in 1997 (computed
on a single life annuity basis) to persons in specified salary and years of
service classifications:
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4) (5)
BASED UPON CAREER AVERAGE COMPENSATION
(1997 Retirement)
Career
Average
Compen- 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years 45 Years
sation(1) of Service of Service of Service of Service of Service of Service of Service of Service
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,338 $ 14,007 $ 18,676 $ 23,345 $ 28,014 $ 32,684 $ 37,085 $ 41,085
100,000 19,338 29,007 38,676 48,345 58,014 67,684 76,685 84,685
150,000 29,338 44,007 58,676 73,345 88,014 102,684 116,285 128,285
200,000 39,338 59,007 78,676 98,345 118,014 137,684 155,885 171,885
250,000 49,338 74,007 98,676 123,345 148,014 172,684 195,485 215,485
300,000 59,338 89,007 118,676 148,345 178,014 207,684 235,085 259,085
350,000 69,338 104,007 138,676 173,345 208,014 242,684 274,685 302,685
400,000 79,338 119,007 158,676 198,345 238,014 277,684 314,285 346,285
450,000 89,338 134,007 178,676 223,345 268,014 312,684 353,885 389,885
500,000 99,338 149,007 198,676 248,345 298,014 347,684 393,485 433,485
550,000 109,338 164,007 218,676 273,345 328,014 382,684 433,085 477,085
600,000 119,338 179,007 238,676 298,345 358,014 417,684 472,685 520,685
650,000 129,338 194,007 258,676 323,345 388,014 452,684 512,285 564,285
700,000 139,338 209,007 278,676 348,345 418,014 487,684 551,885 607,885
750,000 149,338 224,007 298,676 373,345 448,014 522,684 591,485 651,485
800,000 159,338 239,007 318,676 398,345 478,014 557,684 631,085 695,085
______________<PAGE>
</TABLE>
-13-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. The
career average compensation amounts for the following named executive
officers differ by more than 10% from the three year average annual
compensation set forth in the Summary Compensation Table and are as
follows: Messrs. Leva - $461,795; Hafer - $272,949; Levy - $159,435; and
Baldassari - $193,587.
(2) Years of Creditable Service at December 31, 1996: Messrs. Leva - 45
years; Hafer - 34 years; Jolles - 15 years; Levy - 12 years; and
Baldassari - 27 years.
(3) Certain of these executives have supplemental pension arrangements.
Based on assumed retirement in 1997 with current years of creditable
service, the total pension benefit amounts payable to Mr. Leva are
$609,852 ($400,382 basic pension per the above table and $209,470 under
supplemental pension agreements); and to Mr. Jolles are $129,909
($120,890 basic pension per the above table and $9,019 under a
supplemental pension agreement).
(4) Based on an assumed retirement at age 65 in 1997. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to a
surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other offset
amounts.
(5) Annual retirement benefits under the basic pension per the above table
cannot exceed 55% of the average compensation during the highest paid 36
calendar months.
Supplemental Pensions
The Corporation has adopted supplemental pension programs for Messrs.
Leva and Jolles as described below. The supplemental pension payments are not
funded, but are payable from GPU Company sources. The programs provide that
supplemental pension payments are to be increased by 20% during the first year
following retirement.
Mr. Leva will receive an annual supplemental pension equal to (a) 65% of
his final average compensation (as defined), reduced by (b) in general, the
aggregate annual pension amount payable to him under other GPUS retirement
plans. "Final average compensation" is defined as Mr. Leva's average annual
salary and bonus compensation paid for the three years prior to retirement.
Mr. Leva is retiring effective May 31, 1997. Accordingly, the supplemental
monthly pension payable to him is estimated to be $17,145. Mr. Leva will also
receive upon retirement a separate supplemental pension payment of $3,726
annually.
Mr. Jolles will receive supplemental pensions as described above. See
"Employment, Termination and Change in Control Arrangements--Mr. Jolles."
-14-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
The supplemental pension payable to Mr. Leva will be paid in the form of
a single life annuity, provided that if he is married on his retirement date,
it will be payable to him at a reduced rate, and, following his death, his
surviving spouse, if any, will receive an annuity payable for life equal to 50%
of the supplemental pension payable to him. In addition, in the event of his
death before he retires, his surviving spouse, if any, will receive an annuity
payable for life equal to 50% of the supplemental pension that would have been
payable to him had he retired on the last day of the month in which his death
occurs.
Remuneration of Directors
Non-employee directors receive an annual retainer of $20,000, a fee of
$1,000 for each Board meeting attended and a fee of $1,000 for each Committee
meeting attended. Committee Chairmen receive an additional retainer of $3,000
per year.
Retirement Plan for Outside Directors
Under the Corporation's Retirement Plan for Outside Directors
( Retirement Plan ), an individual who completes 54 months of service as a non-
employee director is entitled to receive retirement benefits equal to the
product of (A) the number of months of service completed and (B) the monthly
compensation paid to the director at the date of retirement. Retirement
benefits under this plan are payable to the directors (or, in the event of
death, to designated beneficiaries) in monthly installments of 1/12 of the sum
of (x) the then annual retainer paid at time of retirement plus (y) the cash
value of the last award under the Restricted Stock Plan for Outside Directors
per month, over a period equal to the director's service as such, unless
otherwise directed by the Personnel, Compensation and Nominating Committee,
commencing at the later of age 60 or upon retirement. As of December 31, 1996,
the following directors had at least 54 months of service:
Director Months of Service
Theodore H. Black 106
Thomas B. Hagen 87
Henry F. Henderson, Jr. 95
Paul R. Roedel 216
John M. Pietruski 95
Catherine A. Rein 95
Carlisle A. H. Trost 72
Patricia K. Woolf 161
If the proposed Deferred Stock Unit Plan for Outside Directors is
approved by stockholders at the 1997 Annual Meeting (Proposal 2), no additional
retirement benefits will be payable to Outside Directors for service after June
30, 1997. Benefits which have accrued for service up to that date, however,
will be payable in accordance with the terms and conditions of the Retirement
Plan. All directors (other than Mr. Townsend) are currently vested in the
Retirement Plan; Mr. Townsend s service following June 30, 1997 will be applied
toward the 54-month vesting requirement but will not increase the amount of his
benefits. Mr. Hagen (who had retired as a director in 1995) received benefits
-15-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
GPU
under the Retirement Plan until his re-election to the Board in March 1997.
Mr. Hagen will receive credit for additional service through June 30, 1997, and
his benefit payments will recommence upon his retirement in accordance with the
terms and conditions of the Retirement Plan.
Restricted Stock Plan for Outside Directors
Under the Corporation s Restricted Stock Plan for Outside Directors
("Directors Plan"), each director who is not an employee of the Corporation or
any of its subsidiaries ("Outside Director") is paid a portion of his or her
annual compensation in the form of 300 shares of GPU Common Stock.
A total of 40,000 shares of GPU Common Stock (subject to adjustment for
stock dividends, stock splits, recapitalizations and other specified events)
has been authorized for issuance under the Directors Plan. Any shares awarded
which are forfeited as provided by the Directors Plan will again be available
for issuance.
Shares of Common Stock are awarded to Outside Directors on the condition
that the director serves or has served as an Outside Director until (i) death
or disability, (ii) failure to stand for re-election at the end of the term
upon reaching age 70, (iii) resignation or failure to stand for re-election
with the consent of the Board, which is defined in the Directors Plan to mean
approval thereof by at least 80% of the directors other than the affected
director or (iv) failure to be re-elected to the Board after being duly
nominated. Termination of service for any other reason, including any
involuntary termination effected by action or inaction of the Board, other than
that following a change in control (as defined) of GPU, will result in
forfeiture of all shares awarded.
Until termination of service, an Outside Director may not dispose of any
shares of Common Stock awarded under the Directors Plan, but has all other
rights of a shareholder with respect to such shares, including voting rights
and the right to receive all cash dividends paid with respect to awarded
shares.
-16-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
Jersey Central Power & Light Company/
Metropolitan Edison Company/Pennsylvania Electric Company
EXECUTIVE COMPENSATION
The managements of JCP&L, Met-Ed and Penelec were combined in a 1996
reorganization. Accordingly, the amounts shown below represent the aggregate
remuneration paid to such executive officers by JCP&L, Met-Ed and Penelec
during 1996.
<TABLE>
Remuneration of Executive Officers
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term Compensation
Awards Payouts
Other
Name and Annual Restricted All Other
Principal Compen- Stock/Unit LTIP Compen-
Position Year Salary Bonus sation(1) Awards (2) Payouts(3) sation
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C>
J. R. Leva
Chairman of the Board
and Chief Executive
Officer (4) (4) (4) (4) (4) (4) (4)
JCP&L/Met-Ed/Penelec:
D. Baldassari
President (5) (5) (5) (5) (5) (5) (5)
G. R. Repko 1996 154,625 44,000 615 - 20,085 12,562 (6)
Vice President - 1995 147,100 48,000 337 - 9,930 11,491
Customer Services 1994 142,225 32,000 - 14,630 - 9,778
D. W. Myers 1996 153,333 44,000 590 - 19,265 12,505 (7)
Vice President - 1995 144,000 34,000 362 - 10,665 10,687
Finance and Rates 1994 142,125 29,300 - 13,716 - 9,853
R. S. Zechman 1996 152,827 44,000 596 - 19,470 14,051 (8)
Vice President - 1995 142,500 46,000 453 - 8,318 11,087
Corporate Services 1994 132,500 31,000 - 13,324 - 9,104
-17-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L/MET-ED/PENELEC
(1) Consists of earnings on "Long-Term Incentive Plan" ("LTIP")
Compensation paid in the year the award vested.
(2) The restricted units issued in 1995 and 1996 under the 1990 Stock Plan
are performance based. The 1996 awards are shown in "Long-Term
Incentive Plans - Awards in Last Fiscal Year" table (the LTIP table ).
Dividends are paid or accrued on the aggregate restricted stock/units
awarded under the 1990 Stock Plan and reinvested.
The aggregate number and value (based on the stock price per share at
December 31, 1996) of unvested stock-equivalent restricted units
(including reinvested dividends) includes the amounts shown on the LTIP
table, and at the end of 1996 were:
Aggregate Units Aggregate Value
J. R. Leva (4) (4)
D. Baldassari (5) (5)
G. R. Repko 3,946 $132,684
D. W. Myers 3,964 133,290
R. S. Zechman 3,744 125,892
(3) Consists of Performance Cash Incentive Awards paid on the 1990 and 1991
restricted stock awards which have vested under the 1990 Stock Plan.
These amounts are designed to compensate recipients of restricted
stock/unit awards for the amount of federal and state income taxes that
are payable upon vesting of the restricted stock/unit awards.
(4) As noted above, Mr. Leva is Chairman and Chief Executive Officer of GPU,
Inc. and its Subsidiaries. Mr. Leva is compensated by GPUS for his
overall service on behalf of GPU and accordingly is not compensated
directly by the other subsidiary companies for his services.
Information with respect to Mr. Leva's compensation is included on pages
7 through 9 of this exhibit.
(5) Information with respect to Mr. Baldassari's compensation is included on
pages 7 through 9 of this exhibit.
(6) Consists of GPU's matching contributions under the Savings Plan
($6,000), above-market interest accrued on the retirement portion of
deferred compensation ($92), and earnings on LTIP compensation not paid
in the current year ($6,470).
(7) Consists of GPU's matching contributions under the Savings Plan ($6,000)
and earnings on LTIP compensation not paid in the current year ($6,505).
(8) Consists of GPU's matching contributions under the Savings Plan
($6,000), matching contributions under the non-qualified deferred
compensation plan ($1,948), above-market interest accrued on the
retirement portion of deferred compensation ($9), and earnings on LTIP
compensation not paid in the current year ($6,094).
-18-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L/MET-ED/PENELEC
NOTE: The split-dollar life insurance amounts reported in the "All Other
Compensation" column are equal to the present value of the interest-free use
of the current year employer paid premiums to the projected date the premiums
will be refunded to the respective GPU companies.
