Registration No.__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
Form S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------------
NIAGARA MOHAWK POWER CORPORATION
(Exact name of registrant as specified in charter)
New York 15-0265555
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
300 Erie Boulevard West, Syracuse, New York 13202, (315) 474-1511
(Address of principal executive offices)
EMPLOYEE SAVINGS FUND PLAN FOR REPRESENTED EMPLOYEES OF
NIAGARA MOHAWK POWER CORPORATION
EMPLOYEE SAVINGS FUND PLAN FOR NON-REPRESENTED EMPLOYEES OF
NIAGARA MOHAWK POWER CORPORATION
(Full title of plans)
___________________
JOHN W. POWERS
Senior Vice President - Finance and Corporate Services
NIAGARA MOHAWK POWER CORPORATION
300 Erie Boulevard West
Syracuse, New York 13202
(315) 474-1511
(Name and address of agent for service)
_________________
The Commission is requested to mail signed copies of all orders, notices and
communications to:
J. MICHAEL PARISH
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004-1490
(212) 858-1000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement.
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed Amount of
Title of Amount to offering maximum registrat
securities be price per aggregate ion
to be registered registered share <F1> offering price fee <F1>
---------------- ---------- --------- -------------- ----------
Common Stock 5,000,000 $16.00 $80,000,000 $27,586
($1 Par Value) shares
[FN]
<F1> Pursuant to Rule 457(b)(1) and Rule 457(c), the proposed maximum
offering price per share and the registration fee are based on the
reported average of the high and low prices for Niagara Mohawk Power
Corporation Common Stock on the New York Stock Exchange on July 25,
1994.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement also covers an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plans described herein.
Pursuant to Rule 429 of the Securities Act of 1933, as amended, this
registration statement also relates as of June 30, 1994 to 1,360,615
shares of Common Stock, $1 par value, registered under Registration
Statements 33-42720 and 33-42721.
<PAGE>
PART I
INFORMATION REQUIRED IN A SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Item 2. Registrant Information and Employee Plan Annual Information.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by the Company
with the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Act of 1933, as amended (the "1933 Act"), and pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated by reference herein and shall be deemed to be a part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993, as amended by Form 10-K/A dated June 27, 1994 (which
includes the Plan's Annual Report on Form 11-K for the plan year ended
December 31, 1993).
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1993.
3. The Company's Current Reports on Form 8-K dated February 18 and
24, 1994.
4. Description of the Company's Common Stock contained in the
Registration Statement No. 33-26429 on Form S-8 filed on January 9, 1989
under the 1933 Act, including any amendment or report filed for the
purpose of updating such description.
5. Description of the Company's Common Stock contained in the
registration statement filed under the 1934 Act, including any amendment
or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act, prior to the filing of a post-effective amendment
to this Registration Statement which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration
Statement and made a part hereof from their respective dates of filing (such
documents, and the documents enumerated above, being hereinafter referred to
as "Incorporated Documents"); provided, however, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act in each year during which the
offering made by this Registration Statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-K covering such
year shall not be Incorporated Documents or be incorporated by reference in
this Registration Statement or be a part hereof from and after the filing of
such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
The Company hereby undertakes to provide without charge to each person
to whom a copy of the Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any or all of the documents referred to
in this Item 3 of Part II which have been or may be incorporated by reference
in this Registration Statement. Requests for such copies should be directed
to Mr. Leon T. Mazur, Manager-Investor Relations, Niagara Mohawk Power
Corporation, 300 Erie Boulevard West, Syracuse, New York 13202, telephone
number: (315) 474-1511. Additional updating information with respect to the
securities and plan covered herein may be provided in the future by means of
supplements to the Prospectus.
Item 4. Description of Securities.
A description of the Company's Common Stock, par value $1.00 per share,
registered hereunder is contained in the registration statement filed under
the 1934 Act, including any amendment or report filed for the purpose of
updating such description, and in Registration Statement No. 33-26429 on Form
S-8 filed on January 9, 1989 and is incorporated herein by reference.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Sections 721 through 726 of the Business Corporation Law of New York
(the "BCL") provide for the indemnification of the Company's officers and
Directors.
Reference is made to Article VI of the By-Laws of the Company (Exhibit
3(b)) and Article XIIA of the Certificate of Incorporation of the Company
(Exhibit 4(a)(5)).
The Directors and Officers of the Company and its subsidiaries are
insured against obligations incurred as a result of indemnification by the
Company of its officers and Directors. The coverage also insures the
officers and Directors against liabilities for which they may not be
indemnified by the Company or its subsidiaries, except a dishonest act or
breach of trust. The insurance, authorized by the BCL, is being purchased
from the National Union Fire Insurance Company of Pittsburgh, Pa., Associated
Electric & Gas Insurance Services Limited, Aetna Casualty and Surety Company,
Federal Insurance Company, CNA Insurance Company, and A.C.E. Insurance
Company (Bermuda) Ltd. for the term from January 31, 1994 to January 31, 1995
for an aggregate premium of approximately $2,353,891. In addition, pursuant
to a 1986 amendment to the BCL, the Company entered into agreements with the
officers and Directors of the Company providing for indemnification for the
liability of officers and Directors not covered by the policy mentioned
above. Such additional indemnification does not cover acts committed in bad
faith or acts which were the result of active and deliberate dishonesty.
Furthermore, Article XIIA of the Certificate of Incorporation of the Company
limits, with certain exceptions, the personal liability of a Director of the
Company to the Company or its shareholders.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
In the following exhibit list:
NMPC refers to the Company.
CNYP refers to Central New York Power Corporation.
Each document referred to below is incorporated by reference to the
files of the Commission, unless the reference to the document in the list is
preceded by an asterisk. Previous filings with the Commission are indicated
as follows:
A-NMPC Registration Statement No. 2-8214;
F-CNYP Registration Statement No. 2-3414;
Y-NMPC Registration Statement No. 2-12973;
KK-NMPC Registration Statement No. 2-38083;
CCC-NMPC Registration Statement No. 2-70860;
GGG-NMPC Registration Statement No. 2-82041;
HHH-NMPC Registration Statement No. 2-91527;
NNN-NMPC Registration Statement No. 33-24755; and
a NMPC Current Report on Form 8-K filed July 6, 1993.
Incorporation by
Reference
_________________
Exhibit Previous
No. Description of Instrument Previous Exhibit
Filing Designation
- ------- ----------------------------------- -------- -----------
3(b) By-Laws of NMPC, as amended June
22, 1993 . . . . . . . . . . . . .
4(a)(1)
Certificate of Consolidation of New
York Power and Light Corporation, a 3(b)
Buffalo Niagara Electric
Corporation and Central New York
Power Corporation, filed January 5,
1950 in the office of the New York
Secretary of State . . . . . . . . A 1-1
4(a)(2) Certificate of Amendment of
Certificate of Incorporation of
NMPC, filed January 5, 1950 in the
office of the New York Secretary of
State . . . . . . . . . . . . . . . A 1-2
4(a)(3) Certificate of Amendment of
Certificate of Incorporation of
NMPC pursuant to Section 36 of the
Stock Corporation Law of New York,
filed January 9, 1957 in the office
of the New York Secretary of State Y 3-5
4(a)(4) Certificate of Incorporation of
NMPC under Section 805 of the
Business Corporation Law of New
York, filed September 22, 1969 in
the office of the New York
Secretary of State . . . . . . . . KK 2-52
4(a)(5) Certificate of Amendment of the
Certificate of Incorporation of
NMPC, filed June 4, 1984 in the
office of the New York Secretary of
State . . . . . . . . . . . . . . . HHH 4(b)(35)
4(a)(6) Certificate of Amendment of
Certificate of Incorporation of
NMPC under Section 805 of the
Business Corporation Law of New
York, filed May 27, 1988 in the
office of the New York Secretary of
State . . . . . . . . . . . . . . . NNN 3(a)(42)
4(a)(7) Specimen of Common Stock, $1 par
value (not more than 100,000
shares) . . . . . . . . . . . . . . GGG 4(a)(4)
4(b)(1) Mortgage Trust Indenture dated as
of October 1, 1937 between CNYP
(now NMPC) and The Marine Midland
Trust Company of New York (now
named Marine Midland Bank, N.A.),
as Trustee . . . . . . . . . . . . F <F2>
4(b)(2) Supplemental Indenture dated as of
March 1, 1978, supplemental to
Exhibit 4(b)(1) . . . . . . . . . . CCC 4(b)(42)
* 5(a) Opinion and Consent of Winthrop,
Stimson, Putnam & Roberts . . . . .
