Registration No. 33-51035
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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GPU, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 13-5516989
(State or other juris- (I.R.S. Employer
diction of organization) Identification No.)
300 Madison Avenue, Morristown, New Jersey 07962-1911
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEE SAVINGS PLAN FOR
NON-BARGAINING EMPLOYEES
(Full title of the plan)
TERRANCE G. HOWSON
Vice President and Treasurer
GPU Service, Inc.
310 Madison Avenue
Morristown, New Jersey 07962
(Name and address of agent for service)
(973) 455-8200
(Telephone number, including area code,
of agent for service)
Copies to:
Mary A. Nalewako, Secretary Douglas E. Davidson, Esq.
GPU, Inc. Berlack, Israels & Liberman LLP
300 Madison Avenue 120 West 45th Street
Morristown, New Jersey 07962 New York, New York 10036
(973) 455-8200 (212) 704-0100
<PAGE>
The contents of the registrant's Registration Statement on Form S-8
(Registration No. 33-51035), are incorporated herein by reference.
PART II
INFORMATION REQUIREDIN THE REGISTRATION STATEMENT
Item 5. Interests of Named Experts and Counsel.
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Certain legal matters in connection with the Plan were passed
upon by Berlack, Israels & Liberman LLP, New York, New York, who relied on the
opinion of Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, Pennsylvania,
with respect to matters of Pennsylvania law. Certain additional legal matters in
connection with the Plan were passed upon by Carter, Ledyard & Milburn, New
York, New York. As of February 18, 1999, members and attorneys of Berlack,
Israels & Liberman LLP owned an aggregate of 14,066 shares of GPU Common Stock.
As of March 31, 1999 members and attorneys of Carter, Ledyard & Milburn and
their spouses owned an aggregate of 408 shares of GPU Common Stock, one such
member held 200 such shares as custodian for a child of his, and one such member
held 648 shares such shares as trustee.
Item 8. Exhibits
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4-A GPU Companies Employee Savings Plan For Nonbargaining
Employees (the "Plan") as restated through October 1, 1998 to
reflect amendments effective as of January 1, 1997, January 1,
1998 and October 1, 1998.
4-B GPU System Companies Master Savings Plan Trust, as restated
November 1, 1993 -- incorporated by reference to Exhibit 4(b),
Registration Statement on Form S-8, SEC File No. 033-51035.
4-C-1 Articles of Incorporation of GPU, Inc., as amended through
March 27, 1990 -- incorporated by reference to Exhibit 3-A,
1989 Annual Report on Form 10-K, SEC File No. 1-6047.
4-C-2 Articles of Amendment to Articles of Incorporation of GPU,
Inc., dated May 5, 1995 -- incorporated by reference to
Exhibit 4-A, Certificate Pursuant to Rule 24, SEC File No.
70-8569.
4-C-3 Articles of Incorporation of GPU, Inc., as amended August 1,
1996 -- incorporated by reference to Exhibit 3-A-2, 1996
Annual Report on Form 10-K, SEC File No. 1-6047.
4-D By-Laws of GPU, Inc., as amended December 4, 1997 --
incorporated by reference to Exhibit 3-B, 1997 Annual Report
on Form 10-K, SEC File No. 1-6047.
23 Consent of ProcewaterhouseCoopers LLP -- incorporated by
reference to Exhibit 23-A, 1998 Annual Report on Form 10-K,
SEC File No. 1-6047.
-2-
<PAGE>
24-A Power of Attorney
The registrant undertakes that it will submit or has submitted the Plan
and any amendments thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan.
-3-
<PAGE>
SIGNATURES
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The Registrant. Pursuant to the requirements of the Securities Act
or 1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Township of Morristown,
State of New Jersey on this 24th day of May, 1999.
GPU, INC.
By:/s/ F.D. Hafer
------------------------
F.D. Hafer
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature and Title Date
/s/ F.D. Hafer May 24, 1999
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F.D. Hafer, Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ B.L. Levy May 24, 1999
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B.L. Levy, Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ P.E. Maricondo May 24, 1999
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P.E. Maricondo, Vice President and
Comptroller (Principal Accounting
Officer)
T.H. BLACK* May 24, 1999
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T.H. Black, Director
T.B. HAGEN* May 24, 1999
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T.B. Hagen, Director
H.F. HENDERSON, JR.* May 24, 1999
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H.F. Henderson, Jr., Director
-4-
<PAGE>
J.M. PIETRUSKI* May 24, 1999
--------------------------------------
J.M. Pietruski, Director
C.A. REIN* May 24, 1999
--------------------------------------
C.A. Rein, Director
P.R. ROEDEL* May 24, 1999
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P.R. Roedel, Director
B.S. TOWNSEND* May 24, 1999
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B.S. Townsend, Director
C.A.H. TROST* May 24, 1999
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C.A.H. Trost, Director
P. K. WOOLF* May 24, 1999
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P.K. Woolf, Director
* By: /s/ B.L. Levy
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B.L. Levy, as Attorney-in-Fact
-5-
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of
1933, the trustees (or other person who administer the employee benefit
plan) have duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Township of
Morristown, State of New Jersey, on May 24, 1999.
GPU COMPANIES
EMPLOYEE SAVINGS PLAN FOR
NONBARGAINING EMPLOYEES
By:
/s/ Carl Brooks
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Carl Brooks,
Member of Administrative Committee
By:
/s/ Carole Snyder
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Carole Snyder,
Member of Administrative Committee
By:
/s/ Mary Hayes
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Mary Hayes,
Member of Administrative Committee
By:
/s/ Donald Sparaco
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Donald Sparaco,
Member of Administrative Committee
By:
/s/ Georgia Stenger
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Georgia Stenger,
Member of Administrative Committee
By:
/s/ John Wilson
------------------------------------
John Wilson,
Member of Administrative Committee
-6-
EXHIBITS TO BE FILED BY EDGAR
Exhibits
4-A GPU Companies Employee Savings Plan For Nonbargaining
Employees (the "Plan") as restated through October 1, 1998 to
reflect amendments effective as of January 1, 1997, January 1,
1998 and October 1, 1998.
24-A Power of Attorney
Exhibit 4-A
GPU COMPANIES
EMPLOYEE SAVINGS PLAN
FOR
NONBARGAINING EMPLOYEES
As amended and restated through October 1, 1998
-----------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 - Definitions 1
ARTICLE 2 - Purpose, Eligibility and Participation 6
ARTICLE 3 - Contributions 7
ARTICLE 4 - Limitations on Contributions 10
ARTICLE 5 - Accounts, Transfers and Rollovers 19
ARTICLE 6 - Investments and Earnings 24
ARTICLE 7 - Distributions, Withdrawals and Loans 30
ARTICLE 8 - Administration of Plan 46
ARTICLE 9 - Trustee 52
ARTICLE 10 - Amendment and Termination 53
ARTICLE 11 - Miscellaneous 55
<PAGE>
GPU COMPANIES
EMPLOYEE SAVINGS PLAN
FOR
NONBARGAINING EMPLOYEES
Foreword
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This document sets forth the GPU Companies Employee Savings Plan for
Nonbargaining Employees, as amended and restated through October 1, 1998.
The amendments reflected in Sections 1.9, 1.14, 3.6, 4.4(c), 4.7 (second
paragraph), 4.9 and 11.6(d) of this restatement of the Plan are effective as of
January 1, 1997. The amendments reflected in Section 4.4(a) of this restatement
of the Plan are effective as of January 1, 1998. The amendments reflected in
Sections 7.1(e), 7.2(a), 7.5(a) and (b) and 11.7(c), which raise the cash-out
threshold therein from $3,500 to $5,000, apply to any Participant who is an
Employee on or after October 1, 1998. Each of the other amendments to the Plan
reflected in this restatement of the Plan is effective as of October 1, 1998,
except as otherwise indicated in the text of the provision in question.
<PAGE>
ARTICLE 1
Definitions
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As used herein, all nouns and pronouns shall be construed in the singular
or plural and in such gender as the context requires, and the following words
and phrases shall be defined as hereinafter set forth in this Article:
1.1 "Accounts" or "Plan Accounts" shall mean the separate accounts
(including any sub-accounts thereof) established and maintained for a
Participant pursuant to Section 5.1 or 5.2.
1.2 "Administrative Committee" shall mean the Administrative Committee
appointed under Section 8.1.
1.3 "Annual Incentive Award" shall mean any amount paid to a Participant
from the Officers Incentive Compensation Plan, the Employee Incentive
Compensation Plan, or the GPU International Annual Performance
Award Program maintained by his Company.
1.4 "Beneficiary" shall mean the person or persons (including, without
limitation, the trustee or trustees of any trust fund) designated by a
Participant to receive any amount distributable under Section 7.2 by reason of
his death, as indicated in the last designation of a Beneficiary filed by the
Participant with the Administrative Committee, on such form as the
Administrative Committee shall have prescribed, prior to the Participant's
death. If a Participant has failed to designate a Beneficiary, or if no
Beneficiary designated by him survives to receive any such amount, payment of
the Participant's Plan Account balances or of any undistributed portion thereof
shall be made to the Participant's spouse, or, if there be no spouse, to the
Participant's estate.
1.5 "Benefit Compensation" of a Participant for any period shall mean the
base wage or salary, and any Annual Incentive Award, payable to him by his
Company during such period, prior to any reduction elected by the Participant
under Section 3.2 or under his Company's Flexible Benefit Plan, but shall not
include any amounts the Participant elects to defer under the GPU Companies'
Deferred Compensation Plan, or any amounts payable to the Participant for any
period during which he is not treated as a Participant by virtue of the first
sentence of Section 2.2 or 2.5.
1.6 "Business Day" shall mean any day on which securities are traded on
the New York Stock Exchange.
1.7 "Code" shall mean the Internal Revenue Code of 1986, as amended.
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1.8 "Company" or "Companies" shall mean, respectively, (a) any corporation
that is a member of the affiliated group of corporations (as defined in section
1504 of the Code and the regulations thereunder) that includes GPU, Inc., and
that has adopted this Plan, and (b) all such corporations.
1.9 "Compensation Limit" shall mean, for any Plan Year, $160,000, as
increased by the cost-of-living adjustment, if any, in effect for such Plan Year
under section 401(a)(17)(B) of the Code.
1.10 "Current Balance" shall mean, with respect to any Plan Account, the
existing balance of such account.
1.11 "Disabled". A Participant shall be considered to be "Disabled" if, in
the sole judgment of the Administrative Committee, the Participant is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to result in
death or to be of long-continued and indefinite duration. A Participant shall
not be considered to be Disabled unless he furnishes proof of the existence of
his disability in such form and manner as may be required in regulations or
rulings issued under section 72(m)(7) of the Code or as the Administrative
Committee may otherwise require.
1.12 "Earnings" shall mean, with respect to any Plan Account or
sub-account thereof, (a) for periods ended prior to September 1, 1992, the
Earnings allocated to such Account or sub-account pursuant to the provisions of
Section 6.3 of the Plan as in effect during such periods; and (b) for periods
beginning on and after September 1, 1992, the Earnings attributable to the
investment of such Account or sub-account, as determined under Section 6.3
hereof.
1.13. "Eligible Rollover Distribution" shall mean any distribution or
withdrawal of all or any portion of the Participant's Plan Account balances,
except (a) any distribution which is, or is part of, a series of substantially
equal periodic payments which is made not less frequently than annually, and
which is made (1) for the life (or life expectancy) of the Participant or the
joint lives (or joint life expectancies) of the Participant and his Beneficiary,
or (2) for a specified period of 10 years or more, (b) any distribution to the
extent such distribution is required to be made under section 401(a)(9) of the
Code, (c) the portion of any distribution or withdrawal that is not included in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities) and (d) any portion of a
hardship withdrawal made under Section 7.3(e) which is attributable to 401(k)
Contributions, and which is made after December 31, 1998.
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<PAGE>
1.14 "Employee" shall mean any individual who now or hereafter is employed
by any Company as a common law employee. The term "Employee" shall not include
any individual who is a "leased employee" within the meaning of section
414(n)(2) of the Code, or who is a Contract Worker as hereinafter defined. A
"Contract Worker" shall mean any person who provides services to a Company
pursuant to a written agreement between the Company (or any of the GPU Companies
acting on the Company's behalf) and any entity that is not one of the GPU
Companies, unless the agreement pursuant to which such person provides services
to any Company specifically provides for such person to be covered under this
Plan or under a program of employee benefits maintained by such Company that
includes this Plan. A person who is a Contract Worker, as so defined, shall be
treated as a Contract Worker for purposes of this Plan, notwithstanding any
determination by any court or administrative agency that such person is properly
classified as a common law employee of a Company, rather than as an independent
contractor.
1.15 "Employer Contributions" shall mean the aggregate amount of the
401(k) Contributions and Company Matching Contributions made by the Companies to
the Plan on behalf of a Participant pursuant to Sections 3.2 and 3.4.
1.16 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
1.17 "Executive Officer" shall mean any Participant who is a member of
GPU, Inc.'s Corporate Executive Council (as it may be constituted from time to
time), or who may from time to time be designated an executive officer of GPU,
Inc. by its Board of Directors.
1.18 "GPU Stock" shall mean the common stock of GPU, Inc.
1.19 "GPU Stock Fund" shall mean the investment fund described in Section
6.1(d).
1.20 "Hours of Service"--an Employee shall be credited with hours of
service in accordance with the following rules:
(a) An Employee shall be credited with one hour of service for each
hour for which he is paid, or entitled to payment, for the performance of
duties for any Company during the applicable Plan Year.
(b) An Employee shall be credited with one hour of service for each
hour for which he is paid, or entitled to payment, by any Company for a
period of time during which no duties are performed by him (irrespective
of whether the employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability), lay-
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<PAGE>
off, jury duty, military duty or leave of absence. For this purpose, a
payment shall be deemed to be made by or due from a Company regardless of
whether such payment is made by or due from such Company directly, or
indirectly through, among others, a trust fund, or insurer, to which the
Company contributes or pays premiums and regardless of whether
contributions made or due to the trust fund, insurer or other entity are
for the benefit of particular Employees or are on behalf of a group of
Employees in the aggregate. However, no hours of service shall be credited
hereunder with respect to (1) hours for which an Employee receives payment
under a plan maintained solely for the purpose of complying with
applicable workmen's compensation, unemployment compensation, or
disability insurance laws, or (2) hours for which an Employee receives a
payment which solely reimburses him for medical or medically related
expenses incurred by him. No more than 501 hours of service shall be
credited hereunder to an Employee on account of any single continuous
period during which he performs no duties whether or not such period
occurs within a single Plan Year.
(c) An Employee shall be credited with one hour of service for each
hour for which back pay, irrespective of mitigation of damages, is awarded
or agreed to by any Company. However, no hours of service shall be
credited hereunder if they are credited to the Employee under (a) or (b)
above. Furthermore, crediting of hours of service hereunder for periods
described in (b) above shall be subject to the limitations therein set
forth.
(d) Hours of service shall be computed and credited in accordance
with paragraphs (b) and (c) of Section 2530.200b-2 of the Department of
Labor Regulations.
1.21 "Investment Committee" shall mean the Investment Committee appointed
under Section 8.1.
1.22 "Investment Options" shall mean the options provided under Section
6.1 for the investment of Participants' Plan Accounts.
1.23 "Mutual Fund" shall mean any fund or portfolio maintained by any
open-end investment company registered under the Investment Company Act of 1940.
1.24 "Mutual Fund Window" shall mean a brokerage account established and
maintained for a Participant under the Trust Agreement, through which the
Participant may invest a portion of his Plan Account balances in the shares of
any Mutual Fund that may be acquired pursuant to the agreement under which such
brokerage account has been established.
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<PAGE>
1.25 "New Money" shall mean, with respect to any Plan Account as of any
date, any contributions, and any repayments of principal and interest on any
loan from the Plan, that are to be credited to such Account after such date.
1.26 "Officer Participant" shall mean a Participant who is an officer of
any Company, or who is an Executive Officer.
1.27 "Participant" shall mean (a) any Employee who commenced participation
in the Plan in accordance with the provisions hereinafter set forth, and who has
not ceased to be a Participant by virtue of the first sentence of Section 2.5,
and (b) any former Employee who continues to have any amount to his credit in
any Account maintained for him under the Plan.
1.28 "Plan" shall mean the GPU Companies Employee Savings Plan For
Nonbargaining Employees, as set forth in this instrument and any and all
amendments thereto.
1.29 "Plan Year" shall mean the calendar year.
1.30 "Recordkeeper" shall mean the entity that will perform recordkeeping
and related services for the Plan pursuant to the Recordkeeping Services
Agreement.
1.31 "Recordkeeping Services Agreement" shall mean the written agreement
between the Administrative Committee and any other entity under which such
person will perform recordkeeping and related services for the Plan.
1.32 "Telephone Service" shall mean the toll-free telephone service the
Recordkeeper is to make available to receive notice of salary deferral
elections, investment elections and changes of such elections, and requests for
distributions, withdrawals and loans, from Participants and the Administrative
Committee, and to furnish information to Participants, in accordance with the
provisions of the Recordkeeping Services Agreement. The term "Telephone Service"
shall include any other means of electronic communication, including the
Internet, that the Administrative Committee and the Recordkeeper may agree, in
writing, may be used to receive such notices and requests, and to furnish such
information.