</TABLE>
<TABLE>
LONG-TERM INCENTIVE PLANS - AWARDS IN LAST FISCAL YEAR
Performance Estimated future payouts
Number of or other under non-stock price-
shares, period until based plans(1)
units or maturation Threshold Target Maximum
Name other rights or payout (#) (#) (#)
JCP&L/Met-Ed/Penelec:
<CAPTION>
<S> <C> <C> <C> <C> <C>
G. R. Repko 970 5 year vesting 0 970 1,940
D. W. Myers 970 5 year vesting 0 970 1,940
R. S. Zechman 970 5 year vesting 0 970 1,940
</TABLE>
(1) The restricted units awarded in 1996 under the 1990 Stock Plan provide
for a performance adjustment to the aggregate number of units vesting for
the recipient, including the accumulated reinvested dividends, based on
the annualized GPU Total Shareholder Return (TSR) percentile ranking
against all companies in the Standard & Poor's Electric Utility Index for
the period between the award and vesting dates. With a 55th percentile
ranking, the performance adjustment would be 100% as reflected in the
Target column. In the event that the percentile ranking is below the
55th percentile, the performance adjustment would be reduced in steps
reaching 0% at the 39th percentile as reflected in the Threshold
column. Should the TSR percentile ranking exceed the 59th percentile,
then the performance adjustment would be increased in steps reaching 200%
at the 90th percentile as reflected in the Maximum column. Under the
1990 Stock Plan, regular quarterly dividends are reinvested in additional
units that are subject to the vesting restrictions of the award. Actual
payouts under the Plan would be based on the aggregate number of units
awarded and the units accumulated through dividend reinvestment at the
time the restrictions lapse. Information with respect to Mr. Leva's and
Mr. Baldassari's long-term incentive plans is included on pages 7 through
9 of this exhibit.
Proposed Remuneration of Executive Officers
None of the named executive officers in the Summary Compensation Table
has an employment contract. The compensation of executive officers is
determined from time to time by the Personnel & Compensation Committee of the
GPU, Inc. Board of Directors.
-19-
<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L/MET-ED/PENELEC
Retirement Plans
The GPU pension plans provide for pension benefits, payable for life
after retirement, based upon years of creditable service with GPU and the
employee's career average compensation as defined below. Under federal law,
an employee's pension benefits that may be paid from a qualified trust under a
qualified pension plan such as the GPU plans are subject to certain maximum
amounts. The GPU companies also have adopted non-qualified plans providing
that the portion of a participant's pension benefits which, by reason of such
limitations or source, cannot be paid from such a qualified trust shall be
paid directly on an unfunded basis by the participant's employer.
The following table illustrates the amount of aggregate annual pension
benefits from funded and unfunded sources resulting from employer
contributions to the qualified trust and direct payments payable upon
retirement in 1997 (computed on a single life annuity basis) to persons in
specified salary and years of service classifications:
<TABLE>
ESTIMATED ANNUAL RETIREMENT BENEFITS (2) (3) (4)
BASED UPON CAREER AVERAGE COMPENSATION
(1997 Retirement)
<CAPTION>
Career
Average
Compen- 10 Years 15 Years 20 Years 25 Years 30 Years 35 Years 40 Years 45 Years
sation(1) of Service of Service of Service of Service of Service of Service of Service of Service
<S> <C> <C> <C> <C> <C> <C> <C> <C>
$ 50,000 $ 9,338 $ 14,007 $ 18,676 $ 23,345 $ 28,014 $ 32,684 $ 37,085 $ 41,085
100,000 19,338 29,007 38,676 48,345 58,014 67,684 76,685 84,685
150,000 29,338 44,007 58,676 73,345 88,014 102,684 116,285 128,285
200,000 39,338 59,007 78,676 98,345 118,014 137,684 155,885 171,885
250,000 49,338 74,007 98,676 123,345 148,014 172,684 195,485 215,485
300,000 59,338 89,007 118,676 148,345 178,014 207,684 235,085 259,085
350,000 69,338 104,007 138,676 173,345 208,014 242,684 274,685 302,685
400,000 79,338 119,007 158,676 198,345 238,014 277,684 314,285 346,285
450,000 89,338 134,007 178,676 223,345 268,014 312,684 353,885 389,885
500,000 99,338 149,007 198,676 248,345 298,014 347,684 393,485 433,485
550,000 109,338 164,007 218,676 273,345 328,014 382,684 433,085 477,085
600,000 119,338 179,007 238,676 298,345 358,014 417,684 472,685 520,685
650,000 129,338 194,007 258,676 323,345 388,014 452,684 512,285 564,285
700,000 139,338 209,007 278,676 348,345 418,014 487,684 551,885 607,885
750,000 149,338 224,007 298,676 373,345 448,014 522,684 591,485 651,485
800,000 159,338 239,007 318,676 398,345 478,014 557,684 631,085 695,085
</TABLE>
-20-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L/MET-ED/PENELEC
(1) Career Average Compensation is the average annual compensation received
from January 1, 1984 to retirement and includes Salary and Bonus. The
career average compensation amounts for the following named executive
officers differ by more than 10% from the three year average annual
compensation set forth in the Summary Compensation Table and are as
follows: Messrs. Leva - $453,214; Baldassari - $191,741; Repko -
$132,857; Myers - $150,696; and Zechman - $117,028.
(2) Years of Creditable Service at December 31, 1996: Messrs. Leva - 45
years; Baldassari - 27 years; Repko - 30 years; Myers - 16 years; and
Zechman - 27 years.
(3) Based on an assumed retirement at age 65 in 1997. To reduce the above
amounts to reflect a retirement benefit assuming a continual annuity to a
surviving spouse equal to 50% of the annuity payable at retirement,
multiply the above benefits by 90%. The estimated annual benefits are
not subject to any reduction for Social Security benefits or other offset
amounts.
(4) Annual retirement benefits under the basic pension per the above table
cannot exceed 55% of the average compensation during the highest paid 36
calendar months.
Remuneration of JCP&L Directors
Nonemployee directors receive an annual retainer of $15,000, a fee of
$1,000 for each Board meeting attended, and a fee of $1,000 for each Committee
meeting attended.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
All of the outstanding shares of JCP&L (15,371,270), Met-Ed (859,500) and
Penelec (5,290,596) common stock are owned beneficially and of record by their
parent, GPU, Inc., 100 Interpace Parkway, Parsippany, NJ 07054.
The following table sets forth, as of February 1, 1997, the beneficial
ownership of equity securities of each of the directors and each of the
executive officers named in the Summary Compensation Tables, and of all
directors and executive officers of each of the respective GPU Energy
companies as a group. The shares owned by all directors and executive
officers as a group constitute less than 1% of the total shares outstanding.
-21-<PAGE>
ITEM 6. OFFICERS AND DIRECTORS (Continued) Exhibit F-1
Part III.
JCP&L/MET-ED/PENELEC
<TABLE>
Amount and Nature of Beneficial Ownership
Shares(1) Stock-Equivalent
Name Title of Security Direct Indirect Restricted Units(2)
<CAPTION>
<S> <C> <C> <C> <C>
JCP&L/Met-Ed/Penelec:
J. R. Leva GPU Common Stock 4,450 100 44,905
F. D. Hafer GPU Common Stock 5,035 131 11,378
J. G. Graham GPU Common Stock 4,377 1,180 11,721
R. C. Arnold GPU Common Stock - 5,370 10,003
D. Baldassari GPU Common Stock 1,081 - 10,839
D. W. Myers GPU Common Stock - - 3,964
G. R. Repko GPU Common Stock 8,099 - 3,946
R. S. Zechman GPU Common Stock 964 - 3,744
JCP&L Only:
G. E. Persson GPU Common Stock None
S. C. Van Ness GPU Common Stock None
S. B. Wiley GPU Common Stock None
All Directors and
Executive Officers
as a Group GPU Common Stock 38,039 7,219 142,860
(1) The number of shares owned and the nature of such ownership, not being
within the knowledge of GPU, have been furnished by each individual.
(2) Restricted units, which do not have voting rights, represent rights
(subject to vesting) to receive shares of Common Stock under the 1990
Stock Plan for Employees of GPU and Subsidiaries (the 1990 Stock Plan ).
See Summary Compensation Table on page 17 of this exhibit.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
None.
</TABLE>
-22-<PAGE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU International, Inc. |
| |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Selkirk, Inc. |
| |
| |
|_________________________________|
|
|
20% |
________________|________________
| |
| Selkirk Cogeneration Partners |
| Limited Partnership |
| (EWG) |
|2 facilities |
|350 MW total |
|_________________________________|
-1-
<PAGE>
Exhibit H-1
GPU International, Inc.
EWG Organizational Chart
_________________________________
| |
| |
| GPU International, Inc. |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Canada Holding, Ltd. |
| (EWG) |____________
| | |
|_________________________________| |
| 100% |
| _______|_______
100% | | EI Services |
________________|________________ | Canada, Ltd.|
| | | (EWG) |
| EI Brooklyn Power, Ltd. | |_______________|
| (EWG) |
| |
|_________________________________|
|
|
|
___________|___________
| |
100% | |
________|________ |
| EI Brooklyn | |
|Investments, Ltd.| |
| (EWG) | |
|_________________| |
| |
75.1% | | 1%
____|_______________________|____
| Brooklyn Energy |
| Limited Partnership |
| (EWG) |
|24 MW facility |
|_________________________________|
-2-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Guaracachi America, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
50% |
________________|________________
| |
| Empresa Guaracachi S.A. |
| (EWG) |
|3 facilities |
|216 MW total |
|_________________________________|
-3-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Barranquilla, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
29% |
________________|________________
| |
| Termobarranquilla S.A. |
| (EWG) |
|2 facilities |
|990 MW total |
|556 MW under construction |
|_________________________________|
-4-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Barranquilla Lease Holding, Inc.|
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Los Amigos Leasing Company, Ltd.|
| (EWG) |
| |
|_________________________________|
-5-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |____
| | |
| | |
|_________________________________| |
| |
| |
100% | |
________________|________________ |
| | |
| EI International | |
| (EWG) | |
| | |
|_________________________________| |
| |
| |
99% | |
________________|________________ |
| | |
| GPU International Latin | | 1%
| America, Ltda. |____|
| (EWG) |
| |
|_________________________________|
-6-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Hanover Energy Corporation |
| (EWG) |
|Inactive |
|_________________________________|
-7-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China), Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| China Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-8-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) I, Inc. |
| (EWG) |
| Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Ming Jiang Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-9-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) II, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Nanjing Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-10-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| EI Power (China) III, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
|
|
50% |
________________|________________
| |
| Zhuang He Power Partners, L.P. |
| (EWG) |
|Inactive |
|_________________________________|
-11-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Austin Cogeneration Corporation |
| (EWG) |
|Inactive |
|_________________________________|
|
|
100% |
________________|________________
| |
| Austin Cogeneration |
| Partners, L.P |
| (EWG) |
|Inactive |
|_________________________________|
-12-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| International Power |
| Advisors, Inc. |
| (EWG) |
|Inactive |
|_________________________________|
-13-
<PAGE>
Exhibit H-1
GPU Power, Inc.
EWG Organizational Chart
_________________________________
| |
| GPU Power, Inc. |
| (EWG) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| GPU Power Philippines, Inc. |
| |
| |
|_________________________________|
|
|
13.2% |
________________|________________
| |
| Magellan Utilities |
| Development Corporation |
| |
|_________________________________|
-14-
<PAGE>
Exhibit H-1
GPU Electric, Inc.
FUCO Organizational Chart
_________________________________
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Victoria Electric |
| Holdings, Inc. |
| (FUCO) |
|_________________________________|
|
|
100% |
________________|________________
| |
| Victoria Electric, Inc. |
| (FUCO) |
| |
|_________________________________|
|
|
50% |
________________|________________
| |
| Solaris Power |
| (FUCO) |
|Distribution company |
|_________________________________|
-15-
<PAGE>
Exhibit H-1
GPU Electric, Inc.
FUCO Organizational Chart
_________________________________
| |
| GPU Electric, Inc. |
| (FUCO) |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| |
| EI UK Holdings, Inc. |
| |
|_________________________________|
|
|
50% |
________________|________________
| |
| Avon Energy |
| Partners Holdings |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Avon Energy |
| Partners plc |
| |
|_________________________________|
|
|
100% |
________________|________________
| |
| Midlands Electricity plc |
| |
| |
|_________________________________|
-16-
<PAGE>
Exhibit E-4
Form U-13-60
Mutual and Subsidiary Service Companies
Revised February 7, 1980
ANNUAL REPORT
FOR THE PERIOD
Beginning January 1, 1996 and Ending December 31, 1996
TO THE
U.S. SECURITIES AND EXCHANGE COMMISSION
OF
GPU INTERNATIONAL, INC.