* 5(b) The Registrant undertakes that it
has submitted the Employee Savings
Fund Plan for Represented Employees
of Niagara Mohawk Power Corporation
and the Employee Savings Fund Plan
for Non-Represented Employees of
Niagara Mohawk Power Corporation
(the "Plans"), and all amendments
thereto to the Internal Revenue
Service (the "Service") and that it
will make all changes required by
the Service in order for the
Service to issue a determination
letter with respect to the Plans.
* 15 Letter regarding unaudited interim
financial information . . . . . .
* 23(a) Consent of Price Waterhouse . . .
* 23(b) Consent of Paul J. Kaleta, Esq. . .
* 23(c) Consent of Winthrop, Stimson,
Putnam & Roberts is included in
Exhibit 5 . . . . . . . . . . . . .
* 24 Powers of Attorney . . . . . . . .
* 99(a) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for
Represented Employees . . . . . . .
* 99(b) Niagara Mohawk Power Corporation's
Employee Savings Fund Plan for Non-
Represented Employees . . . . . . .
[FN]
<F2> Filed October 15, 1937 after effective date of
Registration Statement No. 2-3414.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in
the information set forth in the registration
statement;
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(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.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in 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.
(5) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the registrant pursuant to Article XIIA of the
Certificate of Incorporation, Article VI of the By-Laws of the registrant or
Section 721 through 726 of the New York Business Corporation Law, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement or amendment thereto to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Syracuse, State of New
York, on the 29th day of July, 1994.
NIAGARA MOHAWK POWER CORPORATION
By: /s/ Steven W. Tasker
------------------------------
Steven W. Tasker
Controller and Principal
Accounting Officer
Pursuant to the requirements of the Securities Act
of 1933, this registration statement or amendment thereto has been signed
below by the following persons in the capacities and on the date indicated.
Signature Title Date
--------- ----- -------------
____*William F. Allyn_ Director July 29, 1994
William F. Allyn
______________________ Director July 29, 1994
Lawrence Burkhardt III
______________________ Director July 29, 1994
Douglas M. Costle
____*Edmund M. Davis__ Director July 29, 1994
Edmund M. Davis
____*William E. Davis_ Director, July 29, 1994
William E. Davis Chairman of the
Board of
Directors and
Chief Executive
Officer
_____*William J. Donlon Director July 29, 1994
William J. Donlon
_____*Edward W. Duffy_ Director July 29, 1994
Edward W. Duffy
_____*John M. Endries_ Director and July 29, 1994
John M. Endries President
_____*Dr. Bonnie Guiton Director July 29, 1994
Dr. Bonnie Guiton
_____*John G. Haehl, Jr. Director July 29, 1994
John G. Haehl, Jr.
_____*Paul Kaleta Vice President - July 29, 1994
Paul Kaleta Law and General
Counsel
_____*Henry A. Panasci, Jr. Director July 29, 1994
Henry A. Panasci, Jr.
_____*Patti McGill Peterson Director July 29, 1994
Patti McGill Peterson
_____*Donald B. Riefler Director July 29, 1994
Donald B. Riefler
_____*Arthur Roos Vice President - July 29, 1994
Arthur Roos Treasurer
_____*Stephen B. Schwartz Director July 29, 1994
Stephen B. Schwartz
_____*John G. Wick Director July 29, 1994
John G. Wick
_____*John Powers_____ Senior Vice July 29, 1994
John W. Powers President -
Finance
and
Corporate
Services
and
Principal
Financial
Officer
/s/ Steven W. Tasker Controller and July 29, 1994
____________________________ Principal
Steven W. Tasker Accounting
Officer
*By /s/ Steven W. Tasker July 29, 1994
-------------------
(Steven W. Tasker,
Attorney-in-fact)
The Plans. Pursuant to the requirements of the Securities Act of
1933, the administrator of the Plans has duly caused this registration
statement or amendment thereto to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Syracuse, State of New
York, on July 29, 1994.
EMPLOYEE SAVINGS FUND PLAN FOR REPRESENTED
EMPLOYEES OF NIAGARA MOHAWK POWER
CORPORATION
EMPLOYEE SAVINGS FUND PLAN FOR NON-
REPRESENTED EMPLOYEES OF NIAGARA MOHAWK
POWER CORPORATION
By:________/s/ David J. Arrington____________
(David J. Arrington, Chairman,
Employee Savings Fund Plan Committee)
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Page
No. Exhibit No.
------- ------- ----
5 Opinion and Consent of Winthrop, Stimson,
Putnam & Roberts . . . . . . . . . . . . .
15 Letter regarding unaudited interim financial
information . . . . . . . . . . . . . . . .
23(a) Consent of Price Waterhouse . . . . . . . .
23(b) Consent of Paul J. Kaleta, Esq. . . . . . .
23(c) Consent of Winthrop, Stimson, Putnam &
Roberts is included in Exhibit 5 . . . . .
24 Powers of Attorney . . . . . . . . . . . .
99(a) Niagara Mohawk Power Corporation's Employee
Savings Fund Plan for Represented Employees
99(b) Niagara Mohawk Power Corporation's Employee
Savings Fund Plan for Represented Employees
EXHIBIT 5
July 29, 1994
Niagara Mohawk Power Corporation
300 Erie Boulevard West
Syracuse, New York 13202
Re: Niagara Mohawk Power Corporation (the "Company")
Registration Statement on Form S-8 relating to 5,000,000
Shares of Common Stock pursuant to the Company's Employee
Savings Fund Plan for Represented Employees and the Employee
Savings Fund Plan for Non-Represented Employees (the "Plans")
_____________________________________________________________
Ladies and Gentlemen:
In connection with the proposed issuance under the Plan by
the Company from time to time of 5,000,000 shares of the Company's Common
Stock having a par value of $1 per share (the "Shares") and with the
registration of the Shares under the Securities Act of 1933, as amended (the
"Act"), we have examined such corporate records, other documents and
questions of law as we considered necessary for the purpose of this opinion.
We advise you that the Shares will be legally issued, fully paid and non-
assessable if, at the time of the issuance of the Shares:
1. The Board of Directors of the Company shall have
authorized the issuance and sale of the Shares under
the terms of the Plan;
2. The Public Service Commission of the State of New York
shall have authorized the issuance and sale of the
Shares:
3. The Registration Statement of the Company on Form S-8
shall have become and remain effective for the purpose
of the offer and sale of the Shares; and
4. The Shares shall have been duly credited to Plan
participants and, with respect to certificated Shares,
the certificates for such Shares shall have been duly
executed, countersigned, registered and delivered, and,
in each case, the consideration therefor shall have been
paid to the Company.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement of the Company on Form S-8 with respect to the
Plan and the Shares to be issued and sold thereunder. We further consent to
the use of the name of this firm in said Registration Statement and in the
Prospectus forming a part thereof.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
EXHIBIT 15
July 29, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We are aware that Niagara Mohawk Power Corporation has included our
report dated May 12, 1994 (issued pursuant to the provisions of Statement on
Auditing Standards No. 71) in the Registration Statement on Form S-8 to be
filed on or about July 29, 1994. We are also aware of our responsibilities
under the Securities Act of 1933.
Very truly yours,
PRICE WATERHOUSE
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of Niagara
Mohawk Power Corporation of our report dated January 27, 1994 appearing on
page 62 of the Company's Annual Report on Form 10-K dated January 27, 1994,
as amended by Form 10-K/A dated June 27, 1994. We also consent to the
incorporation by reference of our report on the Financial Statement Schedules
appearing on page 104 of this Form 10-K. We also consent to the incorporation
by reference in the Registration Statement of our report dated March 25, 1994
of the Annual Report of the Employee Savings Fund Plans on Form 11-K for the
year ended December 31, 1993.