1.33 "Termination of Employment" of a Participant shall mean the complete
termination of the Participant's employer-employee relationship with the
Companies. In the case of a Participant who at the time he becomes Disabled is
eligible to receive a pension under his Company's Employee Pension Plan, the
Participant's Termination of Employment shall be deemed to have occurred on the
date treated as his retirement date for purposes of the Employee Pension Plan.
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<PAGE>
1.34 "Trust Agreement" shall mean the agreement between the Companies and
the Trustee setting forth the provisions of the Trust associated with this Plan.
1.35 "Trust Fund" shall mean the funds held by the Trustee for purposes of
the Plan.
1.36 "Trustee" shall mean the individual or individuals, or the bank or
trust company, or any combination thereof, appointed to hold all or part of the
Trust Fund pursuant to Article 9, and includes any successor or substitute
trustee.
ARTICLE 2
Purpose, Eligibility and Participation
--------------------------------------
2.1 Purpose. This Plan is intended to qualify as a cash or deferred profit
sharing plan under sections 401(a) and 401(k) of the Code. The Plan also
contains additional employer contribution and employee savings features.
Pursuant to section 401(a)(27) of the Code, the Plan is intended to constitute a
profit-sharing plan under which contributions may be made by a Company, in its
discretion, whether or not such Company has current or accumulated profits.
2.2 Eligibility. Subject to Section 2.5, any Employee shall become
eligible to participate in the Plan (a) on his employment commencement date, if
he is employed to perform services as a regular full-time employee, a reduced
hour full-time employee or a regular nonfull-time employee, as those terms are
defined in the applicable procedures of the Companies, or (b), if (a) is not
applicable to the Employee, on the date on which he has completed at least one
Year of Service. A "Year of Service" shall mean a consecutive 12-month
computation period during which an Employee has completed at least 1,000 Hours
of Service. For purposes of determining an Employee's eligibility for
participation, a computation period shall begin on the Employee's employment
commencement date. However, if an Employee fails to complete at least 1,000
Hours of Service during the first computation period, then the second
computation period shall be the Plan Year that includes the first anniversary of
the Employee's employment commencement date; and the subsequent computation
periods (if needed) shall be the subsequent Plan Years.
In the event that any question arises concerning the eligibility of any
Employee to participate in the Plan, the decision of the Administrative
Committee as to such Employee's eligibility shall be final and binding upon the
Company, the Employees, the Participants, their Beneficiaries and any and all
other persons having any interest hereunder.
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2.3 Participation. An Employee who has become eligible to participate in
the Plan in accordance with Section 2.2 shall commence participation in the Plan
on the first date as of which he so became eligible.
2.4 Resumption of Participation. In the event that a Participant becomes
employed with any Company after a Termination of Employment, he shall resume
participation in the Plan on the date he so returns to employment with the GPU
Companies, subject, however, to Section 2.5.
2.5 Status as Nonbargaining Employee. Notwithstanding any other provision
herein to the contrary, an Employee shall not be deemed to be a Participant in
this Plan as of any date on which, or for any period during which, he is covered
under a collective bargaining agreement that does not specifically provide for
the application of this Plan to such Employee. Any Employee who ceases to be a
Participant by virtue of the preceding sentence shall automatically resume
participation under the Plan as of the first date on which he is no longer
ineligible to participate hereunder pursuant to said sentence. Any Employee who,
by virtue of the first sentence of this Section 2.5, fails to become a
Participant upon the date he first meets the requirements set forth in the first
paragraph of Section 2.2, shall commence participation hereunder as of the first
date thereafter on which he is no longer ineligible to participate hereunder
pursuant to said sentence.
ARTICLE 3
Contributions
-------------
3.1 In General. Contributions to the Plan may be made by or on behalf of a
Participant as provided in Sections 3.2, 3.3 and 3.4, subject to the rules set
forth in Section 3.5. Notwithstanding the foregoing or any other provision of
this Article 3 to the contrary, the amount of any contribution that may
otherwise be made by or on behalf of a Participant pursuant to the provisions of
this Article 3 shall be subject to the applicable limitations set forth in
Article 4.
3.2 401(k) Contributions. A Participant may elect to have his Benefit
Compensation for any pay period within the Plan Year reduced by an amount equal
to any percentage thereof that is an integral multiple of 1%, and that does not
exceed 21%, and to have such amount contributed by the Companies to the Plan on
the Participant's behalf. The contributions made to the Plan on behalf of a
Participant under this Section shall be referred to as "401(k) Contributions".
3.3 Employee After-Tax Contributions. A Participant may elect to
contribute to the Plan, by payroll deduction, any
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percentage of his Benefit Compensation that is an integral multiple of 1%, and
that does not exceed 10% and, when aggregated with the percentage elected under
Section 3.2, does not exceed 21%. The contributions that a Participant elects to
make to the Plan under this Section shall be referred to as "Employee After-Tax
Contributions".
3.4 Company Matching Contributions. For each Plan Year, the Companies
shall make contributions to the Plan (which contributions shall be referred to
as "Company Matching Contributions") on behalf of Participants, as follows:
(a) In the case of each Participant (other than a Participant whose
employment with any of the Companies commenced prior to June 1, 1984 and
who elected to be covered under the Companies' life insurance and
disability retirement programs as in effect immediately prior to June 1,
1984), the Companies shall contribute to the Plan, for each of such
Participant's pay periods within the Plan Year, an amount equal to so much
of the aggregate amount of the 401(k) Contributions and the Employee
After-Tax Contributions made to the Plan for such pay period by such
Participant or on his behalf, as does not exceed 4% of the Participant's
Benefit Compensation for such pay period.
(b) In the case of each Participant whose employment with any of the
Companies commenced prior to June 1, 1984, and who elected to be covered
under the Companies' life insurance and disability retirement programs as
in effect immediately prior to June 1, 1984, the Companies shall
contribute to the Plan, for each of such Participant's pay periods within
the Plan Year, an amount equal to 70% of so much of the aggregate amount
of the 401(k) Contributions and the Employee After-Tax Contributions made
to the Plan for such pay period by such Participant or on his behalf, as
does not exceed 4% of the Participant's Benefit Compensation for such pay
period.
(c) If (1) the amount of the 401(k) Contributions elected by the
Participant under Section 3.2 for the Plan Year cannot be contributed for
one or more pay periods during such year because of the dollar limitation
applicable for such year under Section 4.1, and (2) the aggregate amount
of the 401(k) Contributions and Employee After-Tax Contributions made by
or on behalf of the Participant for any prior pay periods during such year
exceeded 4% of the Participant's Benefit Compensation for such prior pay
periods, the Companies shall contribute to the Plan, as a supplemental
Company Matching Contribution on the Participant's behalf, an amount equal
to the excess amount so contributed for each such prior pay period by or
on behalf of a Participant described in (a) above, and an amount equal to
70% of the excess amount so contributed for
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each such prior pay period by or on behalf of a Participant described in
(b) above. Notwithstanding the foregoing, the amount to be so contributed
on behalf of any Participant pursuant to the preceding sentence, when
added to the total amount of Company Matching Contributions made on behalf
of the Participant for such Plan Year under (a) or (b) above, shall not
exceed 4% of the total Benefit Compensation of a Participant described in
(a) above for all pay periods within such Plan Year, and shall not exceed
2.8% of the total Benefit Compensation of a Participant described in (b)
above for all pay periods within such Plan Year.
(d) For any Plan Year, the aggregate amount of Benefit Compensation
of any Participant that may be taken into account for purposes of
determining the maximum amount of Company Matching Contributions that may
be made on behalf of such Participant for such Plan Year shall not exceed
the Compensation Limit in effect for such Plan Year.
(e) In addition to the Company Matching Contributions required to be
made under (a), (b) or (c) above, the Companies, in their discretion, may
make additional Company Matching Contributions for any Plan Year, on
behalf of any Participant or group of Participants, in such amounts as the
Companies deem necessary in order to preserve the Plan's qualification
under section 401(a) of the Code. Any additional Company Matching
Contributions so made shall be allocated to the Employer Contribution
Accounts of such Participants, in such amounts, and as of such dates, as
the Companies may determine in their discretion.
3.5 Election Rules. The elections that a Participant may make under
Sections 3.2 and 3.3 shall be subject to the following rules:
(a) A Participant shall make any such election by using the
Telephone Service to communicate such election directly to the
Recordkeeper. Any election so made shall become effective as soon as
practicable after it has been so communicated to the Recordkeeper.
(b) Any election made by a Participant under Section 3.2 or 3.3 may
be revoked by the Participant at any time, or may be modified by him at
any time so as to increase or decrease the amount to be contributed to the
Plan by the Participant or on his behalf. Any revocation or modification
of an election shall be made in the same manner, and shall become
effective as of the same date, as provided in (a) above in the case of an
initial election. It is provided, however, that an Officer Participant may
not use the Telephone Service to make a change in election, if such change
would cause his 401(k) Contributions or his Employee After-tax
Contributions to cease, and such
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Participant has in effect an investment election under which all or a
portion of his 401(k) Contributions or his Employee After-tax
Contributions are invested in the GPU Stock Fund. Instead, the Officer
Participant must make any such change in election in such manner as the
Administrative Committee shall determine.
(c) Any election made by a Participant under Section 3.2 or 3.3
shall cease to be effective upon, and no contributions shall be made by or
on behalf of a Participant after, the date on which the Participant's
Termination of Employment occurs.
3.6 Manner and Time of Contribution. All contributions to be made under
the Plan by the Companies or by Participants shall be made in the form of
payments to the Trustee.
All 401(k) Contributions and Employee After-Tax Contributions to be made
hereunder shall be remitted to the Trustee as soon as practicable after, but in
any event by no later than the 15th Business Day of the month following the
month in which, such contributions would have been paid to the Participant but
for his election under Section 3.2 or 3.3. Any additional Company Matching
Contributions permitted to be made for a Plan Year under Section 3.4(e) may be
made at such times (either during such Plan Year or at any time after the close
thereof) as the Companies may determine in their discretion. All other
contributions to be made by the Companies for any Plan Year shall be made by no
later than the due date (including any extensions) for filing the Companies'
Federal income tax return for its taxable year corresponding with such Plan
Year.
The amount to be contributed for each Plan Year by each Company shall be
the aggregate amount of the contributions to be made under Sections 3.2 and 3.4
on behalf of all those Participants that were employed by such Company during
such Plan Year.
ARTICLE 4
Limitations on Contributions
----------------------------
4.1 Dollar Limit for 401(k) Contributions. For any Plan Year, the total
amount of 401(k) Contributions to be made on behalf of any Participant shall not
exceed $10,000, as increased by the cost-of-living adjustment, if any, in effect
for such Plan Year pursuant to regulations or rulings issued under section
415(d) of the Code.
4.2 Nondiscrimination Test for 401(k) Contributions. For any Plan Year,
the 401(k) Contributions to be made on behalf of the group of Participants who
are Highly Compensated Employees
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shall not exceed the maximum amount that may be contributed on their behalf for
such year under either one of the following tests:
(a) the Actual Deferral Percentage for the group of Participants who
are Highly Compensated Employees may not be more than the Actual Deferral
Percentage for the group of all other Participants multiplied by 1.25; or
(b) the excess of the Actual Deferral Percentage for the group of
Participants who are Highly Compensated Employees over the Actual Deferral
Percentage for the group of all other Participants may not be more than
two percentage points, and the Actual Deferral Percentage for the group of
Participants who are Highly Compensated Employees may not be more than the
Actual Deferral Percentage for the group of all other Participants
multiplied by two.
For these purposes, the term "Actual Deferral Percentage", for any group
of Participants for any Plan Year, shall mean the average of the ratios
(calculated separately for each Participant in such group) of (1) the sum of the
401(k) Contributions made on behalf of such Participant for such year, to (2)
such Participant's Adjusted Compensation for such year.
4.3 Nondiscrimination Test for After-Tax and Matching Contributions. For
any Plan Year, the aggregate amount of Employee After-Tax Contributions and
Company Matching Contributions to be made on behalf of the group of Participants
who are Highly Compensated Employees shall not exceed the maximum amount that
may be contributed to the Plan on their behalf for such year under either one of
the following tests:
(a) the Contribution Percentage for the group of Participants who
are Highly Compensated Employees may not be more than the Contribution
Percentage for the group of all other Participants multiplied by 1.25; or
(b) the excess of the Contribution Percentage for the group of
Participants who are Highly Compensated Employees over the Contribution
Percentage for the group of all other Participants may not be more than
two percentage points, and the Contribution Percentage for the group of
Participants who are Highly Compensated Employees may not be more than the
Contribution Percentage for the group of all other Participants multiplied
by two.
For these purposes, the term "Contribution Percentage", for any group of
Participants for any Plan Year, shall mean the average of the ratios (calculated
separately for each Participant in such group) of (1) the sum of the Employee
After-Tax Contributions and the Company Matching Contributions made on
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behalf of such Participant for such year, to (2) such Participant's Adjusted
Compensation for such year. Notwithstanding the foregoing, if the applicable
conditions of section 1.401(m)-(1)(b)(5) of the Federal income tax regulations
are satisfied, the Companies may elect, for any Plan Year, to treat any part or
all of the 401(k) Contributions as includible within the contributions described
in clause (1) of the preceding sentence, for purposes of applying the
non-discrimination test of this Section 4.3 for such Plan Year.
4.4 Special Rules for Nondiscrimination Tests. For purposes of the
nondiscrimination tests set forth in Sections 4.2 and 4.3, the following
definitions and rules shall apply:
(a) Adjusted Compensation. A Participant's "Adjusted Compensation"
for any Plan Year shall mean the total amount of the Participant's
compensation for such year, as defined in section 415(c)(3) of the Code.
For any Plan Year, (1) the amount of Adjusted Compensation taken into
account under the Plan for any Participant shall not exceed the
Compensation Limit in effect for such Plan Year, and (2) a Participant's
Adjusted Compensation for such year shall include only the Adjusted
Compensation paid to him during that portion of such year during which he
was a Participant.
(b) Participant. The term "Participant", for any Plan Year, shall
mean an Employee who, at any time during such year, has met the
requirements for eligibility set forth in the first paragraph of Section
2.2 and in Section 2.5.
(c) Highly Compensated Employee. The term "Highly Compensated
Employee" shall mean, for any Plan Year, any individual who is an Employee
during such Plan Year, and who either:
(1) was, at any time during such Plan Year or the immediately
preceding Plan Year, a five-percent owner, as defined in section
416(i)(1)(B)(i) of the Code, or
(2) for the immediately preceding Plan Year (i) had
Adjusted Compensation in excess of $80,000, as increased by the
cost-of-living adjustments, if any, in effect for such preceding
year under section 414(q)(1) of the Code, and (ii) was in the
top-paid group of employees, as defined in section 414(q)(3) of
the Code.
(d) Actual Deferral Percentage and Contribution Percentage. For
any Plan Year, (1) the Actual Deferral Percentage under Section 4.2 and
the Contribution Percentage under Section 4.3 shall be calculated to the
nearest one-hundredth of 1% and (2) the alternative limits set forth in
Section 4.2(b) and Section 4.3(b) may be utilized only to the extent
permitted under section 1.401(m)-(2) of the Federal income tax
regulations.
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A 401(k) Contribution shall be taken into account in determining the
Actual Deferral Percentage under Section 4.2 for a Plan Year only if such
contribution relates to Benefit Compensation that would have been received
by the Participant in such Plan Year but for his election under Section
3.2, and only if such contribution is allocated to the Employer
Contribution Account of the Participant as of a date within such Plan
Year. For purposes of the preceding sentence, a 401(k) Contribution shall
not be treated as having been allocated to the Participant's Employer
Contribution Account as of a date within a Plan Year unless the allocation
is not contingent on the Participant's participation in the Plan or
performance of services after such date, and such contribution is actually
paid to the Trust Fund no later than 12 months after the close of such
Plan Year.
A Company Matching Contribution shall be taken into account in
determining the Actual Contribution Percentage under Section 4.3 for a
Plan Year only if such contribution is allocated to the Participant's
Employer Contribution Account as of a date within such Plan Year, is
actually paid to the Trust Fund no later than 12 months after the close of
such Plan Year, and was made on behalf of the Participant on account of
his 401(k) Contributions or Employee After-Tax Contributions.
An Employee After-Tax Contribution shall be taken into account in
determining the Actual Contribution Percentage under Section 4.3 for the
Plan Year in which such contribution was made to the Trust Fund.
(e) Aggregation. If one or more plans are aggregated with this Plan
for purposes of satisfying section 401(a)(4) or 410(b) of the Code (other
than section 410(b)(2)(A)(ii) of the Code) for any Plan Year, then, for
purposes of applying the nondiscrimination tests in Sections 4.2 and 4.3
for such year, the 401(k) contributions, employee after-tax contributions
and company matching contributions made under such plan or plans and under
this Plan shall be treated as having been made under a single plan. If one
or more plans are permissibly aggregated with this Plan for purposes of
satisfying the nondiscrimination test in Sections 4.2 and/or Section 4.3
for any Plan Year, then such plan or plans, when aggregated with this
Plan, must also satisfy sections 401(a)(4) and 410(b) of the Code for such
year, as though they were a single plan. The Actual Deferral Percentage or
Actual Contribution Percentage of any Highly Compensated Employee
determined under Section 4.2 or 4.3, as the case may be, shall be
determined by treating all cash or deferred arrangements, or all plans
which permit employee after-tax contributions and/or company matching
contributions, as
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applicable, of any Company in which such Highly Compensated Employee is
eligible to participate as a single such arrangement or plan.