(Exact Name of Reporting Company)
A Subsidiary Service Company
("Mutual" or "Subsidiary")
Date of Incorporation August 31, 1990 If not Incorporated, Date of
Organization
State or Sovereign Power under which Incorporated or Organized Delaware
1 Upper Pond Road
Location of Principal Executive Offices of Reporting Co. Parsippany, NJ
07054
Name, title, and address of officer to whom correspondence concerning this
report should be addressed:
1 Upper Pond Road
B. L. Levy, President and CEO Parsippany, NJ 07054
(Name) (Title) (Address)
Name of Principal Holding Company Whose Subsidiaries are served by Reporting
Company:
GPU, INC.
<PAGE>
1
INSTRUCTIONS FOR USE OF FORM U-13-60
1. Time of Filing.--Rule 94 provides that on or before the first day of
May in each calendar year, each mutual service company and each subsidiary
service company as to which the Commission shall have made a favorable finding
pursuant to Rule 88, and every service company whose application for approval
or declaration pursuant to Rule 88 is pending shall file with the Commission
an annual report on Form U-13-60 and in accordance with the Instructions for
that form.
2. Number of Copies.--Each annual report shall be filed in duplicate.
The company should prepare and retain at least one extra copy for itself in
case correspondence with reference to the report become necessary.
3. Period Covered by Report.--The first report filed by any company
shall cover the period from the date the Uniform System of Accounts was
required to be made effective as to that company under Rules 82 and 93 to the
end of that calendar year. Subsequent reports should cover a calendar year.
4. Report Format.--Reports shall be submitted on the forms prepared by
the Commission. If the space provided on any sheet of such form is
inadequate, additional sheets may be inserted of the same size as a sheet of
the form or folded to such size.
5. Money Amounts Displayed.--All money amounts required to be shown in
financial statements may be expressed in whole dollars, in thousands of
dollars or in hundred thousands of dollars, as appropriate and subject to
provisions of Regulation S-X (S210.3-01(b)).
6. Deficits Displayed.--Deficits and other like entries shall be
indicated by the use of either brackets or a parenthesis with corresponding
reference in footnotes. (Regulation S-X, S210.3-01(c))
7. Major Amendments or Corrections.--Any company desiring to amend or
correct a major omission or error in a report after it has been filed with the
Commission shall submit an amended report including only those pages,
schedules, and entries that are to be amended or corrected. A cover letter
shall be submitted requesting the Commission to incorporate the amended report
changes and shall be signed by a duly authorized officer of the company.
8. Definitions.--Definitions contained in Instruction 01-8 to the
Uniform System of Accounts for Mutual Service Companies and Subsidiary Service
Companies, Public Utility Holding Company Act of 1935, as amended February 2,
1979 shall be applicable to words or terms used specifically within this Form
U-13-60.
9. Organization Chart.--The service company shall submit with each
annual report a copy of its current organization chart.
10. Methods of Allocation.--The service company shall submit with each
annual report a listing of the currently effective methods of allocation being
used by the service company and on file with the Securities and Exchange
Commission pursuant to the Public Utility Holding Company Act of 1935.
11. Annual Statement of Compensation for Use of Capital Billed.--The
service company shall submit with each annual report a copy of the annual
statement supplied to each associate company in support of the amount of
compensation for use of capital billed during the calendar year.
<PAGE>
2
LISTING OF SCHEDULES AND ANALYSIS OF ACCOUNTS Page
Number
Description of Schedules and Accounts Schedule or Account
Number
COMPARATIVE BALANCE SHEET Schedule I 4-5
SERVICE COMPANY PROPERTY Schedule II 6-7
ACCUMULATED PROVISION FOR DEPRECIATION
AND AMORTIZATION OF SERVICE COMPANY PROPERTY Schedule III 8
INVESTMENTS Schedule IV 9-10
ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES Schedule V 11
FUEL STOCK EXPENSES UNDISTRIBUTED Schedule VI 12
STORES EXPENSE UNDISTRIBUTED Schedule VII 13
MISCELLANEOUS CURRENT AND ACCRUED ASSETS Schedule VIII 14
MISCELLANEOUS DEFERRED DEBITS Schedule IX 15
RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES Schedule X 16
PROPRIETARY CAPITAL Schedule XI 17
LONG-TERM DEBT Schedule XII 18
CURRENT AND ACCRUED LIABILITIES Schedule XIII 19
NOTES TO FINANCIAL STATEMENTS Schedule XIV 20
COMPARATIVE INCOME STATEMENT Schedule XV 21
ANALYSIS OF BILLING - ASSOCIATE COMPANIES Account 457 22
ANALYSIS OF BILLING - NONASSOCIATE COMPANIES Account 458 23
ANALYSIS OF CHARGES FOR SERVICE - ASSOCIATE
AND NONASSOCIATE COMPANIES Schedule XVI 24
SCHEDULE OF EXPENSE BY DEPARTMENT OR
SERVICE FUNCTION Schedule XVII 25-26
DEPARTMENTAL ANALYSIS OF SALARIES Account 920 27
OUTSIDE SERVICES EMPLOYED Account 923 28
EMPLOYEE PENSIONS AND BENEFITS Account 926 29
GENERAL ADVERTISING EXPENSES Account 930.1 30
MISCELLANEOUS GENERAL EXPENSES Account 930.2 31
RENTS Account 931 32
TAXES OTHER THAN INCOME TAXES Account 408 33
DONATIONS Account 426.1 34
OTHER DEDUCTIONS Account 426.5 35
NOTES TO STATEMENT OF INCOME Schedule XVIII 36
<PAGE>
3
LISTING OF INSTRUCTIONAL FILING REQUIREMENTS Page
Number
Description of Reports or Statements
ORGANIZATION CHART 37
METHODS OF ALLOCATION 38
ANNUAL STATEMENT OF COMPENSATION FOR USE 39
OF CAPITAL BILLED
VENTURE DISCLOSURES 40
EXHIBIT 41
NOTE: Dollar figures in this report are shown in thousands unless otherwise
noted.
This report includes immaterial audit adjustments which were not
included in the GPU Inc., SEC Form U5S for the year 1996.
<PAGE>
4
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
SCHEDULE I - COMPARATIVE BALANCE SHEET
Give balance sheet of the Company as of December 31 of the current and prior
year.
ACCOUNT ASSETS AND OTHER DEBITS AS OF DECEMBER 31
CURRENT PRIOR
SERVICE COMPANY PROPERTY
101 Service company property (Schedule II) $ 1 847 $ 1 222
107 Construction work in progress (Schedule II) 50 726 -
Total Property 52 573 1 222
108 Less accumulated provision for depreciation
and amortization of service company
property (Schedule III) 709 589
Net Service Company Property 51 864 633
INVESTMENTS
123 Investments in associate companies (Schedule IV) 56 704 65 110
124 Other investments (Schedule IV) 42 603 52 742
Total Investments 99 307 117 852
CURRENT AND ACCRUED ASSETS
131 Cash 262 592
134 Special deposits 19 895 2 983
135 Working funds - -
136 Temporary cash investments (Schedule IV) 16 700 2 000
141 Notes receivable 2 233 -
143 Accounts receivable 2 052 -
144 Accumulated provision for uncollectible
accounts - -
146 Accounts receivable from associate
companies (Schedule V) 24 623 17 825
152 Fuel stock expenses undistributed (Schedule VI) - -
154 Materials and supplies - -
163 Stores expense undistributed (Schedule VII) - -
165 Prepayments 341 184
171 Interest Receivable - -
174 Miscellaneous current and accrued
assets (Schedule VIII) 6 359 3 695
Total Current and Accrued Assets 72 465 27 279
DEFERRED DEBITS
181 Unamortized debt expense - -
184 Clearing accounts - -
186 Miscellaneous deferred debits (Schedule IX) 749 -
188 Research, development, or demonstration
expenditures (Schedule X) - -
190 Accumulated deferred income taxes 777 2 064
Total Deferred Debits 1 526 2 064
TOTAL ASSETS AND OTHER DEBITS $225 162 $147 828
<PAGE>
5
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
SCHEDULE I - COMPARATIVE BALANCE SHEET
ACCOUNT LIABILITIES AND PROPRIETARY CAPITAL AS OF DECEMBER 31
CURRENT PRIOR
PROPRIETARY CAPITAL
201 Common stock issued (Schedule XI) $ 100 $ 100
211 Miscellaneous paid-in-capital (Schedule XI) 129 466 127 904
215 Appropriated retained earnings (Schedule XI) - 5 336
216 Unappropriated retained earnings (deficit)
(Schedule XI) 1 053 (4 871)
Total Proprietary Capital 130 619 128 469
LONG-TERM DEBT
223 Advances from associate companies (Schedule XII) - -
224 Other long-term debt (Schedule XII) 62 300 -
225 Unamortized premium on long-term debt - -
226 Unamortized discount on long-term debt-debit - -
Total Long-term Debt 62 300 -
CURRENT AND ACCRUED LIABILITIES
231 Notes payable - 1 800
232 Accounts payable 6 534 434
233 Notes payable to associate
companies (Schedule XIII) - -
234 Accounts payable to associate
companies (Schedule XIII) 616 822
236 Taxes accrued - 1 463
237 Interest accrued 154 -
238 Dividends declared - -
241 Tax collections payable - -
242 Miscellaneous current and accrued
liabilities (Schedule XIII) 3 427 4 626
Total Current and Accrued Liabilities 10 731 9 145
DEFERRED CREDITS
253 Other deferred credits 9 312 4 690
255 Accumulated deferred investment tax credits - -
Total Deferred Credits 9 312 4 690
282 ACCUMULATED DEFERRED INCOME TAXES 12 200 5 524
TOTAL LIABILITIES AND PROPRIETARY
CAPITAL $225 162 $147 828
<PAGE>
6
<TABLE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE II - SERVICE COMPANY PROPERTY
<CAPTION>
BALANCE AT RETIREMENTS OTHER BALANCE AT
BEGINNING ADDITIONS OR CHANGES 1/ CLOSE OF
DESCRIPTION OF YEAR SALES YEAR
SERVICE COMPANY PROPERTY
<S> <C> <C> <C> <C> <C>
Account
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND AND LAND RIGHT $ 96 $ 96
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $ 266 334 $(244) $ - 356
307 EQUIPMENT 2/
308 OFFICE FURNITURE
AND EQUIPMENT 956 444 (5) - 1,395
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY 3/
SUB-TOTAL 1,222 874 (249) - 1,847
107 CONSTRUCTION WORK
IN PROGRESS 4/ - 50,726 - - 50,726
TOTAL $1,222 $51,600 $(249) $ - $52,573
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
<PAGE>
7
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE II - CONTINUED
2/ SUBACCOUNTS ARE REQUIRED FOR EACH CLASS OF EQUIPMENT OWNED. THE SERVICE
COMPANY SHALL PROVIDE A LISTING BY SUBACCOUNT OF EQUIPMENT ADDITIONS
DURING THE YEAR AND THE BALANCE AT THE CLOSE OF THE YEAR:
<CAPTION>
BALANCE AT
SUBACCOUNT DESCRIPTION ADDITIONS CLOSE OF
YEAR
<S> <C> <C> <C>
N/A
TOTAL $ - $ -
3/ DESCRIBE OTHER SERVICE COMPANY PROPERTY:
N/A
4/ DESCRIBE CONSTRUCTION WORK IN PROGRESS:
THE CONSTRUCTION WORK IN PROGRESS ACCOUNT REPRESENTS THE COSTS INCURRED AS OF
12/31/96 TO BUILD THE PLANT WHICH WILL BE A 300 MEGAWATT GAS-FIRED COGENERATION
FACILITY LOCATED IN THE TOWN OF KATHLEEN, GEORGIA (HOUSTON COUNTY). ENERGY AND
CAPACITY WILL BE SOLD TO GEORGIA POWER COMPANY AND STEAM WILL BE SOLD TO THE
ADJOINING FRITO LAY PLANT. CONSTRUCTION BEGAN IN NOVEMBER 1996 AND COMMERCIAL
OPERATION IS SCHEDULED FOR FEBRUARY 1998.