PRICE WATERHOUSE
Syracuse, New York
July 29, 1994
EXHIBIT 23(b)
CONSENT OF COUNSEL
I hereby consent to the use of my name in the Registration
Statement on Form S-8 of Niagara Mohawk Power Corporation under the Securities
Act of 1933, as amended, covering the registration of securities of Niagara
Mohawk Power Corporation (the "Company") proposed to be offered and sold
pursuant to the Company's Employee Savings Fund Plan for Non-Represented
Employees.
/s/ Paul J. Kaleta
-------------------------
PAUL J. KALETA
Vice President - Law and General Counsel
Syracuse, New York
July 29, 1994
EXHIBIT 99(a)
NIAGARA MOHAWK POWER CORPORATION
REPRESENTED EMPLOYEES'
SAVINGS FUND PLAN
As Amended and Restated Effective as of July 1, 1992
----------------------------------------------------
(Including Amendments Through February 1, 1994)
<PAGE>
TABLE OF CONTENTS
Page
----
Preamble . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE
-------
I DEFINITIONS . . . . . . . . . . . . . . . . . 2
II PARTICIPATION . . . . . . . . . . . . . . . . 7
III PARTICIPANT CONTRIBUTIONS . . . . . . . . . . 9
IV ACTUAL DEFERRAL PERCENTAGE . . . . . . . . . . 10
V MATCHING CONTRIBUTIONS . . . . . . . . . . . . 14
VI AVERAGE CONTRIBUTION PERCENTAGE . . . . . . . 14
VII ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS . . . 19
VIII CONTRIBUTION LIMITATIONS . . . . . . . . . . . 23
IX ACCOUNTS; VESTING . . . . . . . . . . . . . . 25
X WITHDRAWALS . . . . . . . . . . . . . . . . . 26
XI DISTRIBUTIONS . . . . . . . . . . . . . . . . 30
XII INVESTMENT OF FUNDS . . . . . . . . . . . . . 34
XIII LOANS . . . . . . . . . . . . . . . . . . . . 36
XIV ADMINISTRATION . . . . . . . . . . . . . . . . 39
XV TRUSTEE . . . . . . . . . . . . . . . . . . . 40
XVI TERMINATION AND AMENDMENT . . . . . . . . . . 43
XVII MISCELLANEOUS . . . . . . . . . . . . . . . . 44
XVIII TOP HEAVY PROVISIONS . . . . . . . . . . . . . 46
APPENDIX A
APPENDIX B
<PAGE>
NIAGARA MOHAWK POWER CORPORATION
REPRESENTED EMPLOYEES'
SAVINGS FUND PLAN
As Amended and Restated Effective July 1, 1992
----------------------------------------------
Preamble
--------
This Plan was originally established effective January
1, 1966 by the Board of Directors of Niagara Mohawk Power Corporation and
originally implemented effective January 1, 1966 for the exclusive benefit of
Eligible Employees and their Beneficiaries in order to provide additional
retirement security through a deferred savings and investment program. The
Plan, as amended and restated effective July 1, 1992, is designed as a profit
sharing plan which incorporates a cash or deferred arrangement under section
401(k) of the Internal Revenue Code of 1986, as amended, and Plan provisions
are to be interpreted accordingly. Except as otherwise expressly provided,
the provisions of the Plan, as set forth in this document and as may be
amended from time to time, establish the rights and obligations with respect
to Participants on and after July 1, 1992 and transactions under the Plan on
and after that date. Rights and obligations under the Plan with respect to
any Employee who terminated employment with the Employer for any reason prior
to July 1, 1992 shall be determined in accordance with the provisions of the
Plan as in effect on the date of termination.
.
<PAGE>
ARTICLE I
DEFINITIONS:
-----------
The following words and phrases shall have the meanings
provided below, except as otherwise required by the context. As
used in the Plan, the masculine pronoun shall be deemed to
include the feminine, and the singular, the plural, unless a
different meaning is clearly indicated by the context.
"Accounts" means the Participant's accounts maintained
for recordkeeping purposes under the Plan, including a Company
Account, Participant Account, Rollover Account, Transfer Account
and Loan Account, as applicable.
"Affiliate" means the Company and any corporation which
is a member of a controlled group of corporations (as defined in
Code section 414(b)) which includes the Company, any trade or
business (whether or not incorporated) which is under common
control (within the meaning of Code section 414(c)) with the
Company, any organization which is part of an affiliated service
group as defined in Code section 414(m), or any entity required
to be aggregated with the Company in accordance with Code
section 414(o) and the regulations thereunder. For purposes
under the Plan of determining whether or not a person is an
Employee and the period of employment of such person, each such
other company shall be included as an Affiliate only for such
period or periods during which such other company is a member of
the controlled group, under common control, an affiliated
service group or otherwise required to be so aggregated.
"After-tax Contributions" means a Participant's after-
tax contributions to the Plan pursuant to Section 3.1. After-
tax contributions shall be made by payroll deduction.
"Before-tax Contributions" means a Participant's before-
tax contributions to the Plan pursuant to Section 3.1. Before-
tax contributions shall be made by payroll reduction.
"Beneficiary" means the person designated by the
Participant in accordance with the provisions of Section 11.6 to
receive any benefits payable under the Plan after the death of
the Participant.
"Board of Directors" means the Board of Directors of the
Company.
"Break in Service" means a 12-consecutive-month period
during which a Participant has not completed more than 500 Hours
of Service.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means the committee for the Plan appointed
by the Board of Directors pursuant to Section 14.3 and shall
include agents and delegates of the committee whenever
applicable.
"Company" means Niagara Mohawk Power Corporation, or any
successor corporation.
"Company Account" means the separate account maintained
for each Participant to which Matching Contributions and related
earnings are credited under Section 9.1.
"Compensation" means the basic annual wages and salary
(not in excess of the statutory dollar limitation under Code
section 401(a)(17), as may be adjusted by the Secretary of the
Treasury) of an Employee from the Employer (other than overtime,
commissions, bonuses, disability retirement income, pension
retirement income, premiums or other extra or additional
compensation from the Employer), unreduced by the Employee's
Before-tax Contributions or contributions to a plan of the
Employer qualifying under Code section 125, but excluding other
contributions to this Plan or contributions to other employee
benefit plans of the Employer. For purposes of applying the
dollar limitation on Compensation, the rules of Code section
414(q)(6) shall apply, except that in applying such rules, the
term "family" shall include only the spouse of the Employee and
lineal descendants of the Employee who have not attained age 19
before the close of the year. The dollar limitation will be
allocated among the members of the family unit in proportion to
each member's Compensation.
"Effective Date" means July 1, 1992, the date of the
amendment and restatement of the Plan.
"Eligible Employee" means each Employee eligible to
participate in the Plan in accordance with Section 2.1.
"Employee" means any employee of the Employer covered
by a collective bargaining agreement with the Employer, unless
such collective bargaining agreement expressly precludes
coverage under the Plan.
"Employer" means the Company and any Affiliate which
participates in the Plan with the approval of the Board of
Directors.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Highly Compensated Employee" means an Employee within
the meaning of Code section 414(q).
"Hour of Service" means (1) each hour for which an
Employee is directly or indirectly compensated or entitled to
compensation by the Employer for the performance of duties
during the applicable computation period; (2) each hour for
which an Employee is directly or indirectly compensated or
entitled to compensation by the Employer on account of a period
of time during which no duties are performed (such as vacation,
holidays, sickness, disability, layoff, jury duty, military duty
or leave of absence) during the applicable computation period;
(3) each hour for which back pay is awarded or agreed to by the
Employer without regard to mitigation. The same Hours of
Service shall not be credited both under (1) or (2), as the case
may be, and (3).