4.5 Net Profit Limitation. To the extent that the aggregate amount of
Employer Contributions that a Company otherwise would be required to make for
any Plan Year would exceed the Company's Net Profit, the Company shall not be
required to make such excess contributions. However, any part or all of such
excess contributions may be made by the Company, in its sole discretion. For
this purpose, a Company's Net Profit, with respect to any Plan Year, shall mean
the sum of (a) its retained earnings as of the end of the immediately preceding
Plan Year, as reported in its regularly prepared financial statements for such
year, and (b) its net income for the current Plan Year, as determined in
accordance with generally accepted accounting principles, but prior to any
deduction for (1) taxes imposed on or measured by net income, (2) contributions
to this Plan, and (3) payment of any dividends by the Company.
4.6 Deduction Limitation. The aggregate amount of Employer Contributions
to be made by a Company for any Plan Year may not exceed either of the following
amounts:
(a) 15% of the Compensation paid by the Company during such year
to all Participants employed by it; or
(b) (1) the greater of (i) 25% of the Compensation paid by the
Company during such year to all Participants employed by it or (ii) the
amount of contributions made by the Company to its Employee Pension Plan
for such year to the extent such contributions do not exceed the amount of
contributions necessary to satisfy the minimum funding standard under
section 412 of the Code for such year, minus (2) the total amount of
contributions made by the Company to its Employee Pension Plan for such
year.
For these purposes, a Participant's "Compensation" for any Plan Year shall
mean the total amount of compensation received by the Participant from a Company
during such year, to the extent such compensation is currently includible in the
Participant's gross income for Federal income tax purposes. For any Plan Year,
(A) the amount of Compensation taken into account under the Plan for any
Participant shall not exceed the Compensation Limit in effect for such Plan
Year, and (B) a Participant's Compensation for such year shall include the
Compensation paid to him during the entire such year, whether or not he was a
Participant for the entire such year.
A Participant's Compensation for any Plan Year shall be taken into account
for purposes of this Section only if a contribution is made on behalf of the
Participant for such year under Section 3.2 or 3.4.
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<PAGE>
4.7 Section 415 Limitation. For any Plan Year, the total amount
contributed by or on behalf of any Participant under this Plan, when aggregated
with all other amounts which are "annual additions" with respect to such
Participant, shall not exceed the lesser of (a) $30,000 (as adjusted by the
Internal Revenue Service under Code section 415(d) for such year) or (b) 25% of
the Participant's compensation for such Plan Year, as defined in section
415(c)(3) of the Code, but subject to the limitation set forth in clause (A) of
the second paragraph of Section 4.6. In addition, the amounts contributed under
this Plan by or on behalf of any Participant for any Plan Year beginning before
January 1, 2000 shall not exceed the amount which is permissible under the
overall limitation applicable to such Participant for such Plan Year under
section 415(e) of the Code. For these purposes, "annual additions" with respect
to a Participant shall mean (1) any employer contributions, after-tax employee
contributions or forfeitures made by or on behalf of, or allocated to, the
Participant under any qualified defined contribution plan maintained by any
Company, and (2) except as to the limitation in clause (b) above, amounts
allocated after March 31, 1984 on behalf of the Participant to any individual
medical account which is part of a pension or annuity plan, or any contributions
paid or accrued after December 31, 1985 attributable to post-retirement medical
benefits allocated on behalf of the Participant to a separate account described
in Code section 419A(d)(1) under a welfare benefit fund, maintained by any
Company.
If the contributions made by or on behalf of a Participant for any Plan
Year exceed the limitations under this Section 4.7 for such year, such excess
shall be deemed to be attributable to such contributions in the following order:
(i) unmatched Employee After-Tax Contributions, (ii) unmatched 401(k)
Contributions, (iii) matched Employee After-Tax Contributions, (iv) matched
401(k) Contributions, (v) Matching Contributions, and (vi) any other
contributions taken into account for purposes of this Section 4.7. To the extent
permitted by section 1.415-6(b)(6) of the Federal income tax regulations, (x)
any Employee After-Tax Contributions deemed to be a part of such excess, and the
earnings on such Employee After-Tax Contributions, shall be distributed to the
Participant from his Employee After-Tax Contribution Account in accordance with
Section 1.415-6(b)(6)(iv) of the Federal income tax regulations, (y) any 401(k)
Contributions deemed to be a part of such excess, and the earnings on such
401(k) Contributions, shall be distributed to the Participant from his Employer
Contribution Account in accordance with section 1.415-6(b)(6)(iv) of the Federal
income tax regulations, and (z) any other contributions made under this Plan
which are deemed to be a part of such excess shall be treated in the manner
described in section 1.415-6(b)(6)(ii) of the Federal income tax regulations, or
as otherwise determined by the Committee under Section 4.8.
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4.8 Adjustments. Notwithstanding any other provision herein to the
contrary, at any time during the Plan Year, the Administrative Committee may
make such adjustments to or impose such restrictions on the amounts that
otherwise are to be contributed to the Plan by or on behalf of any Participant
or group of Participants during the balance of such year, as the Administrative
Committee deems necessary in order for such contributions not to exceed any of
the limitations set forth in this Article 4, or in order for the Plan to meet
any other requirement for the Plan's continued qualification under sections
401(a) and 401(k) of the Code.
In addition, notwithstanding any other provision herein to the contrary,
each contribution made under the Plan by or on behalf of a Participant, and the
allocation thereof to the Participant's Plan Accounts, is subject to such
contribution and allocation not causing the Plan to lose its qualification under
section 401(a) of the Code. If it should be determined that any contribution and
allocation so made would otherwise cause the Plan to lose its qualification
under section 401(a) of the Code, the Administrative Committee may take whatever
steps it determines to be necessary to preserve the Plan's qualification under
section 401(a) of the Code, including (in addition to the measures provided for
in Section 4.9) directing that the Participant's Plan Accounts be adjusted to
eliminate therefrom the amount so allocated with respect to such contribution
(and any Earnings attributable thereto), and directing that any amount so
eliminated be returned to the Companies, or held in a suspense account for
allocation to the Participant in a subsequent Plan Year, or reallocated to the
Accounts of such other Participants, in such amounts as the Administrative
Committee determines in its discretion.
Any 401(k) Contributions or Employee After-Tax Contributions so returned
to the Companies shall be paid by them to those Participants on whose behalf
such amounts were contributed by the Companies to the Plan, as soon as
practicable after the Companies have received them.
4.9 Corrective Distributions. If for any Plan Year the contributions made
by or on behalf of a Participant for such year exceed the limitation applicable
to such contributions under Section 4.1, 4.2 or 4.3, or if any part of the
401(k) Contributions made on behalf of a Participant during any taxable year of
the Participant is designated as an excess deferral under subsection (b) below,
such excess contributions, or the amount so designated, shall be distributed to
the Participant in accordance with the following rules:
(a) If the aggregate amount of the 401(k) Contributions made on
behalf of a Participant for any Plan Year exceeds the dollar limit for
such contributions under Section 4.1, the excess amount so contributed, as
adjusted
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for income or loss allocable thereto, shall be distributed to the
Participant by no later than April 15 next following the close of such
Plan Year.
(b) If the aggregate amount of the 401(k) Contributions made on
behalf of a Participant under this Plan for any taxable year of the
Participant, when added to the total amount deferred in such year under
other plans or arrangements described in section 401(k), 408(k) or 403(b)
of the Code, exceeds the limit applicable to the Participant under section
402(g) of the Code for such taxable year, the Participant may designate a
portion of such excess amount as allocable to the 401(k) Contributions
made on the Participant's behalf under this Plan for such year. Such
designation shall be made by filing with the Administrative Committee a
written notice that specifies the amount so designated, and which contains
a certification by the Participant that if the amount so designated is not
distributed, such amount, when added to the total amount deferred under
other plans or arrangements described in section 401(k), 408(k) or 403(b)
of the Code, will exceed the limit applicable to the Participant under
section 402(g) of the Code for the taxable year in question.
Such written notice shall be filed with the Administrative Committee
no later than by March 1 next following the close of such taxable year.
The amount so designated, as adjusted for income or loss allocable
thereto, shall be distributed to the Participant from his Employer
Contribution Account by no later than April 15 next following the close of
such taxable year.
(c) If as of the close of any Plan Year the aggregate amount of the
401(k) Contributions made for such year on behalf of Participants who are
Highly Compensated Employees exceeds the limit for such contributions
under Section 4.2, the excess amount of such contributions, as adjusted
for income or loss allocable thereto, shall be distributed to those
Participants determined under (e) below. Such distributions shall be made
by no later than March 15 next following the close of such Plan Year. Any
amount that otherwise would be distributed to a Participant in accordance
with the preceding sentence shall be reduced, in accordance with
regulations or rulings issued under section 401(k) of the Code, by any
amounts distributed to the Participant under (a) or (b) above.
(d) If as of the close of any Plan Year the aggregate amount of
Employee After-Tax Contributions and Company Matching Contributions made
for such year by or on behalf of Participants who are Highly Compensated
Employees exceeds the limit for such contributions under Section 4.3, the
excess amount so contributed, as adjusted for income or loss allocable
thereto, shall be distributed to those
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Participants determined under (e) below. Any such distribution shall be
made by no later than March 15 next following the close of such Plan Year.
(e) The amount of excess contributions to be distributed to any
Participant under (c) or (d) above for any Plan Year shall be determined
under the following paragraph.
First, the total amount of excess contributions to be distributed
for such Plan Year to all Participants shall be determined as follows. The
Actual Deferral Percentages, or the Contribution Percentages, of the
Participants who are Highly Compensated Employees shall be reduced in the
order of the amount of their Actual Deferral Percentages, or their
Contribution Percentages, beginning with those Highly Compensated
Employees with the highest such percentages, until the aggregate amount of
401(k) Contributions, or the aggregate amount of Employee After-Tax
Contributions and Company Matching Contributions, for such Participants
has been reduced to the amount permissible under Section 4.2 or 4.3. The
total amount of excess contributions to be distributed for such Plan Year
shall be equal to the aggregate amount of such reductions. Second, the
portion of the total amount of excess contributions to be distributed for
such Plan Year to each Participant shall be determined as follows. The
401(k) Contributions, or the Employee After-Tax Contributions and Company
Matching Contributions, of the Participants who are Highly Compensated
Employees shall be reduced in the order of the dollar amount of such
contributions, beginning with those Highly Compensated Employees with the
highest such dollar amounts, until the aggregate amount of 401(k)
Contributions, or the aggregate amount of Employee After-Tax Contributions
and Company Matching Contributions, for such Participants has been reduced
by an amount equal to the total amount of excess contributions to be
distributed. The portion of the total amount of excess contributions to be
distributed for such Plan Year to each Participant shall be equal to the
amount by which his 401(k) Contributions, or Employee After-Tax
Contributions and Company Matching Contributions, are reduced pursuant to
the preceding sentence.
(f) If any 401(k) Contributions, or any Employee After-Tax
Contributions, are distributed under this Section 4.9, then any Matching
Contributions that (1) were made with respect to the 401(k) Contributions,
or Employee After-Tax Contributions, so distributed and (2) have not been
distributed under this Section 4.9 shall be charged to the Participants'
Employer Contribution Accounts and returned to the Companies, and any
income or loss allocable to the Matching Contributions so returned shall
be charged to such
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Accounts and returned to the Trust Fund, or reallocated to the Accounts of
the Participants, in such manner as the Administrative Committee shall
direct.
(g) The amount of income or loss allocable to the excess
contributions to be distributed to any Participant pursuant to (a), (b),
(c) or (d) above shall be determined in accordance with the applicable
provisions of the regulations issued under sections 401(k), 401(m) and
402(g) of the Code.
(h) Any amounts required to be distributed to a Participant pursuant
to (a), (b), (c) or (d) above shall be so distributed, notwithstanding any
other provision in this Plan to the contrary.
ARTICLE 5
Accounts, Transfers and Rollovers
---------------------------------
5.1 Plan Accounts. For each Participant, there shall be established and
maintained the following separate Plan Accounts:
(a) An Account with respect to all of the Employer Contributions
made on behalf of the Participant under Sections 3.2 and 3.4, all Vacation
Carryover Contributions made on behalf of the Participant under Section
3.3 of the Plan as in effect prior to January 1, 1992, and any rollover
amount transferred to the Plan by the Participant under Section 5.6 (such
Account is hereinafter referred to as the Participant's "Employer
Contribution Account"). A Participant's Employer Contribution Account
shall also include any amounts which, pursuant to the terms of his
Company's Employee Pension Plan or the PAYSOP, were transferred from such
plans to this Plan and which, under the provisions of this Plan in effect
as of the date of such transfer, were required to be credited to this
Account.
(b) An Account with respect to the Employee After-Tax Contributions
made by the Participant under Section 3.3 (such Account is hereinafter
referred to as the Participant's "Employee After-Tax Contribution
Account"). A Participant's Employee After-Tax Contribution Account shall
also include any amounts representing the Participant's Accumulated
Payments or other account balances under his Company's Employee Pension
Plan or Plan for Retirement Annuities, or representing any portion of his
account balances under the PAYSOP, which, pursuant to the terms of such
plans, were transferred from such plans to this Plan and which, under the
provisions of this Plan in effect as of the date of such transfer, were
required to be credited to this Account.
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(c) An Account with respect to the Tax Deductible Employee
Contributions which were made by the Participant under Section 5.4 of the
Plan as in effect prior to January 1, 1987 (such Account is hereinafter
referred to as the Participant's "Tax Deductible Employee Contribution
Account"). A Participant's Tax Deductible Employee Contribution Account
shall also include any amounts which, under the terms of his Company's
Employee Pension Plan or Plan for Retirement Annuities, were transferred
from such plans to this Plan and which, under the provisions of this Plan
in effect as of the date of such transfer, were required to be credited to
this Account.
5.2 Sub-accounts. The Administrative Committee shall cause to be
established and maintained, within any Plan Account, such sub-accounts as may be
necessary or desirable to comply with the requirements of the Code or to
otherwise effect the purposes of the Plan. Without limiting the foregoing,
separate sub-accounts shall be established and maintained as follows:
(a) Within each Participant's Employer Contribution Account, a
separate sub-account shall be established and maintained for each of the
following:
(1) for all 401(k) Contributions made on behalf of the
Participant (such sub-account is referred to hereinafter as the
"401(k) Portion" of the Participant's Employer Contribution
Account);
(2) for all Vacation Carryover Contributions made on behalf of
the Participant under Section 3.3 of the Plan as in effect prior to
January 1, 1992 (such sub-account is referred to hereinafter as the
"VCC Portion" of the Participant's Employer Contribution Account);
(3) for all Company Matching Contributions made on behalf of
the Participant (such sub-account is referred to hereinafter as the
"Company Matching Contribution Portion" of the Participant's
Employer Contribution Account); and
(4) for any rollover amount transferred to the Plan by the
Participant under Section 5.5 (such sub-account is referred to
hereinafter as the "Rollover Portion" of the Participant's Employer
Contribution Account).
(b) Within each Participant's Employee After-Tax Contribution
Account, a separate sub-account shall be established and maintained for
each of the following:
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(1) for all amounts transferred (directly or indirectly) to
this Plan with respect to such Participant's Accumulated Payments
under his Company's Employee Pension Plan or Plan for Retirement
Annuities (such sub-account is referred to hereinafter as the
"Accumulated Payments Portion" of the Participant's Employee
After-Tax Contribution Account); and
(2) for (i) all Employee After-Tax Contributions made by the
Participant, and (ii) all other employee contributions made by the
Participant under his Company's Employee Pension Plan or Plan for
Retirement Annuities (and any income attributable to such
contributions) that have been transferred to this Plan (such
sub-account is referred to hereinafter as the "Separate Contract
Portion" of the Participant's Employee After-Tax Contribution
Account; and such sub-account, including any Earnings credited
thereto, shall constitute a "separate contract" for purposes of
section 72(d) of the Code).
5.3 Adjustment of Accounts. Each Plan Account and, where appropriate, each
sub-account shall be adjusted from time to time as follows:
(a) such Account or sub-account shall be credited with the amounts
contributed to the Plan by or on behalf of the Participant under Sections
3.2, 3.3 and 3.4, and with any payments of principal and interest made by
the Participant pursuant to Section 7.4(e) on any loan made to him from
such Account or sub-account;
(b) such Account or sub-account shall be credited or charged, as the
case may be, with the Earnings attributable to the investment thereof, and
with any amounts transferred to or from such Account or sub-account as
provided in Sections 5.5 and 5.6;
(c) such Account or sub-account shall be charged with the amount of
any distributions or withdrawals made therefrom pursuant to Section 4.9 or
Article 7, with the amount of any adjustment to, or distribution from,
such Account or sub-account required pursuant to Section 4.8, with any
amount required to be charged to such Account pursuant to Section 7.4(h),
or Section 11.7(e), and with the portion of any fees, expenses or taxes
paid out of the Trust Fund that is allocated to such Account or
sub-account pursuant to the applicable provisions of the Trust Agreement
(but such Account or sub-account shall be so charged only to the extent
such portion of the fees, expenses and taxes so paid is not otherwise
reflected in the amount of Earnings credited or charged to the Account or
sub-account pursuant to (b) above); and
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(d) such Account or sub-account shall also reflect the number of
units of interest or shares, as applicable, in the Investment Options in
which the balance of such Account or sub-account is invested. The number
of units of interest or shares to be so reflected shall include both
fractions of a unit of interest or share, as well as whole units of
interest or shares.