<PAGE>
8
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE III
ACCUMULATED PROVISION FOR DEPRECIATION AND
AMORTIZATION OF SERVICE COMPANY PROPERTY
<CAPTION>
BALANCE AT ADDITIONS BALANCE
BEGINNING CHARGED OTHER CHANGES CLOSE OF
DESCRIPTION OF YEAR TO RETIREMENTS ADD (DEDUCT)1/ YEAR
ACCOUNT 403
<S> <C> <C> <C> <C> <C>
Account
301 ORGANIZATION
303 MISCELLANEOUS
INTANGIBLE PLANT
304 LAND AND LAND RIGHTS
305 STRUCTURES AND
IMPROVEMENTS
306 LEASEHOLD
IMPROVEMENTS $111 $ 50 $(145) - $ 16
307 EQUIPMENT
308 OFFICE FURNITURE
AND FIXTURES 478 215 - - 693
309 AUTOMOBILES, OTHER
VEHICLES AND
RELATED GARAGE
EQUIPMENT
310 AIRCRAFT AND
AIRPORT EQUIPMENT
311 OTHER SERVICE
COMPANY PROPERTY
$589 $265 $(145) - $709
1/ PROVIDE AN EXPLANATION OF THOSE CHANGES CONSIDERED MATERIAL:
N/A
</TABLE>
<PAGE>
9
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE IV - INVESTMENTS
INSTRUCTIONS: Complete the following schedule concerning investments.
Under Account 124, "Other Investments", state each investment
separately, with description, including, the name of issuing
company, number of shares or principal amount, etc.
Under Account 136, "Temporary Cash Investments", list each
investment separately.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 123 - INVESTMENT IN ASSOCIATE COMPANIES
PRIME ENERGY LIMITED PARTNERSHIP $7 511 $ 5 747
OLS POWER LIMITED PARTNERSHIP - -
ONONDAGA COGENERATION LIMITED PARTNERSHIP 18 643 18 183
SELKIRK CORPORATION PARTNERS, L.P. 17 722 14 343
BROOKLYN ENERGY LIMITED PARTNERSHIP 183 (420)
LAKE COGEN LIMITED PARTNERSHIP 3 921 3 354
PROJECT ORANGE ASSOCIATES L.P. 128 29
ADA COGEN LIMITED PARTNERSHIP 20 -
PASCO COGEN LIMITED 16 982 15 468
TOTAL $65 110 $56 704
ACCOUNT 124 - OTHER INVESTMENTS
CO. OWNED LIFE INSURANCE -
CASH SURRENDER VALUE $ 33 $ 50
ACE LIMITED STOCK (260298 SHS.) 10 347 -
BALLARD GENERATION SYSTEMS, INC. (EQUITY
INVESTMENT 5.71% OWNERSHIP) - 6 064
POLSKY ENERGY CORP (906 SHS. CLASS D VOTING
& 1894 CLASS C NON VOTING) 6 038 5 060
CARRIED INTEREST - SYRACUSE ORANGE PARTNERS 2 236 1 886
LONG-TERM RECEIVABLES - ASSOCIATE COMPANIES 9 243 11 897
INTANGIBLE ASSETS - NCP ACQUISITION 24 566 16 694
ENVIROTECH INVESTMENT FUND 279 855
BALLARD POWER SYSTEMS, INC. (WARRANTS TO
ACQUIRE 100,000 COMMON SHARES) - 97
TOTAL $52 742 $42 603
<PAGE>
10
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE IV - INVESTMENTS (Continued)
ACCOUNT 136 - TEMPORARY CASH INVESTMENTS
CAPITAL MARKET CCOUNTS $ 16 700
<PAGE>
11
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE V - ACCOUNTS RECEIVABLE FROM ASSOCIATE COMPANIES
INSTRUCTIONS: Complete the following schedule listing accounts receivable
from each associate company. Where the service company has
provided accommodation or convenience payments for associate
companies, a separate listing of total payments for each
associate company by subaccount should be provided.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 146 - ACCOUNTS RECEIVABLE FROM ASSOCIATE
COMPANIES $17 825 $24 623
TOTAL $17 825 $24 623
ANALYSIS OF CONVENIENCE OR ACCOMMODATION PAYMENTS: TOTAL
PAYMENTS
N/A
TOTAL PAYMENTS -
<PAGE>
12
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE VI - FUEL STOCK EXPENSES UNDISTRIBUTED
INSTRUCTIONS: Report the amount of labor and expenses incurred with respect
to fuel stock expenses during the year and indicate amount
attributable to each associate company. Under the section
headed "Summary" listed below give an overall report of the
fuel functions performed by the service company.
D E S C R I P T I O N LABOR EXPENSES TOTAL
ACCOUNT 152 - FUEL STOCK EXPENSES UNDISTRIBUTED
N/A
TOTAL - - -
SUMMARY:
<PAGE>
13
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE VII - STORES EXPENSE UNDISTRIBUTED
INSTRUCTIONS: Report the amount of labor and expenses incurred with respect
to stores expense during the year and indicate amount
attributable to each associate company.
D E S C R I P T I O N LABOR EXPENSES TOTAL
ACCOUNT 163 - STORES EXPENSE UNDISTRIBUTED
N/A
TOTAL $ - $ - $ -
<PAGE>
14
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE VIII
MISCELLANEOUS CURRENT AND ACCRUED ASSETS
INSTRUCTIONS: Provide detail of items in this account. Items less than
$10,000 may be grouped, showing the number of items in each
group.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 174 - MISCELLANEOUS CURRENT AND ACCRUED
ASSETS
LIHI OPTION $3 000 $3 000
DEFERRED TAX ASSET 695 3 359
TOTAL $3 695 $6 359
<PAGE>
15
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE IX - MISCELLANEOUS DEFERRED DEBITS
INSTRUCTIONS: Provide detail of items in this account. Items less than
$10,000 may be grouped by class showing the number of items in
each class.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING CLOSE OF
OF YEAR YEAR
ACCOUNT 186 - MISCELLANEOUS DEFERRED DEBITS
DEFERRED FINANCING COSTS $ - $ 749
<PAGE>
16
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE X
RESEARCH, DEVELOPMENT OR DEMONSTRATION EXPENDITURES
INSTRUCTIONS: Provide a description of each material research, development,
or demonstration project which incurred costs by the service
corporation during the year.
D E S C R I P T I O N AMOUNT
ACCOUNT 188-RESEARCH, DEVELOPMENT, OR DEMONSTRATION
EXPENDITURES
N/A
NOTE:
<PAGE>
<TABLE>
17
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XI - PROPRIETARY CAPITAL
<CAPTION>
NUMBER OF PAR OR STATED
ACCOUNT NUMBER CLASS OF STOCK SHARES VALUE OUTSTANDING CLOSE OF PERIOD
AUTHORIZED PER SHARE NO. OF SHARES TOTAL AMOUNT
<C> <C> <C> <C> <C> <C>
201 COMMON STOCK ISSUED 100 $1 000* 100 $100 000*
INSTRUCTIONS: Classify amounts in each account with brief explanation, disclosing the general nature of
transactions which gave rise to the reported amounts.
<CAPTION>
D E S C R I P T I O N AMOUNT
<S> <C> <C>
ACCOUNT 211 - MISCELLANEOUS PAID-IN CAPITAL $129 466
ACCOUNT 215 - APPROPRIATED RETAINED EARNINGS 0
Unrealized Gain on Marketable Securities, Net of Income Taxes
TOTAL $129 466
INSTRUCTIONS: Give particulars concerning net income or (loss) during the year, distinguishing between
compensation for the use of capital owed or net loss remaining from servicing nonassociates per
the General Instructions of the Uniform System of Accounts. For dividends paid during the year
in cash or otherwise, provide rate percentage, amount of dividend, date declared and date paid.
<CAPTION>
BALANCE AT NET INCOME CUMULATIVE BALANCE AT
D E S C R I P T I O N BEGINNING OR DIVIDENDS TRANSLATION CLOSE OF
OF YEAR (LOSS) PAID ADJUSTMENT YEAR
<S> <C> <C> <C> <C> <C>
ACCOUNT 216 - UNAPPROPRIATED RETAINED EARNINGS (4 871) 5 913 11 1 053
TOTAL $ (4 871) $ 5 913 $ $ 11 $ 1 053
* In Whole Dollars
<PAGE>
18
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XII- LONG-TERM DEBT
INSTRUCTIONS: Advances from associate companies should be reported separately for advances on notes, and advances on open
account. Names of associate companies from which advances were received shall be shown under the class and
series of obligation column. For Account 224 - Other long term debt provide the name of creditor company or
organization, terms of the obligation, date of maturity, interest rate, and the amount authorized and
outstanding.
<CAPTION>
TERMS OF OBLIG DATE BALANCE AT BALANCE AT
N A M E O F C R E D I T O R CLASS & SERIES OF INTEREST AMOUNT BEGINNING 1/ CLOSE
OF OBLIGATION MATURITY RATE AUTHORIZED OF YEAR ADDITIONS DEDUCTIONS OF YEAR
<S> <C> <C> <C> <C> <C> <C> <C>
ACCOUNT 223 - ADVANCES FROM ASSOCIATE
COMPANIES:
NONE
ACCOUNT 224 - OTHER LONG-TERM DEBT:
JOHN HANCOCK INSTITUTIONAL JUN 2018 9.02% $ 0 $ 20,000 $ - $ 20,000
LOAN (22 YRS)
PRUDENTIAL INSTITUTIONAL JUN 2018 9.02% 0 20,000 - 20,000
LOAN(22 YRS)
THE BANK OF BRIDGE LOAN (1) 5.5625% 0 22,300 - 22,300
NOVA SCOTIA
$ 0 $ 62,300 $ - $ 62,300
1/ GIVE AN EXPLANATION OF DEDUCTIONS: Payments per agreements.
(1) The Bridge loan matures on the earliest to occur of (a)the completion of the facility which is expected to be February
1998,(b) December 1, 1998, (c) an equity ivestment into Mid Georgia Cogen is made, or (d)other circumstances that would
require repayment under the construction contract or Project Loan Agreements.
</TABLE>
<PAGE>
19
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XIII - CURRENT AND ACCRUED LIABILITIES
INSTRUCTIONS: Provide balance of notes and accounts payable to each
associate company. Give description and amount of
miscellaneous current and accrued liabilities. Items less
than $10,000 may be grouped, showing the number of items in
each group.
BALANCE AT BALANCE AT
D E S C R I P T I O N BEGINNING END
OF YEAR OF YEAR
ACCOUNT 233 - NOTES PAYABLE TO ASSOCIATE COMPANIES
NONE
TOTAL - -
ACCOUNT 234 - ACCOUNTS PAYABLE TO ASSOCIATE
COMPANIES
GPU SERVICE CORPORATION $ 491 $ 541
POLSKY ENERGY CORPORATION 331 -
SYRACUSE ORANGE PARTNERS - 75
TOTAL $ 822 $ 616
ACCOUNT 242 - MISCELLANEOUS CURRENT AND ACCRUED
LIABILITIES
ACCRUALS - DEVELOPMENT EXPENSE $ 505 $ 173
- EMPLOYEE BENEFITS - 180
- ACCRUED CAPITALIZED COSTS - 64
- EMPLOYEE BONUS 575 900
- VACATION 371 611
- AUDIT FEES 64 57
- LEGAL FEES 214 819
- EXPENSE REPORTS 18 81
- AMOUNTS HELD IN ESCROW 2 850 -
- INSURANCE - 33
- CONSULTING - 216
- GST TAX - 67
- RELOCATION - 190
- 9 ITEMS LESS THAN $10,000 29 36
TOTAL $ 4 626 $ 3 427
<PAGE>
20
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XIV
NOTES TO FINANCIAL STATEMENTS
INSTRUCTIONS: The space below is provided for important notes regarding the
financial statements or any account thereof. Furnish
particulars as to any significant contingent assets or
liabilities existing at the end of the year. Notes relating to
financial statements shown elsewhere in this report may be
indicated here by reference.
The Notes to Financial Statements of GPU International, Inc. will be filed
separately under a request for confidential treatment under Rule 104(b).
