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As filed with the Securities and Exchange Commission on November 19, 1999
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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UtiliCorp United Inc.
(Exact name of Registrant as specified in its charter)
Delaware 44-0541877
(State or other jurisdiction of (I.R.S. Employe Identification No.)
incorporation or organization)
20 West 9th Street
Kansas City, Missouri 64105
(Address, including zip code, of Registrant's principal executive offices)
UTILICORP UNITED INC.
SUPPLEMENTAL CONTRIBUTORY RETIREMENT PLAN
(Full title of the Plan)
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Richard C. Green, Jr.
UtiliCorp United Inc.
20 West 9th Street
Kansas City, Missouri 64105
(816) 421-6600
(Name, address, telephone number, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities to be Amount to be maximum maximum Amount of
registered registered offering aggregate
price per offering registration
share price fee
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Deferred Compensation $6,000,000 100%(2) $6,000,000(2) $1,668 (2)
Obligations (1)
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(1) The Deferred Compensation Obligations are unsecured obligations of
UtiliCorp United Inc. to pay deferred compensation in the future to
participating members of a select group of management and highly
compensated employees in accordance with the terms of the UtiliCorp United
Inc. Supplemental Contributory Retirement Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document containing the information about the UtiliCorp United Inc.
Supplemental Contributory Retirement Plan (the "Plan") specified in Part I of
Form S-8 will be sent or given to eligible employees as specified by the
Securities and Exchange Commission (the "Commission") Rule 428(b)(1). Such
document and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities Act of 1933. All
such documents will be dated and maintained in a "prospectus file" as required
by SEC Rule 428(a) and will contain the following legend in a conspicuous place
as directed by SEC Rule 428(b)(1).
This document (or specifically designated portions of this document)
constitutes (constitute) part of a prospectus covering securities that have been
registered under the Securities Act of 1933.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3: Incorporation of Documents by Reference
The following documents filed with the Commission by UtiliCorp United Inc.
(the "Company") are incorporated in this Registration Statement on Form S-8 (the
"Registration Statement") by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
2. The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, June 30, and September 30, 1999; and
3. The Company's Current Reports on Form 8-K dated March 5, May 14,
September 23 and October 6, 1999.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all of the securities offered then remaining unsold, shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
Item 4: Description of Securities
The UtiliCorp United Inc. Supplemental Contributory Retirement Plan (the
"Plan") provides a select group of management or highly compensated employees
("Eligible Employees") of the Company and certain of its subsidiaries with the
opportunity to defer the receipt of certain pre-tax cash compensation. The Plan
was originally adopted effective January 1, 1995, and was restated in its
entirety effective January 1, 1998. The restated Plan was thereafter amended on
two subsequent occasions. The obligations of the Company under the Plan (the
"Deferred Compensation Obligations") will be general unsecured obligations of
the Company to pay deferred compensation in the future to participating Eligible
Employees ("Participants") in accordance with the terms of the Plan and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Company from time to time outstanding. The Deferred Compensation Obligations
will be denominated and payable in United States dollars.
The amount of compensation to be deferred by each Participant will be
determined in accordance with the Plan based on elections by the Participant.
Each Deferred Compensation Obligation will be payable on a date or dates
selected by the Participant in accordance with the terms of the Plan. The
Deferred Compensation Obligations will be indexed to one or more of sixteen
measurement funds (including a phantom stock account based on the performance of
the Company's common stock) individually chosen by each participant. Each
Participant's Deferred Compensation Obligation will be adjusted to reflect
interest and dividends on securities in the selected measurement funds,
including any appreciation or depreciation. The Deferred Compensation
Obligations are not convertible into any other security of the Company.
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If a Participant's employment or services with the Company or any of its
subsidiaries terminate as a result of retirement or death, the Deferred
Compensation Obligations will be paid, at the Participant's election, in either
substantially equal quarterly installments over two to 15 years or a single lump
sum, beginning no later than 60 days after the date the Participant retires. If
a Participant's employment or services terminate for reasons other than
retirement or death, the Deferred Compensation Obligations will be paid and/or
distributed in one lump sum no later than 60 days after the Participant
terminates employment.
Although not required by the terms of the Plan, the Company has
established a "rabbi trust" pursuant to a Trust Agreement with LaSalle National
Trust, N.A. effective as of January 1, 1997. The Trust Agreement authorizes the
Company to make contributions to the trust for the purpose of assisting the
Company in meeting its obligations under the Plan. The assets of the trust are
currently invested, at the direction of the administrative committee for the
Plan, in corporate owned life insurance but may be invested in other assets,
including Company common stock. Although the assets of the trust are intended to
be used for the exclusive benefit of paying the Deferred Compensation
Obligations under the Plan, the assets remain subject to the claims of the
Company's general creditors. Consequently, Participants do not have any
ownership interest in the assets of the Trust.
No amount payable or deliverable under the Plan will be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, voluntary or involuntary (except pursuant to a divorce decree or order).
Any attempt to dispose of any rights to benefits payable under the Plan shall be
void.
The Deferred Compensation Obligations are not subject to redemption, in
whole or in part, prior to the individual payment date selected by the
Participants. A Participant may withdraw up to 90% of the value of his or her
Plan accounts; however, the remaining 10% will be forfeited to the Company upon
such a withdrawal, and the Participant will not be eligible to participate in
the Plan for 18 months in the future.
The total amount of the Deferred Compensation Obligations are not
determinable because the amount will vary depending upon the level of
participation by Eligible Employees and the amounts of their salaries, bonuses
or fees. The duration of the Plan is indefinite.
The Plan may be amended and/or terminated at any time by the Company's
board of directors. However, no amendment or termination shall adversely effect
any Participant's right with respect to amounts that have accrued to his
account.
Item 5: Interests of Named Experts and Counsel
Not Applicable.
Item 6: Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law confers broad powers
upon corporations incorporated in that State with respect to indemnification of
any person against liabilities incurred by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another
II-2
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corporation or other business entity. The provisions of Section 145 are not
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement or otherwise.
The Certificate of Incorporation of the Company contains a provision that
eliminates the personal liability of the Company's directors to the Company or
its stockholders for monetary damages for breach of fiduciary duty to the
fullest extent permitted by the Delaware General Corporation Law.
There is in effect for the Company a dual phase insurance policy providing
directors and officers with indemnification, subject to certain exclusions and
to the extent not otherwise indemnified by the Company, against loss (excluding
expenses incurred in the defense of actions, suits or proceedings in connection
therewith) arising from any negligent act, error, omission or breach of duty
while acting in their capacity as directors and officers of the Company. The
policy also reimburses the Company for liability incurred in the indemnification
of its directors and officers.
There is also in effect a Bylaw provision entitling officers and directors
to be indemnified by the Company against costs or expenses, attorneys' fees,
judgments, fines and amounts paid in settlement that are actually and reasonably
incurred in connection with any action, suit or proceeding, including actions
brought by or in the right of the Company, to which such persons are made or
threatened to be made a party, by reason of their being a director officer. Such
right, however, may be made only as authorized by (i) a majority vote of a
quorum of disinterested directors, or (ii) if such quorum is not obtainable or,
if obtainable, a majority thereof so directs, by independent legal counsel, or
(iii) by the stockholders of the Company, upon a determination that the person
seeking indemnification acted in good faith and in the manner that he or she
reasonably believed to be in or not opposed to the Company's best interest, or,
if the action is criminal in nature, upon a determination that the person
seeking indemnification had no reasonable cause to believe that such person's
conduct was unlawful. This provision also requires the Company, upon
authorization by the Board of Directors, to advance costs and expenses,
including attorneys' fees, reasonably incurred in defending such actions;
provided, that any person seeking such an advance first provide the Company with
an undertaking to repay any amount as to which it may be determined such person
is not entitled.
Item 7: Exemption from Registration Claimed
Not applicable.
Item 8: Exhibits
4(a) UtiliCorp United Inc. Supplemental Contributory Retirement Plan amended
and restated effective January 1, 1998
4(b) Amendment to the UtiliCorp United Inc. Supplemental Contributory
Retirement Plan dated August 4, 1998
4(c) Second Amendment to the UtiliCorp United Inc. Supplemental
Contributory Retirement Plan dated August 23, 1999
4(d) UtiliCorp United Inc. Executive Benefit Security Trust Agreement
effective January 1, 1997
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4(e) First Amendment to the UtiliCorp United Inc. Executive Benefit
Security Trust Agreement dated March 23, 1998
5 Opinion of Blackwell Sanders Peper Martin LLP
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Blackwell Sanders Peper Martin LLP (included in Exhibit 5)
24 Power of Attorney
Item 9: Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933; and
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement; and
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Kansas City, State of Missouri, on November 19, 1999.
UTILICORP UNITED INC.
(Registrant)
By: /s/ Dale J. Wolf
Dale J. Wolf
Vice President-Finance, Treasurer
and Corporate Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE
Richard C. Green, Jr.* Chairman of the Board
and Chief Executive
Officer (Principal
Executive Officer)
Dwayne L. Hart* Vice President,
Controller and Chief
Accounting Officer
(Principal Financial
Officer and Principal
Accounting Officer)
Richard C. Green*
John R. Baker*
Avis G. Tucker*
Robert F. Jackson, Jr.*
L. Patton Kline A majority of the Board of Directors
Herman Cain*
Irvine O. Hockaday,
Jr.*
Stanley O. Ikenberry*
Ronald LeMay
Robert K. Green*
James S. Brook
*By /s/ Dale J. Wolf
Dale J. Wolf
As attorney-in-fact for the above-named
officers and directors pursuant to powers
of attorney duly executed by such persons
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EXHIBIT 4(a)
UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Effective as of January 1, 1998
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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TABLE OF CONTENTS
Page
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Purpose .......................................................4
ARTICLE I Definitions..............................................4
ARTICLE 2 Selection, Enrollment, Eligibility.......................8
2.1 Selection by Committee..................................8
2.2 Enrollment Requirements.................................8
2.3 Eligibility; Commencement of Participation..............8
2.4 Termination of Participation and/or Deferrals...........8
ARTICLE 3 Deferral Commitments/Company Matching/Crediting/Taxes....9
3.1 Annual Deferral Amounts.................................9
3.2 Election to Defer; Effect of Election Form.............9
3.3 Withholding of Annual Deferral Amounts..................9
3.4 Company Matching Amount.................................9
3.5 Investment of Trust Assets..............................9
3.6 Vesting................................................10
3.7 Crediting/Debiting of Account Balances.................10
3.8 FICA and Other Taxes...................................12
3.9 Distributions..........................................13
ARTICLE 4 Unforeseeable Financial Emergencies;
Withdrawal Election.....................................13
4.1 Withdrawal Payout/Suspensions for Unforeseeable Financial
Emergencies...........................................13
4.2 Withdrawal Election....................................13
ARTICLE 5 Retirement Benefit......................................13
5.1 Retirement Benefit.....................................14
2.1 Payment of Retirement Benefit..........................14
5.3 Death Prior to Completion of Retirement Benefit........14
ARTICLE 6 Pre-Retirement Survivor Benefit.........................14
6.1 Pre-Retirement Survivor Benefit........................14
6.2 Payment of Pre-Retirement Survivor Benefit.............14
ARTICLE 7 Termination Benefit.....................................15
7.1 Termination Benefit....................................15
7.2 Payment of Termination Benefit.........................15
ARTICLE 8 Disability Waiver and Benefit...........................15
8.1 Disability Waiver......................................15
8.2 Continued Eligibility; Disability Benefit..............15
ARTICLE 9 Beneficiary Designation.................................16
9.1 Beneficiary............................................16
9.2 Beneficiary Designation; Change........................16
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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9.3 Acknowledgement........................................16
9.4 No Beneficiary Designation.............................16
9.5 Doubt as to Beneficiary................................16
9.6 Discharge of Obligations...............................16
ARTICLE 10 Leave of Absence.......................................16
10.1 Paid Leave of Absence.................................16
10.2 Unpaid Leave of Absence...............................16
ARTICLE 11 Termination, Amendment or Modification.................17
11.1 Termination...........................................17
11.2 Amendment.............................................17
11.3 Plan Agreement........................................17
11.4 Effect of Payment.....................................18
ARTICLE 12 Administration.........................................18
12.1 Committee Duties......................................18
12.2 Agents................................................18
12.3 Binding Effect of Decisions...........................18
12.4 Indemnity of Committee................................18
12.5 Employer Information..................................18
ARTICLE 13 Other Benefits and Agreements..........................18
13.1 Coordination with Other Benefits......................18
ARTICLE 14 Claims Procedures......................................18
14.1 Presentation of Claim.................................19
14.2 Notification of Decision..............................19
14.3 Review of a Denied Claim..............................19
14.4 Decision on Review....................................19
14.5 Legal Action..........................................20
ARTICLE 15 Trust..................................................20
15.1 Establishment of the Trust............................20
15.2 Interrelationship of the Plan and the Trust...........20
15.3 Distributions From the Trust..........................20
ARTICLE 16 Miscellaneous..........................................20
16.1 Status of Plan........................................20
16.2 Unsecured General Creditor............................20
16.3 Employer's Liability..................................20
16.4 Nonassignability......................................20
16.5 Not a Contract of Employment..........................21
16.6 Furnishing Information................................21
16.7 Terms.................................................21
16.8 Captions..............................................21
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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16.9 Governing Law.........................................21
16.10 Notice...............................................21
16.11 Successors...........................................21
16.12 Spouse's Interest....................................22
16.13 Validity.............................................22
16.14 Incompetent..........................................22
16.15 Court Order..........................................22
16.16 Distribution in the Event of Taxation................22
16.17 Insurance............................................22
16.18 Legal Fees To Enforce Rights After Change in Control.23
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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UTILICORP UNITED INC.
SUPPLEMENTAL CONTRIBUTORY RETIREMENT PLAN
Effective January 1, 1998
Purpose
The purpose of this Plan is to provide specified benefits to a select
group of management and highly compensated Employees who contribute materially
to the continued growth, development and future business success of UtiliCorp
United Inc., a Delaware corporation, and its subsidiaries, if any, that sponsor
this Plan. This Plan shall be unfunded for tax purposes and for purposes of
Title I of ERISA.
ARTICLE 1
Definitions
For purposes of this Plan, unless otherwise clearly apparent from the
context, the following phrases or terms shall have the following indicated
meanings:
1.1 "Account Balance" shall mean, with respect to a Participant, a credit on
the records of the Employer equal to the sum of (i) the Deferral Account
balance and (ii) the vested Company Matching Account balance. The Account
Balance, and each other specified account balance, shall be a bookkeeping
entry only and shall be utilized solely as a device for the measurement
and determination of the amounts to be paid to a Participant, or his or
her designated Beneficiary, pursuant to this Plan.
1.2 "Annual Company Matching Amount" for any one Plan Year shall be the amount
determined in accordance with Section 3.4.