5.4 Transfer upon Change of Status. In the case of any Employee who ceases
to be a Participant by virtue of the first sentence of Section 2.5, the balances
to the Participant's credit in his Employer Contribution Account, his Employee
After-Tax Contribution Account (including the Accumulated Payments Portion and
the Separate Contract Portion thereof, if any) and his Tax Deductible Employee
Contribution Account under this Plan shall automatically be transferred and
credited, respectively, to the Participant's Employer Contribution Account, to
his Employee After-Tax Contribution Account (and to the Accumulated Payments
Portion and the Separate Contract Portion thereof, if applicable) and to his Tax
Deductible Employee Contribution Account under his Company's Employee Savings
Plan for Bargaining Unit Employees, effective as of the first date on which he
so ceases to be a Participant or, if later, as of the effective date of the
adoption of his Company's Employee Savings Plan for Bargaining Unit Employees.
In the case of any Employee who resumes participation or commences
participation under this Plan pursuant to the second or third sentence of
Section 2.5, the balances to the Participant's credit in his Employer
Contribution Account, his Employee After-Tax Contribution Account (including the
Accumulated Payments Portion and the Separate Contract Portion thereof, if any)
and his Tax Deductible Employee Contribution Account under his Company's
Employee Savings Plan for Bargaining Unit Employees shall automatically be
transferred and credited, respectively, to the Participant's Employer
Contribution Account, to his Employee After-Tax Contribution Account (and to the
Accumulated Payments Portion and the Separate Contract Portion thereof, if
applicable) and to his Tax Deductible Employee Contribution Account under this
Plan, effective as of the first date on which the Participant so resumes or
commences participation hereunder.
5.5 Rollovers. Pursuant to rules established by the Administrative
Committee, a participant may roll over into this Plan amounts that meet each of
the following requirements:
(a) The amount to be rolled over must represent either (1) part or
all of an "eligible rollover distribution", within the meaning of section
402(c)(4) of the Code, from a trust qualified under section 401(a) of the
Code or from an employee annuity plan qualified under section 403(a) of
the Code (such a trust or plan shall be referred to below as a "Qualified
Plan") or (2) the entire amount of a distribution
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to the Participant from an individual retirement account or individual
retirement annuity, as defined in section 408(a) or section 408(b) of the
Code, in which no amount in such account, or no part of the value of such
annuity (such an account or annuity shall be referred to below as an
"IRA"), at the time of distribution to the Participant, was attributable
to any source other than a "rollover contribution", as defined in section
402 of the Code, from a Qualified Plan.
(b) The amount to be rolled over must be (1) an amount which the
Participant elected to have paid directly from a Qualified Plan to this
Plan in accordance with section 401(a)(31) of the Code; or (2) an amount
distributed, or deemed distributed, to the Participant from a Qualified
Plan, or from an IRA, not more than 60 days prior to the date on which
such amount is transferred to this Plan, including any such amount
representing (i) any portion of the Participant's account in a Qualified
Plan that was applied to offset any outstanding balance of a loan to the
Participant from such plan, or (ii) income taxes withheld on a
distribution to the Participant from a Qualified Plan.
(c) The amount to be rolled over must not represent all or part of
(1) a distribution that is required to be made to the Participant under
section 401(a)(9), section 408(a)(6) or section 408(b)(3) of the Code, or
(2) an amount distributed to the Participant in the Participant's capacity
as a beneficiary of another individual.
(d) The amount to be rolled over may not include (1) any part of a
distribution to the Participant that would not be includible in the
Participant's gross income for Federal income tax purposes, even if it
were not rolled over, or (2) any "accumulated deductible employee
contributions" within the meaning of section 72(o)(5)(B) of the Code.
(e) The amount to be rolled over must consist entirely of cash, and
shall be paid to the Plan only by means of a check made payable to, or
endorsed over to, the Trustee; provided, however, that amounts to be paid
directly to the Plan, in accordance with section 401(a)(31) of the Code,
from the Employee Pension Plan maintained by any Company may be so paid to
the Plan by means of a wire transfer.
The Administrative Committee may adopt such procedures, and may require a
Participant to furnish such information or documentation, as the Administrative
Committee, in its sole discretion, deems necessary to ensure that the amount the
Participant requests to roll over to this Plan will meet all the foregoing
requirements.
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Any amount rolled over to this Plan shall be credited to the Participant's
Employer Contribution Account as of the date such amount is received by the
Trustee of this Plan.
5.6 Vesting. A Participant's interest in each of his Plan Accounts shall
be fully vested and nonforfeitable at all times.
ARTICLE 6
Investments and Earnings
------------------------
6.1 Investment of Accounts. The balance of each Plan Account maintained
for a Participant hereunder shall be invested, as the Participant shall from
time to time elect in accordance with Section 6.2, in any one or more of the
following Investment Options:
(a) units of interest in one or more of the following investment
portfolios or funds, established by the Investment Committee under, and
pursuant to, the Trust Agreement: the Conservative Growth Portfolio, the
Moderate Growth Portfolio, the Aggressive Growth Portfolio, the Interest
Income Fund, the Diversified Bond Fund, the S&P 500 Index Fund, the
International Equity Fund and the Small Cap Equity Fund.
(b) shares of one or more of the following Mutual Funds: the
Fidelity Puritan Fund, the Fidelity Retirement Fund, the Fidelity
Overseas Fund, and the Fidelity OTC Fund.
(c) shares of one or more Mutual Funds acquired through a Mutual
Fund Window.
(d) units of interest in an investment fund established, maintained
and managed by the Trustee pursuant to the Trust Agreement (referred to
herein as the "GPU Stock Fund") the assets of which are invested primarily
in shares of GPU Stock.
Except as otherwise provided in the Trust Agreement, all dividends and
other distributions payable with respect to the shares of any Mutual Fund in
which any Plan Account or sub-account thereof is invested shall be reinvested in
additional shares of such Mutual Fund, and the number of additional shares
acquired as a result of such reinvestment shall be credited to such Plan Account
or sub-account. In addition, except as otherwise provided in the Trust
Agreement, all dividends and other distributions payable with respect to the
shares of GPU Stock held in the GPU Stock Fund shall be reinvested by the
Trustee in such fund in additional shares of GPU Stock.
To the fullest extent permissible under section 404(c) of ERISA, the
Trustee, the members of the Administrative Committee
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and the Investment Committee, and any other fiduciary of the Plan shall not be
liable for any loss, or by reason of any breach of duty, that results from any
election made, or deemed to have been made, by a Participant under Section 6.2
with respect to the investment of his Plan Account balances.
6.2 Investment Elections. Elections with respect to the investment of a
Participant's Plan Accounts shall be made in accordance with the following
rules:
(a) Initial Investment Election. Each Participant shall make an
initial investment election with respect to each Plan Account that is
established for him hereunder by no later than the close of the last
Business Day immediately preceding the date on which an amount is first
credited to such Account pursuant to Section 5.3. Such election shall be
made in the manner set forth in (d) below. If a Participant fails to make
an investment election with respect to any of his Plan Accounts by the
time required under the first sentence hereof, the Participant shall be
deemed to have elected to have the entire balance of such Plan Account
invested in the Interest Income Fund.
(b) Election for Transferred Amounts. If any rollover amount is
transferred to this Plan with respect to a Participant pursuant to Section
5.5 (any amount so transferred is hereinafter referred to as a
"Transferred Amount"), the Participant shall make a separate election as
to the investment of the Transferred Amount. The election shall be made in
the manner set forth in (d) below, and shall be made by no later than the
close of the last Business Day immediately preceding the date on which the
Transferred Amount is received by the Trustee of this Plan. If a
Participant fails to make an investment election with respect to any
Transferred Amount by the time required under the preceding sentence, the
Participant shall be deemed to have elected to have the entire Transferred
Amount invested in the Interest Income Fund.
(c) Investment Election Changes. Subject to the limitations set
forth below, a Participant may change his investment election with respect
to any of his Plan Accounts, by making a new investment election with
respect to such Account in accordance with the provisions of (d) below. A
Participant may so change his investment election just with respect to the
Current Balance of any Plan Account; or just with respect to the New Money
that is to be credited to any Plan Account on or after the effective date
of such change; or with respect to both the Current Balance of, and New
Money to be credited to, any Plan Account.
(d) Procedure for Making Elections. An investment election
under (a) above shall be made by communicating such election directly
to the Recordkeeper by using the Telephone
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Service. During such communication, the Participant shall indicate, by
percentage (which shall be an integral multiple of 1%), the portion of the
Participant's Plan Account balance to be invested in each Investment
Option. In the case of an investment election under (a) above, the
Participant shall designate his investment choices, in the manner
described in the preceding sentence, separately for each of his Plan
Accounts. A Participant's election with respect to any Plan Account shall
apply proportionately to each sub-account established and maintained under
such Plan Account, except the sub-account for the Rollover Portion of his
Employer Contribution Account. An investment election under (b) above
shall be made on a form provided by and filed with the Recordkeeper. On
such form, the Participant shall indicate his investment election for the
Transferred Amount by indicating, by percentage (which shall be an
integral multiple of 1%), the portion of the Transferred Amount to be
invested in each Investment Option. Any change in a Participant's
investment election under (c) above shall be made in the same manner as
herein described in the case of an election under (a) above; except that,
to make any election to transfer amounts to, within or out of a Mutual
Fund Window, the Participant must take such additional or other steps as
are required under the Recordkeeping Services Agreement.
(e) Restrictions on Elections. Notwithstanding the foregoing, a
Participant's right to make investment elections, or changes thereof,
shall be subject to the following limitations:
(1) A Participant may not make an initial investment election
for any Plan Account under (a) above under which any portion of such
Account will be invested through a Mutual Fund Window. In addition,
a Participant may not elect to have New Money for any Plan Account
invested through a Mutual Fund Window.
(2) A Participant may change his investment election with
respect to New Money to be credited to any of his Plan Accounts no
more frequently than once each pay period.
(3) In the case of an investment election change made with
respect to the Current Balance of any Plan Account, a Participant
may not elect to have any portion of such balance invested through a
Mutual Fund Window, unless such portion of the balance of that
Account has not been invested in the Interest Income Fund at any
time during the three-month period ending on the date on which the
Participant's investment election change is made.
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(4) In the case of an investment election change made with
respect to the Current Balance of any Plan Account, a Participant
may not elect to have any portion of such balance invested in the
Interest Income Fund, unless such portion of the balance of that
Account has not been invested through a Mutual Fund Window at any
time during the three-month period ending on the date on which the
Participant's investment election is made.
(5) In the case of an investment election change made with
respect to the Current Balance of any Plan Account, a Participant
may not elect to have a portion of such balance transferred to
investment in a Mutual Fund Window, unless (i) the total amount
invested by the Participant in the Mutual Fund Window, immediately
following such transfer, does not exceed 50% of the value of the
Participant's Plan Account balances, determined at the close of the
last Business Day immediately preceding the day on which such
transfer is completed, and (ii) the amount of such transfer is at
least $2,000.
(6) An Officer Participant may not use the Telephone Service
to communicate an investment election, or an investment election
change, to the Recordkeeper, if such election, or such change, will
result in, increase, reduce or otherwise affect any investment of
such Officer Participant's Plan Accounts in the GPU Stock Fund.
Instead, the Officer Participant must make any such investment
election, or any such change in investment election, in such manner
as the Administrative Committee shall determine.
(7) Any election by an Officer Participant to effect a
transfer of investment between the GPU Stock Fund and any other
Investment Option may be made only on and effective as of the date
that occurs (i) during a Quarterly Window Period (as defined below)
and (ii) in the case of an Officer Participant who is an Executive
Officer, after six months have elapsed since the date of the last
such election by the Officer Participant. "Quarterly Window Period"
means the period beginning on the third business day following the
date of public release of each of GPU's quarterly and annual summary
statement of sales and earnings and ending on the 12th business day
after such public release; and a date shall be treated as the date
of public release of such a summary statement if, on such date, the
statement either (A) appears on a wire service, (B) appears in a
financial news service, (C) appears in a newspaper of general
circulation, or (D)
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is otherwise made publicly available, for example, by press release
to a wire service, financial news service or newspaper of general
circulation.
(8) If any Executive Officer requests any withdrawal or a loan
from the Plan under Section 7.3 or 7.4, and such request will result
in a withdrawal of any shares of GPU Stock from the GPU Stock Fund
under Section 7.3(f)(1) or (2) or 7.4(k), as applicable, such
Executive Officer may not invest in such fund for a period of six
months following the date upon which such request becomes
irrevocable. In addition, any Executive Officer who ceases
participation in the GPU Stock Fund (either through the withdrawal
of all of that portion of his Plan Account balances invested in
units of interest in the GPU Stock Fund or by his ceasing to have in
effect an investment election requiring the investment of any
portion of his Plan Account balances in units of interest in the GPU
Stock Fund) may not participate again in the GPU Stock Fund for at
least six months following the date on which such participation
ceased. Further, if a loan to a Participant who is an Executive
Officer is withdrawn, wholly or in part, from the GPU Stock Fund,
then (i) during the six-month period following the date upon which
an amount of the Participant's loan is deemed to be so withdrawn
(the "Loan Withdrawal Period"), all payments of principal or
interest on the loan as are received by the Plan shall be credited
to the Participant's Employer Contribution Account and allocated
ratably among the Investment Options, other than the GPU Stock Fund,
in which the balance of his Employer Contribution Account is
invested, and (ii) the Participant may not otherwise invest in the
GPU Stock Fund during the Loan Withdrawal Period.
(f) Effect of Election. An investment election made by a
Participant, or deemed to have been made by him, with respect to any of
his Plan Accounts under (a) above, or with respect to any Transferred
Amount under (b) above, shall remain in effect until the Participant
changes his investment election with respect to such Plan Account, or with
respect to the Plan Account to which such Transferred Amount was credited,
in accordance with (c) above. Any investment election change made by a
Participant under (c) above with respect to any Plan Account shall remain
in effect until the Participant again changes his investment election with
respect to such Plan Account in accordance with (c) above.
(g) Implementation. All transactions necessary to implement any
investment elections and changes therein that are made by Participants
pursuant to this Section 6.2 shall
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be executed at such times, and in such manner, as provided in the Trust
Agreement or in the Recordkeeping Services Agreement. Notwithstanding the
foregoing or any other provision of this Section 6.2 to the contrary, if a
Participant communicates an investment election, or an investment election
change, pursuant to (d) above that cannot be implemented with respect to
any portion of the balance of any of the Participant's Plan Accounts
because of any of the restrictions set forth in (e) above, the investment
election, or investment election change, so communicated will be treated
as invalid in its entirety; and such investment election, or such
investment election change, will not be given effect or implemented as to
any portion of the balance of any of the Participant's Plan Accounts.
6.3 Determination of Earnings. The Earnings attributable to the investment
of any Plan Account or subaccount thereof for any period beginning on or after
September 1, 1992, shall mean the amount (positive or negative) by which (a) the
aggregate value, as of the close of the last business day of such period, of all
Investment Options in which such Account or sub-account is then invested, plus
the unpaid principal amount of any loan made to the Participant from such
Account or sub-account that is outstanding at the close of such day, and any
cash amount standing to the Participant's credit in such Account or sub-account
as of the close of such day, as reduced by (b) the amount of all contributions,
and all amounts transferred to the Plan, that were credited to such Account or
sub-account during the period, and as increased by (c) the amount of all
distributions, withdrawals and amounts transferred from the Plan that were
charged to such Account or sub-account during the period, exceeds, or is less
than, (d) the aggregate value, as of the close of the last business day
immediately preceding the start of such period, of all Investment Options in
which such Account or sub-account was then invested, plus the unpaid principal
amount of any loan made to the Participant from such Account or sub-account that
was outstanding at the close of such day, and any cash amount standing to the
Participant's credit in such Account or sub-account as of the close of such day.
For purposes of the foregoing, the value of a unit of interest in any of
the Investment Options described in Section 6.1(a), or in the GPU Stock Fund, as
of any Business Day shall be the value thereof at the close of such day, as
determined by the Trustee in accordance with the applicable provisions of the
Trust Agreement; and the value of a share of any Mutual Fund as of any Business
Day shall be the Mutual Fund's net asset value per share at the close of such
day, as determined by the Mutual Fund's investment manager.
6.4 Voting Rights. In accordance with the applicable rules set forth
in the Trust Agreement, each Participant shall have the
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right to direct the Trustee as to how to vote the shares of GPU Stock
attributable to the units of interest in the GPU Stock Fund credited to his Plan
Accounts, and the right to direct the Trustee as to how to exercise all other
rights pertaining to such shares, including the right to direct the Trustee as
to the manner in which to respond to a tender or exchange offer with respect to
any such shares of GPU Stock. A Participant shall be treated as a "named
fiduciary" within the meaning of section 402(a)(2) of ERISA, for the purpose of
giving such directions to the Trustee.