<PAGE>
21
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XV
STATEMENT OF INCOME
ACCOUNT D E S C R I P T I O N CURRENT YEAR PRIOR YEAR
INCOME
457 Services rendered to associate companies $ 17 125 $ 19 063
458 Services rendered to nonassociate companies - -
421 Equity earnings (losses) (4 028) (1 741)
421 Interest and dividend income 2 086 960
421 Gain on sale of asset 9 409 11 775
Total Income 24 592 30 057
EXPENSE
920 Salaries and wages 3 250 3 784
921 Office supplies and expenses 379 707
922 Administrative expense transferred
credit - -
923 Outside services employed 3 818 5 888
924 Property insurance 168 91
925 Injuries and damages - -
926 Employee pensions and benefits 1 093 443
928 Regulatory commission expense - -
930.1 General advertising expenses - -
930.2 Miscellaneous general expenses 5 246 1 018
931 Rents 572 395
932 Maintenance of structures and equipment - -
403 Depreciation and amortization expense 902 1 142
408 Taxes other than income taxes 727 643
409 Income taxes (5 922) 2 723
410 Provision for deferred income taxes 7 635 2 177
411 Provision for deferred income taxes -
credit - -
411.5 Investment tax credit - -
426.1 Donations - -
426.5 Other deductions (3) -
427 Interest on long-term debt 485 -
430 Interest on debt to associate
companies - -
431 Other interest expense 329 497
Total Expense 18 679 19 508
Net Income or (Loss) $ 5 913 $10 549
<PAGE>
22
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
ANALYSIS OF BILLING
ASSOCIATE COMPANIES
ACCOUNT 457
COSTS DIRECT INDIRECT COMPENSATION
NAME OF ASSOCIATE COMPANY COSTS FOR USE AMOUNT TOTAL
CHARGED CHARGE OF CAPITAL BILLED
457-1 457-2 457-3
PRIME ENERGY LIMITED PARTNERSHIP $ 1 770 $ - $ - $1 770
OLS POWER LIMITED PARTNERSHIP 303 - - 303
ONONDAGA COGENERATION LIMITED
PARTNERSHIP 829 - - 829
EI SERVICES CANADA 4 055 - - 4 055
TERMOBARRANQUILLA, S.A. EMPRESA
DE SERVICIOS PUBLICOS (TEBSA) 3 300 - - 3 300
SEF COGENERATION CORPORATION 275 - - 275
LAKE COGEN LIMITED 372 - - 372
PROJECT ORANGE ASSOCIATES 837 - - 837
ADA COGEN LIMITED 1 110 - - 1 110
MID GEORGIA COGEN 4 087 - - 4 087
PASCO COGEN LIMITED 187 - - 187
TOTAL $17 125 $ - $ - $17 125
<PAGE>
<TABLE>
23
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
ANALYSIS OF BILLING
NONASSOCIATE COMPANIES
ACCOUNT 458
<CAPTION>
DIRECT INDIRECT COMPENSATION EXCESS
COSTS COSTS FOR USE TOTAL OR TOTAL
NAME OF NONASSOCIATE COMPANY CHARGED CHARGED OF CAPITAL COST DEFICIENCY AMOUNT
458-1 458-2 458-3 458-4 BILLED
<S> <C> <C> <C> <C> <C> <C>
NOT APPLICABLE
INSTRUCTION: Provide a brief description of the services rendered to each nonassociated company:
<PAGE>
24
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XVI
ANALYSIS OF CHARGES FOR SERVICE
ASSOCIATE AND NONASSOCIATE COMPANIES
<CAPTION>
ASSOCIATE COMPANY CHARGES NONASSOCIATE COMPANY CHARGES TOTAL CHARGES FOR SERVICE
DIRECT INDIRECT DIRECT INDIRECT DIRECT INDIRECT
DESCRIPTION OF ITEMS COST COST TOTAL COST COST TOTAL COST COST TOTAL
<S> <C> <C>
920 SALARIES AND WAGES
921 OFFICE SUPPLIES AND EXPENSES
922 ADMINISTRATIVE EXPENSE TRANSFERRED-
CREDIT
923 OUTSIDE SERVICES EMPLOYED NOT APPLICABLE
924 PROPERTY INSURANCE
925 INJURIES AND DAMAGES
926 EMPLOYEE PENSIONS AND BENEFITS
928 REGULATORY COMMISSION EXPENSE
930.1 GENERAL ADVERTISING EXPENSES
930.2 MISCELLANEOUS GENERAL EXPENSES
931 RENTS
932 MAINTENANCE OF STRUCTURES AND
EQUIPMENT
403 DEPRECIATION AND AMORTIZATION
EXPENSE
408 TAXES OTHER THAN INCOME TAXES
409 INCOME TAXES
410 PROVISION FOR DEFERRED INCOME TAXES
411 PROVISION FOR DEFERRED INCOME TAXES
- CREDIT
411.5 INVESTMENT TAX CREDIT
426.1 DONATIONS
426.5 OTHER DEDUCTIONS
427 INTEREST ON LONG-TERM DEBT
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES
431 OTHER INTEREST EXPENSE
INSTRUCTION: Total cost of service will equal
for associate and nonassociate
companies the total amount billed
under their separate analysis of
billing schedules.
TOTAL EXPENSES =
COMPENSATION FOR USE OF EQUITY CAPITAL =
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES =
TOTAL COST OF SERVICE =
<PAGE>
25
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XVII
SCHEDULE OF EXPENSE DISTRIBUTION
BY
DEPARTMENT OR SERVICE FUNCTION
D E P A R T M E N T OR S E R V I C E F U N C T I O N
<CAPTION>
TOTAL OFFICE OF OYSTER THREE MILE THREE MILE
D E S C R I P T I O N O F I T E M S AMOUNT OVERHEAD PRESIDENT CREEK ISLAND I ISLAND II
<S> <C> <C>
920 SALARIES AND WAGES
921 OFFICE SUPPLIES AND EXPENSES
922 ADMINISTRATIVE EXPENSE TRANSFERRED -
CREDIT
923 OUTSIDE SERVICES EMPLOYED
924 PROPERTY INSURANCE
925 INJURIES AND DAMAGES
926 EMPLOYEE PENSIONS AND BENEFITS NOT APPLICABLE
928 REGULATORY COMMISSION EXPENSE
930.1 GENERAL ADVERTISING EXPENSE
930.2 MISCELLANEOUS GENERAL EXPENSES
931 RENTS
932 MAINTENANCE OF STRUCTURES AND
EQUIPMENT
403 DEPRECIATION AND AMORTIZATION
EXPENSE
408 TAXES OTHER THAN INCOME TAXES
409 INCOME TAXES
410 PROVISION FOR DEFERRED INCOME TAXES
411 PROVISION FOR DEFERRED INCOME TAXES
- CREDIT
411.5 INVESTMENT TAX CREDIT
426.1 DONATIONS
426.5 OTHER DEDUCTIONS
427 INTEREST ON LONG-TERM DEBT
430 INTEREST ON DEBT TO ASSOCIATE
COMPANIES
431 OTHER INTEREST EXPENSE
INSTRUCTION: Indicate each department or
service function. (See Instruc-
tion 01-3 General Structure of
Accounting System: Uniform
System Account)
TOTAL EXPENSES =
</TABLE>
<PAGE>
26
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XVII
SCHEDULE OF EXPENSE DISTRIBUTION
BY
DEPARTMENT OR SERVICE FUNCTION
D E P A R T M E N T OR S E R V I C E F U N C T I O N
ACCOUNT TECHNICAL NUCLEAR COMMUN- ADMIN & CORPORATE CORPORATE
NUMBER FUNCTIONS ASSURANCE CATIONS FINANCE SERVICES SECRETARY
920
921
922
923
924
925
926
928
930.1
930.2
931
932
403
408
409
410
411
411.5
426.1
426.5
427
430
431
TOTAL
<PAGE>
<TABLE>
27
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
DEPARTMENTAL ANALYSIS OF SALARIES
ACCOUNT 920
<CAPTION>
DEPARTMENTAL SALARY EXPENSE NUMBER
NAME OF DEPARTMENT INCLUDED IN AMOUNTS BILLED TO PERSONNEL
Indicate each department TOTAL SALARY OTHER NON END OF
or service function. AMOUNT EXPENSE ASSOCIATES ASSOCIATES YEAR
<S> <C> <C> <C> <C> <C>
GPU International, Inc. $ 3,250 $ 3,250 $ - $ - 67
TOTAL $ 3,250 $ 3,250 $ - $ - 67
</TABLE>
<PAGE>
28
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
OUTSIDE SERVICES EMPLOYED
ACCOUNT 923
INSTRUCTIONS: Provide a breakdown by subaccount of outside services
employed. If the aggregate amounts paid to any one payee and
included within one subaccount is less than $25,000, only
the aggregate number and amount of all such payments
included within the subaccount need be shown. Provide a
subtotal for each type of service.
RELATIONSHIP
"A"=ASSOCIATE
FROM WHOM PURCHASED ADDRESS "NA"- NON AMOUNT
ASSOCIATE
Schedule of Outside Services Employed for GPU International, Inc. will be
filed separately under a request for confidential treatment.
<PAGE>
29
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
EMPLOYEE PENSIONS AND BENEFITS
ACCOUNT 926
INSTRUCTIONS: Provide a listing of each pension plan and benefit program
provided by the service company. Such listing should be limited
to $25,000.
D E S C R I P T I O N AMOUNT
RESTRUCTURING EXPENSE $ 242
HEALTH AND DENTAL INSURANCE 314
PENSION PLANS 97
EMPLOYEE SAVINGS PLAN 146
VACATION ACCRUAL 208
DEFERRED COMPENSATION 61
3 OTHER BENEFITS (Under $25,000) 25
TOTAL $ 1 093
<PAGE>
30
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
GENERAL ADVERTISING EXPENSES
ACCOUNT 930.1
INSTRUCTIONS: Provide a listing of the amount included in Account 930.1,
"General Advertising Expenses", classifying the items according
to the nature of the advertising and as defined in the account
definition. If a particular class includes an amount in excess
of $3,000 applicable to a single payee, show separately the name
of the payee and the aggregate amount applicable thereto.
D E S C R I P T I O N NAME OF PAYEE AMOUNT
NONE
TOTAL -
<PAGE>
31
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
MISCELLANEOUS GENERAL EXPENSES
ACCOUNT 930.2
INSTRUCTIONS: Provide a listing of the amount included in Account 930.2,
"Miscellaneous General Expenses", classifying such expenses
according to their nature. Payments and expenses permitted by
Section 321 (b) (2) of the Federal Election Campaign Act, as
amended by Public Law 94-283 in 1976 (2 U.S.C.S. 441 (b) (2)
shall be separately classified.
D E S C R I P T I O N AMOUNT
Employee Travel Expense $ 737
Employee Recruiting and Relocation Expense 542
Employee Training Expense 156
Other 172
Reimbursed O&M Costs 3 639
TOTAL $ 5 246
<PAGE>
32
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
RENTS
ACCOUNT 931
INSTRUCTIONS: Provide a listing of the amount included in Account 931,
"Rents", classifying such expenses by major groupings of
property, as defined in the account definition of the Uniform
System of Accounts.
T Y P E O F P R O P E R T Y AMOUNT
OFFICE SPACE $ 572
TOTAL $ 572
<PAGE>
33
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
TAXES OTHER THAN INCOME TAXES
ACCOUNT 408
INSTRUCTION: Provide an analysis of Account 408, "Taxes Other Than Income
Taxes". Separate the analysis into two groups: (1) other than
U.S. Government taxes, and (2) U.S. Government taxes. Specify
each of the various kinds of taxes and show the amounts thereof.
Provide a subtotal for each class of tax.
K I N D O F T A X AMOUNT
(1) U.S. GOVERNMENT TAXES
FEDERAL UNEMPLOYMENT COMPENSATION $ 5
FICA 281
Sub Total 286
(2) OTHER THAN U.S. GOVERNMENT TAXES
NEW YORK GROSS RECEIPTS TAXES 404
SUI 37
Sub Total 441
TOTAL $ 727
<PAGE>
34
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
DONATIONS
ACCOUNT 426.1
INSTRUCTION: Provide a listing of the amount included in Account 426.1,
"Donations", classifying such expenses by its purpose. The
aggregate number and amount of all items of less than $3,000 may
be shown in lieu of details.
NAME OF RECIPIENT PURPOSE OF DONATION AMOUNT
NONE
<PAGE>
35
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
OTHER DEDUCTIONS
ACCOUNT 426.5
INSTRUCTIONS: Provide a listing of the amount included in
Account 426.5, "Other Deductions",
classifying such expenses according to
their nature.
D E S C R I P T I O N NAME OF PAYEE AMOUNT
FOREIGN CURRENCY EXCHANGE GAIN $ 3
<PAGE>
36
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
SCHEDULE XVIII
NOTES TO STATEMENT OF INCOME
INSTRUCTIONS: The space below is provided for important notes regarding the
statement of income or any account thereof. Furnish particulars
as to any significant increase in services rendered or expenses
incurred during the year. Notes relating to financial
statements shown elsewhere in this report may be indicated here
by reference.