1.3 "Annual Deferral Amount" shall mean that portion of a Participant's Base
Annual Salary that a Participant elects to have, and is deferred, in
accordance with Article 3, for any one Plan Year. In the event of a
Participant's Retirement, Disability (if deferrals cease in accordance
with Section 8.1), death or a Termination of Employment prior to the end
of a Plan Year, such year's Annual Deferral Amount shall be the actual
amount withheld prior to such event.
1.4 "Base Annual Salary" shall mean the annual cash compensation relating to
services performed during any calendar year, whether or not paid in such
calendar year or included on the Federal Income Tax Form W-2 for such
calendar year, excluding bonuses, commissions, overtime, fringe benefits,
stock options, relocation expenses, incentive payments, non-monetary
awards, directors fees and other fees, automobile and other allowances
paid to a Participant for employment services rendered (whether or not
such allowances are included in the Employee's gross income). Except as
otherwise provided in this sentence, Base Annual Salary shall be
calculated before reduction for compensation voluntarily deferred or
contributed by the Participant pursuant to all qualified or non-qualified
plans of any Employer and shall be calculated to include amounts not
otherwise included in the Participant's gross income under Code Sections
125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by any
Employer; provided, however, that (i) all such amounts will be included in
compensation only to the extent that, had there been no such plan, the
amount would have been payable in cash to the Employee; and (ii) Base
Annual Salary shall be calculated after reduction for compensation
voluntarily deferred or contributed by the Participant pursuant to the
UtiliCorp United Inc. Capital Accumulation Plan.
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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1.5 "Beneficiary" shall mean one or more persons, trusts, estates or other
entities, designated in accordance with Article 9, that are entitled to
receive benefits under this Plan upon the death of a Participant.
1.6 "Beneficiary Designation Form" shall mean the form established from time
to time by the Committee that a Participant completes, signs and returns
to the Committee to designate one or more Beneficiaries.
1.7 "Board" shall mean the board of directors of the Company.
1.8 "Change in Control" shall mean the first to occur of any of the following
events:
(a) Any "person" (as that term is used in Section 13 and 14(d)(2) of the
Securities Exchange Act of 1934 ("Exchange Act")) becomes the
beneficial owner (as that term is used in Section 13(d) of the
Exchange Act), directly or indirectly, of 20% or more of the
Company's capital stock entitled to vote in the election of
directors;
(b) During any period of not more than two consecutive years, not
including any period prior to the adoption of this Plan, individuals
who at the beginning of such period constitute the board of directors
of the Company cease for any reason to constitute at least a majority
thereof;
(c) The shareholders of the Company approve any consolidation or merger
of the Company, other than a consolidation or merger of the Company
in which the holders of the common stock of the Company immediately
prior to the consolidation or merger hold the same proportion of the
common stock of the surviving corporation immediately after the
consolidation or merger;
(d) The shareholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; or
(e) The shareholders of the Company approve the sale or transfer of all
or substantially all of the assets of the Company (in one transaction
or a series of transactions) to parties that are not within a
"controlled group of corporations" (as defined in Code Section 1563)
in which the Company is a member.
1.9 "Claimant" shall have the meaning set forth in Section 14.1.
1.10 "Code" shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.11 "Committee" shall mean the committee described in Article 12.
1.12 "Company" shall mean UtiliCorp United Inc., a Delaware corporation, and
any successor to all or substantially all of the Company's assets or
business.
1.13 "Company Matching Account" shall mean with respect to each Participant,
(i) the amount credited to the Participant's "deferred benefit account(s)"
as of December 31, 1997, under the terms of the Plan in effect immediately
prior to the effective date of this restatement, plus (ii) the sum of all
of a Participant's Company Matching Amounts attributable to amounts
deferred under this restatement, plus (iii) amounts credited in accordance
with all the applicable crediting provisions of this Plan that relate to
the Participant's Company Matching Account, less (iv) all distributions
made to the Participant or his or her Beneficiary pursuant to this Plan
that relate to the Participant's Company Matching Account.
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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1.14 "Deduction Limitation" shall mean the following described limitation on a
benefit that may otherwise be distributable pursuant to the provisions of
this Plan. Except as otherwise provided, this limitation shall be applied
to all distributions that are "subject to the Deduction Limitation" under
this Plan. If an Employer determines in good faith prior to a Change in
Control that there is a reasonable likelihood that any compensation paid
to a Participant for a taxable year of the Employer would not be
deductible by the Employer solely by reason of the limitation under Code
Section 162(m), then to the extent deemed necessary by the Employer to
ensure that the entire amount of any distribution to the Participant
pursuant to this Plan prior to the Change in Control is deductible, the
Employer may defer all or any portion of a distribution under this Plan.
Any amounts deferred pursuant to this limitation shall continue to be
credited/debited with additional amounts in accordance with Section 3.7
below, even if such amount is being paid out in installments. The amounts
so deferred and amounts credited thereon shall be distributed to the
Participant or his or her Beneficiary (in the event of the Participant's
death) at the earliest possible date, as determined by the Employer in
good faith, on which the deductibility of compensation paid or payable to
the Participant for the taxable year of the Employer during which the
distribution is made will not be limited by Section 162(m), or if earlier,
the effective date of a Change in Control. Notwithstanding anything to the
contrary in this Plan, the Deduction Limitation shall not apply to any
distributions made after a Change in Control.
1.15 "Deferral Account" shall mean with respect to each Participant, (i) the
amount credited to the Participant's "deferred benefit account(s)" as of
December 31, 1997, under the terms of the Plan in effect immediately prior
to the effective date of this restatement, plus (ii) the sum of all of a
Participant's Annual Deferral Amounts attributable to amounts deferred
under this restatement, plus (iii) amounts credited in accordance with all
the applicable crediting provisions of this Plan that relate to the
Participant's Deferral Account, less (iv) all distributions made to the
Participant or his or her Beneficiary pursuant to this Plan that relate to
his or her Deferral Account.
1.16 "Disability" shall mean a period of disability during which a Participant
qualifies for permanent disability benefits under the Participant's
Employer's long-term disability plan, or, if a Participant does not
participate in such a plan, a period of disability during which the
Participant would have qualified for permanent disability benefits under
such a plan had the Participant been a participant in such a plan, as
determined in the sole discretion of the Committee. If the Participant's
Employer does not sponsor such a plan, or discontinues to sponsor such a
plan, Disability shall be determined by the Committee in its sole
discretion.
1.17 "Disability Benefit" shall mean the benefit set forth in Article 8.
1.18 "Election Form" shall mean the form established from time to time by the
Committee that a Participant completes, signs and returns to the Committee
to make an election under the Plan.
1.19 "Employee" shall mean a person who is an employee of any Employer.
1.20 "Employer(s)" shall mean the Company and/or any of its subsidiaries (now
in existence or hereafter formed or acquired) that have been selected by
the Board to participate in the Plan and have adopted the Plan as a
sponsor.
1.21 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.22 "401(k) Plan" shall be that certain UtiliCorp United Inc. Retirement
Investment Plan, formerly known as the UtiliCorp Restated Savings Plan,
adopted by the Company.
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
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1.23 "Maximum 401(k) Amount" with respect to a Participant, shall be the
maximum amount of elective contributions that can be made by such
Participant, consistent with Code Section 402(g) and the limitations of
Code Section 401(k)(3), for a given plan year under the 401(k) Plan.
1.24 "Participant" shall mean any Employee (i) who is selected to participate
in the Plan, (ii) who elects to participate in the Plan, (iii) who signs a
Plan Agreement, an Election Form and a Beneficiary Designation Form, (iv)
whose signed Plan Agreement, Election Form and Beneficiary Designation
Form are accepted by the Committee, (v) who commences participation in the
Plan, and (vi) whose Plan Agreement has not terminated. A spouse or former
spouse of a Participant shall not be treated as a Participant in the Plan
or have an account balance under the Plan, even if he or she has an
interest in the Participant's benefits under the Plan as a result of
applicable law or property settlements resulting from legal separation or
divorce.
1.25 "Plan" shall mean the Company's Supplemental Contributory Retirement Plan,
which shall be evidenced by this instrument and by each Plan Agreement, as
they may be amended from time to time.
1.26 "Plan Agreement" shall mean a written agreement, as may be amended from
time to time, which is entered into by and between an Employer and a
Participant. Each Plan Agreement executed by a Participant and the
Participant's Employer shall provide for the entire benefit to which such
Participant is entitled under the Plan; should there be more than one Plan
Agreement, the Plan Agreement bearing the latest date of acceptance by the
Employer shall supersede all previous Plan Agreements in their entirety
and shall govern such entitlement. The terms of any Plan Agreement may be
different for any Participant, and any Plan Agreement may provide
additional benefits not set forth in the Plan or limit the benefits
otherwise provided under the Plan; provided, however, that any such
additional benefits or benefit limitations must be agreed to by both the
Employer and the Participant.
1.27 "Plan Year" shall mean a period beginning on January 1 of each calendar
year and continuing through December 31 of such calendar year.
1.28 "Pre-Retirement Survivor Benefit" shall mean the benefit set forth in
Article 6.
1.29 "Quarterly Installment Method" shall be a quarterly installment payment
over the number of calendar quarters selected by the Participant in
accordance with this Plan, calculated as follows: For purposes of
determining the initial amount of quarterly installments, the Account
Balance of the Participant shall be calculated as of the close of business
on the last business day of the calendar quarter during which the
Participant terminates employment due to Retirement or death , or the Plan
is terminated. The amount of the quarterly installments shall be
redetermined effective as of January 1 of each year by dividing the
Participant's remaining Account Balance by the remaining number of
installment payments. In no event shall any quarterly installment exceed
the Participant's Account Balance at the time of distribution.
1.30 "Retirement", "Retire(s)" or "Retired" shall mean, with respect to an
Employee, severance from employment from all Employers for any reason
other than a leave of absence, death or Disability on or after the
attainment of age fifty-five (55).
1.31 "Retirement Benefit" shall mean the benefit set forth in Article 5.
1.32 "Termination Benefit" shall mean the benefit set forth in Article 7.
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1.33 "Termination of Employment" shall mean the severing of employment with all
Employers, voluntarily or involuntarily, for any reason other than
Retirement, Disability, death or an authorized leave of absence.
1.34 "Trust" shall mean one or more trusts established pursuant to that certain
Executive Benefit Security Trust Agreement, dated as of January 1, 1997
between the Company and the trustee named therein, as amended from time to
time.
1.35 "Unforeseeable Financial Emergency" shall mean an unanticipated emergency
that is caused by an event beyond the control of the Participant that
would result in severe financial hardship to the Participant resulting
from (i) a sudden and unexpected illness or accident of the Participant or
a dependent of the Participant, (ii) a loss of the Participant's property
due to casualty, or (iii) such other extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of the
Participant, all as determined in the sole discretion of the Committee.
1.36 "Years of Service" for a Participant shall mean the total number of full
years of "Vesting Service" a Participant has earned under the terms of the
401(k) Plan.
ARTICLE 2
Selection, Enrollment, Eligibility
2.1 Selection by Committee. Participation in the Plan shall be limited to a
select group of management and highly compensated Employees of the
Employers, as determined by the Committee in its sole discretion. From
that group, the Committee shall select, in its sole discretion, Employees
to participate in the Plan.
2.2 Enrollment Requirements. As a condition to participation, each selected
Employee shall complete, execute and return to the Committee a Plan
Agreement, an Election Form and a Beneficiary Designation Form, all within
30 days after he or she is selected to participate in the Plan. In
addition, the Committee shall establish from time to time such other
enrollment requirements as it determines in its sole discretion are
necessary.
2.3 Eligibility; Commencement of Participation. Provided an Employee selected
to participate in the Plan has met all enrollment requirements set forth
in this Plan and required by the Committee, including returning all
required documents to the Committee within the specified time period, that
Employee shall commence participation in the Plan on the first day of the
month following the month in which the Employee completes all enrollment
requirements. If an Employee fails to meet all such requirements within
the period required, in accordance with Section 2.2, that Employee shall
not be eligible to participate in the Plan until the first day of the Plan
Year following the delivery to and acceptance by the Committee of the
required documents.
2.4 Termination of Participation and/or Deferrals. If the Committee determines
in good faith that a Participant no longer qualifies as a member of a
select group of management or highly compensated employees, as membership
in such group is determined in accordance with Sections 201(2), 301(a)(3)
and 401(a)(1) of ERISA, the Committee shall have the right, in its sole
discretion, to (i) terminate any deferral election the Participant has
made for the remainder of the Plan Year in which the Participant's
membership status changes, (ii) prevent the Participant from making future
deferral elections and/or (iii) immediately distribute the Participant's
then Account Balance as a Termination Benefit and terminate the
Participant's participation in the Plan.
ARTICLE 3
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Deferral Commitments/Company Matching/Crediting/Taxes
3.1 Annual Deferral Amounts.
For each Plan Year, the Annual Deferral Amount for a Participant shall
be equal to: (A x B) - C, where:
A = the Participant's Base Annual Salary for the Plan Year
B = the contribution percentage elected by the Participant under
the 401(k) Plan in effect as of the first day of the deferral
period
C = the Participant's Maximum 401(k) Amount for the Plan Year.
Notwithstanding the foregoing, the minimum deferral for any Plan Year
shall be $1,000 and no amount shall be credited to a Participant's
Deferral Account under this Plan for a Plan Year until such Participant
has contributed the Maximum 401(k) Amount to the 401(k) Plan.
3.2 Election to Defer; Effect of Election Form.
(a) First Plan Year. In connection with a Participant's commencement
of participation in the Plan, the Participant shall make an
irrevocable deferral election for the Plan Year in which the
Participant commences participation in the Plan, along with such
other elections as the Committee deems necessary or desirable
under the Plan. For these elections to be valid, the Election
Form must be completed and signed by the Participant, timely
delivered to the Committee (in accordance with Section 2.2 above)
and accepted by the Committee.
(b) Subsequent Plan Years. For each succeeding Plan Year, an
irrevocable deferral election for that Plan Year, and such other
elections as the Committee deems necessary or desirable under the
Plan, shall be made by timely delivering to the Committee, in
accordance with its rules and procedures, before the end of the
Plan Year preceding the Plan Year for which the election is made,
a new Election Form. If no such Election Form is timely delivered
for a Plan Year, the Annual Deferral Amount shall be zero for
that Plan Year.
3.3 Withholding of Annual Deferral Amounts For each Plan Year, the Annual
Deferral Amount for a Participant shall be withheld from each regularly
scheduled Base Annual Salary payroll in equal amounts, as adjusted from
time to time for increases and decreases in Base Annual Salary; provided,
however, that no such amount shall be withheld until the Participant has
contributed the Maximum 401(k) Amount to the 401(k) Plan for such Plan
Year.