To the extent provided in the Trust Agreement, each Participant shall have
the right to vote the shares of any Mutual Funds credited to his Plan Accounts,
and to exercise all other rights pertaining to such shares.
ARTICLE 7
Distributions, Withdrawals and Loans
------------------------------------
7.1 Distributions to Participants. A Participant's Plan Account balances
shall become distributable to him upon his Termination of Employment for any
reason other than his death. Distributions to the Participant shall be made in
accordance with the following rules:
(a) Form and Amount of Distribution. A distribution to a Participant
with respect to his Plan Account balances shall consist of such portion of
such balances as the Participant may elect, up to the aggregate value of
such balances; provided, however, that the amount of any distribution
hereunder shall be at least $1,000, or if less, the entire amount of such
aggregate value. For purposes of this Section 7.1(a), the value of a
Participant's Plan Account balances shall be determined as of the close of
the day on which the distribution is made, except that for purposes of
applying the rule set forth in the preceding sentence, such value shall be
determined as of the close of the last Business Day immediately preceding
the day on which the distribution is made. The distribution shall be made
in the form of a single lump-sum cash payment.
(b) Distribution in GPU Stock. Notwithstanding subsection (a), if
the aggregate amount, or the aggregate remaining amount, of a
Participant's Plan Account balances is otherwise distributable to him in
the form of a single lump-sum cash payment, and if, at the date on which
such distribution is to be made, such balances are invested in whole or in
part in units of interest in the GPU Stock Fund, the Participant may elect
to have his Account balances distributed in the manner described below:
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(1) A single lump-sum payment in kind consisting of the number
of whole shares of GPU Stock that the Participant elects to receive,
up to the number of whole shares of GPU Stock determined by dividing
the aggregate value of the units of interest in the GPU Stock Fund
credited to the Participant's Plan Accounts by the per share value
of GPU Stock, and if the result is other than a whole number,
rounding down the result to the nearest whole number; and
(2) A single lump-sum cash payment, made on the same day as
the payment in clause (1) above, in an amount equal to the excess of
(i) the aggregate value of the Participant's Plan Account balances
(prior to the payment in clause (1)) over (ii) the aggregate value
of the shares of GPU Stock distributed under clause (1).
For the purpose of clauses (1) and (2) above, the aggregate value of the
Participant's units of interest in the GPU Stock Fund, the per share and
aggregate values of the GPU Stock and the aggregate value of the
Participant's Plan Account balances shall be determined as of the close of
the day as of which the payments are to be made; and, for the purpose of
making such determinations, the per share value of GPU Stock at the close
of such day shall be the per share 4:00 P.M. New York Stock Exchange
Closing Price of GPU Stock for such day.
(c) Participant's Elections. As soon as practicable following a
Participant's Termination of Employment, the Recordkeeper shall send to
the Participant a notice (hereinafter referred to as the "Notice") which
describes his right to elect (1) to receive a distribution with respect to
all or a portion of his Plan Account balances, (2) to have all or a
portion of such distribution, to the extent the applicable conditions of
subsection (b) above are satisfied, paid in shares of GPU Stock, and (3)
to have all or a portion of such distribution, to the extent it is an
Eligible Rollover Distribution, paid as a direct rollover pursuant to
Section 7.6. After receiving the Notice, the Participant may make such
elections by using the Telephone Service to communicate such elections
directly to the Recordkeeper. The Participant must make such elections
within 30 days after the date on which he receives the Notice; provided,
however, that if, during such 30-day period, the Participant informs the
Recordkeeper, by using the Telephone Service, that he wishes to make such
elections at a later time, then he may make such elections within 60 days
after the date on which he receives the Notice. If the Participant makes
such elections in a timely manner, then distribution will be made to the
Participant, in accordance with such elections, within 60 days after the
date on which
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he makes such elections, or if he informs the Recordkeeper that he wishes
to make such elections at a later time, within 60 days after the date on
which he so informs the Recordkeeper.
In the case of a Participant who fails to make the foregoing
elections in a timely manner, or who elects (in a timely manner) to
receive a distribution of less than the aggregate value of his Plan
Account balances, and who subsequently wishes to receive a distribution,
or another distribution, as applicable, the Participant must obtain a copy
of the Notice from the Administrative Committee, and then make the
applicable elections under the provisions in the preceding paragraph in
the same manner, and within the same period of time, as if he had received
the Notice from the Recordkeeper upon his Termination of Employment.
(d) Special Rules for Distributions of Less than the Entire Plan
Account Balances. If a Participant elects to receive a distribution with
respect to his Plan Account balances which will consist of less than the
aggregate value of such balances, the following rules shall apply to
effect such distribution:
(1) The Participant shall specify the portion of the amount to
be distributed which is to be withdrawn from each of his Plan
Accounts.
(2) Any amounts to be withdrawn from the Participant's
Employer Contribution Account under clause (1) above shall be
withdrawn pro-rata from each of the various sub-accounts thereunder.
For purposes of applying the preceding sentence, the value of the
balance of any sub-account shall be determined as of the close of
the day of the withdrawal in question.
(3) Any amounts to be withdrawn from the Participant's
Employee After-Tax Contribution Account under clause (1) above shall
be withdrawn from the two sub-accounts thereunder in the following
order: first, from the Accumulated Payments Portion of such Account;
and second, from the Separate Contract Portion of such Account. For
purposes of the preceding sentence, the amount to be withdrawn from
either sub-account may not exceed the value of the balance of such
sub-account, determined as of the close of the day of the withdrawal
in question. It is provided, however, that no amounts may be
withdrawn from the Accumulated Payments Portion if the Participant's
spouse fails to consent to such withdrawal as required under Section
7.5(d) and (g).
(4) If the amount to be withdrawn from any Plan Account
exceeds the balance of such Account invested in the Investment
Options other than a Mutual Fund Window,
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then before the withdrawal can be made, and before the application
of clause (5) below, the Participant must eliminate the excess by
transferring sufficient amounts from investment by such Account in
the Mutual Fund Window to investment by such Account in any other
Investment Option, or by such other means as is provided in the
Recordkeeping Services Agreement.
(5) Any amounts to be withdrawn from any Account or
sub-account shall be so withdrawn pro-rata from each of the
Investment Options, other than the Mutual Fund Window, in which such
Account or sub-account is then invested. Notwithstanding the
foregoing, in the case of any Officer Participant, the amounts to be
withdrawn from any Account or sub-account shall be so withdrawn,
first, pro-rata from each Investment Option, other than the Mutual
Fund Window and GPU Stock Fund, in which such Account or sub-account
is then invested, to the extent the amount withdrawn does not exceed
the aggregate value of such other Investment Options determined as
of the close of the day of such withdrawal, and, second, from the
GPU Stock Fund.
After receiving a distribution pursuant to this Section 7.1(d), the
Participant may continue to direct the investment of any undistributed
portion of his Plan Account balances in accordance with Section 6.2.
(e) Small Account Balances. In the case of a Participant who incurs
a Termination of Employment, whose Plan Account balances do not exceed,
and have never exceeded, $5,000 on any date, and who fails to make the
elections described in the Notice furnished under subsection (c) by the
end of the 30-day period described in subsection (c) (or who, during such
period, informs the Recordkeeper that he wishes to make such elections at
a later time, and then fails to make such elections by the end of the
60-day period described in subsection (c)), the following shall apply,
notwithstanding any of the foregoing provisions. Such Participant's Plan
Account balances shall be distributed to him, in the form of a single
lump-sum payment, not earlier than 60 days, and not later than 90 days,
after the date on which the Recordkeeper sends him the Notice under
subsection (c). Such payment shall be equal to the aggregate value of the
Participant's Plan Account balances as of the close of the day on which
the payment is made. Such payment shall be made entirely in cash, and no
portion of such payment shall be made as a direct rollover.
(f) Required Distributions. Unless the Participant elects otherwise,
the aggregate balances of the Participant's Plan Accounts, or the
aggregate remaining balances of his Plan Accounts, as applicable, shall be
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distributed to him no later than 60 days after the close of the Plan Year
in which occurs the latest of (1) the date on which the Participant
attains age 65, (2) the 10th anniversary of the date as of which the
Participant commenced participation in the Plan, or (3) the date of the
Participant's Termination of Service.
Notwithstanding the preceding paragraph or any other provision of
the Plan to the contrary, the aggregate balances of the Participant's Plan
Accounts, or the aggregate remaining balances of his Plan Accounts, as
applicable, shall be distributed to him no later than by April 1 of the
calendar year following the later of (i) the calendar year in which such
Participant attains age 70-1/2, or (ii) the calendar year in which such
Participant's Termination of Employment occurs. Clause (ii) of the
preceding sentence shall apply only to a Participant who has attained age
70-1/2 prior to January 1, 1988, or who attains age 701/2 on or after
January 1, 1999.
Any distribution required under this subsection (f) shall be made in
the form of a single lump-sum payment, which is equal to the aggregate
value of the Participant's Plan Account balances, or his remaining Plan
Account balances, as applicable, as of the close of the day on which such
payment is made.
7.2 Distributions to Beneficiaries. A Participant's Plan Account balances,
or his remaining Plan Account balances, as applicable, shall become
distributable to the Participant's Beneficiary upon his death. Distributions to
the Participant's Beneficiary shall be made in accordance with the following
rules:
(a) Form and Amount of Distribution. The distribution to the
Participant's Beneficiary hereunder shall be made in the form of a single
lump-sum cash payment, in an amount equal to the aggregate value of the
Participant's Plan Account balances, or his remaining Plan Account
balances, as applicable, determined as of the close of the day as of which
the distribution is made. However, if the Participant's Plan Account
balances exceed, or have ever exceeded, $5,000 on any date, and the
Beneficiary is not the Participant's surviving spouse, the Beneficiary may
elect to have the Participant's Plan Accounts paid in equal annual
installments over a fixed period not in excess of five years, commencing
no later than one year after the date of the Participant's death. If such
election is made, the amount of each installment shall be equal to the
aggregate value of the Participant's Plan Account balances, or his
remaining Plan Account balances, as applicable, as of the close of the day
on which the installment is to be paid, divided by the remaining number of
installments (including the current installment) to be paid. Each
installment shall
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be withdrawn pro-rata from each of the Participant's Plan Accounts and
sub-accounts, and pro-rata from each of the Investment Options in which
such Accounts and sub-accounts are then invested. The undistributed
portion of such Accounts shall continue to be invested in accordance with
the investment election in effect for such Participant under Section 6.2
at the time of his death, until distribution with respect to such
Participant has been completed.
Notwithstanding the foregoing, if the aggregate amount, or the
aggregate remaining amount, of a Participant's Plan Account balances is
otherwise required to be distributed to his Beneficiary in the form of a
single lump-sum cash payment and if, at the date on which such
distribution is to be made, such balances are invested in whole or in part
in units of interest in the GPU Stock Fund, the Participant's Beneficiary
may elect to have the Participant's Plan Account balances distributed in
the manner indicated in Section 7.1(b).
(b) The Participant's Beneficiary. If the Participant is married at
the date of his death, and had been married to his spouse throughout the
one-year period ending on the date of his death, then such spouse shall be
the Participant's Beneficiary, unless (1) the Participant had designated a
person other than such spouse as the Participant's Beneficiary, and (2)
such spouse consented to the designation of such other person as the
Participant's Beneficiary, in the manner described in Section 7.5(g);
provided, however, that such consent shall not be required in the
circumstances described in the last sentence of Section 7.5(g). In the
case of a married Participant to whom Section 7.5 is applicable, no such
designation shall be effective with respect to the Accumulated Payments
Portion of such Participant's Employee After-Tax Contribution Account
unless such designation is made after the date on which the Applicable
Election Period for waiving the QPSA form of distribution begins for the
Participant under Section 7.5(f).
(c) Beneficiary's Elections. As soon as practicable following a
Participant's death, the Recordkeeper shall send to the Participant's
Beneficiary a notice (hereinafter referred to as the "Beneficiary's
Notice") which describes the Beneficiary's right to (1) elect to have all
or a portion of such distribution, to the extent the applicable conditions
of subsection (a) above are satisfied, paid in shares of GPU Stock, (2) if
the Participant's Beneficiary is his surviving spouse, to elect to have
all or a portion of such distribution, to the extent it is an Eligible
Rollover Distribution, paid as a direct rollover pursuant to Section 7.6,
and (3) if the Participant's Beneficiary is not his surviving spouse, to
have the Participant's Plan Account
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balances paid in installments, and to select the date on which the
installments will start and the period over which the installments will be
made, subject to subsection (a) above. After receiving the Beneficiary's
Notice, the Beneficiary may make such elections by using the Telephone
Service to communicate such elections directly to the Recordkeeper. The
Beneficiary must make such elections within 60 days after the date on
which the Recordkeeper sends the Beneficiary's Notice to him. If the
Beneficiary makes such elections in a timely manner, then distribution
will be made or start to the Beneficiary, in accordance with such
elections, within 30 days after the date on which the Beneficiary makes
such elections, or, if the distribution is to be made in the form of
installments, on the date selected by the Beneficiary.
In the case of a Beneficiary who fails to make the foregoing
elections in a timely manner, the Participant's Plan Account balances, or
his remaining Plan Account balances, as applicable, shall be distributed
to such Beneficiary, in the form of a single lump-sum payment, not earlier
than 60 days, and not later than 90 days, after the date on which the
Recordkeeper sends the Beneficiary's Notice to such Beneficiary under the
preceding paragraph. Such payment shall be equal to the aggregate value of
such balances as of the close of the day on which the payment is made.
Such payment shall be made entirely in cash, and no portion of such
payment shall be made as a direct rollover.
7.3 Withdrawals. A Participant whose employment has not terminated may
make withdrawals from his Plan Accounts in accordance with the following rules:
(a) Tax Deductible Contribution Account. A Participant may, at any
time, withdraw any part or all of the balance of his Tax Deductible
Contribution Account, subject to Section 7.3(f).
(b) Employee After-Tax Contribution Account. A Participant may, at
any time, withdraw any part or all of the balance of his Employee
After-Tax Contribution Account, subject to Section 7.3(f).
(c) Disability Withdrawal. A Participant who has become Disabled
may, at any time, withdraw any part or all of the balance of his Employer
Contribution Account, so long as the amount to be withdrawn either (1) is
at least $1,000 or (2) consists of the aggregate value of the balance of
such Account, determined at the close of the last Business Day immediately
preceding the day on which the withdrawal is to be made.
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(d) Age 59 1/2. A Participant who has attained age 59 1/2 may, at
any time, withdraw any part or all of the balance of his Employer
Contribution Account, subject to Section 7.3(f).
(e) Hardship Withdrawals. A Participant may make a hardship
withdrawal from his Employer Contribution Account subject to the following
conditions, and subject to Section 7.3(f):
(1) The withdrawal must be made on account of an "immediate
and heavy financial need" of the Participant, as defined in section
1.401(k)-1(d)(2)(iv)(A) of the Federal income tax regulations or in
any revenue ruling or notice issued by the IRS, or on account of
such other circumstance as the Administrative Committee determines
in its discretion to constitute an "immediate and heavy financial
need" under section 401(k) of the Code and the Federal income tax
regulations issued thereunder.
(2) The amount withdrawn may not exceed the lesser of (i) the
amount of the Participant's "immediate and heavy financial need" as
defined in section 1.401(k)-1(d)(2)(iv)(B) of the Federal income tax
regulations or in any revenue ruling or notice issued by the IRS, or
(ii) the balance of such Account, reduced by the total amount of
Earnings credited to the 401(k) Portion of such Account after
December 31, 1988, net of any negative Earnings that may have been
charged to such Portion of the Account after such date.
(3) The Participant must also withdraw at such time, or must
have previously withdrawn, the entire balance of each other Account
maintained for him under this Plan and any other amounts available
to be withdrawn by him (other than on account of hardship) under any
other plan of any Company. In addition, the Participant must have
obtained all nontaxable loans currently available to him under this
Plan, and under any other plan of any Company, to the extent
obtaining such loans is required under section 401(k) of the Code
and the regulations issued thereunder.
(4) Notwithstanding any other provision in Article 3 to the
contrary, no 401(k) Contributions or Employee After-Tax
Contributions may be made by or on behalf of the Participant for a
period of 12 months following the Participant's receipt of a
hardship withdrawal that is made, in whole or in part, from the
401(k) Portion of the Participant's Employer Contribution Account.
In addition, during such 12-month period, no amounts may be deferred
at the
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Participant's election under his Company's Deferred Compensation
Plan for Elected Officers, and no employee contributions may be made
by the Participant, and no amounts may be deferred at the
Participant's election, under any other plan of any Company.
(5) Notwithstanding the provisions of Section 4.1, the maximum
amount of 401(k) Contributions that may be made on the Participant's
behalf for the Plan Year following the Plan Year in which a hardship
withdrawal is made, in whole or in part, from the 401(k) Portion of
the Participant's Employer Contribution Account shall not exceed the
dollar amount otherwise applicable under Section 4.1 for such
following year, less the amount of the 401(k) Contributions made on
the Participant's behalf for the Plan Year in which such hardship
withdrawal was made.
(f) Special Rules. The following special rules shall apply in
connection with withdrawals made pursuant to this Section 7.3:
(1) The amount to be withdrawn from any Account or
sub-account, and from any Investment Option in which an Account or
sub-account is invested, shall be determined in accordance with the
rules set forth in clauses (1) to (5) of Section 7.1(d).