The Notes to Financial Statements of GPU International, Inc. will be filed
separately under a request for confidential treatment under Rule 104(b).
<PAGE>
37
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
For the Year Ended December 31, 1996
ORGANIZATION CHART
__________________________________________
| |
| |
| |
| BOARD OF DIRECTORS |
| Chairman |
|__________________________________________|
| |
| PRESIDENT & CEO |
|________________________________________|
| |
| EXECUTIVE V.P. |
| BUSINESS OPERATIONS |
|______________________________________|
| |
| DIRECTOR, LEGAL & CORPORATE |
| AFFAIRS AND CORPORATE SECRETARY |
|____________________________________|
| |
| V.P. OF FINANCE AND TREASURER |
| ___________________________________|
| |
| V.P. OPERATIONS/TECHNICAL SUPPORT |
|____________________________________|
| |
| V.P. BUSINESS DEVELOPMENT |
|____________________________________|
| |
| CONTROLLER |
|____________________________________|
| |
| DIRECTOR BUSINESS MANAGEMENT/FUELS |
|____________________________________|
| |
| V.P. TECHNOLOGY VENTURES |
|____________________________________|
| |
| GENERAL MANAGER - LATIN AMERICA |
|____________________________________|
| |
| GENERAL MANAGER - AUSTRALIA |
|____________________________________|
<PAGE>
38
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
METHODS OF ALLOCATION
Not Applicable
<PAGE>
39
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
ANNUAL STATEMENT OF COMPENSATION FOR USE OF CAPITAL BILLED
NONE
<PAGE>
40
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
VENTURE DISCLOSURES
In accordance with discussions with the staff, financial statements for
projects in which EII owns interests will be included in a Certificate
Pursuant to Rule 24 to be filed under the 1935 Act for the quarter ended
March 31, 1996, pursuant to the order dated November 16, 1995 (HCAR No. 26123;
File No. 70-7727).
<PAGE>
41
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
EXHIBIT
The following information is provided in accordance with an Amendment No. 3 to
the GPUI Application on Form U-1 dated December 13, 1996 (SEC File No. 70-
8913) filed under the Public Utility Holding Company Act of 1935.
(a) Each investment made by GPUI in a Subsidiary or the Enterprise, as defined
in the Amendment, during 1996.
In December 1996, GPUI and Ballard Power Systems (BPS) entered into an
agreement for the commercialization of stationary fuel cell power plants.
Under the terms of the agreement, BPS created a new subsidiary, Ballard
Generation Systems, Inc. (BGS) which will develop, manufacture and market
stationary fuel cell power plants worldwide and will be based in British
Columbia, Canada. BPS will supply the fuel cells for these power plants.
GPUI has committed to invest $23.25 million over the next two years in BGS for
up to a 19.3% equity interest in BGS, two 250 KW fuel cell power plants for
field trials, and non-transferable warrants to purchase 100,000 common shares
in BPS at a price of Canadian $27.45 per share. GPUI has accounted for its
purchase of warrants as an investment having a total cost of $97,000. The
warrants have a term of 5 years.
As of December 31, 1996, GPUI had invested $6,064,000 in BGS which represents
a 5.71% interest. As part of this investment, GPUI purchased from BGS the
option to acquire 425,000 shares comprising a combination of Class A Shares,
Class B Shares, or Class C Preferred Shares, as determined by GPUI. The
aggregate purchase price for all the shares to be acquired under the option
will be $1. The options may be exercised by GPUI at any time after GPUI has
made payment for the two field trial fuel cell power plants and before the
earlier of December 2001 and the initial public offering of BGS. The value of
this option as of December 31, 1996 is $4,250,000 and is included in
Investments, net in the Consolidated Balance Sheets of GPUI.
GPUI has accounted for its acquisition using the purchase method. As a
result, the Company has recorded approximately $1.6 million as goodwill which
is included in Investments, net on the Consolidated Balance Sheets and will be
amortized over a period of 20 years beginning in January 1997. As of December
31, 1996, GPUI had an investment in BGS of approximately $175,000.
(b) A general description of the activities of the Enterprise in 1996.
The entity was formed in December 1996, therefore there were no other
activities of the entity other than those described in (a) above.
(c) The number of GPUI employees providing services to the Enterprise on a
regular basis during the previous year.
NONE
(d) The revenues and expenses of the Enterprise during 1996.
The entity was formed in December 1996, therefore there were no revenues or
expenses.
<PAGE>
ANNUAL REPORT OF GPU INTERNATIONAL, INC.
SIGNATURE CLAUSE
Pursuant to the requirements of the Public
Utility Holding Company Act of 1935 and the rules
and regulations of the Securities and Exchange
Commission issued thereunder, the undersigned
company has duly caused this report to be signed
on its behalf by the undersigned officer thereunto
duly authorized.
GPU INTERNATIONAL, INC.
(Name of Reporting Company)
By: /s/ B. L. Levy
(Signature of Signing Officer)
B. L. Levy, President and CEO
(Printed Name and Title of Signing Officer)
Date: 5/1/96
<PAGE>
<TABLE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $4,528,676 $4,528,676
Less, accumulated depreciation 1,811,620 1,811,620
Net utility plant in service 2,717,056 2,717,056
Construction work in progress 106,512 106,512
Other, net 111,116 111,116
Net utility plant 2,934,684 2,934,684
Other Property and Investments:
Common stock of subsidiary - $ 17,079 (A) 17,079
Nuclear decommissioning trusts 278,342 278,342
Nuclear fuel disposal trust 101,661 101,661
Other, net 8,305 8,305
Total other property and investments 388,308 17,079 405,387
Current Assets:
Cash and temporary cash investments 1,321 1,320 $ 1
Special deposits 6,939 6,939
Accounts receivable:
Customers, net 135,655 135,655
Other 33,228 13,470 (B) 33,228 13,470
Unbilled revenues 56,522 56,522
Materials and supplies, at average cost or less:
Construction and maintenance 92,761 92,761
Fuel 19,257 19,257
Deferred income taxes 22,509 22,509
Prepayments 21,150 21,150
Total current assets 389,342 13,470 389,341 13,471
Deferred Debits and Other Assets:
Regulatory assets:
Income taxes recoverable through future rates 142,726 142,726
Nonutility generation contract buyout costs 139,000 139,000
Three Mile Island Unit 2 deferred costs 126,448 126,448
Unamortized property losses 94,767 94,767
Other 326,620 326,620
Total regulatory assets 829,561 829,561
Deferred income taxes 138,903 138,903
Other 29,121 128,866 (C) 29,121 128,866
Total deferred debits and other assets 997,585 128,866 997,585 128,866
Total Assets $4,709,919 $159,415 $4,726,997 $142,337
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-1-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 153,713 $ 1 (A) $ 153,713 $ 1
Capital surplus 510,769 16,753 (A) 510,769 16,753
Retained earnings 825,001 325 (A) 825,001 325
Total common stockholder's equity 1,489,483 17,079 1,489,483 17,079
Cumulative preferred stock:
With mandatory redemption 114,000 114,000
Without mandatory redemption 37,741 37,741
Company-obligated mandatorily redeemable
preferred securities 125,000 125,000
Long-term debt 1,173,091 128,866 (C) 1,301,957
Total capitalization 2,939,315 145,945 2,943,181 142,079
Current Liabilities:
Securities due within one year 110,075 110,075
Notes payable 31,800 31,800
Obligations under capital leases 96,150 96,150
Accounts payable 166,019 13,470 (B) 179,489
Taxes accrued 2,063 1,805 258
Deferred energy credits 15,559 15,559
Interest accrued 28,350 28,350
Other 80,195 80,195
Total current liabilities 530,211 13,470 543,423 258
Deferred Credits and Other Liabilities:
Deferred income taxes 664,440 664,440
Unamortized investment tax credits 59,893 59,893
Three Mile Island Unit 2 future costs 107,652 107,652
Nuclear fuel disposal fee 127,543 127,543
Regulatory liabilities 33,250 33,250
Other 247,615 247,615
Total deferred credits and other liabilities 1,240,393 - 1,240,393 -
Total Liabilities and Capital $4,709,919 $159,415 $4,726,997 $142,337
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-2-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Operating Revenues $2,057,918 $2,057,918
Equity in Earnings of Subsidiary - $ 924 (A) 924
Operating Expenses:
Fuel 101,357 101,357
Power purchased and interchanged:
Affiliates 27,058 27,058
Other 589,396 589,396
Deferral of energy and capacity costs, net 19,441 19,441
Other operation and maintenance 556,086 556,086
Depreciation and amortization 207,309 207,309
Taxes, other than income taxes 228,885 228,885
Total operating expenses 1,729,532 - 1,729,532
Operating Income Before Income Taxes 328,386 924 329,310
Income taxes 71,080 (498)(B) 70,582
Operating Income 257,306 1,422 258,728
Other Income and Deductions:
Allowance for other funds used
during construction 1,536 1,536
Other income, net 7,202 12,204 (C) 7,284 $12,122
Income taxes (3,357) (498)(B) (3,357) (498)
Total other income and deductions 5,381 11,706 5,463 11,624
Income Before Interest Charges and
Dividends on Preferred Securities 262,687 13,128 264,191 11,624
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 89,648 89,648
Other interest 11,147 12,204 (C) 23,351
Allowance for borrowed funds used
during construction (5,111) (5,111)
Dividends on company-obligated mandatorily
redeemable preferred securities 10,700 10,700
Total interest charges and dividends
on preferred securities 106,384 12,204 107,888 10,700
Net Income $ 156,303 $ 924 (A) $ 156,303 $ 924
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-3-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Balance at beginning of year $ 816,770 $ 389 $ 816,770 $ 389
Net income 156,303 924 156,303 924
Cash dividends declared on common stock (135,000) (988) (135,000) (988)
Cash dividends on cumulative preferred stock (13,072) (13,072)
Other adjustments, net
Balance at end of year $ 825,001 $ 325 $ 825,001 $ 325
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-4-
<PAGE>
Jersey Central Power & Light Company and Subsidiary Company Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Jersey Central Power
& Light Company
and Subsidiary Eliminations Jersey Central JCP&L
Company and Power & Light Preferred
Consolidated Adjustments Company Capital, Inc.