Notwithstanding (2) above, (i) no more than 501 Hours
of Service will be credited to an Employee on account of any
single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account
of a period during which no duties are performed is not required
to be credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying with
applicable worker's compensation, or unemployment compensation
or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an
Employee for medical or medically related expenses incurred by
the Employee.
Solely for purposes of determining whether a Year of
Service for purposes of Section 5.1 has been completed in a
computation period, an Employee who is absent from work for
maternity or paternity reasons shall receive credit for the
Hours of Service which would otherwise have been credited to
such individual but for such absence, or in any case in which
such hours cannot be determined, 8 Hours of Service per day of
such absence; in no case shall more than 501 Hours of Service be
credited for any one such absence. For purposes of this
subsection, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
Employee, (2) by reason of the birth of a child of the Employee,
(3) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of
Service credited under this subsection shall be credited (1) in
the computation period in which the absence begins if the
crediting is necessary to prevent a Break in Service in that
period, or (2) in all other cases, in the following computation
period.
An Employee with respect to whom the Company or an
Affiliate does not maintain records reflecting the number of
hours for which he is paid shall be credited with 45 Hours of
Service for each week or part thereof he is paid or entitled to
be paid by the Company or an Affiliate. The provisions of
Department of Labor regulations section 2530.200b-2(b) and (c)
are incorporated herein by reference.
"Investment Funds" means each of the Investment Funds
provided for in Section 12.2 and set forth in Appendix A.
"Investment Manager" means the individual(s) or other
entity appointed in accordance with Section 15.5 who has
acknowledged in writing that he is a fiduciary with respect to
the Plan and who is:
(a) registered as an investment advisor under the
Investment Advisers Act of 1940;
(b) a bank, as defined in such Act; or
(c) an insurance company qualified to manage, acquire
or dispose of assets of pension plans.
"Loan Account" means a separate account established for
a Participant for the purpose of administering the Participant's
loan.
"Matching Contributions" means the contributions made
to the Plan by the Employer under Section 5.1.
"Non-Represented Plan" means the Niagara Mohawk Power
Corporation Non-Represented Employees' Savings Fund Plan
(including any Appendix) as may be amended from time to time.
"Participant" means an Employee participating in the
Plan in accordance with Article II.
"Participant Account" means the separate account
maintained for each Participant to which a Participant's Before-
tax Contributions and After-tax Contributions and related
earnings are credited under Section 9.1.
"Plan" means the Niagara Mohawk Power Corporation
Represented Employees' Savings Fund Plan, as amended and
restated in this document (including any Appendix) and as may be
amended from time to time.
"Plan Year" means the calendar year.
"Rollover Account" means the separate account
maintained for a Participant to which the Participant's rollover
contributions and related earnings are credited under
Section 9.1.
"Service" means a Participant's period of employment
with the Company or any Affiliate.
"Total Disability" means (i) for a Participant who is
covered under the Company's Disability Retirement and Separation
Allowance Plan, the Participant's total disability entitling him
to a disability retirement benefit under such plan; and (ii) for
any other Participant, the total and permanent inability, by
reason of physical or mental infirmity, or both, of a
Participant to perform, without endangering his health, the
tasks, functions or duties assigned to him by the Employer for
not less than six consecutive months; provided that the
determination of the existence or nonexistence of such
Participant's Total Disability shall be made by the Committee
pursuant to an examination by a physician selected or approved
by the Committee.
"Transfer Account" means the separate account
maintained for a Participant to which amounts transferred on
behalf of a Participant, and related earnings, are credited
under Section 9.1.
"Trust Agreement" means the agreement between the
Trustee and the Company pursuant to which the Trust Fund is
established and maintained, as provided in Article XV.
"Trust Fund" means the trust under the Plan established
pursuant to the Trust Agreement, as provided for in Article XV.
"Trustee" means the trustee under the Trust Agreement.
"Valuation Date" means any applicable business day.
"Year of Service" means a 12 consecutive-month period
(commencing on the date as of which an individual first becomes
an Employee) during which the Employee has completed at least
1,000 Hours of Service; provided that, if a Participant does not
complete 1,000 Hours of Service during such 12-month period, a
Year of Service means the first Plan Year, beginning with the
Plan Year immediately following the date he first becomes an
Employee, during which he completes at least 1,000 Hours of
Service.
ARTICLE II
PARTICIPATION
-------------
2.1 Each Employee on the Effective Date who was a Participant
in the Plan immediately prior to the Effective Date shall continue as a
Participant as of the Effective Date. Subject to Section 2.4, each other
Employee shall become an Eligible Employee as of the first day of the month
following the first full calendar month after he has attained age 21 and
completed one Year of Service.
2.2 Participation in the Plan is purely voluntary. Prior to
the time an Employee first becomes an Eligible Employee he will be provided
with a written application for membership and an explanation of the Plan.
Each Eligible Employee on or after the Effective Date shall become a
Participant as soon as administratively feasible after his completed
application, in such form and manner as the Committee may prescribe, is
received by the Committee. Once an Employee becomes an Eligible Employee, he
will continue to be an Eligible Employee until he ceases to be an Employee.
Notwithstanding the foregoing, an Employee shall become a Participant if he
makes a rollover contribution to the Plan in accordance with Section 7.1 or
effects a direct plan-to-plan transfer in accordance with Section 7.2 before
becoming an Eligible Employee in accordance with Section 2.1.
2.3 A Participant shall continue as such until his Accounts are
completely distributed under the Plan or transferred to the Non-Represented
Plan pursuant to Section 2.4. Any interest in the Investment Funds of a
Participant who retires or otherwise terminates employment with the Employer
shall be allowed to remain in the Trust Fund, subject to Article XI.
2.4 The Accounts of a Participant who ceases to be represented
by a collective bargaining agreement with the Employer shall be transferred
to the Non-Represented Plan as soon as administratively feasible. If a
participant in the Non-Represented Plan becomes an Eligible Employee, his
accounts under the Non-Represented Plan shall be transferred to corresponding
Accounts under this Plan, and he shall become a Participant in the Plan as of
the date of such transfer and shall be eligible to make contributions to the
Plan in accordance with Article III as soon as administratively feasible
following receipt by the Committee of his application for membership in
accordance with Section 2.2.
2.5 If an Eligible Employee terminates employment with the
Employer and is reemployed by the Employer, he shall be an Eligible Employee
as of his date of reemployment, and shall participate in the Plan as soon as
administratively feasible after applying for membership in accordance with
Section 2.2.
ARTICLE III
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Subject to Section 3.4 and Articles IV, VI, and VIII, a
Participant may elect to make (i) Before-tax Contributions in an amount
ranging from 2% to 15% (in whole percentages) of his Compensation for the
Plan Year; (ii) After-tax Contributions in an amount ranging from 2% to 10%
(in whole percentages) of his Compensation for the Plan Year; or (iii) a
combination of Before-tax Contributions and After-tax Contributions (in whole
percentages), not to exceed in the aggregate 15% of his Compensation for the
Plan Year (provided that After-tax Contributions in the aggregate shall not
exceed 10% of his Compensation for the Plan Year).
3.2 The Employer shall contribute, or have contributed, to the
Plan the amount of a Participant's Before-tax Contributions and After-tax
Contributions elected pursuant to Section 3.1. All such contributions,
together with any related earnings, shall be credited to the Participant's
Participant Account.
3.3 A Participant may discontinue or change the rate of his
Before-tax Contributions or After-tax Contributions, or both, as of any
payroll period by providing at least 30 days' advance written notice to the
Committee, in such form and manner as the Committee may prescribe.
3.4 Notwithstanding the provisions of Article IV, the maximum
amount of Before-tax Contributions credited to the Participant Account on
behalf of a Participant in any calendar year may not exceed $9,240 (as may be
adjusted by the Secretary of the Treasury) and any Before-tax Contributions
made to the Participant Account in excess of such amount, plus any related
earnings on such excess amount, shall be distributed to the Participant no
later than April 15 following the close of the calendar year in which such
excess Before-tax Contributions are made.