3.4 Company Matching Amount. A Participant's Company Matching Amount for any
Plan Year shall be equal to one hundred percent (100%) of the
Participant's Annual Deferral Amount for such Plan Year, up to an amount
that does not exceed six percent (6%) of the Participant's Base Annual
Salary, reduced by the amount of any matching contributions made to the
401(k) Plan on his or her behalf for the plan year of the 401(k) Plan that
corresponds to the Plan Year. Company Matching Contributions shall be
credited to Participant's Company Matching Accounts at the same time
Company Matching Contributions would have been made under the 401(k) Plan.
3.5 Investment of Trust Assets. The Trustee of the Trust shall be authorized,
upon written instructions received from the Committee or investment
manager appointed by the Committee, to invest and reinvest the assets of
the Trust in accordance with the applicable Trust Agreement, including the
disposition of stock and reinvestment of the proceeds in one or more
investment vehicles designated by the Committee.
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3.6 Vesting.
(a) A Participant shall at all times be 100% vested in his or her
Deferral Account.
(b) A Participant shall be vested in his or her Company Matching
Account as follows: (i) with respect to all benefits under this
Plan other than the Termination Benefit, a Participant's vested
Company Matching Account shall equal 100% of such Participant's
Company Matching Account; and (ii) with respect to the
Termination Benefit, a Participant's Company Matching Account
shall vest on the basis of the Participant's Years of Service at
the time the Participant experiences a Termination of Employment,
in accordance with the following schedule:
------------------------------------------------------
Years of Service at Date of Vested Percentage of
Termination of Employment Company Matching Account
------------------------------------------------------
Less than 1 year 0%
------------------------------------------------------
1 year or more, but less than 2 20%
------------------------------------------------------
2 years or more, but less than 3 40%
------------------------------------------------------
3 years or more, but less than 4 60%
------------------------------------------------------
4 years or more, but less than 5 80%
------------------------------------------------------
5 years or more 100%
------------------------------------------------------
(c) Notwithstanding anything to the contrary contained in this Section
3.6, in the event of a Change in Control, a Participant's Company
Matching Account shall immediately become 100% vested (if it is not
already vested in accordance with the above vesting schedules).
(d) Notwithstanding subsection (c), the vesting schedule for a
Participant's Company Matching Account shall not be accelerated
to the extent that the Committee determines that such
acceleration would cause the deduction limitations of Section
280G of the Code to become effective. In the event that all of a
Participant's Company Matching Account is not vested pursuant to
such a determination, the Participant may request independent
verification of the Committee's calculations with respect to the
application of Section 280G. In such case, the Committee must
provide to the Participant within 15 business days of such a
request an opinion from a nationally recognized accounting firm
selected by the Participant (the "Accounting Firm"). The opinion
shall state the Accounting Firm's opinion that any limitation in
the vested percentage hereunder is necessary to avoid the limits
of Section 280G and contain supporting calculations. The cost of
such opinion shall be paid for by the Company.
3.7 Crediting/Debiting of Account Balances. In accordance with, and subject
to, the rules and procedures that are established from time to time by the
Committee, in its sole discretion, amounts shall be credited or debited to
a Participant's Account Balance in accordance with the following rules:
(a) Election of Measurement Funds for Deferral Account Balance.
Except as provided in Section 3.7(f) or otherwise provided below,
a Participant, in connection with his or her initial deferral
election in accordance with Section 3.2(a) above, shall elect, on
the Election Form, one or more Measurement Fund(s) (as described
in Section 3.7(c) below) to be used to determine the additional
amounts to be credited to his or her Deferral Account balance for
the first calendar quarter or portion thereof in which the
Participant commences participation in the Plan and continuing
thereafter for each subsequent calendar quarter in which the
Participant participates in the Plan, unless changed in
accordance with the next sentence. Commencing with the first
calendar quarter that follows the Participant's commencement of
participation in the Plan and continuing thereafter for each
subsequent calendar quarter in
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which the Participant participates in the Plan, no later than the
next to last business day of the calendar quarter, the Participant
may (but is not required to) elect, by submitting an Election Form to
the Committee that is accepted by the Committee, to add or delete one
or more Measurement Fund(s) to be used to determine the additional
amounts to be credited to his or her Deferral Account balance, or to
change the percentage of his or her Deferral Account balance
allocated to each previously or newly elected Measurement Fund. If an
election is made in accordance with the previous sentence, it shall
apply to the next calendar quarter and continue thereafter for each
subsequent calendar quarter in which the Participant participates in
the Plan, unless changed in accordance with the previous sentence.
(b) Proportionate Allocation. In making any election described in Section
3.7(a) above, the Participant shall specify on the Election Form, in
increments of one percentage point (1%), the percentage of his or her
Deferral Account balance to be allocated to a Measurement Fund (as if
the Participant was making an investment in that Measurement Fund
with that portion of his or her Deferral Account balance).
(c) Measurement Funds. Except as otherwise provided in Section 3.7(f)
below, the Participant may elect one or more of the following
measurement funds, based on certain mutual funds (the "Measurement
Funds"), for the purpose of crediting additional amounts to his or
her Account Balance:
(1) Neuberger & Berman Low Duration Portfolio (described as a mutual
fund seeking current income and, secondarily, long-term growth
of capital, primarily through investments in fixed income
securities with a duration of less than 3 years);
(2) Brinson Partners U.S. Equity Fund (described as a mutual fund
which seeks long-term growth of capital through investments in
large capitalization stocks in the United States);
(3) Provident Investment Counsel Small-Cap Equity Growth Portfolio
(described as a mutual fund which seeks long-term growth of
capital and income primarily through investments in small
capitalization common stocks with perceived above average
earnings growth potential);
(4) Morgan Stanley International Equity Fund (described as a mutual
fund which seeks long-term growth of capital by investing in
companies outside of the United States); and
(5) Company Stock Fund (described as a fund invested in UtiliCorp
United Inc. common stock).
As necessary, the Committee may, in its sole discretion, discontinue,
substitute or add a Measurement Fund. Each such action will take
effect as of the first day of the calendar quarter that follows by
thirty (30) days the day on which the Committee gives Participants
advance written notice of such change.
(d) Crediting or Debiting Method. The performance of each elected
Measurement Fund (either positive or negative) will be determined
by the Committee, in its sole discretion,
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based on the performance of the Measurement Funds themselves. A
Participant's Account Balance shall be credited or debited on a daily
basis based on the performance of each Measurement Fund selected by
the Participant, as determined by the Committee in its sole
discretion, as though (i) a Participant's Deferral Account balance
were invested in the Measurement Fund(s) selected by the Participant,
in the percentages applicable to such calendar quarter, as of the
close of business on the first business day of such calendar quarter,
at the closing price on such date; (ii) a Participant's Company
Matching Account balance were invested in the Company Stock Fund, as
of the close of business on the first business day of such calendar
quarter, at the closing price on such date; (iii) the portion of the
Annual Deferral Amount that was actually deferred during any calendar
quarter were invested in the Measurement Fund(s) selected by the
Participant, in the percentages applicable to such calendar quarter,
no later than the close of business on the last business day of the
calendar quarter in which such amounts are actually deferred from the
Participant's Base Annual Salary through reductions in his or her
payroll, at the closing price on such date; and (iv) any distribution
made to a Participant that decreases such Participant's Account
Balance ceased being invested in the Measurement Fund(s), in the
percentages applicable to such calendar quarter, no earlier than the
first business day of the calendar quarter of the distribution, at
the closing price on such date. The Participant's Annual Company
Matching Amount shall be credited, in whole or in part, to his or her
Company Matching Account for purposes of this Section 3.7(d) at such
time(s) such Amount would have been credited to the 401(k) Plan, had
such Amount been credited as a matching contribution to the 401(k)
Plan.
(e) No Actual Investment. Notwithstanding any other provision of
this Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only,
and a Participant's election of any such Measurement Fund, the
allocation to his or her Account Balance thereto, the calculation
of additional amounts and the crediting or debiting of such
amounts to a Participant's Account Balance shall not be
considered or construed in any manner as an actual investment of
his or her Account Balance in any such Measurement Fund. In the
event that the Company or the trustee of the Trust, in its own
discretion, decides to invest funds in any or all of the
Measurement Funds, no Participant shall have any rights in or to
such investments themselves. Without limiting the foregoing, a
Participant's Account Balance shall at all times be a bookkeeping
entry only and shall not represent any investment made on his or
her behalf by the Company or the Trust; the Participant shall at
all times remain an unsecured creditor of the Company.
(f) Investment of Company Matching Amounts. Notwithstanding any other
provisions of this Plan that may be interpreted to the contrary, the
Participant's Company Matching Amounts shall be deemed invested in
the Company Stock Fund at all times such amounts are credited to his
or her Account Balance.
3.8 FICA and Other Taxes.
(a) Annual Deferral Amounts. For each Plan Year in which an Annual
Deferral Amount is being withheld from a Participant, the
Participant's Employer(s) shall withhold from that portion of the
Participant's Base Annual Salary that is not being deferred, in a
manner determined by the Employer(s), the Participant's share of
FICA and other employment taxes on such Annual Deferral Amount
and Plan earnings, as applicable. If necessary, the
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Committee may reduce the Annual Deferral Amount in order to comply
with this Section 3.8.
(b) Company Matching Amounts. When a participant becomes vested in a
portion of his or her Company Matching Account, the Participant's
Employer(s), to the extent required by applicable law, shall
withhold from the Participant's Base Annual Salary that is not
deferred, in a manner determined by the Employer(s), the
Participant's share of FICA and other employment taxes. If
necessary, the Committee may reduce the vested portion of the
Participant's Company Matching Account in order to comply with
this Section 3.8, which reduction may subject the Participant to
additional taxes.
3.9 Distributions. The Participant's Employer(s), or the trustee of the Trust,
shall withhold from any payments made to a Participant under this Plan all
federal, state and local income, employment and other taxes required to be
withheld by the Employer(s), or the trustee of the Trust, in connection
with such payments, in amounts and in a manner to be determined in the
sole discretion of the Employer(s) and the trustee of the Trust.
ARTICLE 4
Uforeseeable Fnancial Emergencies; Withdrawal Election
4.1 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies.
If a Participant experiences an Unforeseeable Financial Emergency,
the Participant may petition the Committee to (i) suspend any deferrals
required to be made by the Participant and/or (ii) receive a partial or
full payout from the Plan. The payout shall not exceed the lesser of the
Participant's Account Balance, calculated as if such Participant were
receiving a Termination Benefit, or the amount reasonably needed to
satisfy the Unforeseeable Financial Emergency. If, subject to the sole
discretion of the Committee, the petition for a suspension and/or payout
is approved, suspension shall take effect upon the date of approval and
any payout shall be made within 60 days of the date of approval. The
payment of any amount under this Section 4.1 shall not be subject to the
Deduction Limitation.
4.2 Withdrawal Election. A Participant (or, after a Participant's death, his
or her Beneficiary) may elect, at any time, to withdraw all of his or her
Account Balance, calculated as if there had occurred a Termination of
Employment as of the day of the election, less a withdrawal penalty equal
to 10% of such amount (the net amount shall be referred to as the
"Withdrawal Amount"). This election can be made at any time, before or
after Retirement, Disability, death or Termination of Employment, and
whether or not the Participant (or Beneficiary) is in the process of being
paid pursuant to an installment payment schedule. If made before
Retirement, Disability or death, a Participant's Withdrawal Amount shall
be his or her Account Balance calculated as if there had occurred a
Termination of Employment as of the day of the election. No partial
withdrawals of the Withdrawal Amount shall be allowed. The Participant (or
his or her Beneficiary) shall make this election by giving the Committee
advance written notice of the election in a form determined from time to
time by the Committee. The Participant (or his or her Beneficiary) shall
be paid the Withdrawal Amount within 60 days of his or her election. Once
the Withdrawal Amount is paid, the Participant's participation in the Plan
shall terminate and the Participant shall not be eligible to participate
in the Plan for eighteen (18) months in the future. The payment of this
Withdrawal Amount shall not be subject to the Deduction Limitation.
ARTICLE 5
Retirement Benefit
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5.1 Retirement Benefit. Subject to the Deduction Limitation, a Participant who
Retires shall receive, as a Retirement Benefit, his or her Account
Balance.
5.2 Payment of Retirement Benefit. A Participant, in connection with his or
her commencement of participation in the Plan, shall elect on an Election
Form to receive the Retirement Benefit in a lump sum or pursuant to a
Quarterly Installment Method over 2 to 15 years. The Participant may
annually change his or her election to an allowable alternative payout
period by submitting a new Election Form to the Committee, provided that
any such Election Form is submitted at least 3 years prior to the
Participant's Retirement and is accepted by the Committee in its sole
discretion. In the event that a Participant Retires before his or her
attainment of age 62, the Participant may file a written request with the
Committee requesting that the lump sum payment not be made, or installment
payments not commence, until after the Participant reaches age sixty-five
(65), provided that any such Election Form is submitted at least 13 months
prior to the Participant's Retirement date and is accepted by the
Committee in its sole discretion. The Election Form most recently accepted
by the Committee shall govern the payout of the Retirement Benefit. If a
Participant does not make any election with respect to the payment of the
Retirement Benefit, then such benefit shall be payable in a lump sum. The
lump sum payment shall be made, or installment payments shall commence, no
later than 60 days after the date the Participant Retires. Any payment
made shall be subject to the Deduction Limitation.
5.3 Death Prior to Completion of Retirement Benefit. If a Participant dies
after Retirement but before the Retirement Benefit is paid in full, the
Participant's unpaid Retirement Benefit payments shall continue and shall
be paid to the Participant's Beneficiary (a) over the remaining number of
quarters and in the same amounts as that benefit would have been paid to
the Participant had the Participant survived, or (b) in a lump sum, if
requested by the Beneficiary and allowed in the sole discretion of the
Committee, that is equal to the Participant's unpaid remaining Account
Balance.
ARTICLE 6
Pre-Retirement Survivor Benefit
6.1 Pre-Retirement Survivor Benefit. Subject to the Deduction Limitation, the
Participant's Beneficiary shall receive a Pre-Retirement Survivor Benefit
equal to the Participant's Account Balance if the Participant dies before
he or she Retires, experiences a Termination of Employment or suffers a
Disability.
6.2 Payment of Pre-Retirement Survivor Benefit. A Participant, in connection
with his or her commencement of participation in the Plan, shall elect on
an Election Form whether the Pre-Retirement Survivor Benefit shall be
received by his or her Beneficiary in a lump sum or pursuant to a
Quarterly Installment Method over 2 to 15 years. The Participant may
annually change this election to an allowable alternative payout period by
submitting a new Election Form to the Committee, which form must be
accepted by the Committee in its sole discretion. The Election Form most
recently accepted by the Committee prior to the Participant's death shall
govern the payout of the Participant's Pre-Retirement Survivor Benefit. If
a Participant does not make any election with respect to the payment of
the Pre-Retirement Survivor Benefit, then such benefit shall be paid in a
lump sum. Despite the foregoing, if the Participant's Account Balance at
the time of his or her death is less than $25,000, payment of the
Pre-Retirement Survivor Benefit may be made, in the sole discretion of the
Committee, in a lump sum or pursuant to a Quarterly Installment Method
over not more than 5 years. The lump sum payment shall be made, or
installment payments shall commence, no later than 60 days after the date
the Committee is provided with
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proof that is satisfactory to the Committee of the Participant's death. Any
payment made shall be subject to the Deduction Limitation.