(2) All withdrawals made by a Participant hereunder shall be
in the form of cash. However, in the case of a Participant who makes
a withdrawal (other than a disability withdrawal or a hardship
withdrawal) of the aggregate value of his Plan Account balances, and
whose Plan Account balances are invested in whole or in part in
units of interest in the GPU Stock Fund, the Participant may elect
to have the withdrawal distributed to him in the manner described in
Section 7.1(b).
(3) If any shares of GPU Stock are distributed to any
Executive Officer under subsection (f)(2) above, such Executive
Officer may not dispose of such shares for a period of six months
following the date specified on the face of the certificate(s)
representing such shares, except in the case of extraordinary
distributions of all GPU Stock held in the Plan, or if such
Executive Officer has become Disabled, or in connection with a
qualified domestic relations order as defined by the Code or title I
of ERISA or the rules thereunder.
(g) Requests for Withdrawal. A Participant who wishes to make a
withdrawal shall obtain from the Administrative
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Committee a notice (hereinafter referred to as the "Withdrawal Notice")
which describes his right to elect (1) to have all or a portion of any
withdrawal, to the extent it constitutes an Eligible Rollover
Distribution, paid as a direct rollover under Section 7.6, and (2) to have
all or a portion of any withdrawal, to the extent the applicable
conditions of subsection (f)(2) above are satisfied, paid in shares of GPU
Stock. Notwithstanding the foregoing, any Participant who wishes to take a
disability withdrawal under subsection (c) above must ask the
Administrative Committee to determine that he is Disabled, and may not
obtain a Withdrawal Notice until, and unless, the Committee makes such
determination. Within 30 days after obtaining the Withdrawal Notice (or
within 60 days after obtaining the Withdrawal Notice, if the Participant
requests an extension of time from the Recordkeeper over the Telephone
Service during such 30-day period), the Participant shall communicate his
request for the withdrawal directly to the Recordkeeper by using the
Telephone Service. During such communication, the Participant shall
indicate the amount he wishes to withdraw, specify the Plan Account or
Accounts from which such amount shall be withdrawn, and make the elections
described in the Withdrawal Notice which are available to him. In
addition, during such 30-day period (or such 60-day period if applicable
to the Participant), if the Participant wishes to make a hardship
withdrawal, the Participant shall complete and return to the Recordkeeper
such forms, and furnish the Recordkeeper with such information, as the
Recordkeeper shall require.
7.4 Loans. The Administrative Committee shall establish and administer a
participant loan program. Pursuant to such program, loans may be made to a
Participant from his Employer Contribution Account in accordance with the
following rules:
(a) A Participant may request a loan by using the Telephone Service
to communicate such request directly to the Recordkeeper, and by filing
such forms with, and providing such information to, the Recordkeeper as
the Recordkeeper shall require. The loan shall be in such amount, and
shall be for such term, as the Participant shall specify in his request,
subject to the limitations set forth below. Notwithstanding the foregoing,
if an Officer Participant wishes to take a loan in such amount as will,
under the provisions of subsection (k) below, cause any amount to be
withdrawn from the GPU Stock Fund, the Officer Participant must request
the loan in such manner as is determined by the Administrative Committee.
(b) A Participant may not take a loan from this Plan if he has an
outstanding loan from this Plan, or from any other qualified employer plan
maintained by any Company. Any loan from this Plan must be for a minimum
amount of at
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least $1,000. The amount of any such loan may not exceed the lesser of the
following amounts: (1) $50,000; (2) 1/2 of the sum of the balances of the
Participant's Employer Contribution Account and his Employee After-Tax
Contribution Account; or (3) the balance of the Participant's Employer
Contribution Account.
The $50,000 amount referred to in clause (1) shall be reduced by an
amount which equals the highest outstanding balance of any loan to the
Participant from the Plan, or from any other qualified employer plan
maintained by any Company, during the one-year period ending on the day
before the loan in question is to be made.
For purposes of clauses (1) and (2) above, the balances of a
Participant's Employer Contribution Account and Employee After-Tax
Contribution Account shall be determined as of the close of the day on
which the loan is to be made.
(c) Each loan shall bear a reasonable rate of interest as determined
under rules of uniform application issued by the Administrative Committee
from time to time.
(d) Each loan, by its terms, must require the amount of the loan to
be repaid within 58 months, except that in the case of any loan used to
acquire any dwelling unit that within a reasonable time is to be used as
the principal residence of the Participant, such loan may have a term of
up to 358 months.
(e) Each such loan shall provide for repayment of principal and
interest, in level payments to be made not less frequently than quarterly,
over the term of the loan. The outstanding balance of any loan from the
Plan may be prepaid in full by the Participant, at any time, in the manner
prescribed by the Administrative Committee. Partial prepayments are not
permitted. A loan may not be refinanced.
(f) As a condition of the loan, the Participant shall agree to have
required payments on the loan made through payroll deductions. In the case
of a Participant who becomes Disabled, and who receives disability benefit
payments under any plan of any Company, the loan repayments shall be
deducted from such benefit payments in such amounts and at such times, and
pursuant to such other rules, as are established by the Administrative
Committee, until the loan has been fully repaid. In the case of a
Participant who takes an unpaid leave of absence, or who becomes Disabled
and does not receive any disability benefit payments under a plan
maintained by any Company, such Participant may repay an outstanding loan
by remitting payments directly to the Trustee in such amounts and at such
times, and pursuant to
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such other rules, as are prescribed by the Administrative Committee. In
addition, such Participant may elect to have his loan repayments suspended
for a period, not exceeding one year, which starts on the day on which
such leave begins or on the day on which he becomes Disabled, as
applicable. A Participant may make such election by using the Telephone
Service to communicate such election directly to the Recordkeeper. Any
Participant who makes such election must resume making loan repayments, in
the manner described in the third preceding sentence (or by payroll
deduction if he returns to active employment), as soon as the period of
suspension ends. Also, any such election by the Participant shall not
extend the original term of the loan to which the suspension applies, and
the amount of the Participant's loan repayments after the period of
suspension has ended shall be increased to the extent necessary to fully
repay the loan by the end of such term.
(g) Any loan shall provide that all unpaid amounts of principal and
interest thereon shall become immediately due and payable upon the
earliest of (1) the day on which the Participant incurs a Termination of
Employment, (2) the day on which the Participant takes a disability
withdrawal of the entire balances of his Plan Accounts, or (3) the final
day of the calendar quarter next following the calendar quarter in which
the Participant fails to make any payment on the loan when due. However,
for purposes of the preceding sentence, a Participant shall not be treated
as having failed to make a payment on a loan when due if, by the day
specified in clause (3) of the preceding sentence, the Participant has
made all payments on the loan which were due by such day (including the
payment referred to in clause (3)), and has also paid any interest which
has accrued with respect to all such payments which were late. In the
event that all unpaid amounts of principal and interest on any loan become
immediately due and payable under the second preceding sentence, the
Participant shall repay such amounts, in the manner prescribed by the
Administrative Committee, by (i) if such amounts had become so due and
payable by reason of an event specified in clause (1) or (2) of such
sentence, the 60th day after the date on which such event occurred, or
(ii) otherwise, the day on which such amounts had become so due and
payable. If the Participant does not repay such amounts by the day
applicable to him under the preceding sentence, he shall be in default on
his loan.
(h) Any loan shall be secured by a portion of the Participant's
Employer Contribution Account having a value equal to the amount of the
loan. Upon a default by the Participant under subsection (g) above, such
portion of the Participant's Employer Contribution Account shall be
applied as a setoff against, and shall otherwise be utilized to
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satisfy, any amount outstanding on such loan. Notwithstanding the
foregoing, if the default occurs by reason of the Participant's failure to
make a payment on the loan when due, such Account may not be so applied or
utilized until the earlier of the Participant's Termination of Employment,
attainment of age 59 1/2 or becoming Disabled. Any portion of a
Participant's Employer Contribution Account that is applied in
satisfaction of any unpaid amount under such loan shall be treated as a
charge to such Account for purposes of Section 5.3(c).
(i) The amount of any loan to a Participant from his Employer
Contribution Account shall be withdrawn pro-rata from each of the
sub-accounts under such Account.
(j) If the amount of any loan to be withdrawn from the Participant's
Employer Contribution Account exceeds the balance of such Account invested
in the Investment Options other than a Mutual Fund Window, then before the
loan can be made, and before the application of subsection (k) below, the
Participant must eliminate the excess in the manner set forth in Section
7.1(d)(4).
(k) The amount of any loan to a Participant shall be withdrawn from
the Investment Options in which his Employer Contribution Account, and the
sub-accounts thereunder, are invested in the manner set forth in Section
7.1(d)(5). The amount of the outstanding balance of such loan shall,
itself, be deemed to be an investment, pro tanto, of the Participant's
Employer Contribution Account, and the sub-accounts thereunder from which
it was withdrawn. Notwithstanding any provision of the Plan to the
contrary, the balance of the Participant's Employer Contribution Account,
and the underlying sub-accounts, reflecting such investment may not be
distributed, withdrawn or further borrowed against. Payments of principal
and interest on the loan will be credited to the Participant's Employer
Contribution Account, and to the sub-accounts thereunder from which the
loan was withdrawn, as of the date such payments are received by the Plan.
As soon as practicable after the date on which any payments of principal
or interest on the loan are received by the Plan, the amounts so received
shall be reinvested in accordance with the investment election in effect
for the Participant's Employer Contribution Account on such date.
(l) No loan may be made to a Participant after the Participant's
Termination of Employment.
(m) Each loan hereunder shall be subject to such other terms and
conditions as the Administrative Committee may require under rules of
uniform application issued by the Administrative Committee from time to
time.
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7.5 Special Rules for Accumulated Payments Portion. Notwithstanding any
provision herein to the contrary, any distribution or withdrawal from the
Accumulated Payments Portion of a Participant's Employee After-Tax Contribution
Account shall be subject to the following special rules if the Participant is
married at the time of such distribution or withdrawal:
(a) Any amount to be distributed or withdrawn from the Accumulated
Payments Portion of such Account under Section 7.1 or 7.3 shall be so
distributed or withdrawn in the form of a Qualified Joint and Survivor
Annuity ("QJSA") unless either (1) the balance of the Accumulated Payments
Portion of such Account does not exceed, and has never exceeded, $5,000 on
any date or (2) the Participant has elected to waive distribution in the
form of a QJSA in accordance with subsection (d). To provide the QJSA, the
amount to be distributed or withdrawn from the Accumulated Payments
Portion of such Account will be applied, as of the date on which the
distribution of the QJSA hereunder is to commence (such date is
hereinafter referred to as the Participant's "Annuity Starting Date"), to
purchase an annuity payable to the Participant for his life, with a
survivor's annuity payable to the Participant's surviving spouse for her
life, in an amount equal to 50% of the amount of the annuity that was
payable to the Participant. For this purpose, an individual shall not be
treated as the surviving spouse of the Participant unless such individual
was married to the Participant on the Participant's Annuity Starting Date.
If either clause (1) or (2) of this subsection (a) is applicable,
distribution or withdrawal from the Accumulated Payments Portion of such
Account shall be made as provided in Section 7.1 or 7.3, as applicable.
(b) Any amount to be distributed from the Accumulated Payments
Portion of such Account if the Participant's dies prior to his Annuity
Starting Date shall be so distributed in the form of a Qualified
Pre-retirement Survivor's Annuity ("QPSA") unless either (1) the balance
of the Accumulated Payments Portion of such Account does not exceed, and
has never exceeded, $5,000 on any date or (2) the Participant has elected
to waive distribution in the form of a QPSA in accordance with subsection
(e). To provide the QPSA, the balance of the Accumulated Payments Portion
of such Account will be applied to purchase an annuity payable to the
Participant's surviving spouse for her life. For this purpose, an
individual shall not be treated as the surviving spouse of the Participant
unless such individual was married to the Participant throughout the
one-year period ending on the date of the Participant's death. If either
clause (1) or (2) of this subsection (b) is applicable, distribution from
the Accumulated Payments Portion of such Account shall be made as provided
in Section 7.2. Notwithstanding the provisions of Section 7.2, if the
Accumulated Payments
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Portion of such Account is distributable as a QPSA, payment of the QPSA
shall commence on the date on which the Participant would have attained
age 70-1/2, unless the Participant's surviving spouse consents to have
payment commence as of a day within the 90-day period which begins on the
date of the Participant's death. In addition, if the Accumulated Payments
Portion of such Account is otherwise distributable as a QPSA, the
Participant's surviving spouse may elect to have the Accumulated Payments
Portion of such Account distributed, instead, in a single lump sum,
payment of which shall be made in the manner, and within the time,
provided for in Section 7.2. Any such consent or election shall be made by
using the Telephone Service to communicate such consent or election
directly to the Recordkeeper. Such communication must be made during the
60-day period described in Section 7.2(c), and at the same time that the
Participant's surviving spouse makes any of the elections available to her
under Section 7.2(c).
(c) Each Participant to whom this Section 7.5 is applicable shall be
given a written explanation (hereinafter referred to as the "Written
Explanation") of the terms and conditions of the QJSA and QPSA, the
Participant's right to make, and the effect of, an election to waive
distribution in such forms, the rights of the Participant's spouse with
respect to any such election, and the right to make, and the effect of, a
revocation of any such election made by the Participant. The Written
Explanation shall also contain such other information as required under
section 417(a)(3) of the Code and Federal income tax regulations and IRS
rulings and notices issued thereunder.
(d) In the case of a Participant who requests a distribution under
Section 7.1, or a withdrawal under Section 7.3, to which this Section 7.5
applies, the Recordkeeper shall furnish such Participant with the Written
Explanation as to the QJSA, a copy of the notice described in Section
7.1(c) or 7.3(g), as applicable, and such forms as the Recordkeeper shall
require the Participant to complete. A Participant may elect to waive
distribution in the form of a QJSA on such forms. If he makes such
election, the written consent of the Participant's spouse under subsection
(g) below shall be provided on such forms. In any event, notwithstanding
any provision of Section 7.1 or 7.3 to the contrary, the Participant shall
make on such forms the elections which he would otherwise make over the
Telephone Service under Section 7.1(c) or 7.3(g), as applicable. Also,
notwithstanding any such provisions, the Participant may file such forms
with the Recordkeeper at any time prior to the close of the Applicable
Election Period, and any distribution or withdrawal to be paid to the
Participant hereunder shall be so paid, in accordance with
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any elections that the Participant makes on such forms, on, or starting
on, to the extent applicable, the Participant's Annuity Starting Date.
(e) The Administrative Committee shall provide the Written
Explanation as to the QPSA to each Participant to whom this Section 7.5 is
applicable, at such time as required under section 417(a)(3) of the Code
and the Federal Income Tax Regulations and IRS rulings and notices issued
thereunder. A Participant may elect to waive distribution in the form of a
QPSA by filing with the Administrative Committee, within the Applicable
Election Period, a designation of Beneficiary form pursuant to Section
1.4, in which the Participant designates a person other than his spouse as
the Participant's Beneficiary with respect to his Employer Contribution
Account, his Employee After-Tax Contribution Account, and his Tax
Deductible Employee Contribution Account balances, and which is
accompanied by the written consent of the Participant's spouse under
subsection (g) to the designation of such other person as the
Participant's Beneficiary with respect to such Account balances.
(f) The Applicable Election Period for an election to waive the QJSA
form of distribution shall be the 90-day period ending on the
Participant's Annuity Starting Date. The Applicable Election Period for an
election to waive the QPSA form of distribution shall be the period that
ends on the date of the Participant's death, and that begins on the latest
of (1) the first day of the Plan Year in which the Participant attains age
35 (or, if earlier, the date of the Participant's Termination of
Employment), (2) the date (on or after January 1, 1985) as of which an
amount is credited to the Accumulated Payments Portion of the
Participant's Employee After-Tax Contribution Account, or (3) the date of
the Participant's marriage. Any election so made may be revoked, and a new
election may be so made, at any time within the Applicable Election
Period. Any such revocation shall be made in a written statement signed by
the Participant and filed with the Administrative Committee.
(g) The consent of the Participant's spouse to an election by the
Participant to waive the QJSA or QPSA form of distribution shall be made
in writing, shall acknowledge the effect of such election, shall (in the
case of a waiver of the QPSA) acknowledge and consent to the designation
of another person as Beneficiary and shall be witnessed by a Plan
representative or a notary public. The consent of a spouse to any election
so made by a Participant shall be irrevocable as to that election. Any
consent by a spouse shall be effective only with respect to that spouse.
Notwithstanding any of the previous provisions of this Section 7.5, the
consent of a Participant's spouse to an
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election by the Participant under any of such provisions shall not be
required if it is established to the satisfaction of the Administrative
Committee that such consent cannot be obtained because there is no spouse,
because the spouse cannot be located, or because of such other
circumstances as may be prescribed in the applicable Federal income tax
regulations or in rulings or notices issued by the IRS.
7.6 Direct Rollovers. This Section 7.6 applies to any distribution or
withdrawal made under this Article 7 which is an Eligible Rollover Distribution.
Notwithstanding any provision of the Plan to the contrary, the "Payee" of any
Eligible Rollover Distribution made under this Article 7 may elect, at the time
and in the manner set forth in this Article, and as otherwise prescribed by the
Administrative Committee, to have all or any portion of such distribution paid
as a "Direct Rollover" to an "Eligible Retirement Plan" specified by the Payee.