ARTICLE IV
ACTUAL DEFERRAL PERCENTAGE
--------------------------
4.1 (a) If the actual deferral percentage (as defined in
paragraph (c) below) of Compensation for Participants who are Highly
Compensated Employees is more than the amount permitted under the deferral
limitations set forth in paragraph (b) below, there shall be a reduction in
the portion of the Before-tax Contributions credited to the Participant
Accounts of those Participants who are Highly Compensated Employees and who
elected to contribute at the highest Before-tax Contribution percentage rate,
such that the deferral limitations are satisfied. The Employer shall
distribute to such Participants any excess Before-tax Contributions, and any
related earnings, no later than 2 1/2 months following the Plan Year in which
such excess Before-tax Contributions are made. Excess Before-tax
Contributions shall be treated as annual additions for purposes of Section
8.1. In addition, if the Employer determines that Before-tax Contributions
would be in excess of the deferral limitations set forth in paragraph (b)
below, the Employer may in its sole discretion suspend, in whole or in part,
Before-tax Contributions to the Plan made on behalf of Participants who are
Highly Compensated Employees (in which case the amounts which would
ordinarily be deferred in a payroll period shall be paid directly to such
Participants).
(b) The actual deferral percentage for any Plan Year
beginning on or after the Effective Date of all Eligible Employees who are
Highly Compensated Employees shall not exceed, alternatively: (A) 125% of
the actual deferral percentage for all Eligible Employees who are not Highly
Compensated Employees; or (B) 200% of the actual deferral percentage for
Eligible Employees who are not Highly Compensated Employees, provided that
the actual deferral percentage for all Eligible Employees who are Highly
Compensated Employees does not exceed the actual deferral percentage for all
other Eligible Employees by more than 2%, or such other amount that the
Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 4.1, the actual
deferral percentage for a specified group of Participants for a Plan Year
shall be the average of the ratios, calculated separately for each Eligible
Employee in such group, of (i) the amount of Before-tax Contributions to the
Participant Account and Matching Contributions to the Company Account (to the
extent taken into account for purposes of the actual deferral percentage
test) made on behalf of each Eligible Employee for such Plan Year to (ii) the
Eligible Employee's Compensation for such Plan Year. However, for purposes
of determining the actual deferral percentage for a Plan Year of one of the
ten most highly-paid Highly Compensated Employees, the Before-tax
Contributions (and Matching Contributions, if treated as Before-tax
Contributions for purposes of the actual deferral percentage test) and
Compensation of such Highly Compensated Employee shall include the Before-tax
Contributions (and Matching Contributions, if treated as Before-tax
Contributions for purposes of the actual deferral percentage test) and
Compensation for the Plan Year of "family members" (as defined in Code
section 414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in
determining the actual deferral percentage both for Eligible Employees who
are not Highly Compensated Employees and for Eligible Employees who are
Highly Compensated Employees. In addition, for purposes of determining the
actual deferral percentage test, Before-tax Contributions and Matching
Contributions must be made before the last day of the 12-month period
immediately following the Plan Year to which contributions relate.
(d) The Employer may, to the extent permitted under
Treasury Regulations section 1.401(k)-1(f)(3), recharacterize as After-tax
Contributions for such Plan Year all or a portion of the Before-tax
Contributions for Participants who are Highly Compensated Employees to the
extent necessary to comply with the limitations set forth in paragraph (b)
above. The amount of excess Before-tax Contributions to be recharacterized
or distributed with respect to a Participant for the Plan Year shall be
reduced by any excess deferrals previously distributed to such Participant
under Section 3.4 for the Participant's taxable year ending with or within
such Plan Year.
(e) The actual deferral percentage for any Participant
who is a Highly Compensated Employee in the Plan Year who is eligible to have
Before-tax Contributions made on his behalf under two or more arrangements
described in Code section 401(k) that are maintained by the Employer shall be
determined as if such Before-tax Contributions were made under a single
arrangement.
(f) If a reduction in the amount of Before-tax
Contributions on behalf of a Participant is required because of the
application of paragraph (a) above, the reduction shall be treated as taxable
earnings to the Participant for the pay period in which the reduction occurs,
and the Employer shall withhold any taxes required by law on such taxable
earnings.
(g) If a distribution of excess Before-tax Con-
tributions (and related earnings) is required because of the application of
paragraph (a) above, the Employer shall withhold any taxes required by law on
such distribution.
(h) In the event the Employer is required to reduce the
Before-tax Contributions made on behalf of a Participant as a result of the
application of the provisions of paragraph (a) above, the Matching
Contributions under Section 5.1 made on behalf of the Participant for the
remainder of the Plan Year shall be applied to the reduced amount of Before-
tax Contributions.
ARTICLE V
MATCHING CONTRIBUTIONS
----------------------
5.1 Subject to the provisions of Articles VI and VII, the
Employer shall contribute to the Plan on behalf of each Participant an amount
equal to 50% of such Participant's Before-tax Contributions, After-tax
Contributions, or both, made pursuant to Section 3.1; provided that the
amount of Matching Contributions made on behalf of a Participant for any Plan
Year shall not exceed, in the aggregate, 2% of his Compensation for the Plan
Year (2.5% of such Compensation if he has completed 10 Years of Service or
has attained age 40 with at least 6 Years of Service; 3% of such Compensation
if he has completed 15 Years of Service or has attained age 45 with at least
11 Years of Service). Such Matching Contributions and related earnings shall
be credited to the Participant's Company Account.
ARTICLE VI
AVERAGE CONTRIBUTION PERCENTAGE
-------------------------------
6.1 (a) If the contribution percentage (as defined in
paragraph (c) below) of Compensation for Participants who are Highly
Compensated Employees is more than the amount permitted under the special
limitations set forth in paragraph (b) below, there shall be a reduction in
the After-tax Contributions credited to the Participant Accounts and the
Matching Contributions credited to the Company Accounts of those Participants
who are Highly Compensated Employees on the basis of the respective portions
of such amounts attributable to each such Participant so that such special
limitations are satisfied. Any excess After-tax Contributions or Matching
Contributions made to the Plan, plus any related earnings, shall be
distributed to such Participants no later than 2 1/2 months following the
Plan Year in which such excess After-tax Contributions or Matching
Contributions are made. Excess After-tax Contributions shall be treated as
annual additions for purpose of Section 8.1. In addition, if the Employer
determines that After-tax Contributions or Matching Contributions would be in
excess of the special limitations set forth in paragraph (b) below, the
Employer may, in its sole discretion, suspend, in whole or in part, After-tax
Contributions or Before-tax Contributions to the Plan made on behalf of
Participants who are Highly Compensated Employees and, therefore, related
Matching Contributions with respect to such Participants (in which case the
Before-tax Contributions that would ordinarily be contributed to the Plan on
such Participants' behalf in a payroll period shall be paid directly to such
Participants).
(b) The contribution percentage for any Plan Year of
all Eligible Employees who are Highly Compensated Employees shall not exceed,
alternatively: (A) 125% of the contribution percentage for all Eligible
Employees who are not Highly Compensated Employees, or (B) 200% of the
contribution percentage for Eligible Employees who are not Highly Compensated
Employees, provided that the contribution percentage for Eligible Employees
who are Highly Compensated Employees does not exceed the contribution
percentage for all other Eligible Employees by more than 2%, or such other
amount that the Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 6.1, the average
contribution percentage for a specified group of Participants for a Plan Year
shall be the average of the ratios, calculated separately for each Eligible
Employee in such group of (i) the amount of After-tax Contributions to the
Participant Account and the amount of Matching Contributions to the Company
Account (to the extent not taken into account for purposes of the actual
deferral percentage test) made on behalf of each Eligible Employee for such
Plan Year to (ii) the Eligible Employee's Compensation for such Plan Year.