ARTICLE 7
Termination Benefit
7.1 Termination Benefit. Subject to the Deduction Limitation, the Participant
shall receive a Termination Benefit, which shall be equal to the
Participant's Account Balance if a Participant experiences a Termination
of Employment prior to his or her Retirement, death or Disability.
7.2 Payment of Termination Benefit. The Termination Benefit shall be paid in a
lump sum. The lump sum payment shall be made, or installment payments
shall commence, no later than 60 days after the date of the Participant's
Termination of Employment. Any payment made shall be subject to the
Deduction Limitation.
ARTICLE 8
Disability Waiver and Benefit
8.1 Disability Waiver.
(a) Waiver of Deferral. A Participant who is determined by the
Committee to be suffering from a Disability shall be excused from
fulfilling that portion of the Annual Deferral Amount commitment
that would otherwise have been withheld from a Participant's Base
Annual Salary for the Plan Year during which the Participant
first suffers a Disability. During the period of Disability, the
Participant shall not be allowed to make any additional deferral
elections, but will continue to be considered a Participant for
all other purposes of this Plan.
(b) Return to Work. If a Participant returns to employment with an
Employer, after a Disability ceases, the Participant may elect to
defer an Annual Deferral Amount for the Plan Year following his
or her return to employment or service and for every Plan Year
thereafter while a Participant in the Plan; provided such
deferral elections are otherwise allowed and an Election Form is
delivered to and accepted by the Committee for each such election
in accordance with Section 3.2 above.
8.2 Continued Eligibility; Disability Benefit. A Participant suffering a
Disability shall, for benefit purposes under this Plan, continue to be
considered to be employed, or in the service of an Employer and shall be
eligible for the benefits provided for in Article 4, 5, 6 or 7 in
accordance with the provisions of those Articles. Notwithstanding the
above, the Committee shall have the right to, in its sole and absolute
discretion and for purposes of this Plan only, and must in the case of a
Participant who is otherwise eligible to Retire, deem the Participant to
have experienced a Termination of Employment, or in the case of a
Participant who is eligible to Retire, to have Retired, at any time (or in
the case of a Participant who is eligible to Retire, as soon as
practicable) after such Participant is determined to be suffering a
Disability, in which case the Participant shall receive a Disability
Benefit equal to his or her Account Balance at the time of the Committee's
determination; provided, however, that should the Participant otherwise
have been eligible to Retire, he or she shall be paid in accordance with
Article 5. The Disability Benefit shall be paid in a lump sum within 60
days of the Committee's exercise of such right. Any payment made shall be
subject to the Deduction Limitation.
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ARTICLE 9
Beneficiary Designation
9.1 Beneficiary. Each Participant shall have the right, at any time, to
designate his or her Beneficiary(ies) (both primary as well as contingent)
to receive any benefits payable under the Plan to a beneficiary upon the
death of a Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation under any other
plan of an Employer in which the Participant participates.
9.2 Beneficiary Designation; Change. A Participant shall designate his or her
Beneficiary by completing and signing the Beneficiary Designation Form,
and returning it to the Committee or its designated agent. A Participant
shall have the right to change a Beneficiary by completing, signing and
otherwise complying with the terms of the Beneficiary Designation Form and
the Committee's rules and procedures, as in effect from time to time.
9.3 Acknowledgment. No designation or change in designation of a Beneficiary
shall be effective until received and acknowledged in writing by the
Committee or its designated agent.
9.4 No Beneficiary Designation. If a Participant fails to designate a
Beneficiary as provided in Sections 9.1, 9.2 and 9.3 above or, if all
designated Beneficiaries predecease the Participant or die prior to
complete distribution of the Participant's benefits, then the
Participant's designated Beneficiary shall be deemed to be his or her
surviving spouse. If the Participant has no surviving spouse, the benefits
remaining under the Plan to be paid to a Beneficiary shall be payable to
the executor or personal representative of the Participant's estate.
9.5 Doubt as to Beneficiary. If the Committee has any doubt as to the proper
Beneficiary to receive payments pursuant to this Plan, the Committee shall
have the right, exercisable in its discretion, to cause the Participant's
Employer to withhold such payments until this matter is resolved to the
Committee's satisfaction.
9.6 Discharge of Obligations. The payment of benefits under the Plan to a
Beneficiary shall fully and completely discharge all Employers and the
Committee from all further obligations under this Plan with respect to the
Participant, and that Participant's Plan Agreement shall terminate upon
such full payment of benefits.
ARTICLE 10
Leave of Absence
10.1 Paid Leave of Absence. If a Participant is authorized by the Participant's
Employer for any reason to take a paid leave of absence from the
employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Annual Deferral Amount shall
continue to be withheld during such paid leave of absence in accordance
with Section 3.3.
10.2 Unpaid Leave of Absence. If a Participant is authorized by the
Participant's Employer for any reason to take an unpaid leave of absence
from the employment of the Employer, the Participant shall continue to be
considered employed by the Employer and the Participant shall be excused
from making deferrals until the earlier of the date the leave of absence
expires or the Participant returns to a paid employment status. Upon such
expiration or return, deferrals shall resume for the remaining portion of
the Plan Year in which the expiration or return occurs, based on the
deferral election, if any, made for that Plan Year. If no election was
made for that Plan Year, no deferral shall be withheld.
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Supplemental Contributory Retirement Plan
Master Plan Document
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ARTICLE 11
Termination, Amendment or Modification
11.1 Termination. Although each Employer anticipates that it will continue the
Plan for an indefinite period of time, there is no guarantee that any
Employer will continue the Plan or will not terminate the Plan at any time
in the future. Accordingly, each Employer reserves the right to
discontinue its sponsorship of the Plan and/or to terminate the Plan at
any time with respect to any or all of its participating Employees by
action of its board of directors. Upon the termination of the Plan with
respect to any Employer, the Plan Agreements of the affected Participants
who are employed by that Employer shall terminate and their Account
Balances, determined as if they had experienced a Termination of
Employment on the date of Plan termination or, if Plan termination occurs
after the date upon which a Participant was eligible to Retire, then with
respect to that Participant as if he or she had Retired on the date of
Plan termination, shall be paid to the Participants as follows: Prior to a
Change in Control, if the Plan is terminated with respect to all of its
Participants, an Employer shall have the right, in its sole discretion,
and notwithstanding any elections made by the Participant, to pay such
benefits in a lump sum or pursuant to a Quarterly Installment Method of up
to 15 years, with amounts credited and debited during the installment
period as provided herein. If the Plan is terminated with respect to less
than all of its Participants, an Employer shall be required to pay such
benefits in a lump sum. After a Change in Control, the Employer shall be
required to pay such benefits in a lump sum. The termination of the Plan
shall not adversely affect any Participant or Beneficiary who has become
entitled to the payment of any benefits under the Plan as of the date of
termination; provided however, that the Employer shall have the right to
accelerate installment payments without a premium or prepayment penalty by
paying the Account Balance in a lump sum or pursuant to a Quarterly
Installment Method using fewer quarters (provided that the present value
of all payments that will have been received by a Participant at any given
point of time under the different payment schedule shall equal or exceed
the present value of all payments that would have been received at that
point in time under the original payment schedule).
11.2 Amendment. Any Employer may, at any time, amend or modify the Plan in
whole or in part with respect to that Employer by the action of its board
of directors; provided, however, that no amendment or modification shall
be effective to decrease or restrict the value of a Participant's Account
Balance in existence at the time the amendment or modification is made,
calculated as if the Participant had experienced a Termination of
Employment as of the effective date of the amendment or modification or,
if the amendment or modification occurs after the date upon which the
Participant was eligible to Retire, the Participant had Retired as of the
effective date of the amendment or modification. The amendment or
modification of the Plan shall not affect any Participant or Beneficiary
who has become entitled to the payment of benefits under the Plan as of
the date of the amendment or modification; provided, however, that the
Employer shall have the right to accelerate installment payments by paying
the Account Balance in a lump sum or pursuant to a Quarterly Installment
Method using fewer quarters (provided that the present value of all
payments that will have been received by a Participant at any given point
of time under the different payment schedule shall equal or exceed the
present value of all payments that would have been received at that point
in time under the original payment schedule).
11.3 Plan Agreement. Despite the provisions of Sections 11.1 and 11.2 above, if
a Participant's Plan Agreement contains benefits or limitations that are
not in this Plan document, the Employer may only amend or terminate such
provisions with the consent of the Participant.
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Master Plan Document
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11.4 Effect of Payment. The full payment of the applicable benefit under
Article 4, 5, 6, 7 or 8 of the Plan shall completely discharge all
obligations to a Participant and his or her designated Beneficiaries under
this Plan and the Participant's Plan Agreement shall terminate.
ARTICLE 12
Administration
12.1 Committee Duties. This Plan shall be administered by a Committee which
shall consist of the Board, or such committee as the Board shall appoint.
Members of the Committee may be Participants under this Plan. The
Committee shall also have the discretion and authority to (i) make, amend,
interpret, and enforce all appropriate rules and regulations for the
administration of this Plan and (ii) decide or resolve any and all
questions including interpretations of this Plan, as may arise in
connection with the Plan. Any individual serving on the Committee who is a
Participant shall not vote or act on any matter relating solely to himself
or herself. When making a determination or calculation, the Committee
shall be entitled to rely on information furnished by a Participant or the
Company.
12.2 Agents. In the administration of this Plan, the Committee may, from time
to time, employ agents and delegate to them such administrative duties as
it sees fit (including acting through a duly appointed representative) and
may from time to time consult with counsel who may be counsel to any
Employer.
12.3 Binding Effect of Decisions. The decision or action of the Committee with
respect to any question arising out of or in connection with the
administration, interpretation and application of the Plan and the rules
and regulations promulgated hereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.
12.4 Indemnity of Committee. All Employers shall indemnify and hold harmless
the members of the Committee, and any Employee to whom the duties of the
Committee may be delegated, against any and all claims, losses, damages,
expenses or liabilities arising from any action or failure to act with
respect to this Plan, except in the case of willful misconduct by the
Committee or any of its members or any such Employee.
12.5 Employer Information. To enable the Committee to perform its functions,
each Employer shall supply full and timely information to the Committee on
all matters relating to the compensation of its Participants, the date and
circumstances of the Retirement, Disability, death or Termination of
Employment of its Participants, and such other pertinent information as
the Committee may reasonably require.
ARTICLE 13
Other Benefits and Agreements
13.1 Coordination with Other Benefits. The benefits provided for a Participant
and Participant's Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or program for
employees of the Participant's Employer. The Plan shall supplement and
shall not supersede, modify or amend any other such plan or program except
as may otherwise be expressly provided.
ARTICLE 14
Claims Procedures
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UtiliCorp United Inc.
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Master Plan Document
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14.1 Presentation of Claim. Any Participant or Beneficiary of a deceased
Participant (such Participant or Beneficiary being referred to below as a
"Claimant") may deliver to the Committee a written claim for a
determination with respect to the amounts distributable to such Claimant
from the Plan. If such a claim relates to the contents of a notice
received by the Claimant, the claim must be made within 60 days after such
notice was received by the Claimant. All other claims must be made within
180 days of the date on which the event that caused the claim to arise
occurred. The claim must state with particularity the determination
desired by the Claimant.
14.2 Notification of Decision. The Committee shall consider a Claimant's claim
within 90 days (unless special circumstances require additional time) a
reasonable time, and shall notify the Claimant in writing:
(a) that the Claimant's requested determination has been made, and that
the claim has been allowed in full; or
(b) that the Committee has reached a conclusion contrary, in whole or in
part, to the Claimant's requested determination, and such notice must
set forth in a manner calculated to be understood by the Claimant:
(i) the specific reason(s) for the denial of the claim, or any
part of it;
(ii) specific reference(s) to pertinent provisions of the Plan upon
which such denial was based;
(iii)a description of any additional material or information
necessary for the Claimant to perfect the claim, and an
explanation of why such material or information is necessary;
and
(iv) an explanation of the claim review procedure set forth in
Section 14.3 below.
14.3 Review of a Denied Claim. Within 60 days after receiving a notice from the
Committee that a claim has been denied, in whole or in part, a Claimant
(or the Claimant's duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim.
Thereafter, but not later than 30 days after the review procedure began,
the Claimant (or the Claimant's duly authorized representative):
(a) may review pertinent documents;
(b) may submit written comments or other documents; and/or
(c) may request a hearing, which the Committee, in its sole discretion,
may grant.
14.4 Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request
for review of the denial, unless a hearing is held or other special
circumstances require additional time, in which case the Committee's
decision must be rendered within 120 days after such date. Such decision
must be written in a manner calculated to be understood by the Claimant,
and it must contain:
(a) specific reasons for the decision;
(b) specific reference(s) to the pertinent Plan provisions upon which the
decision was based; and
(c) such other matters as the Committee deems relevant.
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Master Plan Document
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14.5 Legal Action. A Claimant's compliance with the foregoing provisions of
this Article 14 is a mandatory prerequisite to a Claimant's right to
commence any legal action with respect to any claim for benefits under
this Plan.
ARTICLE 15
Trust
15.1 Establishment of the Trust. The Company shall establish the Trust, and
each Employer shall at least annually transfer over to the Trust such
assets as the Employer determines, in its sole discretion, are necessary
to provide, on a present value basis, for its respective future
liabilities created with respect to the Annual Deferral Amounts and
Company Matching Amounts for such Employer's Participants for all periods
prior to the transfer, as well as any debits and credits to the
Participants' Account Balances for all periods prior to the transfer,
taking into consideration the value of the assets in the trust at the time
of the transfer.
15.2 Interrelationship of the Plan and the Trust. The provisions of the Plan
and the Plan Agreement shall govern the rights of a Participant to receive
distributions pursuant to the Plan. The provisions of the Trust shall
govern the rights of the Employers, Participants and the creditors of the
Employers to the assets transferred to the Trust. Each Employer shall at
all times remain liable to carry out its obligations under the Plan.
15.3 Distributions From the Trust. Each Employer's obligations under the Plan
may be satisfied with Trust assets distributed pursuant to the terms of
the Trust, and any such distribution shall reduce the Employer's
obligations under this Plan.