For the purpose of this Section 7.6, the following definitions shall
apply. An "Eligible Retirement Plan" is an individual retirement account
described in section 408(a) of the Code, an individual retirement annuity
described in section 408(b) of the Code, a qualified annuity plan described in
section 403(a) of the Code, or a qualified trust described in section 401(a) of
the Code that will accept a Direct Rollover of the Payee's distribution.
However, if the Payee is the surviving spouse of a Participant, only an
individual retirement account or individual retirement annuity described above
may be an Eligible Retirement Plan. A "Payee" is any person who is entitled to
receive a distribution or withdrawal from the Plan, and who is a Participant or
the surviving spouse of a Participant. A "Direct Rollover" is a direct payment
of a distribution or withdrawal by the Plan to the Eligible Retirement Plan
specified by the Payee, made in accordance with section 401(a)(31) of the Code
and the Treasury regulations and the rulings and notices issued by the Internal
Revenue Service thereunder, and made in such manner as prescribed by the
Administrative Committee.
ARTICLE 8
Administration of Plan
----------------------
8.1 Plan Committees. The Plan shall be administered by an Administrative
Committee having the responsibilities set forth in Section 8.2, and by an
Investment Committee having the responsibilities set forth in Section 8.3. Such
Committees are collectively referred to herein as the "Committees".
Each Committee shall consist of such persons as the Companies from time to
time may appoint to serve thereon. Action to appoint and remove members of the
Committees may be taken by a
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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 appoint or remove members of the Committees has been delegated,
pursuant to a resolution duly adopted by the Company's Board of Directors.
8.2 Responsibilities of the Administrative Committee. Authority to control
and manage the operation and administration of the Plan shall rest exclusively
with the Administrative Committee, except as to those responsibilities and
powers reserved or assigned hereunder or in the Trust Agreement (or in the
Recordkeeping Services Agreement) to the Investment Committee, the Companies, or
the Trustee. The Administrative Committee shall be the "administrator" of the
Plan within the meaning of section 3(16)(A) of ERISA and the "plan
administrator" within the meaning of section 414(g) of the Code. Except to the
extent otherwise provided in the Trust Agreement or in the Recordkeeping
Services Agreement, the Administrative Committee shall have the following
responsibilities with respect to the administration of the Plan:
(a) to furnish Participants (and other individuals entitled to
receive same) with such reports, notifications, documents, statements,
information and explanations with respect to the Plan as may be required
under the provisions hereof and by ERISA;
(b) to engage an independent qualified public accountant to perform
such functions with respect to the Plan as may be required by ERISA;
(c) to file with the appropriate governmental agencies all reports
with respect to the Plan required by ERISA or any other applicable
statute;
(d) to direct payment out of the Trust Fund of all amounts that are
payable hereunder to Participants, their surviving spouses or
Beneficiaries, and all fees and expenses incurred in connection with the
administration of the Plan and Trust that are not paid by the Companies;
(e) to interpret the Plan, to decide all questions that may arise as
to the construction or application of any of its provisions and, in
accordance with the claims procedure set forth in Section 8.8, to make all
final determinations as to the rights of Participants or other persons to
benefits under the Plan. Any determination made by the Administrative
Committee as to the interpretation, construction or application of the
Plan, or as to the rights of any Participant or other person to benefits
under the Plan, shall be conclusive and binding on all parties except as
otherwise may be provided by law;
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(f) to establish procedures to safeguard the confidentiality of
information relating to the purchase, holding, and sale of interests in
the GPU Stock Fund by the Accounts of Participants and the exercise of
voting, tender and similar rights with respect to GPU Stock attributable
to the units of interest in the GPU Stock Fund held in Participants'
Accounts; and to monitor compliance with such procedures;
(g) to promulgate such rules and regulations as it shall deem
appropriate for the efficient administration of the Plan, and to maintain
all data, records and documents with respect to the Plan that may be
necessary for its operation and administration or that may be required to
be maintained by law; and
(h) to perform such other duties and responsibilities as are
specifically assigned to it hereunder or under the Trust Agreement, or as
may be necessary for the Plan to be operated and administered in
accordance with the requirements of ERISA.
8.3 Responsibilities of the Investment Committee. The Investment Committee
shall have the following responsibilities with respect to the administration of
the Plan:
(a) to establish guidelines as to the investment objectives and
criteria to be followed in investing the assets comprising each of the
portfolios and funds identified in Section 6.1(a), and in the case of the
Interest Income Fund, as to the general types or classes of contracts in
which such fund or any portion thereof is to be invested, and to provide
timely written notice of such guidelines to the Trustee or the appropriate
investment manager or managers, as applicable;
(b) to appoint (and dismiss) an "investment manager", within the
meaning of Section 3(38) of ERISA, to manage the assets, or any portion of
the assets, of any of the portfolios and funds identified in Section
6.1(a);
(c) to monitor the execution of the Trust Fund's brokerage
transactions in connection with purchases and sales of GPU Stock;
(d) to establish and carry out a funding policy and method
consistent with the objectives of the Plan and with the requirements of
ERISA; and
(e) to perform such other duties and responsibilities as are
specifically assigned to it hereunder or under the Trust Agreement.
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8.4 Additional Duties. Each Committee shall maintain a written record of
all actions taken and determinations made by it in carrying out its
responsibilities under the Plan.
At least annually, and at such other times as it may be requested to do
so, each Committee shall submit a written report as to the performance of its
responsibilities hereunder to the Board of Directors of each Company or, in the
case of a Company whose Board of Directors has delegated authority to appoint
and remove members of the Committees to an officer of the Company, to the
officer so authorized.
Any action to be taken by a Committee shall be taken upon the affirmative
vote of at least a majority of all members of the Committee, except as otherwise
permitted under Section 8.5(a).
8.5 Powers. In performing their responsibilities hereunder, the Committees
shall have the following powers:
(a) Members of each Committee may allocate among themselves any of
the specific duties and responsibilities assigned hereunder to such
Committee; provided, however, that in the case of the Investment
Committee, no responsibility that is a "trustee responsibility" within the
meaning of section 405(c)(3) of ERISA may be so allocated. Any such
allocation shall be made pursuant to a written instrument, signed by all
the members of the Committee, and setting forth (1) the duties or
responsibilities so allocated, (2) the member or members to whom such
duties or responsibilities are allocated, and (3) the period of time for
which such allocation is to be effective. If any duty or responsibility is
so allocated, a member to whom such duty or responsibility has not been
allocated shall not be liable for any act or omission of the member or
members to whom such duty or responsibility has been allocated, except as
may otherwise be provided under section 405(c)(2) of ERISA;
(b) Each Committee may designate persons or entities other than the
Committee itself or its members to carry out any fiduciary responsibility
assigned hereunder to such Committee; provided, however, that in the case
of any responsibility assigned to the Investment Committee that
constitutes a "trustee responsibility" within the meaning of Section
405(c)(3) of ERISA, no such person or entity may be designated to carry
out such responsibility. Any such designation shall be made pursuant to a
written instrument setting forth (1) the duties or responsibilities so
delegated, (2) the person or entity to whom such duties or
responsibilities are delegated, and (3) the period of time for which such
delegation is to be effective. If any fiduciary responsibility of a
Committee is so delegated, such Committee and its members shall not be
liable for any
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act or omission of the person or entity designated by it to carry out such
responsibility, except as otherwise provided under section 405(c)(2) of
ERISA.
Without limiting the generality of the foregoing, the Administrative
Committee shall have the power under this Section 8.5(b) to delegate to
the Trustee (or to appoint any other fiduciary that is unaffiliated with
any GPU System Company, and assign to such fiduciary) responsibility for
carrying out activities with respect to GPU Stock in any situation
determined by the Administrative Committee, in its discretion, to involve
a potential for undue employer influence upon Participants with regard to
the direct or indirect exercise of shareholder rights with respect to such
stock.
(c) Each Committee and any person or entity to whom fiduciary
responsibilities are delegated by it under subsection (b) may employ
attorneys, accountants, actuaries, and other consultants, advisors or
service providers to render advice to or otherwise to assist them in
carrying out their responsibilities under the Plan.
(d) Each Committee shall have all other powers necessary to enable
it to carry out its responsibilities hereunder including, without
limitation, in the case of the Administrative Committee, the power to
waive, suspend or modify the operation or application of any provision of
Article 6 or 7 for such temporary period as it determines in its
discretion to be necessary for the proper and efficient administration of
the Plan.
(e) Notwithstanding anything in Articles 5, 6 and 7 to the contrary,
the Administrative Committee shall have the power to take such action, or
to direct the Trustee to take such action, as the Administrative Committee
in its sole discretion may from time to time deem necessary or appropriate
to maintain the integrity of the Interest Income Fund, to assure the
orderly liquidation of assets held in such Fund, or to maintain, insofar
as possible, the value of units of interest in such Fund on a basis that
is equitable to all Participants whose Account balances are invested in
whole or in part in such Fund, including, without limitation:
(1) causing any contract or contracts held in such Fund to be
segregated from the other assets held in such Fund and to be
maintained as a separate subfund of the Interest Income Fund (the
"Subfund");
(2) adjusting the number and value of the units of interest in
the Interest Income Fund held by each
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Participant so as to reflect the establishment of such Subfund;
(3) suspending, for such period of time as the Administrative
Committee deems appropriate, the right of Participants to transfer
any part of the Current Balance of their Accounts to or from that
portion of the Interest Income Fund represented by such Subfund, or
to invest any New Money therein; and
(4) suspending, for such period of time as the Administrative
Committee deems appropriate, the making of any distribution or loan
to, or any withdrawal by, any Participant from that portion of the
Interest Income Fund represented by such Subfund.
8.6 Plan Expenses. Fees and expenses incurred in connection with the
administration of the Plan, including, without limitation, the fees and expenses
of all agents, attorneys, accountants and other persons engaged by the
Administrative Committee to render services in connection with the
administration of the Plan, and any fees and expenses incurred in connection
with the administration of the Trust, including, without limitation, the fees of
the Trustee, the fees of any investment managers, any brokerage commissions and
any taxes imposed on the Trust, shall be paid out of the Trust Fund, to the
extent provided in the Trust Agreement (and subject to Section 9.2), and shall
be paid by the Companies otherwise. Any amounts so paid out of the Trust Fund or
by the Companies shall be allocated and charged to Participants' Plan Accounts
in accordance with the applicable provisions of the Trust Agreement.
8.7 Reimbursement and Indemnification. The members of each Committee and
any Employee who is designated by a Committee to perform fiduciary
responsibilities pursuant to Section 8.5(b) shall not receive any compensation
for their services as such, but shall be reimbursed by the Companies for all
reasonable expenses incurred by them in the performance of their duties
hereunder. Each member of a Committee, and any other Employee who is designated
to perform fiduciary responsibilities hereunder, shall be indemnified and held
harmless by the Companies for any liability or loss (including legal fees or
other expenses of litigation) arising out of or in connection with his 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 any Company) and (b) is not determined to be due to the gross
negligence or willful misconduct of such member or Employee.
8.8 Claims Procedure. Any Participant or other person claiming benefits
under the Plan ("claimant") shall make such claim by delivering a written notice
of his claim to the Administrative Committee or the person or persons designated
by
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the Administrative Committee to initially determine claims for benefits under
the Plan. The notice shall set forth all of the facts necessary to permit a
determination to be made as to the claimant's entitlement to the benefit
claimed.
Within 90 days following receipt of such written notice, the claimant
shall be informed in writing as to whether the claim will be allowed or wholly
or partially denied. If there is a denial, the notice shall set forth: the
specific reason or reasons for the denial, specific reference to the pertinent
Plan provisions on which the denial is based, a description of any material and
information necessary to perfect the claim and an explanation of why such
material and information is necessary, and an explanation of the Plan's claim
review procedure.
A claimant whose claim is denied in whole or in part shall be entitled to
have such denial reviewed by the Administrative Committee by filing a written
request for such review with the Administrative Committee within 60 days after
the claimant's receipt of notification of the denial of his claim. Upon receipt
of such request, the Administrative Committee shall make a review of the claim;
and in connection with such review, the claimant shall be entitled to review
pertinent documents and to submit issues and comments in writing.
The Administrative Committee shall make a decision with respect to such
claim within 60 days after its receipt of the claimant's written request for
review; provided, however, that if the Administrative Committee determines that
a hearing is necessary, it shall hold such hearing within such 60-day period and
shall make its decision within 120 days after its receipt of the claimant's
request for review. The Administrative Committee's decision on review shall be
in writing and shall include specific reasons for the decision and specific
references to the provisions of the Plan on which its decision was based.
ARTICLE 9
Trustee
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9.1 Trustee. A Trustee shall be appointed by the Companies to hold and
administer the Trust Fund. The Trustee so appointed shall serve at the pleasure
of the Companies and shall have such rights, powers and duties as are set forth
in the Trust Agreement. The Trust Agreement, when entered into, shall form a
part of the Plan.
Action to appoint or remove a Trustee and to authorize entering into a
Trust Agreement with such Trustee may be taken by a Company either by resolution
duly adopted by the Company's Board of Directors, or by an instrument in writing
executed by an
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officer of the Company to whom authority to perform such actions has been
delegated pursuant to a resolution duly adopted by the Company's Board of
Directors.
9.2 No Reversion of Trust Fund. At no time prior to the satisfaction of
all liabilities under the Plan with respect to the Participants and their
Beneficiaries shall any part of the corpus or income of the Trust Fund be used
for or diverted to any purpose other than their exclusive benefit and to pay
reasonable expenses of administering the trust, subject, however, to the
provisions of Sections 4.8 and 4.9 and the following:
(a) The adoption of this Plan is subject to the qualification of the
Plan, as initially submitted to the Internal Revenue Service in
application for a ruling on the Plan's qualified status, under sections
401(a) and 401(k) of the Code. If the Internal Revenue Service rules that
the Plan does not so qualify, as initially submitted, or with such
modifications or amendments as the Internal Revenue Service may request
and the Companies may consent to, then notwithstanding any provisions to
the contrary, the Plan and Trust shall terminate and the Trustee shall
return the Trust Fund to the Companies within one year after the date of
such ruling.
(b) Each contribution which the Companies make pursuant to Sections
3.2 and 3.4 is conditioned upon the deductibility of such contribution
under section 404 of the Code. To the extent a deduction therefor is
disallowed, the amount of any such contribution shall be returned to the
Companies within one year after such disallowance.
(c) Any amount contributed by the Companies pursuant to a mistake of
fact shall be returned to the Companies within one year of the date of
such contribution.
ARTICLE 10
Amendment and Termination
-------------------------
10.1 Amendment or Termination of Plan. The Companies reserve the right at
any time to modify, suspend, amend or terminate the Plan. Any such amendment may
be made with retroactive effect to the extent not prohibited by law. However,
the Companies shall have no power to modify, suspend, amend or terminate the
Plan or the Trust in such manner as will cause or permit any part of the Trust
Fund to be used for or diverted to purposes other than for the exclusive benefit
of Participants or their Beneficiaries and to pay reasonable expenses of
administering the trust, except as provided in Section 9.2 hereof.
Notwithstanding anything herein contained to the contrary, the Companies, upon
termination of the Plan, shall have
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no obligation or liability whatsoever to make any further contributions to the
Trust, and neither the Trustee, nor any Participant, Beneficiary, Employee or
other person shall have any right to compel the Companies to make any such
further contributions.
Action to modify or amend the Plan may be taken by a 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 modifications or amendments to the Plan has been delegated, pursuant to
a resolution duly adopted by the Company's Board of Directors.
10.2. Continuation or Termination of Trust. Upon termination of the
Plan, one of the following actions shall be taken:
(a) If the Companies so direct, the Trust shall continue in
existence. In such event, the Trust Fund shall be held, administered and
distributed as directed by the Administrative Committee as provided in the
Plan, and all of the provisions of the Plan and Trust set forth herein,
which are applicable in the opinion of the Administrative Committee, other
than the provisions relating to contributions, shall remain in full force
and effect.
(b) If the Plan is terminated without establishment or maintenance
of another defined contribution plan within the meaning of section
401(k)(10) of the Code, and if the Companies so direct, the Trust shall be
terminated. In such case, notwithstanding any other provision of the Plan
to the contrary (but subject to subsection (d) below), the Plan Account
balances, or the remaining such balances, as applicable, of each
Participant and Beneficiary shall be (1) distributed to such Participant
or Beneficiary, as soon as administratively feasible, in the form of a
single lump-sum payment, or (2) if the Participant or Beneficiary does not
consent to such payment (and such consent is required by law), applied to
the purchase of an annuity contract, which will be distributed to such
Participant or Beneficiary.
(c) If, upon termination of the Plan, another defined contribution
plan has been, or will be, established or maintained within the meaning of
section 401(k)(10) of the Code, then, notwithstanding any other provision
of the Plan to the contrary (but subject to subsection (d) below) (1) an
immediate distribution shall be made, in accordance with the provisions of
subsection (b) above, to all Beneficiaries and to all Participants who
have incurred a Termination of Employment, have attained age 59 1/2 or
have become Disabled, and (2) the Trust shall be continued, in accordance
with the provisions of subsection (a) above, with
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respect to all other Participants; provided, however, that each such other
Participant's Plan Account balances, or their remaining Plan Account
balances, as applicable, shall be distributed, in accordance with the
provisions of subsection (b) above, as soon as practicable after such
Participant has incurred a Termination of Employment, attained age 59 1/2
or become Disabled.