However, for purposes of determining the average contribution percentage for
a Plan Year of one of the ten most highly-paid Highly Compensated Employees,
the Matching Contributions (to the extent not taken into account for purposes
of the actual deferral percentage test) and Compensation of such Highly
Compensated Employee shall include the Matching Contributions (to the extent
not taken into account for purposes of the actual deferral percentage test)
and Compensation for the Plan Year of "family members" (as defined in Code
section 414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in
determining the average contribution percentage both for Eligible Employees
who are not Highly Compensated Employees and for Eligible Employees who are
Highly Compensated Employees. In addition, for purposes of determining the
contribution percentage test, Matching Contributions will be considered made
for a Plan Year if made before the last day of 12-month period immediately
following the Plan Year to which contributions relate.
(d) The average contribution percentage for any
Participant who is a Highly Compensated Employee in the Plan Year who is
eligible to make After-tax Contributions under two or more arrangements
described in Code section 401(m) that are maintained by the Employer shall be
determined as if such After-tax Contributions were made under a single
arrangement.
(e) If a reduction in the amount of After-tax
Contributions or Before-tax Contributions on behalf of a Participant is
required because of the application of paragraph (a) above, the reduction
shall be treated as taxable earnings to the Participant for the pay period in
which the reduction occurs, and the Employer shall withhold any taxes
required by law on such taxable earnings.
(f) If a distribution of excess Matching Contributions
(and related earnings) is required because of the application of (a) above,
the Employer shall withhold any taxes required by law on such distribution.
(g) In the event the Employer is required to reduce the
Before-tax Contributions made on behalf of a Participant as a result of the
application of the provisions of paragraph (a) above, the Matching
Contributions under Section 5.1 made on behalf of the Participant for the
remainder of the Plan Year shall be applied to the reduced amount of Before-
tax Contributions.
6.2 If both the actual deferral percentage and the average
contribution percentage of the Highly Compensated Employees exceeds 1.25
multiplied by the actual deferral percentage and average contribution
percentage of the non-Highly Compensated Employees, multiple use will occur.
In the event of multiple use, if one or more Highly Compensated Employees
participate in a plan(s) subject to both the actual deferral percentage and
average contribution percentage tests and the sum of the two percentages of
those Highly Compensated Employees subject to either or both tests exceeds
the "aggregate limit," then the average contribution percentage of those
Highly Compensated Employees who also participate in a salary deferral
arrangement will be reduced (beginning with the Highly Compensated Employee
whose average contribution percentage is the highest) so that the limit is
not exceeded. For the purposes of this Section, "aggregate limit" shall mean
the sum of (i) 125% of the greater of the actual deferral percentage or the
average contribution percentage for non-Highly Compensated Employees for the
Plan Year and (ii) the lesser of 200% of, or two plus, the smaller of such
actual deferral percentage or average contribution percentage.
ARTICLE VII
ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS
----------------------------------------
7.1 Subject to the provisions of the Plan and to rules of
uniform application to be promulgated by the Committee, and in addition to
any contributions to the Plan made in accordance with Article III, a
Participant may make a contribution to the Plan, in cash, which qualifies as
a "rollover amount", "rollover contribution" or "eligible rollover
distribution" under Code section 401(a)(31), 402(c), 403(a)(4) or 408(d)(3).
A Participant who wishes to make such a contribution shall timely file with
the Committee, in such form and manner as the Committee may prescribe, a
written notice requesting approval for such contribution, affirming that his
contribution qualifies as a rollover amount, rollover contribution or
eligible rollover distribution. Investment of such contribution, as between
or among the Investment Funds, as applicable, shall be as directed by the
Participant in accordance with the provisions of Sections 12.3 and 12.4. The
Committee shall direct the Trustee as to the manner in which the contribution
is to be invested. In addition to the written notice required under this
Section 7.1, the Committee may require such further documentation from the
Participant, or the applicable trustee, plan sponsor, custodian or other
appropriate person, as evidence of the contribution constituting a rollover
amount, rollover contribution or eligible rollover distribution, and until
such written notice and documentary evidence satisfactory to the Committee
have been so provided, the Committee shall not approve such contribution to
the Plan. The Committee shall be fully protected in relying on such written
and documentary evidence presented by or on behalf of the Participant.
Contributions made by the Participant pursuant to this Section 7.1 shall be
credited to the Participant's Rollover Account. An Employee shall be
permitted to make a rollover contribution to the Plan in accordance with this
Section 7.1 before becoming an Eligible Employee in accordance with Section
2.1 and, upon effecting such rollover contribution, shall be considered a
Participant with respect to his Rollover Account.
7.2 Subject to Section 2.4, other applicable provisions of the
Plan and to rules of uniform application to be promulgated by the Committee,
and in addition to contributions to the Plan in accordance with Article III
and Section 7.1, a Participant may have transferred directly to the Plan on
his behalf his accrued benefit in another employee benefit plan qualified
under Code section 401(a), provided such plan is not required to provide
automatic survivor benefits (such as a defined benefit plan or money purchase
pension plan or the transferee plan of any such plan). A Participant who
wishes to have such amount transferred shall timely file with the Committee a
written notice, in such form and manner as the Committee may prescribe,
requesting approval for such transfer, affirming that the transfer is from a
tax-qualified plan. Such transfer shall be effected directly from the
transferor plan without distribution to the Participant, as soon as
practicable after receipt of such notice by the Committee. Investment of
such transferred amount, as between or among the Investment Funds, as
applicable, shall be as directed by the Participant in accordance with the
provisions of Sections 12.3 and 12.4. In addition to the written notice
required under this Section 7.2, the Committee may require such further
documentation from the Participant, or the applicable trustee, plan sponsor,
custodian or other appropriate person, as evidence of the transfer being from
a plan qualified under Code section 401(a), and until such written notice and
documentary evidence satisfactory to the Committee have been so provided, the
Committee shall not approve such transfer to the Plan. The Committee shall
be fully protected in relying on such written and documentary evidence
presented by or on behalf of the Participant. Transfers made by the
Participant pursuant to this Section 7.2 shall be credited to the
Participant's Transfer Account. An Employee shall be permitted to effect a
transfer to the Plan in accordance with this Section 7.2 before becoming an
Eligible Employee in accordance with Section 2.1 and, upon effecting such
transfer, shall be considered a Participant with respect to his Transfer
Account.
7.3 Upon the occurrence of an event of withdrawal as described
in Article X or distribution as described in
Article XI, and notwithstanding any other provisions of the Plan to the
contrary that would otherwise limit a distributee's election under this
Section, effective January 1, 1993, a distributee may elect, at the time and
in the manner prescribed by the Company, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover. For purposes of this Section 7.3,
the following definitions apply:
"Eligible rollover distribution" is any
distribution of all or any portion of the balance
to the credit of the distributee, except that an
eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten years
or more; any distribution to the extent such
distribution is required under Code section
401(a)(9); and the portion of any distribution that
is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
"Eligible retirement plan" is an individual
retirement account described in Code section
408(a), an individual retirement annuity described
in Code section 408(b), an annuity plan described
in Code section 403(a), or a qualified trust
described in Code section 401(a), that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
"Distributee" includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code section 414(p),
are distributees with regard to the interest of the
spouse or former spouse.
"Direct rollover" is a payment by the Plan to the
eligible retirement plan specified by the
distributee.
ARTICLE VIII
CONTRIBUTION LIMITATIONS
------------------------
8.1 (a) Any provision of the Plan to the contrary
notwithstanding, no contributions or other annual additions to a
Participant's interest in the Trust Fund will be made in any Plan Year in
excess of the lesser of $30,000 or 25% of the Participant's compensation
(within the meaning of Code section 415(c)(3)). The $30,000 amount may be
adjusted by the Secretary of the Treasury.
(b) Any provision of the Plan to the contrary
notwithstanding, in the case of a Participant who is a participant in a
defined benefit plan of the Employer, his maximum annual additions shall not
exceed the amount which will result in a defined contribution plan fraction
which when added to the defined benefit plan fraction of such Participant
will exceed 1.0 for any Plan Year.
(c) For purposes of applying this Section 8.1, all
defined benefit plans of the Company and its Affiliates, and all defined
contribution plans of the Company and its Affiliates, including the Plan,
shall be combined or aggregated and the maximum benefit or annual additions
limitation shall be determined on the basis of a Participant's annual
additions and benefits under all such plans.