<S> <C> <C> <C> <C>
Operating Activities:
Net income $ 156,303 $ 924 $ 156,303 $ 924
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiary - (924) (924)
Depreciation and amortization 217,225 217,225
Amortization of property under capital leases 28,339 28,339
Voluntary enhanced retirement programs 62,909 62,909
Nuclear outage maintenance costs, net (15,392) (15,392)
Deferred income taxes and investment tax credits, net 4,056 4,056
Deferred energy and capacity costs, net 19,436 19,436
Accretion income (11,610) (11,610)
Allowance for other funds used during construction (1,536) (1,536)
Changes in working capital:
Receivables 24,402 24,329 73
Materials and supplies 2,624 2,624
Special deposits and prepayments 138 138
Payables and accrued liabilities (93,952) (93,943) (9)
Due to/from affiliates 20,290 20,290
Nonutility generation contract buyout costs (65,000) (65,000)
Other, net (6,334) (6,334)
Net cash provided by operating activities 341,898 - 340,910 988
Investing Activities:
Cash construction expenditures (199,823) (199,823)
Contributions to decommissioning trusts (18,004) (18,004)
Other, net (10,253) (10,253)
Net cash used for investing activities (228,080) - (228,080) -
Financing Activities:
Issuance of long-term debt 79,550 79,550
Increase in notes payable, net 31,000 31,000
Retirement of long-term debt (25,710) (25,710)
Capital lease principal payments (29,763) (29,763)
Redemption of preferred stock (20,000) (20,000)
Dividends paid on preferred stock (13,496) (13,496)
Dividends paid on common stock (135,000) (135,000)
Dividends paid on common stock - Internal - 988 (988)
Net cash required by financing activities (113,419) - (112,431) (988)
Net increase in cash and temporary cash
investments from above activities 399 399
Cash and temporary cash investments, beginning of year 922 - 921 1
Cash and temporary cash investments, end of year $ 1,321 $ - $ 1,320 $ 1
Supplemental Disclosure:
Interest paid $ 106,264 $12,204 $ 107,768 $ 10,700
Income taxes paid $ 90,960 $ 90,452 $ 508
New capital lease obligations incurred $ 32,694 $ 32,694
The notes to the consolidated financial statements of JCP&L, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-5-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $2,297,100 $2,280,080 $17,020
Less, accumulated depreciation 841,398 835,821 5,577
Net utility plant in service 1,455,702 1,444,259 11,443
Construction work in progress 98,171 95,844 2,327
Other, net 31,000 31,000
Net utility plant 1,584,873 1,571,103 13,770
Other Property and Investments:
Common stock of subsidiaries - $ 26,555 (A) 26,555
Nuclear decommissioning trusts 131,475 131,475
Other, net 11,261 11,261
Total other property and investments 142,736 26,555 169,291
Current Assets:
Cash and temporary cash investments 1,901 1,900 $ 1
Special deposits 1,052 1,052
Accounts receivable:
Customers, net 61,522 61,522
Other 17,368 11,280 (B) 17,222 10,804 622
Unbilled revenues 27,019 27,019
Materials and supplies, at average cost or less:
Construction and maintenance 39,739 39,739
Fuel 11,026 11,026
Deferred income taxes 7,073 7,073
Prepayments 17,254 17,254
Total current assets 183,954 11,280 183,807 10,805 622
Deferred Debits and Other Assets:
Regulatory assets:
Income taxes recoverable through future rates 174,636 174,690 (54)
Three Mile Island Unit 2 deferred costs 144,782 144,782
Nonutility generation contract buyout costs 86,781 86,781
Other 56,184 56,184
Total regulatory assets 462,383 462,437 (54)
Deferred income taxes 85,169 85,178 (9)
Other 13,863 103,093 (C) 13,863 103,093
Total deferred debits and other assets 561,415 103,093 561,478 103,093 (63)
Total Assets $2,472,978 $140,928 $2,485,679 $113,898 $14,329
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-6-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 66,273 $ 1,164 (A) $ 66,273 $ 1 $ 1,163
Capital surplus 370,200 16,312 (A) 370,200 13,402 2,910
Retained earnings 264,044 9,079 (A) 264,044 53 9,026
Total common stockholder's equity 700,517 26,555 700,517 13,456 13,099
Cumulative preferred stock 12,056 12,056
Company-obligated mandatorily redeemable
preferred securities 100,000 100,000
Long-term debt 563,252 103,093 (C) 666,345
Total capitalization 1,375,825 129,648 1,378,918 113,456 13,099
Current Liabilities:
Securities due within one year 40,020 40,020
Notes payable 50,667 50,667
Obligations under capital leases 29,964 29,964
Accounts payable 117,413 11,280 (B) 128,691 2
Taxes accrued 11,222 10,726 442 54
Interest accrued 18,279 18,278 1
Other 45,825 45,825
Total current liabilities 313,390 11,280 324,171 442 57
Deferred Credits and Other Liabilities:
Deferred income taxes 401,104 400,016 1,088
Three Mile Island Unit 2 future costs 215,204 215,204
Unamortized investment tax credits 31,584 31,536 48
Nuclear fuel disposal fee 28,811 28,811
Regulatory liabilities 25,981 25,944 37
Other 81,079 81,079
Total deferred credits and other liabilities 783,763 - 782,590 - 1,173
Total Liabilities and Capital $2,472,978 $140,928 $2,485,679 $113,898 $14,329
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-7-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
Operating Revenues $910,408 $6,745 (A) $910,307 $6,846
Equity in Earnings of Subsidiaries - 1,818 (B) 1,818
Operating Expenses:
Fuel 93,881 93,881
Power purchased and interchanged:
Affiliates 20,724 6,745 (A) 27,469
Other 209,831 209,831
Deferral of energy costs, net (448) (448)
Other operation and maintenance 249,993 245,637 4,356
Depreciation and amortization 98,364 97,829 535
Taxes, other than income taxes 61,319 61,026 293
Total operating expenses 733,664 6,745 735,225 5,184
Operating Income Before Income Taxes 176,744 1,818 176,900 1,662
Income taxes 49,844 (409)(C) 48,770 665
Operating Income 126,900 2,227 128,130 997
Other Income and Deductions:
Allowance for other funds used
during construction 540 482 58
Other income, net 1,220 10,258 (D) 1,306 $10,169 3
Income taxes (489) (409)(C) (489) (409)
Total other income and deductions 1,271 9,849 1,299 9,760 61
Income Before Interest Charges and
Dividends on Preferred Securities 128,171 12,076 129,429 9,760 1,058
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 45,373 45,373
Other interest 5,436 10,258 (D) 15,694
Allowance for borrowed funds used
during construction (705) (705)
Dividends on company-obligated mandatorily
redeemable preferred securities 9,000 9,000
Total interest charges and dividends
on preferred securities 59,104 10,258 60,362 9,000 -
Net Income $ 69,067 $ 1,818 (B) $ 69,067 $ 760 $1,058
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-8-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <S> <C> <C> <C> <C>
Balance at beginning of year $ 248,434 $ 8,582 $ 248,434 $ 614 $ 7,968
Net income 69,067 1,818 69,067 760 1,058
Cash dividends declared on common stock (60,000) (1,321) (60,000) (1,321)
Cash dividends on cumulative preferred stock (944) (944)
Net unrealized gain on investments 4,027 4,027
Gain on preferred stock reacquisition 3,722 3,722
Other adjustments, net (262) (262)
Balance at end of year $ 264,044 $ 9,079 $ 264,044 $ 53 $ 9,026
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-9-
<PAGE>
Metropolitan Edison Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Metropolitan
Edison Company
and Subsidiary Eliminations Metropolitan Met-Ed York Haven
Companies and Edison Preferred Power
Consolidated Adjustments Company Capital, Inc. Company
<S> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 69,067 $ 1,818 $ 69,067 $ 760 $ 1,058
Adjustments to reconcile income to cash provided:
Equity in earnings of subsidiaries - (1,818) (1,818)
Depreciation and amortization 104,820 104,330 490
Amortization of property under capital leases 15,704 15,704
Voluntary enhanced retirement programs 26,204 26,204
Nuclear outage maintenance costs, net 6,215 6,215
Deferred income taxes and investment tax credits, net 25,168 25,090 78
Deferred energy costs, net (448) (448)
Allowance for other funds used during construction (540) (482) (58)
Changes in working capital:
Receivables 6,281 5,779 547 (45)
Materials and supplies (1,611) (1,611)
Special deposits and prepayments (10,501) (10,501)
Payables and accrued liabilities (33,368) (33,268) (60) (40)
Due to/from affiliates 17,863 17,863
Nonutility generation contract buyout costs (43,318) (43,318)
Other, net (15,964) (15,964)
Net cash provided by operating activities 165,572 - 162,842 1,247 1,483
Investing Activities:
Cash construction expenditures (76,660) (74,615) (2,045)
Contributions to decommissioning trusts (17,057) (17,057)
Other, net (1,087) (1,087)
Net cash used for investing activities (94,804) - (92,759) - (2,045)
Financing Activities:
Increase in notes payable, net 28,277 28,277
Retirement of long-term debt (15,019) (15,019)
Capital lease principal payments (15,171) (15,171)
Redemption of preferred stock (7,820) (7,820)
Dividends paid on preferred stock (944) (944)
Dividends paid on common stock (60,000) (60,000)
Dividends paid on common stock - Internal - 1,321 (1,321)
Capital stock paid-in capital - (50) 50
Net cash provided (required) by (70,677) - (69,406) (1,321) 50
financing activities
Net increase (decrease) in cash and temporary cash
investments from above activities 91 677 (74) (512)
Cash and temporary cash investments, beginning of year 1,810 1,223 75 512
Cash and temporary cash investments, end of year $ 1,901 $ - $ 1,900 $ 1 $ -
Supplemental Disclosure:
Interest paid $ 59,697 $10,258 $ 60,955 $ 9,000
Income taxes paid $ 39,278 $ 38,135 470 $ 673
New capital lease obligations incurred $ 1,417 $ 1,417
The notes to the consolidated financial statements of Met-Ed, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-10-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
ASSETS
Utility Plant:
In service, at original cost $2,738,223 $2,737,176 $1,032 $15
Less, accumulated depreciation 1,022,553 1,022,314 239
Net utility plant in service 1,715,670 1,714,862 793 15
Construction work in progress 72,757 72,757
Other, net 22,910 22,910
Net utility plant 1,811,337 1,810,529 793 15
Other Property and Investments:
Common stock of subsidiaries - $ 15,589 (A) 15,589
Nuclear decommissioning trusts 54,194 54,194
Other, net 7,271 7,271
Total other property and investments 61,465 15,589 77,054 - -
Current Assets:
Cash and temporary cash investments - (794) $ 1 793
Special deposits 2,348 2,348
Accounts receivable:
Customers, net 73,190 73,190
Other 15,151 11,357 (B) 15,147 11,357 4
Unbilled revenues 31,350 31,350
Materials and supplies, at average
cost or less:
Construction and maintenance 49,007 49,007
Fuel 9,924 9,924
Prepayments 36,930 36,930
Total current assets 217,900 11,357 217,102 11,358 797 -
Deferred Debits and Other Assets:
Regulatory assets:
Three Mile Island Unit 2 deferred costs 85,287 85,287
Income taxes recoverable through
future rates 210,023 210,023
Other 67,128 67,128
Total regulatory assets 362,438 362,438
Deferred income taxes 67,099 67,099
Other 14,826 108,247 (C) 14,826 108,247
Total deferred debits and other assets 444,363 108,247 444,363 108,247 - -
Total Assets $2,535,065 $135,193 $2,549,048 $119,605 $1,590 $15
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-11-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Balance Sheet
December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES AND CAPITAL
Capitalization:
Common stock $ 105,812 $ 17 (A) $ 105,812 $ 1 $ 1 $15
Capital surplus 285,486 15,439 (A) 285,486 14,072 1,367
Retained earnings 363,702 179 (A) 363,702 36 143
Total common stockholder's equity 755,000 15,635 755,000 14,109 1,511 15
Cumulative preferred stock 16,681 16,681
Company-obligated mandatorily redeemable
preferred securities 105,000 105,000
Long-term debt 656,459 108,247 (C) 764,706