(d) Notwithstanding the requirement in subsections (b) and (c) above
as to the form of distribution, the Accumulated Payments Portion of a
Participant's Employee After-Tax Contribution Account that becomes
distributable under either of such subsections shall be distributed in the
form of a QJSA unless the conditions set forth in Section 7.4(a)(1) or (2)
have been met.
(e) Any single lump-sum payment to be made to a Participant or
Beneficiary pursuant to this Section 10.2 shall be made in the form of a
cash payment; provided, however, that the Participant or Beneficiary may
elect to have the number of whole shares of GPU Stock attributable to the
units of interest in the GPU Stock Fund, if any, credited to his Plan
Accounts distributed to him in kind.
10.3 Merger or Consolidation. If this Plan is merged or consolidated with,
or transfers its assets or liabilities to, any other plan, then each Participant
in this Plan shall be entitled to benefits under such other plan immediately
after the merger, consolidation or transfer which are equal to or greater than
the benefits he would have been entitled to receive under this Plan immediately
before such merger, consolidation or transfer, if this Plan had then terminated.
ARTICLE 11
Miscellaneous
-------------
11.1 Trust Sole Source of Benefits. Neither the establishment of the Plan,
any amendment or modification thereof, the creation of any fund or account, nor
the payment of any benefits, shall be construed as giving to any Participant or
other person any legal or equitable right against the Companies, any officer or
Employee thereof, any Committee or the Trustee, except as herein expressly
provided. Nothing herein contained shall entitle any person to any payment
except out of the Trust Fund.
11.2 Right to Employment. Neither the establishment of the Plan nor the
granting of benefits nor any action of the Companies, any Committee or any
Trustee now or hereafter shall be held or construed to confer upon any person
any legal right to be continued as an Employee, or to interfere with the right
of the
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Companies to discharge any Employee, whenever the interests of the Companies in
their sole discretion may so require, without liability to the Companies or any
Trustee.
11.3 Alienation of Benefits. Except as otherwise provided under Section
7.4 or Section 11.7, the right of any Participant or Beneficiary to any benefits
or to any payment hereunder or to any separate Account shall not be subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge or seizure.
11.4 Reliance on Records. The facts as shown by the records of the
Administrative Committee at the time of death of any person entitled to any
benefits or to any payment hereunder shall be conclusive as to the identity of
the proper payee and of the amounts properly payable, and payment made in
accordance with such state of facts shall constitute a complete discharge of any
and all obligations under Article 7 hereof. In the event any amount shall become
payable hereunder to any such person, or upon the death of such person to his
estate, and if after written notice from the Administrative Committee mailed to
such person's last known address as shown in the Company's records, such person
or his personal representative shall not have presented himself to the
Administrative Committee within one year after the mailing of such notice, then
the Administrative Committee, in its sole discretion, may distribute such amount
including any amount thereafter becoming due to such person or his estate, among
one or more of the spouse, blood relatives and adopted children of such person.
Any action of the Administrative Committee shall be conclusive and binding upon
all persons, and any person who receives any distribution shall be the absolute
owner thereof, regardless of whether such person had been a Participant
hereunder or the designated beneficiary or the personal representative of any
Participant hereunder.
11.5 State Law. To the extent state law is applicable, the provisions of
this Plan, and the rights and obligations herein created, shall be governed by
and construed in accordance with the law of the Commonwealth of Pennsylvania.
11.6 Top-Heavy Provisions. With respect to each Plan Year beginning on or
after January 1, 1984 in which the Plan is Top-Heavy, the provisions of this
Section 11.6 shall apply notwithstanding any other provisions in this Plan to
the contrary. The provisions of this Section 11.6 shall not apply with respect
to any such year in which the Plan is not Top-Heavy.
(a) For any Plan Year in which the Plan is Top-Heavy, the amount
contributed under this Plan by the Companies (other than 401(k)
Contributions and Company Matching Contributions attributable to such
Contributions and to Employee After-Tax Contributions) to the accounts of
each Participant who is a Non-Key Employee (including any such
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Participant who has not elected to have any 401(k) Contributions made on
his behalf for such year) shall be at least equal to the lesser of (1) 3%
of such Participant's Compensation or (2) the percentage of the
Participant's Compensation which is equal to the highest Allocation
Percentage for the year of any Participant who is a Key Employee. For this
purpose, a Participant's "Allocation Percentage" shall mean the percentage
determined by dividing the amount contributed under this Plan by the
Companies on behalf of the Participant for the year by his Compensation
for the year. Notwithstanding the foregoing, the amount allocated to the
accounts of any Participant pursuant to this Section shall not exceed the
minimum amount that must be allocated to such Participant's accounts in
order to meet the "minimum benefit" requirements of section 416(c) of the
Code and the Regulations issued thereunder; and no amount shall be
contributed under this Section on behalf of a Participant for any Plan
Year if the Participant is not employed by any Company on the last day of
such Plan Year.
(b) For any Plan Year in which the Plan is Top-Heavy, the amount of
annual Compensation taken into account under the Plan for any Participant
shall not exceed the Compensation Limit in effect for such Plan Year.
(c) For any Plan Year beginning before January 1, 2000 in which the
Plan is Top-Heavy, paragraphs (2)(B) and (3)(B) of Section 415(e) of the
Code shall be applied by substituting "1.0" for "1.25" wherever "1.25"
appears therein. However, the preceding sentence shall not apply with
respect to any Plan Year if (1) each Participant who is a Non-Key Employee
is entitled to receive, under his Company's Employee Pension Plan, a
benefit that is at least equal to the defined benefit minimum described in
M-2 and M-14 of section 1.416-1 of the Federal income tax regulations, and
(2) the Plan is not Super Top-Heavy for such Year.
(d) For purposes of this Section, the following terms shall have the
following meanings:
(1) "Top-Heavy" and "Super Top-Heavy"--the Plan shall be
deemed to be Top-Heavy with respect to any Plan Year if, as of the
Determination Date for that year, the aggregate Benefits of all Key
Employees under this Plan and all other plans which are required to
be aggregated with the Plan, exceed 60% of the aggregate Benefits of
all Employees under this Plan and all such other plans. The Plan
shall be deemed to be Super Top-Heavy with respect to any Plan Year
if, as of the Determination Date for that Year, the aggregate
Benefits of all Key Employees under this Plan and all other plans
that are required to be aggregated with the Plan, exceed 90% of the
aggregate Benefits of all
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Employees under this Plan and all such other plans. For purposes of
the preceding sentences, there shall be aggregated with this Plan
each other plan of the Companies in which a Key Employee is a
participant and which enables this Plan or any such other plan to
meet the requirements of section 401(a) (4) or section 410 of the
Code.
(2) "Determination Date"--shall mean, for any Plan Year, the
last day of the immediately preceding Plan Year.
(3) "Benefits"--An Employee's Benefits shall mean the sum of
(i) the aggregate of his plan accounts under this Plan and his
accounts under all other defined contribution plans required to be
taken into account under subdivision (1); (ii) the present value of
his cumulative accrued benefits under all defined benefit plans
required to be taken into account under subdivision (1); and (iii)
the aggregate distributions made with respect to the Employee under
the plans described in (i) and (ii) hereof during the five-year
period ending on the Determination Date as of which the Employee's
Benefits are being determined. The Benefits of any individual who
has not performed any services for any Company for the five-year
period ending on the Determination Date of the Plan Year shall be
disregarded.
(4) "Key Employee"--An Employee or former Employee and the
beneficiary of a deceased Employee or former Employee shall be
treated as a Key Employee for any Plan Year if, at any time during
that year or any of the four preceding Plan Years, such Employee or
former Employee is, or was, (i) an officer of any Company having an
annual Compensation greater than 50% of the amount in effect under
section 415(b)(1)(A) of the Code for such year; (ii) one of the 10
Employees having an annual Compensation greater than the amount in
effect under section 415(c)(1)(A) of the Code for such year, and
owning (or considered as owning within the meaning of Code section
318) the largest interests in the Company; (iii) a 5% owner of any
Company (within the meaning of section 416(i)(1)(B)(i) of the Code);
or (iv) a 1% owner of any Company (within the meaning of section
416(i)(1)(B)(ii) of the Code) having an annual Compensation from the
Companies of more than $150,000. For purposes of clause (i), no more
than 50 employees (or, if lesser, the greater of three or 10% of the
employees) shall be treated as officers. In applying the 10%
limitation referred to in the preceding sentence, Employees
described in section 414(q)(5) of the Code shall be disregarded.
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(5) "Non-Key Employee"--shall mean any Employee or former
Employee who is not a Key Employee, and the beneficiary of any
deceased Employee or deceased former Employee who was not a Key
Employee.
(6) "Compensation"--shall mean a Participant's compensation as
reported in his Form W-2, except that for purposes of Section
11.6(d)(4), the term "Compensation" shall have the meaning given
such term by section 414(q)(4) of the Code.
11.7 Qualified Domestic Relations Orders. To the extent so provided in an
order that the Administrative Committee determines to constitute a "qualified
domestic relations order" within the meaning of section 414(p)(1)(A) of the Code
("QDRO"), the right to receive all or a portion of the benefits payable under
the Plan with respect to a Participant may be assigned or transferred by the
Participant to any "alternate payee" within the meaning of section 414(p)(8) of
the Code ("Alternate Payee") specified in such QDRO. Payment to an Alternate
Payee pursuant to a QDRO shall be made in accordance with the following rules:
(a) Notice and Determination. If, with respect to any Participant,
the Plan receives a domestic relations order as defined in section
414(p)(1)(B) of the Code (an "Order"), the Administrative Committee shall
promptly notify the Participant and each Alternate Payee of the receipt of
such Order and the Plan's procedure for determining the status of an Order
as a QDRO. Within a reasonable period after receipt of an Order, the
Administrative Committee shall determine whether the Order is a QDRO and
shall notify the Participant and each Alternate Payee, of such
determination.
(b) Suspension of Payments to Participant. Notwithstanding any other
provision in the Plan to the contrary, during the Determination Period
with respect to an Order, no distribution or loan may be made to, and no
withdrawal may be made by, the Participant to the extent that the amount
remaining available in the Participant's Plan Accounts for payment
pursuant to such Order after such distribution, withdrawal or loan would
be less than the amount required to be paid pursuant to the Order if it
were determined to be a QDRO. For this purpose, the "Determination Period"
with respect to an Order shall be the period that commences on the date on
which the Order is received by the Plan and that ends on the earlier of
(1) the date on which it is determined that the Order is not a QDRO or (2)
the expiration of 18 months from the date on which payment would be
required to be made under the Order if it were determined to be a QDRO, if
the issue as to whether such Order is a QDRO has not been resolved by the
expiration of such 18-month period.
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(c) Form and Time of Payment to Alternate Payee. Payment to an
Alternate Payee pursuant to an Order that is determined to be a QDRO shall
be made in the form of a single lump-sum cash payment. Payment shall be
made either as soon as practicable after the date on which the Order is
determined to be a QDRO, if the Order provides for an immediate payment;
or, if it does not so provide, on such other date as the Order may specify
for payment to be made.
Notwithstanding the foregoing, if on the date as of which payment is
otherwise required to be made to an Alternate Payee pursuant to a QDRO in
accordance with the preceding paragraph, (1) the amount so payable to the
Alternate Payee exceeds $5,000, (2) the Participant has not died and has
not attained age 70-1/2, and (3) the QDRO so provides, payment shall not
be made to the Alternate Payee on such date unless the Alternate Payee has
consented in writing, within the 90-day period ending on such date, to
receive such payment. Where a QDRO requires such consent, the
Administrative Committee shall furnish the Alternate Payee with a written
explanation of his or her right to defer payment. Such explanation shall
be furnished no less than 30 (or such lesser number of days may be
permitted by Treasury Regulations) and no more than 90 days before the
payment is to be made to the Alternate Payee.
If an immediate payment cannot be made to an Alternate Payee by
reason of his or her failure to consent to such payment as provided in the
preceding paragraph, payment shall be made to the Alternate Payee as soon
as practicable after the earliest to occur of the following: the date on
which the Participant attains age 70-1/2; the date of the Participant's
death; or, if the QDRO permits the Alternate Payee to elect to receive
payment at any time prior to either of the foregoing dates, the date on
which the Administrative Committee receives written notice from the
Alternate Payee requesting, and consenting to, an immediate payment of the
entire amount payable to the Alternate Payee pursuant to the QDRO.
(d) Separate Account for Deferred Payments. In any case in which the
amount, or portion of the Participant's Plan Accounts, that is payable to
an Alternate Payee pursuant to a QDRO cannot be immediately paid to the
Alternate Payee (either because the QDRO does not provide for immediate
payment or because of the Alternate Payee's failure to consent to an
immediate payment), the amount or portion of the Participant's Plan
Accounts so payable shall be withdrawn from the Participant's Plan
Accounts and shall be transferred to a separate account to be established
and maintained for the Alternate Payee; and payment to the Alternate Payee
pursuant to the QDRO shall be made from such account.
60
<PAGE>
Until payment is made to the Alternate Payee in accordance with
Section 11.7(c), the balance of such separate account shall be invested in
the Interest Income Fund, or, if at any time prior to such payment the
Interest Income Fund is no longer available as an investment medium under
the Plan, in such other medium of investment as the Administrative
Committee, in its sole discretion, shall determine; and no amounts may be
withdrawn by or loaned to an Alternate Payee from such account.
(e) Accounting for QDRO Payments. Any amounts paid to an Alternate
Payee in the case of an immediate payment pursuant to a QDRO, and any
amount to be withdrawn from the Participant's Plan Accounts and
transferred to a separate account under Section 11.7(d) in the case of a
deferred payment pursuant to a QDRO, shall be treated as withdrawn from
(and, for purposes of Section 5.3, shall be charged to) such of the
Participant's Plan Accounts, and any sub-accounts thereof, in such amounts
as the Administrative Committee determines in its discretion in accordance
with any applicable requirements of the Code or ERISA or the regulations
or rulings issued thereunder.
Amounts so withdrawn, or so treated as withdrawn, from any Plan
Account or sub-account thereof shall be deemed to have been withdrawn, pro
rata, from each Investment Option in which such Account or sub-account was
invested at the time of the withdrawal.
(f) Direct Rollovers. If any distribution made pursuant to a QDRO is
an "Eligible Rollover Distribution," as defined in Section 7.6, and the
Alternate Payee under the QDRO is the spouse or former spouse of the
Participant, Section 7.6 shall apply to such distribution; and the
Alternate Payee shall be treated as the "Payee" for purposes of so
applying Section 7.6.
11.8 Military Leaves of Absence. With respect to any period of absence
from employment, ending on or after December 12, 1994, taken by a Participant to
perform military service, to the extent required by section 414(u) of the Code:
(a) the Participant shall be credited with Hours of Service, and
shall be deemed to receive compensation for all purposes of the Plan, for
such period; and
(b) at the conclusion of such period, the Participant shall be
permitted to make any 401(k) Contributions and Employee After-tax
Contributions that he would have been able to make to the Plan during such
period but for the absence, and shall receive Company Matching
Contributions on any 401(k) Contributions and Employee After-Tax
Contributions that he so makes.
61
<PAGE>
In addition to the above, the Administrative Committee may permit the suspension
of repayments during any such period of absence on any loan that was made by the
Plan to the Participant prior to the start of such period, to the extent that
such suspension is permitted under section 414(u)(4) of the Code.
62
Exhibit 24-A
POWER-OF-ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned hereby
constitutes and appoints F.D. Hafer, B.L. Levy and I.H. Jolles and each of
them as his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for him and his name, place and stead, in
any and all capacities, to sign all or any amendments (including
post-effective amendments) of and supplements to this registration
statement on Form S-8 (SEC File No. 33-51035) and to file the same, with
all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each such
attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about
the premises, to all intents and purposes and as fully as each of the
undersigned might or could do in person, hereby ratifying and confirming
all that each such attorney-in-fact and agent, or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Signature and Title Date
/s/ F.D. Hafer May 24, 1999
------------------------------------
F.D. Hafer, Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
/s/ B.L. Levy May 24, 1999
------------------------------------
B.L. Levy, Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
/s/ P.E. Maricondo May 24, 1999
------------------------------------
P.E. Maricondo, Vice President and
Comptroller (Principal Accounting
Officer)
/s/ T.H. Black May 24, 1999
------------------------------------
T.H. Black, Director
/s/ T.B. Hagen May 24, 1999
------------------------------------
T.B. Hagen, Director
-1-
<PAGE>
/s/ H.F. Henderson May 24, 1999
------------------------------------
H.F. Henderson, Jr., Director
/s/ J.M. Pietruski May 24, 1999
------------------------------------
J.M. Pietruski, Director
/s/ C.A. Rein May 24, 1999
------------------------------------
C.A. Rein, Director
/s/ P.R. Roedel May 24, 1999
------------------------------------
P.R. Roedel, Director
/s/ B.S. Townsend May 24, 1999
------------------------------------
B.S. Townsend, Director
/s/ C.A.H. Trost May 24, 1999
------------------------------------
C.A.H. Trost, Director
/s/ P.K. Woolf May 24, 1999
------------------------------------
P.K. Woolf, Director
-2-