ARTICLE 16
Miscellaneous
16.1 Status of Plan. The Plan is intended to be a plan that is not qualified
within the meaning of Code Section 401(a) and that "is unfunded and is
maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employee" within the meaning of ERISA Sections 201(2), 301(a)(3) and
401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.
16.2 Unsecured General Creditor. Participants and their Beneficiaries, heirs,
successors and assigns shall have no legal or equitable rights, interests
or claims in any property or assets of an Employer. For purposes of the
payment of benefits under this Plan, any and all of an Employer's assets
shall be, and remain, the general, unpledged unrestricted assets of the
Employer. An Employer's obligation under the Plan shall be merely that of
an unfunded and unsecured promise to pay money in the future.
16.3 Employer's Liability. An Employer's liability for the payment of benefits
shall be defined only by the Plan and the Plan Agreement, as entered into
between the Employer and a Participant. An Employer shall have no
obligation to a Participant under the Plan except as expressly provided in
the Plan and his or her Plan Agreement.
16.4 Nonassignability. Neither a Participant nor any other person shall have
any right to commute, sell, assign, transfer, pledge, anticipate, mortgage
or otherwise encumber, transfer, hypothecate, alienate or convey in
advance of actual receipt, the amounts, if any, payable hereunder, or any
part thereof, which are, and all rights to which are expressly declared to
be, unassignable and non-transferable. No part of the amounts payable
shall, prior to actual payment, be subject to seizure, attachment,
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Supplemental Contributory Retirement Plan
Master Plan Document
- ------------------------------------------------------------------------------
garnishment or sequestration for the payment of any debts, judgments,
alimony or separate maintenance owed by a Participant or any other person,
be transferable by operation of law in the event of a Participant's or any
other person's bankruptcy or insolvency or be transferable to a spouse as
a result of a property settlement or otherwise.
16.5 Not a Contract of Employment. The terms and conditions of this Plan shall
not be deemed to constitute a contract of employment between any Employer
and the Participant. Such employment is hereby acknowledged to be an "at
will" employment relationship that can be terminated at any time for any
reason, or no reason, with or without cause, and with or without notice,
unless expressly provided in a written employment agreement. Nothing in
this Plan shall be deemed to give a Participant the right to be retained
in the service of any Employer as an Employee or to interfere with the
right of any Employer to discipline or discharge the Participant at any
time.
16.6 Furnishing Information. A Participant or his or her Beneficiary will
cooperate with the Committee by furnishing any and all information
requested by the Committee and take such other actions as may be requested
in order to facilitate the administration of the Plan and the payments of
benefits hereunder, including but not limited to taking such physical
examinations as the Committee may deem necessary.
16.7 Terms. Whenever any words are used herein in the masculine, they shall be
construed as though they were in the feminine in all cases where they
would so apply; and whenever any words are used herein in the singular or
in the plural, they shall be construed as though they were used in the
plural or the singular, as the case may be, in all cases where they would
so apply.
16.8 Captions. The captions of the articles, sections and paragraphs of this
Plan are for convenience only and shall not control or affect the meaning
or construction of any of its provisions.
16.9 Governing Law. Subject to ERISA, the provisions of this Plan shall be
construed and interpreted according to the internal laws of the State of
Missouri without regard to its conflicts of laws principles.
16.10 Notice. Any notice or filing required or permitted to be given to the
Committee under this Plan shall be sufficient if in writing and
hand-delivered, or sent by registered or certified mail, to the address
below:
Mr. Phil Beyer
Director of Benefits
UtiliCorp United Inc.
20 West Ninth Street
Kansas City, MO
64105-1711
Such notice shall be deemed given as of the date of delivery or, if
delivery is made by mail, as of the date shown on the postmark on the
receipt for registration or certification.
Any notice or filing required or permitted to be given to a Participant
under this Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
16.11 Successors. The provisions of this Plan shall bind and inure to the
benefit of the Participant's Employer and its successors and assigns and
the Participant and the Participant's designated Beneficiaries.
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Master Plan Document
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16.12 Spouse's Interest. The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall automatically pass
to the Participant and shall not be transferable by such spouse in any
manner, including but not limited to such spouse's will, nor shall such
interest pass under the laws of intestate succession.
16.13 Validity. In case any provision of this Plan shall be illegal or invalid
for any reason, said illegality or invalidity shall not affect the
remaining parts hereof, but this Plan shall be construed and enforced as
if such illegal or invalid provision had never been inserted herein.
16.14 Incompetent. If the Committee determines in its discretion that a benefit
under this Plan is to be paid to a minor, a person declared incompetent or
to a person incapable of handling the disposition of that person's
property, the Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of
such minor, incompetent or incapable person. The Committee may require
proof of minority, incompetence, incapacity or guardianship, as it may
deem appropriate prior to distribution of the benefit. Any payment of a
benefit shall be a payment for the account of the Participant and the
Participant's Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.
16.15 Court Order. The Committee is authorized to make any payments directed by
court order in any action in which the Plan or the Committee has been
named as a party. In addition, if a court determines that a spouse or
former spouse of a Participant has an interest in the Participant's
benefits under the Plan in connection with a property settlement or
otherwise, the Committee, in its sole discretion, shall have the right,
notwithstanding any election made by a Participant, to immediately
distribute the spouse's or former spouse's interest in the Participant's
benefits under the Plan to that spouse or former spouse.
16.16 Distribution in the Event of Taxation.
(a) In General. If, for any reason, all or any portion of a
Participant's benefits under this Plan becomes taxable to the
Participant prior to receipt, a Participant may petition the
Committee before a Change in Control, or the trustee of the Trust
after a Change in Control, for a distribution of that portion of
his or her benefit that has become taxable. Upon the grant of
such a petition, which grant shall not be unreasonably withheld
(and, after a Change in Control, shall be granted), a
Participant's Employer shall distribute to the Participant
immediately available funds in an amount equal to the taxable
portion of his or her benefit (which amount shall not exceed a
Participant's unpaid Account Balance under the Plan). If the
petition is granted, the tax liability distribution shall be made
within 90 days of the date when the Participant's petition is
granted. Such a distribution shall affect and reduce the
benefits to be paid under this Plan.
(b) Trust. If the Trust terminates in accordance with its terms and
benefits are distributed from the Trust to a Participant in
accordance with that Section, the Participant's benefits under this
Plan shall be reduced to the extent of such distributions.
16.17 Insurance. The Employers, on their own behalf or on behalf of the trustee
of the Trust, and, in their sole discretion, may apply for and procure
insurance on the life of the Participant, in such amounts and in such
forms as the Trust may choose. The Employers or the trustee of the Trust,
as the case may be, shall be the sole owner and beneficiary of any such
insurance. The Participant shall have no interest whatsoever in any such
policy or policies, and at the request of the Employers shall submit to
medical examinations and supply such information and execute such
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UtiliCorp United Inc.
Supplemental Contributory Retirement Plan
Master Plan Document
- ------------------------------------------------------------------------------
documents as may be required by the insurance company or companies to whom
the Employers have applied for insurance.
16.18 Legal Fees To Enforce Rights After Change in Control. The Company and each
Employer is aware that upon the occurrence of a Change in Control, the
Board or the board of directors of a Participant's Employer (which might
then be composed of new members) or a shareholder of the Company or the
Participant's Employer, or of any successor corporation might then cause
or attempt to cause the Company, the Participant's Employer or such
successor to refuse to comply with its obligations under the Plan and
might cause or attempt to cause the Company or the Participant's Employer
to institute, or may institute, litigation seeking to deny Participants
the benefits intended under the Plan. In these circumstances, the purpose
of the Plan could be frustrated. Accordingly, if, following a Change in
Control, it should appear to any Participant that the Company, the
Participant's Employer or any successor corporation has failed to comply
with any of its obligations under the Plan or any agreement thereunder or,
if the Company, such Employer or any other person takes any action to
declare the Plan void or unenforceable or institutes any litigation or
other legal action designed to deny, diminish or to recover from any
Participant the benefits intended to be provided, then the Company and the
Participant's Employer irrevocably authorize such Participant to retain
counsel of his or her choice at the expense of the Company and the
Participant's Employer (who shall be jointly and severally liable) to
represent such Participant in connection with the initiation or defense of
any litigation or other legal action, whether by or against the Company,
the Participant's Employer or any director, officer, shareholder or other
person affiliated with the Company, the Participant's Employer or any
successor thereto in any jurisdiction.
IN WITNESS WHEREOF, the Company has signed this Plan document as of March
23, 1998.
"Company"
UtiliCorp United Inc., a Delaware
corporation
By: /s/ Leo E. Morton
Title: Senior Vice President
23
EXHIBIT 4(b)
AMENDMENT
UTILICORP UNITED INC.
SUPPLEMENTAL CONTRIBUTORY RETIREMENT PLAN
THIS AMENDMENT is made this 4th day of August, 1998, by
UtiliCorp United Inc. ("UCU").
WHEREAS, UCU adopted the UtiliCorp United Inc. Supplemental Contributory
Retirement Plan (the "Plan") effective as of January 1, 1995, to provided
specified benefits to a select group of management and highly compensated
employees; and
WHEREAS, UCU reserved the right to amend the Plan from time
to time in its discretion; and
WHEREAS, UCU amended and restated the Plan in its entirety effective as of
January 1, 1998 (the "Restated Plan"); and
WHEREAS, UCU now desires to amend the Restated Plan in the manner set
forth below.
NOW, THEREFORE, the Plan is amended as follows, effective (except as
specifically provided below) as of January 1, 1998:
A. The first sentence of Section 1.1 is amended to read as
follows:
"Account Balance" shall mean, with respect to each Participant, a credit
on the records of the Employer equal to the sum of his (i) Deferral
Account balance, (ii) the vested Company Matching Account balance, and
(iii) the vested Discretionary Contribution Account
balance.
B. The last sentence of Section 1.4 "Base Annual Salary" is amended to
read as follows:
Base Annual Salary shall be calculated before reduction for compensation
voluntarily deferred or contributed by the Participant pursuant to all
qualified or non-qualified plans of any Employer and shall be calculated
to include amounts not otherwise included in the Participant's gross
income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to
plans established by any Employer; provided, however, that all such
amounts will be included in compensation only to the extent that, had
there been no such plan, the amount would have been payable in cash to the
Participant.
C. Effective as of August 4, 1998, Section 1.8 is amended to read in its
entirety as follows:
1.8. "Change in Control" shall mean the first to
occur of any of the following events:
<PAGE>
(1) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its affiliates, other than in connection
with the acquisition by the Company or its affiliates of a business)
representing 20% or more of either the then outstanding shares of
common stock of the Company or the combined voting power of the
Company's then outstanding securities; or
(2) the following individuals cease for any reason to constitute at
least two-thirds (2/3) of the number of directors then serving:
individuals who, on August 4, 1998, constituted the Board and any new
director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the election of
directors of the Company (as such terms are used in Rule 14A-11 of
Regulation 14A under the Exchange Act)) whose appointment or election by
the Board or nomination of election by the Company's shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on August 4, 1998, or whose
appointment, election or nomination for election was previously approved;
or
(3) the consummation of a merger or consolidation of the Company with
any other entity, other than (i) a merger or consolidation which would
result in (A) the voting securities of the Company outstanding immediately
prior to such merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or any parent thereof), in combination with the ownership
of any trustee or other fiduciary holding securities under an employee
benefit plan of the Company, greater than 50% of the combined voting power
of the voting securities of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger or consolidation,
(B) such of Richard C. Green, Jr. and Robert K. Green continuing as
members of the board of directors of the surviving entity or ultimate
parent thereof as were members of the Board of the Company immediately
prior to such transaction, and (C) individuals described in paragraph (2)
above constitute more than one-half of the members of the board of
directors of the surviving entity or ultimate parent thereof, or (ii) a
merger or consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
(not including in the securities Beneficially Owned by such Person any
securities acquired directly from the Company or its affiliates, other
than in connection with the acquisition by the Company or its affiliates
of a business) representing 20% or more of either the then outstanding
shares of common stock of the Company or the combined voting power of the
Company's then outstanding securities; or
(4) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, greater than 50%
of the combined voting power of the voting securities of which is
2
<PAGE>
owned by Persons in substantially the same proportions as their ownership
of the Company immediately prior to such sale.
Notwithstanding the foregoing, no "Change in Control" shall be deemed to
have occurred if there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the common stock
of the Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
For purposes of this Section 1.8, the following definitions shall apply:
(a) "Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
(b) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(c) "Person" shall have the meaning given in Section 3(a)(9) of
the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or
any of its affiliates (as defined in Rule 12b-2 promulgated under the
Exchange Act), (ii) a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its
affiliates, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation
owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of stock of the
Company.
D. A new Section 1.17A is added to read as follows:
1.17A "Discretionary Contribution Account" shall mean with respect to each
Participant, (i) the Participant's Discretionary Contribution Amounts (if
any) credited under this restatement, plus (ii) amounts credited or
debited in accordance with the applicable crediting/debiting provisions of
this Plan that relate to the Participant's Discretionary Contribution
Account, less (iii) all distributions made to the Participant or his or
her Beneficiary pursuant to the Plan that relate to his or her
Discretionary Contribution Account.
E. A new Section 1.17B is added to read as follows:
1.17B "Discretionary Contribution Amount" for any one Plan Year shall be
the amount determined in accordance with Section 3.4A.
F. Section 3.2(b) is amended to read as follows:
(b) Subsequent Plan Years. For each succeeding Plan
Year, an irrevocable deferral election for that
Plan Year, and such other elections as the
Committee deems necessary or desirable under the
Plan, shall be made
3
<PAGE>
before the end of the Plan Year preceding the Plan Year for which such
elections are made, in accordance with the Committee's rules and
procedures.
G. A new Section 3.4A is added to read as follows:
3.4A Discretionary Contributions. Effective with respect to Plan Years
beginning on or after January 1, 1997, a Participant shall be
credited with an annual amount (the "Discretionary Contribution
Amount") equal to difference between:
(a) the aggregate amount of Employer
discretionary contributions which
would have been allocated to the
Participant's account under the
401(k) Plan if the Participant had
elected not to defer all or any
portion of his Base Annual Salary
under this Plan for the applicable
Plan Year, and
(b) the aggregate amount of Employer discretionary contributions
actually allocated to the Participant's account under the 401(k)
Plan for such Plan Year.
The purpose of the contributions under this Section is to make the
Participant whole for the loss of the Employer discretionary
contributions that such Participant would have received under the
401(k) Plan if the Participant had not elected to defer a portion of
his or her Annual Base Salary under this Plan.
H. The references to "Company Matching Account" under Sections 3.6(b), (c)
and (d) are amended to refer instead to "Company Matching and Discretionary
Contribution Accounts".