(d) For purposes of this Section 8.1, (i) a defined
contribution plan means a plan described in Code section 414(i); (ii) a
defined benefit plan means a plan described in Code section 414(j); however,
in the case of a defined benefit plan which provides a benefit derived from
employer contributions which is based partly on the balance of the separate
account of a participant, such plan shall be treated as a defined
contribution plan to the extent benefits are based on the separate account of
a participant and as a defined benefit plan with respect to the remaining
portion of the benefits under the plan; (iii) the defined b
fraction for a Participant shall be a fraction the numerator of which is the
lesser of (a) the product of 1.25 multiplied by the dollar limitation in
effect for the plan, or (b) the product of 1.4 multiplied by the amount equal
to 100% of the Participant's average compensation for his high three years
projected annual benefit under the plan, if such plan provided he maximum
benefit allowed by law; (iv) the defined contribution plan fraction for a
Participant shall be a fraction the numerator of which is the sum of the
annual additions to the Participant's accounts under all defined contribution
plans of the Company and its Affiliates (as determined in accordance with
Code section 415(h)) and the denominator of which is the sum of the lesser of
the following amounts for such Plan Year and for each prior Plan Year: (a)
the product of 1.25 multiplied by the dollar limitation in effect for such
Plan Year, or (b) the product of 1.4 multiplied by the 25% of Participant's
compensation (within the meaning of Code section 415(c)(3)); and (v) annual
addition means for any Plan Year (A) Employer contributions, (B) Employee
contributions, (C) forfeitures, if any, (D) amounts allocated to an
individual medical account, as defined in Code section 415(l)(1), which is
part of a pension or annuity plan maintained by the Employer, and (E) amounts
derived from contributions which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as defined in
Code section 419A(d)(3), under a welfare benefit fund, as defined in Code
section 419(e), maintained by the Employer.
ARTICLE IX
ACCOUNTS; VESTING
-----------------
9.1 As appropriate, the Committee shall maintain the following
individual Plan Accounts on behalf of each Participant:
(i) Participant Account, credited separately with Before-
tax Contributions and After-tax Contributions made pursuant to
Section 3.1, and related earnings;
(ii) Company Account, credited with Matching Contributions
made pursuant to Section 5.1, and related earnings;
(iii) Rollover Account, credited with the Participant's
rollover contributions, if any, made pursuant to Section 7.1,
and related earnings;
(iv) Transfer Account, credited with amounts, if any,
transferred directly to the Plan on behalf of the Participant,
pursuant to Section 7.2, and related earnings;
(v) Loan Account, reflecting any loans and loan repayments
made pursuant to Article XIII.
9.2 A Participant's interest in each of his Accounts shall be
fully vested at all times.
9.3 A Participant who forfeited all or a portion of his Company
Account under the prior vesting provisions of the Plan as in effect as of his
date of termination prior to January 1, 1989, and who is reemployed by the
Employer after January 1, 1989, may elect, within the earlier of (i) the date
on which occurs the fifth consecutive one-year Break in Service from the date
he received his Plan distribution, or (ii) 5 years from the date of such
reemployment to repay to the Plan an amount equal to the distribution he
received upon his prior termination. Upon such repayment, the amount of such
Participant's Company Account so forfeited shall be restored to his credit by
an additional Employer contribution.
ARTICLE X
WITHDRAWALS
-----------
10.1 A Participant may elect to withdraw all or any portion of
his After-tax Contributions and related earnings credited to his Participant
Account by providing an advance written application to the Committee, in such
form and manner as the Committee may prescribe.
10.2 A Participant may elect to withdraw that portion of the
Matching Contributions and related earnings credited to his Company Account
for at least 24 months by providing an advance written application to the
Committee, in such form and manner as the Committee may prescribe; except
that a Participant who has completed at least 5 years of active Plan
participation may elect to withdraw all or any portion of the Matching
Contributions and related earnings credited to his Company Account by
providing such advance written application to the Committee.
10.3 Upon advance written application to the Committee, in such
form and manner as the Committee may prescribe, a Participant who is an
Employee and has attained age 59 1/2 may make a withdrawal in cash from any
or all of his Accounts; provided that such Participant may elect to receive
in stock all of his Accounts invested in the Stock Fund (as described in
Appendix A).
10.4 (a) Upon at least 30 days' advance written application of
a Participant to the Committee, in such form and manner as the Committee
shall prescribe, the Committee shall determine whether the Participant is
entitled to make a hardship withdrawal of Before-tax Contributions credited
to his Participant Account, or of amounts credited to his Rollover Account or
Transfer Account, as applicable, subject to the provisions of this
Section 10.4. A hardship entitling a Participant to make a withdrawal will
exist if the Committee determines that the Participant has an immediate and
heavy financial need. A distribution based upon financial hardship cannot
exceed the amount required to meet the immediate financial need created by
the hardship and not reasonably available from reserves or other resources of
the Participant. The determination of the existence of financial hardship
and the amount required to be distributed to meet the need created by the
hardship shall be made by the Committee in accordance with uniform and
nondiscriminatory standards established by the Committee. In no event may
the amount of such hardship withdrawal exceed the amount necessary to
constitute security for repayment of any outstanding loan made pursuant to
Article XIII.
(b) For purposes of this Section 10.4:
(i) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the
Participant if the distribution is on account of (1)
medical expenses described in Code section 213(d)
incurred by the Participant, his spouse, or any
dependents (as defined in Code section 152(a)) or
necessary for these persons to obtain medical care
described in Code section 213(d); (2) the purchase
(excluding mortgage payments) of a principal residence
for the Participant; (3) the payment of tuition and
related educational fees for the next 12 months of post-
secondary education for the Participant, his spouse, or
any dependents; (4) the need to prevent the eviction of
the Participant from, or the foreclosure on the mortgage
of, the Participant's principal residence; or (5) other
events or conditions as prescribed or permitted by the
Internal Revenue Service through publication of
documents of general applicability;
(ii) In addition to the events described in (b)(i)
above, the Company may determine on a nondiscriminatory
basis other events or conditions which establish a
Participant's immediate and heavy financial need;
(iii) need of a Participant if (1) the distribution
is not in excess of the amount of the immediate and
heavy financial need of the Participant (such amount may
include any amount necessary to pay any Federal, state
or local taxes or penalties reasonably anticipated to
result from the distribution) and (2) the Participant
has obtained all distributions, other than hardship
withdrawals, and all nontaxable loans available under
the Plan and any other plan maintained by the Employer
in which the Participant participates; and
(iv) A Participant who receives a hardship
withdrawal in accordance with this Section shall have
contributions to his Participant Account suspended for
12 months after receipt of the hardship withdrawal; the
maximum amount of Before-tax Contributions which a
Participant may have credited to his Participant Account
in the tax year following the tax year in which he
receives a hardship withdrawal shall be the applicable
amount described in Section 3.4 for such tax year
reduced by the amount of Before-tax Contributions
credited to his Participant Account in the tax year in
which he receives the hardship withdrawal.
10.5 As soon as administratively feasible after the date as of
which a Participant has elected to make a withdrawal in accordance with this
Article X, the Committee shall direct the Trustee to effect such withdrawal.
The withdrawal shall be made from the Investment Funds in which the
Participant's Accounts are invested in accordance with the provisions of
Appendix A.
10.6 If, because of a withdrawal prior to January 1, 1989, all
or a portion of a Participant's Company Account has been forfeited under the
vesting provisions of the Plan as in effect prior to January 1, 1989, such
Participant may elect, within 5 years from that date, and prior to a one-year
Break in Service after the withdrawal, to repay to the Plan the amount so
withdrawn. Upon such repayment the amount of such Participant's Company
Account so forfeited shall be restored to his credit by an additional
Employer contribution.