Total capitalization 1,533,140 123,882 1,536,387 119,109 1,511 15
Current Liabilities:
Securities due within one year 26,010 26,010
Notes payable 107,680 107,680
Obligations under capital leases 15,881 15,881
Accounts payable 73,856 11,357 (B) 85,213
Taxes accrued 11,223 10,718 496 9
Interest accrued 19,192 19,192
Other 17,224 17,224
Total current liabilities 271,066 11,357 281,918 496 9 -
Deferred Credits and Other Liabilities:
Deferred income taxes 473,268 473,237 31
Unamortized investment tax credits 42,095 42,056 39
Three Mile Island Unit 2 future costs 107,652 107,652
Nuclear fuel disposal fee 14,406 14,406
Regulatory liabilities 31,694 31,694
Other 61,744 (46)(A) 61,698
Total deferred credits and
other liabilities 730,859 (46) 730,743 - 70 -
Total Liabilities and Capital $2,535,065 $135,193 $2,549,048 $119,605 $1,590 $15
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-12-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Income
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues $1,019,645 $1,019,645 $ -
Equity in Earnings of Subsidiaries - $ 813 (A) 813
Operating Expenses:
Fuel 176,158 176,158
Power purchased and interchanged:
Affiliates 3,529 3,529
Other 206,403 206,403
Deferral of energy costs, net 795 795
Other operation and maintenance 293,868 293,868
Depreciation and amortization 94,580 94,568 $ 12
Taxes, other than income taxes 64,955 64,947 8
Total operating expenses 840,288 - 840,268 20
Operating Income Before Income Taxes 179,357 813 180,190 (20)
Income taxes 45,648 (434)(B) 45,219 (5)
Operating Income 133,709 1,247 134,971 (15)
Other Income and Deductions:
Allowance for other funds used
during construction 173 173
Other income/(expense), net (825) 10,517 (C) (774) $10,428 38
Income taxes 99 (434)(B) 115 (434) (16)
Total other income and deductions (553) 10,083 (486) 9,994 22
Income Before Interest Charges and
Dividends on Preferred Securities 133,156 11,330 134,485 9,994 7
Interest Charges and Dividends
on Preferred Securities:
Interest on long-term debt 49,654 49,654
Other interest 7,112 10,517 (C) 17,629
Allowance for borrowed funds used
during construction (2,607) (2,607)
Dividends on company-obligated mandatorily
redeemable preferred securities 9,188 9,188
Total interest charges and dividends
on preferred securities 63,347 10,517 64,676 9,188 -
Net Income $ 69,809 $ 813 (A) $ 69,809 $ 806 $ 7 $ -
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-13-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Retained Earnings
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
Balance at beginning of year $ 327,814 $ 827 $ 327,814 $ 691 $136 $ -
Net income 69,809 813 69,809 806 7
Cash dividends declared on common stock (40,000) (1,461) (40,000) (1,461)
Cash dividends on cumulative preferred stock (1,503) (1,503)
Net unrealized gain on investments 2,014 2,014
Gain on preferred stock reacquisition 5,566 5,566
Other adjustments, net 2 2
Balance at end of year $ 363,702 $ 179 $ 363,702 $ 36 $143 $ -
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-14-
<PAGE>
Pennsylvania Electric Company and Subsidiary Companies Exhibit F-2
Consolidating Statement of Cash Flows
For the Year Ended December 31, 1996
(In Thousands)
<CAPTION>
Pennsylvania
Electric Company Waverly
and Subsidiary Eliminations Pennsylvania Penelec Nineveh Electric Light
Companies and Electric Preferred Water and Power
Consolidated Adjustments Company Capital, Inc. Company Company
<S> <C> <C> <C> <C> <C> <C>
Operating Activities:
Net income $ 69,809 $ 813 $ 69,809 $ 806 $ 7 $ -
Adjustments to reconcile income to
cash provided:
Equity in earnings of subsidiaries - (813) (813)
Depreciation and amortization 89,021 89,009 12
Amortization of property under
capital leases 8,733 8,733
Voluntary enhanced retirement programs 33,626 33,626
Nuclear outage maintenance costs, net 3,099 3,099
Deferred inc. taxes and investment
tax credits, net 19,208 19,202 6
Deferred energy costs, net 731 731
Allowance for other funds used
during construction (173) (173)
Changes in working capital:
Receivables 7,845 7,198 644 3
Materials and supplies 5,591 5,591
Special deposits and prepayments (26,232) (26,232)
Payables and accrued liabilities (57,735) (57,677) (63) 5
Due to/from affiliates 4,580 4,580
Nonutility generation contract
buyout costs (11,700) (11,700)
Other, net (7,746) (7,746)
Net cash provided by
operating activities 138,657 - 137,237 1,387 33 -
Investing Activities:
Cash construction expenditures (114,672) (114,672)
Contributions to decommissioning trusts (5,263) (5,263)
Other, net (684) (684)
Net cash used for investing
activities (120,619) - (120,619) - - -
Financing Activities:
Issuance of long-term debt 39,513 39,513
Increase in notes payable, net 80,580 80,580
Retirement of long-term debt (75,009) (75,009)
Capital lease principal payments (8,418) (8,418)
Redemption of preferred stock (14,527) (14,527)
Dividends paid on preferred stock (1,544) (1,544)
Dividends paid on common stock (40,000) (40,000)
Dividends paid on common stock - Internal - 1,461 (1,461)
Net cash required by
financing activities (19,405) - (17,944) (1,461) - -
Net increase/(decrease) in cash and temporary
cash investments from above activities (1,367) (1,326) (74) 33
Cash and temporary cash investments,
beginning of year 1,367 532 75 760
Cash and temporary cash investments,
end of year $ - $ - $ (794) $ 1 $793 $ -
Supplemental Disclosure:
Interest paid $ 63,162 $10,517 $ 64,491 $ 9,188
Income taxes paid $ 43,098 $ 42,597 497 $ 4
New capital lease obligations incurred $ 715 $ 715
The notes to the consolidated financial statements of Penelec, which are incorporated by reference from the annual report
on Form 10-K for the year ended December 31, 1996, are an integral part of the consolidating financial statements.
-15-
<PAGE>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000040779
<NAME> GPU, INC.
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 6,387,823
<OTHER-PROPERTY-AND-INVEST> 1,541,191
<TOTAL-CURRENT-ASSETS> 897,174
<TOTAL-DEFERRED-CHARGES> 2,115,031
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 10,941,219
<COMMON> 314,458
<CAPITAL-SURPLUS-PAID-IN> 750,569
<RETAINED-EARNINGS> 2,068,976
<TOTAL-COMMON-STOCKHOLDERS-EQ> 3,047,587 <F1>
444,000 <F2>
66,478
<LONG-TERM-DEBT-NET> 3,177,016
<SHORT-TERM-NOTES> 256,567
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 8,980
<LONG-TERM-DEBT-CURRENT-PORT> 168,583
10,000
<CAPITAL-LEASE-OBLIGATIONS> 6,623
<LEASES-CURRENT> 143,818
<OTHER-ITEMS-CAPITAL-AND-LIAB> 3,611,567
<TOT-CAPITALIZATION-AND-LIAB> 10,941,219
<GROSS-OPERATING-REVENUE> 3,918,089
<INCOME-TAX-EXPENSE> 166,572
<OTHER-OPERATING-EXPENSES> 3,243,238
<TOTAL-OPERATING-EXPENSES> 3,409,810
<OPERATING-INCOME-LOSS> 508,279
<OTHER-INCOME-NET> 30,253
<INCOME-BEFORE-INTEREST-EXPEN> 538,532
<TOTAL-INTEREST-EXPENSE> 240,180 <F3>
<NET-INCOME> 298,352
0
<EARNINGS-AVAILABLE-FOR-COMM> 298,352
<COMMON-STOCK-DIVIDENDS> 231,956
<TOTAL-INTEREST-ON-BONDS> 184,675
<CASH-FLOW-OPERATIONS> 642,669
<EPS-PRIMARY> 2.47
<EPS-DILUTED> 2.47
<FN>
<F1> INCLUDES REACQUIRED COMMON STOCK OF $86,416.
<F2> INCLUDES SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F2> SECURITIES OF $330,000.
<F3> INCLUDES DIVIDENDS ON SUBSIDIARY-OBLIGATED MANDATORILY REDEEMABLE
<F3> PREFERRED SECURITIES OF $28,888, PREFERRED STOCK DIVIDENDS OF
<F3> SUBSIDIARIES OF $15,519, AND GAIN ON REACQUIRED PREFERRED STOCK
<F3> OF $9,288.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000053456
<NAME> JERSEY CENTRAL POWER & LIGHT COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 2,934,684
<OTHER-PROPERTY-AND-INVEST> 388,308
<TOTAL-CURRENT-ASSETS> 389,342
<TOTAL-DEFERRED-CHARGES> 997,585
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 4,709,919
<COMMON> 153,713
<CAPITAL-SURPLUS-PAID-IN> 510,769
<RETAINED-EARNINGS> 825,001
<TOTAL-COMMON-STOCKHOLDERS-EQ> 1,489,483
239,000 <F1>
37,741
<LONG-TERM-DEBT-NET> 1,173,091
<SHORT-TERM-NOTES> 31,800
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 100,075
10,000
<CAPITAL-LEASE-OBLIGATIONS> 933
<LEASES-CURRENT> 96,150
<OTHER-ITEMS-CAPITAL-AND-LIAB> 1,531,646
<TOT-CAPITALIZATION-AND-LIAB> 4,709,919
<GROSS-OPERATING-REVENUE> 2,057,918
<INCOME-TAX-EXPENSE> 71,080
<OTHER-OPERATING-EXPENSES> 1,729,532
<TOTAL-OPERATING-EXPENSES> 1,800,612
<OPERATING-INCOME-LOSS> 257,306
<OTHER-INCOME-NET> 5,381
<INCOME-BEFORE-INTEREST-EXPEN> 262,687
<TOTAL-INTEREST-EXPENSE> 106,384 <F2>
<NET-INCOME> 156,303
13,072
<EARNINGS-AVAILABLE-FOR-COMM> 143,231
<COMMON-STOCK-DIVIDENDS> 135,000 <F3>
<TOTAL-INTEREST-ON-BONDS> 89,648
<CASH-FLOW-OPERATIONS> 341,898
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> INCLUDES COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES OF $125,000.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $10,700.
<F3> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000065350
<NAME> METROPOLITAN EDISON COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,584,873
<OTHER-PROPERTY-AND-INVEST> 142,736
<TOTAL-CURRENT-ASSETS> 183,954
<TOTAL-DEFERRED-CHARGES> 561,415
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,472,978
<COMMON> 66,273
<CAPITAL-SURPLUS-PAID-IN> 370,200
<RETAINED-EARNINGS> 264,044
<TOTAL-COMMON-STOCKHOLDERS-EQ> 700,517
100,000 <F1>
12,056
<LONG-TERM-DEBT-NET> 563,252
<SHORT-TERM-NOTES> 50,667
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 40,020
0
<CAPITAL-LEASE-OBLIGATIONS> 380
<LEASES-CURRENT> 29,964
<OTHER-ITEMS-CAPITAL-AND-LIAB> 976,122
<TOT-CAPITALIZATION-AND-LIAB> 2,472,978
<GROSS-OPERATING-REVENUE> 910,408
<INCOME-TAX-EXPENSE> 49,844
<OTHER-OPERATING-EXPENSES> 733,664
<TOTAL-OPERATING-EXPENSES> 783,508
<OPERATING-INCOME-LOSS> 126,900
<OTHER-INCOME-NET> 1,271
<INCOME-BEFORE-INTEREST-EXPEN> 128,171
<TOTAL-INTEREST-EXPENSE> 59,104 <F2>
<NET-INCOME> 69,067
944
<EARNINGS-AVAILABLE-FOR-COMM> 71,845 <F3>
<COMMON-STOCK-DIVIDENDS> 60,000 <F4>
<TOTAL-INTEREST-ON-BONDS> 45,373
<CASH-FLOW-OPERATIONS> 165,572
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> REPRESENTS COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $9,000.
<F3> INCLUDES GAIN ON PREFERRED STOCK REACQUISITION OF $3,722.
<F4> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<ARTICLE> UT
<CIK> 0000077227
<NAME> PENNSYLVANIA ELECTRIC COMPANY
<MULTIPLIER> 1,000
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 1,811,337
<OTHER-PROPERTY-AND-INVEST> 61,465
<TOTAL-CURRENT-ASSETS> 217,900
<TOTAL-DEFERRED-CHARGES> 444,363
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 2,535,065
<COMMON> 105,812
<CAPITAL-SURPLUS-PAID-IN> 285,486
<RETAINED-EARNINGS> 363,702
<TOTAL-COMMON-STOCKHOLDERS-EQ> 755,000
105,000 <F1>
16,681
<LONG-TERM-DEBT-NET> 656,459
<SHORT-TERM-NOTES> 98,700
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 8,980
<LONG-TERM-DEBT-CURRENT-PORT> 26,010
0
<CAPITAL-LEASE-OBLIGATIONS> 4,129
<LEASES-CURRENT> 15,881
<OTHER-ITEMS-CAPITAL-AND-LIAB> 848,225
<TOT-CAPITALIZATION-AND-LIAB> 2,535,065
<GROSS-OPERATING-REVENUE> 1,019,645
<INCOME-TAX-EXPENSE> 45,648
<OTHER-OPERATING-EXPENSES> 840,288
<TOTAL-OPERATING-EXPENSES> 885,936
<OPERATING-INCOME-LOSS> 133,709
<OTHER-INCOME-NET> (553)
<INCOME-BEFORE-INTEREST-EXPEN> 133,156
<TOTAL-INTEREST-EXPENSE> 63,347 <F2>
<NET-INCOME> 69,809
1,503
<EARNINGS-AVAILABLE-FOR-COMM> 73,872 <F3>
<COMMON-STOCK-DIVIDENDS> 40,000 <F4>
<TOTAL-INTEREST-ON-BONDS> 49,654
<CASH-FLOW-OPERATIONS> 138,657
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<FN>
<F1> REPRESENTS COMPANY-OBLIGATED MANDATORILY REDEEMABLE PREFERRED
<F1> SECURITIES.
<F2> INCLUDES DIVIDENDS ON COMPANY-OBLIGATED MANDATORILY REDEEMABLE
<F2> PREFERRED SECURITIES OF $9,188.
<F3> INCLUDES GAIN ON PREFERRED STOCK REACQUISITIONS OF $5,566.
<F4> REPRESENTS COMMON STOCK DIVIDENDS PAID TO PARENT CORPORATION.
</FN>
<PAGE>
</TABLE>