I. Section 3.7(d) is amended to read in its entirety as
follows:
(d) Crediting or Debiting Method. The performance of each Measurement Fund
(either positive or negative) will be determined by the Committee, in its
sole discretion, based on the performance of the Measurement Funds
themselves. A Participant's Account Balance shall be credited or debited
on a daily basis based on the performance of each Measurement Fund, as
determined by the Committee in its sole discretion, as though (i) a
Participant's Deferral Account balance were invested in the Measurement
Fund(s) selected by the Participant, in the percentages applicable to such
calendar quarter, as of the close of business on the first business day of
such calendar quarter, at the closing price on such date; (ii) a
Participant's Company Matching and Discretionary Contribution Account
balances were invested in the Company Stock Fund, as of the close of
business on the first business day of such calendar quarter, at the
closing price on such date; (iii) the portion of the Annual Deferral
Amount that was actually deferred during any calendar quarter were
invested in the Measurement Fund(s) selected by the
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Participant, in the percentages applicable to such calendar quarter, no
later than the close of business on the last day of the calendar quarter in
which such amounts are actually deferred from the Participant's Base Annual
Pay through reductions in his or her payroll, at the closing price on such
date; and (iv) any distribution made to a Participant that decreases such
Participant's Account Balance ceased being invested in the Measurement
Fund(s), in the percentages applicable to such calendar quarter, no earlier
than the first day of the calendar quarter, at the closing price on such
date. The rate of interest for crediting or debiting earnings shall be the
Crediting Rate, except as otherwise provided in this Plan, which rate shall
be treated as the nominal rate for crediting interest. The Annual Company
Matching and Discretionary Contribution Amounts attributable to a
Participant for any one Plan Year (if any) shall be credited, in whole or
in part, to the Participant's Company Matching and Discretionary
Contribution Accounts for purposes of this Section 3.7(d) as of the date(s)
such Amounts would have been credited under the 401(k) Plan had such
Amounts been credited as matching or discretionary contributions to the
401(k) Plan.
J. Section 3.6(f) is amended to read in its entirety as
follows:
(f) Investment of Company Matching and Discretionary Contribution Amounts.
Notwithstanding any other provisions in this Plan that may be interpreted
to the contrary, a Participant's Annual Company Matching and Discretionary
Contribution Amounts shall be deemed invested in the Company Stock Fund at
all times such amounts are credited to his or her Account Balance.
K. A new Section 3.7(g) is added to read in its entirety as follows:
(g) Lump Sum Payouts. Notwithstanding any other provisions in this Plan
that may be interpreted to the contrary, the value of a Participant's
Account Balance for purposes of any lump sum payment under the Plan shall
be determined as of the last business day of the month during which such
Participant separates from service due to Retirement, death, or
Termination of Employment or during which he makes a withdrawal election
pursuant to Section 4.2.
L. Section 3.8(b) is amended to read in its entirety as follows:
(b) Company Matching and Discretionary Contribution Amounts. When a
Participant becomes vested in a portion of his or her Company Matching and
Discretionary Contribution Accounts, the Participant's Employer(s), to the
extent required by applicable law, shall withhold from the Participant's
Base Annual Salary that is not deferred, in a manner determined by the
Employer(s), the Participant's share of FICA and other employment taxes.
If necessary, the Committee may reduce the vested portion of the
Participant's accounts in order to comply with this Section 3.8, which
reduction may subject the Participant to additional taxes.
5
<PAGE>
IN WITNESS WHEREOF, this Amendment is adopted as of the day and year first
written above.
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
Title: Vice President
ATTEST:
/s/ Nancy J. Schulte, Assistant Secretary
6
Exhibit 4(c)
SECOND AMENDMENT
UTILICORP UNITED INC.
SUPPLEMENTAL CONTRIBUTORY RETIREMENT PLAN
THIS AMENDMENT is made this 23rd day of August, 1999, by
UtiliCorp United Inc. ("UCU").
WHEREAS, UCU adopted the UtiliCorp United Inc. Supplemental Contributory
Retirement Plan (the "Plan") effective as of January 1, 1995, to provided
specified benefits to a select group of management and highly compensated
employees; and
WHEREAS, UCU amended and restated the Plan in its entirety effective as of
January 1, 1998 (the "Restated Plan"); and
WHEREAS, the Restated Plan was thereafter amended by adoption of the first
amendment thereto dated August 4, 1998; and
WHEREAS, UCU now desires to further amend the Restated Plan to increase
the number of measuring investments offered under the plan and to reflect
certain administrative changes resulting from the transfer of the record keeping
functions to American Century Services, Inc.
NOW, THEREFORE, effective as of October 1, 1999, the Plan is amended as
follows:
A. The definition of "Quarterly Installment Method" under Section 1.29 is
amended to read in its entirety as follows:
1.29 "Quarterly Installment Method" shall be a quarterly installment
payment over the number of calendar quarters selected by the Participant
in accordance with this Plan. The amount of such installments shall be
redetermined on a quarterly basis by dividing the Participant's remaining
Account Balance by the remaining number of installment payments. In no
event shall any quarterly installment exceed the Participant's Account
Balance at the time of distribution.
B. Section 3.7 is amended to read in its entirety as follows:
3.7 Crediting/Debiting of Account Balances. In accordance with, and
subject to, the rules and procedures that are established from time
to time by the Committee, in its sole discretion, amounts shall be
credited or debited to a Participant's Account Balance in accordance
with the following rules:
(a) Election of Measurement Funds for Deferral Accounts. Each
Participant, in connection with his or her initial deferral election
in accordance with Section 3.2 above, shall elect, in a manner
designated by and acceptable to the Committee, one or more
Measurement Fund(s) (as described in Section 3.7(c) below) to be used
to determine the additional amounts to be credited to his or her
Deferral Account balance for the first regularly scheduled payroll
period in which the Participant commences participation in the Plan
and continuing thereafter for
<PAGE>
each subsequent payroll period in which the Participant participates
in the Plan, unless changed in accordance with the next sentence. Each
Participant may elect in the manner and at the time(s) designated by
and acceptable to the Committee, to add or delete one or more
Measurement Fund(s) to be used to determine the additional amounts to
be credited to his or her Deferral Account balance, or to change the
portion of his or her Deferral Account balance allocated to each
previously or newly elected Measurement Fund. Any election that is
made in accordance with the previous sentence shall be effective as
soon as administratively practicable following the acceptance of such
election by the Committee.
(b) Proportionate Allocation. In making any election described in
Section 3.7(a) above, the Participant shall specify, in increments of
one percentage point (1%), the percentage of his or her Deferral
Account balance to be allocated to a Measurement Fund (as if the
Participant was making an investment in that Measurement Fund with
that portion of his or her Deferral Account balance).
(c) Measurement Funds for Deferral Accounts. The "Measurement Funds"
to be used to determine the additional amounts to be credited to a
Participant's Deferral Account balance shall be determined by the
Committee in its sole discretion. The Committee may from time to time
discontinue, substitute or add a Measurement Fund, provided that any
such action to discontinue or substitute any Measurement Fund may only
take effect following at least thirty (30) days advance written notice
of such change to the Participants.
(d) Crediting or Debiting Method. The performance of each Measurement
Fund (either positive or negative) will be determined by the
Committee, in its sole discretion, based on the investment performance
of the Measurement Funds themselves. A Participant's Account Balance
shall be credited or debited on a daily basis based on the investment
performance of each Measurement Fund, as determined by the Committee
in its sole discretion, as though (i) such Participant's Deferral
Account balance was invested in the applicable Measurement Fund(s)
selected by the Participant; (ii) such Participant's Company Matching
Account and Discretionary Contribution Account balances were invested
in UtiliCorp United Inc. Common Stock; (iii) the portion of the
Participant's Annual Deferral Amount that was actually deferred on any
regularly scheduled payment date was invested in the applicable
Measurement Fund(s) selected by the Participant, no later than the
close of business on the second business day immediately following
such regularly scheduled payment date; (iv) the Annual Company
Matching and Discretionary Contribution Amounts (if any) attributable
to a Participant for any Plan Year were invested in UtiliCorp United
Inc. Common Stock as of the same date(s) such Amounts would have been
credited under the 401(k) Plan had such Amounts been credited as a
matching or discretionary contribution to the 401(k) Plan; and (v) any
distribution made to a Participant that decreases such Participant's
Account Balance ceased being invested in the applicable Measurement
Fund(s), no earlier than the fifth business
<PAGE>
day preceding the date the Company pays such Participant his or her
benefit in accordance with the other provisions of this Plan.
(e) No Actual Investment. Notwithstanding any other provision of this
Plan or any notice, statement, summary or other communication provided
to a Participant that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only, and a
Participant's election of any such Measurement Fund, the allocation to
his or her Account Balance thereto, the calculation of additional
amounts and the crediting or debiting of such amounts to a
Participant's Account Balance shall not be considered or construed in
any manner as an actual investment of his or her Account Balance in
any such Measurement Fund. In the event that the Company or the
trustee of the Trust, in its own discretion, decides to invest funds
in any or all of the Measurement Funds, no Participant shall have any
rights in or to such investments themselves. Without limiting the
foregoing, a Participant's Account Balance shall at all times be a
bookkeeping entry only and shall not represent any investment made on
his or her behalf by the Company or the Trust; the Participant shall
at all times remain an unsecured creditor of the Company.
(f) Investment of Company Matching and Discretionary Contribution
Amounts. Notwithstanding any other provisions in this Plan that may be
interpreted to the contrary, a Participant's Annual Company Matching
and Discretionary Contribution Amounts shall be deemed invested in
UtiliCorp United Inc. Common Stock at all times such amounts are
credited to his or her Account Balance.
C. Section 5.2 is amended to read its entirety as follows:
5.2 Payment of Retirement Benefits. A Participant in connection with
his or her commencement of participation in the Plan, shall elect
on an Election Form to receive his or her Retirement Benefit in a
lump sum or pursuant to a Quarterly Installment Method over 2 to
15 years. The Participant may annually change his or her election
to an alternative payout method by submitting a new Election Form
to the Committee, provided, however, the Committee will only
honor a Participant's new election if it is submitted to the
Committee at least 13 months prior to the Participant's
Retirement date. In the event that a Participant Retires before
his or her attainment of age 62, the Participant may file a
written request with the Committee requesting that the lump sum
payment not be made, or installment payments not commence, until
after the Participant reaches age sixty-five (65), provided that
any such Election Form is submitted at least 13 months prior to
the Participant's Retirement date and is accepted by the
Committee in its sole discretion. If a Participant does not make
any election with respect to the payment of the Retirement
Benefit, then such benefit shall be payable in a lump sum. The
lump sum payment shall be made, or installment payments shall
commence, no later than 60 days after
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<PAGE>
the date the Participant Retires. Any payment made shall be
subject to the Deduction Limitation.
D. Section 5.3 is amended to read in its entirety as follows:
5.3 Death Prior to Completion of Retirement Benefit If a Participant
dies after Retirement but before his or her Retirement Benefit
is paid in full, the Participant's unpaid Retirement Benefit
shall be paid to his or her Beneficiary as follows: (i) if the
Participant elected to receive his or her Retirement Benefit
pursuant to the Quarterly Installment Method, then the
Beneficiary shall receive such benefits over the remaining
number of quarters and in the same amounts as such benefits
would have been paid to the Participant had the Participant
survived; or (ii) if the Participant elected to receive his or
her Retirement Benefit in the form of a lump sum payment, then
the Beneficiary shall receive such benefits in a lump sum
payment at the same time that the Participant would have
received such payment had the Participant survived.
Notwithstanding the foregoing, a Beneficiary may elect, prior to
the time that benefits would otherwise be paid pursuant to the
preceding sentence, a complete withdrawal of the benefits to
which he or she is entitled in accordance with Section 4.2.
E. Except as set forth herein, all other provisions of the Plan shall
remain in effect.
******************************
4
<PAGE>
SIGNATURE PAGE
IN WITNESS WHEREOF, this Amendment is adopted as of the day and year first
written above.
UTILICORP UNITED INC.
By: /s/ Dale J. Wolf
Title: Vice President/Finance
ATTEST:
/s/ Nancy J. Browning, Assistant Secretary
5
EXHIBIT 4(d)
UTILICORP UNITED INC.
EXECUTIVE BENEFIT SECURITY TRUST
<PAGE>
UTILICORP UNITED INC.
EXECUTIVE BENEFIT SECURITY TRUST
THIS TRUST AGREEMENT ("AGREEMENT") is made and entered into this 1st day of
January, 1997 by UtiliCorp United Inc., a Delaware corporation, (the "Company"),
and LaSalle National Trust, N.A., and its successor or successors and assigns in
the trust hereby evidenced, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has adopted the UtiliCorp United Inc. 1995
Supplemental Contributory Retirement Plan and the UtiliCorp United Inc. 1995
Capital Accumulation Plan (the "Plans") for the benefit of a select group of
management and/or highly compensated employees, and
WHEREAS, the Company has incurred or expects to incur liability under the
terms of such Plans with respect to the individuals participating in such Plans;
and
WHEREAS, the Company wishes to establish a trust (hereinafter called the
"Trust") and to contribute to the Trust assets that shall be held therein,
subject to the claims of the Company's creditors in the event of the Company's
Insolvency, as herein defined, until paid to participants of the Plans and their
beneficiaries in such manner and at such times as specified in the Plans; and
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the Plans
as unfunded plans maintained for the purpose of providing deferred compensation
for a select group of management or highly compensated employees for purposes of
Title I of the Employee Retirement Income Security Act of l974; and
WHEREAS, it is the intention of the Company to make contributions to the
Trust to provide itself with a source of funds to assist it in the meeting of
its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree that the
Trust shall be comprised, held and disposed of as follows:
ARTICLE I
INTRODUCTION
1.01 The Trust, the Plans, Participants. This Agreement and the Trust
hereby evidenced shall be known as the "UtiliCorp United Inc. Executive Benefit
Security Trust." The Trust is established for the benefit of employees of the
Company who are or become covered under the Plans and their beneficiaries, as
determined in accordance with the provisions of the Plans, which employees and
beneficiaries are referred to as "Participants." However, the Participants shall
not have any right or security interest in any specific asset of the Trust or
2
<PAGE>
beneficial ownership in or preferred claim on the assets of the Trust, it being
understood that the assets of the Trust shall be available for the claims of the
Company's creditors as provided in Article V and all rights created under the
Plans or the Trust shall be unsecured contractual rights against the Company.
1.02 Status of Trust. The Trust is intended to constitute a grantor trust
under Sections 671-678 of the Internal Revenue Code, as amended, and shall be
construed accordingly.
(a) Company hereby deposits with Trustee in trust $100, which shall become
the principal of the Trust to be held, administered and disposed of by the
Trustee as provided in this Agreement. At any time or from time to time
thereafter the Company, in its sole discretion, may deliver to the Trustee
additional funds or other property to be held, invested and distributed by
the Trustee in accordance with the provisions of this Agreement.
(b) The Trust hereby established shall be irrevocable.
(c) The Trust is intended to be a grantor trust, of which Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be held
separate and apart from other funds of the Company and shall be used
exclusively for the uses and purposes of the Participants and general
creditors as herein set forth. Participants shall have no preferred claim
on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plans and this Agreement shall be mere unsecured
contractual rights of the Participants against the Company. Any assets held
by the Trust will be subject to the claims of the Company's general
creditors under federal and state law in the event of Insolvency, as
defined in paragraph 5.01 herein.
1.03 Acceptance. The Trustee accepts the duties and obligations of the
Trustee hereunder, agrees to accept delivery of property delivered to it by the
Company pursuant to paragraph 1.2, and agrees to hold such property (and any
proceeds from the investment of such property) in trust in accordance with this
Agreement.
1.04 The Committee. The committee that is responsible for the
administration of the Plans is the Committee appointed to administer the Plans
pursuant to Article VI of the Plans. The Committee has certain powers, rights
and duties under this Agreement as described below. The Trustee may request from
time to time that an officer of the Company certify to the Trustee the person or
persons who are acting as the members of the Committee or who have been
delegated the authority to act on behalf of the Committee. The Trustee may rely
on the latest certificate received without further inquiry or verification.
3
<PAGE>
ARTICLE II
MANAGEMENT OF THE TRUST FUND
2.01 The Trust Fund. Unless the context clearly implies or indicates
otherwise, the term "Trust Fund" as of any date means all property of every kind
then held under this Agreement by the Trustee or any custodian.
2.02 Trustee's General Powers, Rights and Duties. With respect to the Trust
Fund and subject only to the limitations expressly provided in this Agreement
(including the powers reserved to the Committee or the Company or imposed by
applicable law), the Trustee shall have the following powers, rights and duties
in addition to those vested in it elsewhere in this Agreement or by law:
(a) When directed by the Committee, to invest and reinvest part or all
of the Trust Fund in any real or personal property (including
investments in any stocks, bonds, debentures, mutual fund shares,
notes, commercial paper, treasury bills, any common, commingled or
collective trust funds or pooled investment funds described in
paragraph 2.03, any interest bearing deposits held by any bank or
similar financial institution, and any other real or personal
property).
(b) When directed by the Committee, to apply for, pay premiums on and
maintain in force on the lives of some or all of the Participants,
individual, group term, universal or other life insurance policies
("Policies" or "Policy") to fund benefits under the Plans for
Participants on whose lives the Policies are issued and containing
such provisions as the Committee may approve or direct; to receive or
acquire such a Policy from the Company or from the Participant on
whose life the Policy is issued, but the Trustee may purchase a Policy
from the Company or from the Participant only if the Trustee pays,
transfers or otherwise exchanges for the Policy no more than the cash
surrender value of the Policy and the Policy is not subject to a
mortgage or similar lien which the Trustee would be required to
assume; and to have with respect to Policies any rights, powers,
options, privileges and benefits usually comprised in the term
"incidents of ownership" and normally vested in an insured or owner of
such Policies.
(c) To retain in cash such amounts as the Trustee considers advisable
and as are permitted by applicable law and to deposit any cash so
retained in any depository (including any bank acting as Trustee)
which the Trustee may select.
(d) To manage, sell, insure and otherwise deal with all real and
personal property held by the Trustee on such terms and conditions as
the Trustee shall decide.
(e) To vote stock and other voting securities personally or by proxy,
to exercise subscription, conversion and other rights and options, to
take any action and to abstain from taking any action with respect to
any reorganization, consolidation, merger, dissolution,
recapitalization, refinancing and any other
4
<PAGE>
program or change affecting any property constituting a part of the
Trust Fund, to hold or register any property from time to time in the
Trustee's name or in the name of a nominee or to hold it unregistered
or in such form that title shall pass by delivery and, with the
approval of the Committee, to borrow from anyone, including any bank
acting as Trustee, to the extent permitted by law, such amounts from
time to time as the Trustee considers desirable to carry out this
Trust (and to mortgage or pledge all or part of the Trust Fund as
security).
(f) To make payments from the Trust Fund to provide benefits that have
become payable under the Plans pursuant to paragraph 4.05 or that are
required to be made to the creditors of the Company pursuant to
paragraph 5.02.
(g) To maintain in the Trustee's discretion any litigation the Trustee
considers necessary in connection with the Trust Fund, subject to
paragraph 4.03.
(h) To withhold, if the Trustee considers it advisable, all or any
part of any payment required to be made hereunder as may be necessary
and proper to protect the Trustee or the Trust Fund against any
liability or claim on account of any estate, inheritance, income or
other tax or assessment attributable to any amount payable hereunder,
and to discharge any such liability with any part or all of such
payment so withheld, provided that at least ten (10) days prior to
discharging any such liability with any amount so withheld the Trustee
shall notify the Committee in writing of the Trustee's intent to do
so.
(i) To maintain accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be
made, including such other records as the Committee specifies and the
Trustee agrees to, which records may be audited from time to time by
the Committee or anyone named by the Committee.
(j) To furnish periodic accounts to the Committee for such periods as
the Committee may specify, showing all investments, receipts,
disbursements and other transactions involving the Trust during the
applicable period. Within sixty (60) days following the close of each
calendar year and within sixty (60) days after the removal or
resignation of the Trustee, the Trustee shall deliver to the Company a
written account of its administration of the Trust during such year or
during the period from the close of the last preceding year to the
date of such removal or resignation, setting forth all investments,
receipts, disbursements and other transactions effected by it,
including a description of all securities and investments purchased
and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and
showing all cash, securities and other property held in the Trust at
the end of such year or as of the date of such removal or resignation,
as the case may be. The Committee or the Company may approve such
accounting by written notice of approval delivered to the Trustee or
by failure to express objection to such accounting in writing
delivered to the Trustee within six (6) months from the date upon
which the accounting was delivered to the Committee or the Company.
Upon the receipt of a
5
<PAGE>
written approval of the accounting, or upon the passage of the period
of time within which objection may be filed without written objections
having been delivered to the Trustee, such accounting shall be deemed
to be approved, and the Trustee shall be released and discharged as to
all items, matters and things set forth in such account, as fully as
if such accounting had been settled and allowed by decree of a court
of competent jurisdiction in an action or proceeding in which the
Trustee, the Company and all persons having or claiming to have any
interest in the Trust Fund or under the Plans were parties.
(k) To furnish the Company with such information in the Trustee's
possession as the Company may need for tax or other purposes.
(l) To employ agents, attorneys, accountants, and other persons (who
also may be employed by the Company or the Committee), to delegate
discretionary powers to such persons, to reasonably rely upon
information and advice furnished by such persons; provided that each
such delegation and the acceptance thereof by each such person shall
be in writing; and provided further that the Trustee may not delegate
its responsibilities as to the management or control of the assets of
the Trust Fund.
(m) To perform all other acts which in the Trustee's judgment are
appropriate for the proper management, investment and distribution of
the Trust Fund.
(n) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting
in like capacity and familiar with such matters would use in the
conduct of an enterprise of a like character and with like aims,
provided, however, that the Trustee shall incur no liability to any
person for any action taken pursuant to a direction, request or
approval given by the Company which is contemplated by, and in
conformity with, the terms of the Plans or this Trust and is given in
writing by the Company. In the event of a dispute between the Company
and a party, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(o) Notwithstanding any powers granted to the Trustee pursuant to this
Agreement or to applicable law, the Trustee shall not have any power
that could give this Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant
to the Internal Revenue Code.
2.03 Collective Investment Trusts. The Trustee may invest Trust assets in
any common, collective or commingled trust fund or pooled investment fund that
is maintained by a bank or trust company (including a bank or trust company
acting as Trustee) provided such investments are consistent with the investment
guidelines, if any, agreed to in writing by the Company and the Trustee. To the
extent that any Trust assets are invested in any such fund, the provisions of
the documents under which such common, collective or commingled trust fund or
pooled investment fund are maintained shall govern any investments therein and
such provisions are hereby incorporated herein and made a part of this
Agreement.
6
<PAGE>
ARTICLE III
MANNER OF ACTION OF THE COMMITTEE
The Committee members may act by meeting, or by writing signed without meeting,
and may sign any document by signing one document or concurrent documents. Any
written action in lieu of a meeting must be by unanimous consent of all
disinterested members. An action of a majority of disinterested members at a
meeting of the Committee shall be effective as if taken on or made by all
Committee members. If a member of the Committee is a Participant, he/she may not
decide or determine any matter or questions concerning any payments to be made
to him/her from the Trust that he/she would not have the right to decide or
determine if he/she were not a member of the Committee.
ARTICLE IV
GENERAL PROVISIONS
4.01 Restrictions on Reversion. The Company shall not have any right, title
or interest in the assets of the Trust Fund, nor will any part of the assets of
the Trust Fund revert or be repaid to the Company until all benefits due under
the Plans have been paid pursuant to the terms of the Plans and in accordance
with the provisions of paragraph 4.05, except as follows:
(a) The assets of the Trust shall be available for the claims of the
Company's creditors under the circumstances specified in Article V;
(b) If the Company ceases to maintain the Plans, any balance remaining
in the Trust after all benefits, have been paid pursuant to the terms
of the Plans and in accordance with the provisions of paragraph 4.05
shall revert to the Company;
(c) Except in the event of a Change of Control (as defined in the
Plans), upon the written request of the Committee at any time, the
Trustee shall repay to the Company any excess assets (as defined
below) in the Trust, provided that the Committee furnishes to the
Trustee a statement acceptable to the Trustee as to the then value of
vested accrued benefits (as defined below) under the Plans. For these
purposes, "excess assets" means any amount by which the sum of the
cash surrender value of Policies held in the Trust and the fair market
value of all other assets in the Trust, as determined by the Trustee,
exceeds the value of vested and accrued benefits under the Plans. For
purposes of this Trust, "vested accrued benefits" shall mean the sum
of all Deferred Benefit Accounts (as defined in the Plans) of
Participants, including any interest credited thereunder.
In the event of a "Change of Control", no assets of the Trust Fund shall
revert or be repaid to the Company, under asny circumstances, until all
benefits due under the Plans have been paid pursuant to the terms of the
Plans and in accordance with the provisions of paragraph 4.05.
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4.02 Nonalienation of Trust Assets. To the extent permitted by law, the
rights or interests of any Participants to any benefits or future payments
hereunder shall not be subject to attachment, garnishment, levy, execution or
other legal or equitable process by any creditor of any such Participant, nor
shall any such Participant have any right to alienate, anticipate, commute,
pledge, encumber or assign (either at law or in equity) any of the benefits or
rights which he/she may expect to receive (contingently or otherwise) under this
Agreement, except as may be required by the tax withholding provisions of the
Internal Revenue Code or of a state's income tax act.
4.03 Litigation. Any final judgment that is not appealed or appealable and
which may be entered in any suit or legal proceeding regarding this Trust shall
be binding and conclusive on the parties hereto and all persons having or
claiming to have an interest in the Trust. In the defense of any suit or legal
proceeding arising in connection with this Trust, the Company shall have the
right to control such defense, including, without limitation, the right to
negotiate, compromise or settle such suit or legal proceeding, in the Company's
sole discretion. The Trustee shall have the right to participate in, but not
control, the defense of any such suit or legal proceeding at its own cost and
expense. In the event the Company chooses not to control the defense of a suit
or legal proceeding arising in connection with this Trust, the Trustee shall
undertake such defense in its discretion and the Company shall indemnify the
Trustee against the Trustee's reasonable fees, expenses and liabilities
(including, without limitation, reasonable attorneys' fees and expenses)
relating thereto. If the Company does not pay such reasonable costs, expenses
and liabilities in a reasonably timely manner, the Trustee may obtain payment
from the Trust.
4.04 Trustee's Actions Conclusive. Except as otherwise provided by law, the
Trustee's exercise or non-exercise of its powers and discretion in good faith
shall be conclusive on all persons. No one shall be obliged to see to the
application of any money paid or property delivered to the Trustee. The
certificate of the Trustee that it is acting in accordance with this Agreement
will fully protect all persons dealing with the Trustee. If there is a
disagreement between the Trustee and anyone as to any act or transaction
reported in any accounting, the Trustee shall have the right to a settlement of
its account by any proper court.
4.05 Benefit Payments. The Committee shall direct the Trustee in writing to
make distributions of benefits from the Trust Fund that have become payable, but
that have not been paid by the Company, under the Plans to Participants,
including the amount and manner of payment of any such benefit. If a payment
required under the terms of the Plans has not been made to a Participant
(whether due to the failure of the Committee to notify the Trustee as required
by this paragraph or otherwise), then the Participant may notify the Trustee in
writing of the amount (or a reasonable estimate of the amount) owed to him/her
pursuant to the Plans, and the date or dates such amount was due and payable.
The Trustee shall notify the Committee and the Company within fifteen (15)
calendar days of the receipt of such payment request. If the Committee or the
Company does not provide the Trustee with a statement of the amount due and
payable which is acceptable to the Trustee within sixty (60) days of the date
the Trustee notified the Committee and the Company of the payment request, the
Trustee shall make the payment or payments requested by the Participant from the
Trust Fund and may conclusively rely on such payment or payments being the
appropriate amount. The Trustee shall also notify the Committee
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and the Company of any such payments. Payment shall be made to a Participant
from the Trust Fund in accordance with the terms of the Plans until the earlier
of: (i) all benefit commitments due the Participant under the Plans as requested
by the Participant in his/her notification to the Trustee, have been satisfied;
or (ii) the Committee or the Company provide a statement of the amount due and
payable. If a statement of the amount due and payable is so provided, an
appropriate adjustment, if any, in the amount paid and to be paid to the
Participant shall be made. The Trustee shall be fully protected in acting
without Committee direction under this paragraph and shall be indemnified and
saved harmless as provided in paragraph 4.08. The Trustee shall make such
distributions from the Trust Fund in accordance with the provisions of this
paragraph 4.05, subject to the provisions of Article V. If Trust assets are not
sufficient to pay the benefits from the Plans, the Company shall make the
balance of each such payment when due.
4.06 Missing Persons. If any payment directed to be made by the Trustee
from the Trust Fund is not claimed by the person entitled thereto, the Trustee
shall notify the Committee of that fact. Neither the Company, the Committee nor
the Trustee shall have obligation to search for or ascertain the whereabouts of
any payee under this Trust. 4.07 Liabilities Mutually Exclusive. To the extent
permitted by law, the Company, the Trustee, the Committee and each member
thereof shall be responsible only for their own acts or omissions.
4.08 Indemnification. To the extent permitted by law, neither the Trustee,
any present or former Committee member, nor any person who is or was a director,
officer, or employee of the Company, shall be personally liable for any act
done, or omitted to be done, in good faith in the administration of this Trust.
Any person to whom the Committee or the Company has delegated any portion of its
responsibilities under the Trust, any person who is or was a director or officer
of the Company, members and former members of the Committee, and each of them,
shall, to the extent permitted by law, be indemnified and saved harmless by the
Company (to the extent not indemnified or saved harmless under any liability
insurance or other indemnification arrangement with respect to this Trust) from
and against any and all liability or claim of liability to which they may be
subjected by reason of any act done or omitted to be done in good faith in
connection with the administration of the Trust or the investment of the Trust
Fund, including all expenses reasonably incurred in their defense if the Company
fails to provide such defense after having been requested to do so in writing.
The Trustee shall be indemnified and saved harmless by the Company (to the
extent not indemnified or saved harmless under any liability insurance or other
indemnification arrangement with respect to this Trust) only with respect to
liability or claim of liability to which the Trustee shall be subjected by
reason of its good faith compliance with any directions given in accordance with
the provisions of the Trust by the Committee.
4.09 Compensation and Expenses. All reasonable costs, charges and expenses
incurred by the Trustee pursuant to subparagraph 2.02(g) shall be paid from the
Trust Fund to the extent not paid by the Company, and all other reasonable
compensation, costs, charges and expenses incurred in the administration of this
Trust, as agreed upon between the Committee and the Trustee, will, to the extent
not paid by the Company be paid from the Trust Fund.
4.10 Action by the Company. Any action with respect to this Trust required
or permitted to be taken by the Company shall be by resolution of its Board of
Directors, by a duly
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authorized committee of its Board of Directors, or by a person or persons
authorized by resolution of its Board of Directors or such committee.
4.11 Warranty. The Company warrants that all directions or authorizations
by the Committee, whether for the payment of money or otherwise, will comply
with the provisions of the Plans and this Trust.
4.12 Evidence. Evidence required of anyone under this Agreement shall be
signed, made or presented by the proper party or parties and may be by
certificate, affidavit, document or other information which the person acting on
it considers pertinent and reliable.
4.13 Waiver of Notice. Any notice required under this Agreement may be
waived by the person entitled to such notice.
4.14 Counterparts. This Agreement may be executed in two or more
counterparts, any one of which will be an original without reference to the
others.
4.15 Gender and Number. Where the context admits, words denoting the
masculine gender shall include the feminine gender, the singular shall include
the plural, and the plural shall include the singular.
4.16 Scope of this Agreement. The Plans and this Trust will be binding on
all persons entitled to benefits hereunder and their respective heirs and legal
representatives, and upon the Company, the Committee, the Trustee, and their
successors and assigns.
4.17 Severability. If any provision of this Agreement is held to be illegal
or invalid, such illegality or invalidity shall not affect the remaining
provisions of this Agreement, and they shall be construed and enforced as if
such illegal or invalid provision had never been inserted herein.
4.18 Statutory References. Any references in this Agreement to a section of
the Internal Revenue Code shall include any comparable section or sections of
any future legislation that amends, supplements or supersedes that section.
4.19 Applicable Law. The Trust shall be construed in accordance with the
laws of the State of Missouri.
ARTICLE V
INSOLVENCY
5.01 Insolvency. The Company shall be considered "Insolvent" for purposes
of this Trust if the Company's debts are not paid as they mature or if its
affairs become the subject of reorganization or liquidation proceedings as a
debtor under federal bankruptcy laws.
5.02 Payments During Insolvency. At all times during the existence of this
Trust, assets and rights of the Trust shall be subject to the claims of the
Company's general creditors. Therefore, if the Trustee knows that the Company is
Insolvent (as defined in paragraph 5.01), the
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Trustee shall discontinue benefit payments that otherwise would be paid and will
deliver or otherwise make available assets of the Trust to satisfy the claims of
the Company's creditors as directed by a court of competent jurisdiction. If the
Company becomes Insolvent, its Board of Directors and its Chief Executive
Officer shall have the duty to promptly inform the Trustee of the Company's
Insolvency. The Committee shall have the same duty if and when it becomes aware
that the Company has become Insolvent or upon an inquiry of the Company's
solvency by the Trustee. Participants shall not be granted greater rights to the
Trust Fund by virtue of their rights under the Plans than other general
creditors of the Company, but no provision of the Trust shall diminish the
rights of a Participant to pursue his/her rights as a general creditor of the
Company with respect to any benefits he/she is entitled to under the Plans, or
otherwise. The Trustee shall resume payments of benefits in accordance with the
Plans after the Trustee has been notified by the Board of Directors or the Chief
Executive Officer that the Company is no longer Insolvent.
5.03 Trustee's Reliance. Unless the Trustee has actual knowledge of the
Company's Insolvency, or has received notice from Company or a person claiming
to be a creditor alleging that the Company is Insolvent, Trustee shall have no
duty to inquire whether the Company is Insolvent. The Trustee may in all events
rely on such evidence concerning the Company's solvency as may be furnished to
the Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
ARTICLE VI
RESIGNATION OR REMOVAL OF TRUSTEE
6.01 Resignation or Removal of Trustee. The Trustee may resign at any time
by giving sixty (60) days advance written notice to the Company and the
Committee. The Company or the Committee may remove a Trustee by giving written
notice to the Trustee provided that such removal shall not become effective
until the time immediately preceding the appointment of a successor Trustee
pursuant to paragraph 6.02.
6.02 Successor Trustees. In the event of the resignation or removal of the
Trustee, a successor Trustee shall be appointed by the Company or the Committee
in writing as soon as practicable. Written notice of such appointment shall be
given by the Company or the Committee to the predecessor Trustee.
6.03 Duties of Predecessor Trustee and Successor Trustee. A Trustee that
resigns or is removed shall promptly furnish to the Committee and the successor
Trustee a final account of its administration of the Trust. A successor Trustee
shall succeed to the right and title of the predecessor Trustee in the assets of
the Trust Fund and the predecessor Trustee shall deliver the property comprising
the Trust Fund to the successor Trustee together with any instruments of
transfer, conveyance, assignment and further assurances as the successor Trustee
may reasonably require. Each successor Trustee shall have all the powers, rights
and duties conferred by this Agreement as if named the initial Trustee. Subject
to applicable law, no successor Trustee shall be personally liable for any act
or failure to act of a predecessor Trustee.
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ARTICLE VII
AMENDMENT AND TERMINATION
7.01 Amendment. This Trust may be amended from time to time by the Company,
except as follows:
(a) The duties and liabilities of the Committee and the Trustee under
this Agreement cannot be changed substantially without their consent.
(b) Under no condition shall any amendment result in the return or
repayment to the Company of any portion of the Trust Fund or the
income therefrom except to the extent permitted under paragraph 4.01,
or result in the distribution of the Trust Fund for any purposes other
than payment of obligations of the Company to its creditors, including
Participants.
(c) This Trust may not be amended so as to cause the reduction or
cessation of any benefits a Participant would receive under the terms
of the Plans nor may the Trust be amended to make the Trust revocable.
7.02 Termination. This Trust shall not terminate, and all the rights,
titles, powers, duties, discretions and immunities on or reserved to the
Trustee, the Company and the Committee shall continue in effect with respect to
the Trust, until all benefits payable to Participants under the Plans have been
paid and all assets have been distributed by the Trustee under the Trust and the
Plans. Notwithstanding any other provision of this Trust, the Trust shall
terminate one day prior to the expiration of a period of twenty-one (21) years
after the death of the last to die of employees of the Company who are
Participants in the Plans on the day and year first above written. Upon
termination of the Trust, any assets remaining in the Trust shall be returned to
the Company.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this Agreement
to be executed on their behalf and by their respective officers thereunto duly
authorized, the day and year first above written.
ATTEST/WITNESS UtiliCorp United Inc.
/s/ Becky J. Arndt By: /s/ Larry Bailey
Its: Director of Benefits
ATTEST/WITNESS LaSalle National Trust, N.A.
/s/ Linda Bonham By: /s/ William R. Kursar
Its: Senior Vice
President
EXHIBIT 4(e)
FIRST AMENDMENT
UTILICORP UNITED INC.
EXECUTIVE COMPENSATION SECURITY TRUST
This Amendment ("Amendment") made and entered into this 23rd day of March,
1998 by UtiliCorp United Inc. (the "Company"), a Delaware Corporation, and
LaSalle National Trust, N.A., (the "Trustee"),
WITNESSETH:
WHEREAS, the Company and the Trustee entered into the UtiliCorp United
Inc. Executive Benefits Security Trust (the "Trust") dated January 1, 1997, for
the purpose of assisting the Company to meet its obligations under certain
non-qualified deferred compensation plans sponsored and maintained by the
Company, and to provide the participants under such plans with certain
protections in the event of a change in control of the Company; and
WHEREAS, in accordance with Article VII of the Trust, the Company reserved
the right to amend the Trust Agreement from time to time, subject to certain
exceptions that are not applicable; and
WHEREAS, the parties now desire to amend the Trust Agreement
in the manner set forth below;
NOW, THEREFORE, the Trust Agreement is hereby amended effective as of
January 1, 1998:
1. Subparagraph (a) and (b) of paragraph 2.02 are amended to read in their
entirety as follows:
(a) To invest and reinvest part or all of the Trust Fund in any real
or personal property (including investments in any stocks, bonds,
debentures, mutual fund shares, notes, commercial paper, treasury
bills, any common, commingled or collective trust funds or pooled
investment funds described in paragraph 2.03, any interest
bearing deposits held by any bank or similar financial
institution, and any other real or personal property).
(b) To apply for, pay premiums on and maintain in force on the lives
of some or all of the Participants, individual, group term,
universal or other life insurance policies ("Policies" or
"Policy") to fund benefits under the Plans for Participants on
whose lives the
<PAGE>
Policies are issued and containing such provisions as the
Committee may approve or direct; to receive or acquire such a
Policy from the Company or from the Participant on whose life the
Policy is issued, but the Trustee may purchase a Policy from the
Company or from the Participant only if the Trustee pays,
transfers or otherwise exchanges for the Policy no more than the
cash surrender value of the Policy and the Policy is not subject
to a mortgage or similar lien which the Trustee would be required
to assume; and to have with respect to Policies any rights,
powers, options, privileges and benefits usually comprised in the
term "incidents of ownership" and normally vested in an insured
or owner of such Policies.
2. A new paragraph 2.04 is added to the Trust to read in its entirety as
follows:
2.04 Direction of Committee. Notwithstanding any provision in this
Agreement to the contrary, the Committee shall retain the right to
direct the Trustee from time to time with respect to the investment
and reinvestment of part or all of the Trust Fund; provided that, in
the event of a Change in Control (as defined in the Plans) all such
powers of the Committee to direct the Trustee under this Agreement
shall terminate, and the Trustee shall act in its own discretion to
carry out this Agreement in accordance with the terms of the Plans and
this Agreement.
3. Paragraph 6.01 of the Trust is amended to read in its entirety as
follows:
6.01 Resignation or Removal of Trustee. The Trustee may resign at any time
by giving sixty (60) days advance written notice to the Company and
the Committee. The Company or the Committee may remove the Trustee;
provided that such removal shall not become effective until the time
immediately proceeding the appointment of a successor Trustee pursuant
to paragraph 6.02; and provided further that in the event of a Change
in Control (as defined in the Plans), the Trustee may only be removed
by a majority vote of the Participants, and if a Participant has
deceased, his or her beneficiaries (who collectively shall have one
vote among them and shall vote in place of such deceased Participant),
by giving sixty (60) days advance written notice to the Trustee or
such shorter notice accepted by the Trustee.
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4. Each reference to "Deferred Benefit Account(s)" shall instead refer to
"Deferral Account(s)."
IN WITNESS WHEREOF, the Company and the Trustee have caused this Amendment
to be executed on their behalf and by the respective officers thereunto duly
authorized, the day and year first above written.
UTILICORP UNITED, INC.
By: /s/ Leo E. Horton
Its: Senior Vice President
LaSALLE NATIONAL TRUST, N.A.
By: /s/ William R. Kursar
Its: Senior Vice President
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EXHIBIT 5
[Blackwell Sanders logo]
November 19, 1999
UtiliCorp United Inc.
20 West 9th Street
Kansas City, Missouri 64105
Ladies and Gentlemen:
We refer to the Registration Statement of UtiliCorp United Inc. (the
"Company") on Form S-8 to be filed with the Securities and Exchange Commission
for the purpose of registering under the Securities Act of 1933, as amended,
$6,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Company to pay deferred compensation in accordance with the
terms of the UtiliCorp United Inc. Supplemental Contributory Retirement Plan
(the "Plan").
We are familiar with the proceedings to date with respect to such proposed
sale and have examined such records, documents and matters of law and satisfied
ourselves as to such matters of fact as we have considered relevant for the
purposes of this opinion.
Based upon the foregoing, it is our opinion that when issued with the
provisions of the Plan, the Deferred Compensation Obligations will be valid and
binding obligations of the Company, enforceable in accordance with the their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency or
other laws of general applicability relating to or affecting enforcement of
creditors' rights or by general equity principles.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Blackwell Sanders Peper Martin LLP
EXHIBIT 23(a)
Consent of Independent Auditors
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8, used to register
UtiliCorp United Inc.'s Deferred Compensation Obligations, of our reports dated
February 1, 1999, included in UtiliCorp United Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1998, and to all references to our firm included
in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Kansas City, Missouri
November 19, 1999
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned Directors and Officers of UtiliCorp United Inc., do
hereby name, constitute and appoint Richard C. Green, Jr., Robert K. Green,
Dwayne L. Hart or Dale J. Wolf, our agent and attorney-in-fact, for each of us
and in our respective behalves as Directors and/or as Officers of UtiliCorp
United Inc., to sign and execute a Registration Statement on Form S-8, and any
amendments thereto, relating to the registration with the Securities and
Exchange Commission of participation interests under the UtiliCorp United Inc.
Supplemental Contributory Retirement Plan.
Executed this 3rd day of November, 1999.
/s/ Richard C. Green, Jr. /s/ Avis G. Tucker
- --------------------------------- ----------------------------------
RICHARD C. GREEN, JR. AVIS G. TUCKER
/s/ Irvine O. Hockaday, Jr. /s/ Robert F. Jackson, Jr.
- --------------------------------- ----------------------------------
IRVINE O. HOCKADAY, JR. ROBERT F. JACKSON, JR.
/s/ John R. Baker
- --------------------------------- ----------------------------------
JOHN R. BAKER L. PATTON KLINE
/s/ Herman Cain /s/ Stanley O. Ikenberry
- --------------------------------- ----------------------------------
HERMAN CAIN STANLEY O. IKENBERRY
/s/ Robert K. Green /s/ Dale J. Wolf
- --------------------------------- ----------------------------------
ROBERT K. GREEN DALE J. WOLF
/s/ Dwayne L. Hart
- --------------------------------- ----------------------------------
JAMES S. BROOK DWAYNE L. HART
- -------------------------------------
RONALD LEMAY