10.7 Withdrawals under this Article X shall be made in the
following order:
(i) After-tax Contributions made prior to January 1,
1987;
(ii) After-tax Contributions made on or after January 1,
1987 and related earnings;
(iii) Rollover contributions to the Plan from the Niagara
Mohawk Power Corporation Employee Stock Ownership
Plan as in effect prior to May 1, 1989 or from
other plans;
(iv) Matching Contributions and related earnings;
(v) Before-tax Contributions and related earnings after
the attainment of age 59 1/2.
ARTICLE XI
DISTRIBUTIONS
-------------
11.1 The entire vested interest of a Participant in his
Participant Account, Company Account, Rollover Account and Transfer Account,
as applicable, shall become payable upon any of the following events:
(i) retirement under the Niagara Mohawk Pension Plan;
(ii) Total Disability;
(iii) death;
(iv) other termination of employment with the Employer;
(v) the Participant's attainment of age 59 1/2; or
(vi) financial hardship, but only to the extent provided
under Section 10.4.
11.2 Upon Total Disability, attainment of age 59 1/2 or
termination of employment with the Employer for any reason, a Participant (or
his Beneficiary in the event of death) may elect distribution of his
Accounts, to be made no earlier than the 1st or 15th of the month next
following the date of such event, by providing at least 30 days' advance
written application to the Committee, in such form and manner as the
Committee may prescribe.
11.3 If at termination of employment for any reason the value
of a Participant's Accounts does not exceed $3,500, his Accounts shall be
distributed in a single sum in cash, except that the Participant may elect to
receive in stock all of his Accounts invested in the Stock Fund (as described
in Appendix A). If at termination of employment for any reason the value of
a Participant's Accounts exceeds $3,500 he may elect (i) to receive a single
sum distribution of his Accounts in cash (except that he may also elect to
receive in stock all of his Accounts invested in the Stock Fund); or (ii) to
have his Accounts retained in the Plan, in which case (1) all amounts
credited to his Accounts shall, to the fullest extent practicable, be
transferred to and invested in the Fidelity Retirement Government Money
Market Portfolio (as described in Appendix A) until withdrawal or
distribution, and (2) the Participant may not make a partial withdrawal of
his Accounts. Notwithstanding the foregoing provisions of Section 11.2 or
this Section 11.3, if the value of a Participant's Accounts exceeds $3,500,
(i) distribution shall not be made prior to the Participant's attainment of
age 65 without the written consent of the Participant (or his surviving
spouse); and (ii) in the case of a Participant who retires under the Niagara
Mohawk Pension Plan, and with respect to his benefits accrued as of June 30,
1992 only, the Participant may elect to receive distribution of his Accounts
in quarterly installments over a period not to exceed 10 years.
If a distribution is one to which Code sections
401(a)(11) and 417 do not apply, such distribution may commence less than 30
days after the notice required under Treasury Regulations section 1.411(a)-
11(c) is given, provided that: (1) the Plan Administrator clearly
informs the Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a particular distribution
option), and (2) the Participant, after receiving the notice, affirmatively
elects a distribution.
11.4 Except as otherwise required under Sections 11.2 and 11.3,
all payments due under this Article XI shall commence no later than 60 days
following the close of the Plan Year in which the latest of the following
occurs:
(a) the attainment by the Participant of age 65;
(b) the 10th anniversary of the year in which the
Participant commenced participation in the Plan; or
(c) the termination of the Participant's employment
with the Employer.
11.5 Any other provision of the Plan to the contrary
notwithstanding, payment of a benefit under the Plan to a Participant shall
commence no later than the April 1st next following the Plan Year in which
the Participant attains age 70 1/2.
11.6 A Participant may, prior to termination of his employment
with the Employer, designate a Beneficiary to whom distribution of his
interest in the Trust Fund shall be paid in the event of his death prior to
the full receipt of such interest; provided, however, that in the event the
Participant is married on the date of his death, such Beneficiary shall be
deemed to be the Participant's surviving spouse. The Participant may elect
to change or revoke his designated Beneficiary at any time; provided,
however, that in the event prior to such change or revocation such
Beneficiary is the Participant's surviving spouse, such election shall not be
effective unless such surviving spouse provides written consent which
acknowledges the effect of such election and is witnessed by a notary public.
The affirmative designation of any Beneficiary and any elected change or
revocation thereof by a Participant shall be made on forms provided by the
Committee and shall not in any event be effective unless and until filed with
the Committee. If no designated or deemed Beneficiary survives the
Participant or former Participant, or if an unmarried Participant or former
Participant fails to designate a Beneficiary under the Plan, the amount
payable upon the death of the Participant or former Participant shall be paid
to his estate.
11.7 Notwithstanding the foregoing provisions of this Article
XI, a Participant entitled to a distribution under the Plan may instruct the
Committee, in such form and manner as the Committee may prescribe, to have
all or a portion of the amount of such distribution transferred directly from
the Trust Fund to a tax-qualified plan of another employer, an individual
retirement account or an individual retirement annuity.
ARTICLE XII
INVESTMENT OF FUNDS
-------------------
12.1 The Company each pay period will transfer over to the
Trustee contributions made to the Plan to be held in trust and invested as
provided herein and in the Trust Agreement.
12.2 The Trust Fund will be invested in the Investment Funds
set forth in Appendix A.
12.3 Matching Contributions will be invested in the Stock Fund,
as described in Appendix A. Each Participant will designate the proportion
of his Before-tax Contributions and After-tax Contributions (expressed as a
percentage in multiples of 1%), his rollover contributions under Section 7.1,
and amounts transferred to the Plan pursuant to Sections 2.4 or 7.2, as
applicable, to be invested in each Investment Fund. Such designation may be
changed at any time by giving advance written notice to the Committee, in
such form and manner as the Committee may prescribe, except that the change
shall apply only to the Participant's future contributions. If no
designation is made, the Participant's Accounts shall be invested in
accordance with the provisions in Appendix A. By giving advance written
notice to the Committee, in such form and manner as the Committee may
prescribe, a Participant may also transfer the amount equivalent to his
interest or any partial interest from one Investment Fund to the other, as
limited by the terms and conditions of the various Investment Funds. The
rights of a Participant to transfer among Investment Funds are subject to the
restrictions set forth in Appendix A.
12.4 Each Participant shall have an interest in each Investment
Fund in which he has elected to have invested all or any part of his Before-
tax and After-tax Contributions under Section 3.1, his Matching Contributions
under Section 5.1, his rollover contributions under Section 7.1 and
transferred amounts under Section 7.2. His interest at any time in the
Investment Funds shall be equal to the sum of such contributions and
transferred amounts, adjusted from time to time to reflect his proportionate
share of the income and losses realized by such Investment Funds and of the
net appreciation or depreciation in the value of such Investment Funds.
12.5 As of each Valuation Date, the Committee shall ascertain
from the Trustee the value of each Investment Fund and shall on such basis
determine the value of the interests of Participants. Each Participant will
be furnished a statement of his Accounts at least annually.
ARTICLE XIII
LOANS
-----
13.1 Upon advance written application to the Committee, in such
form and manner as the Committee may prescribe, a Participant shall be
permitted to borrow from his Accounts in accordance with criteria established
by the Committee on a uniform and nondiscriminatory basis. A Participant
shall be permitted to have no more than one loan outstanding at one time;
provided, that effective February 1, 1994, a Participant shall be permitted
to have no more than two loans outstanding at one time; and provided further
that the Committee in its discretion may charge the Participant, on a uniform
and nondiscriminatory basis, reasonable administrative fees for a loan. Any
such loan(s) shall be evidenced by a promissory note. A Participant may
obtain a first loan for any reason. The Participant may obtain a second
loan, if needed, only for one or more of the following reasons: purchase of
a principal residence, post-secondary education for the Participant or his
dependents, unreimbursed medical expenses, or to avoid foreclosure or
eviction from the Participant's principal residence.
13.2 The minimum amount that a Participant shall be permitted
to borrow is $1,000. The maximum amount that a Participant shall be
permitted to borrow under this Plan is the lesser of (i) 50% of the aggregate
of such Participant's Before-tax Contributions and related earnings and the
amount credited to his Rollover Account and Transfer Account (reduced by the
balance of any amounts which remain outstanding under a Plan loan); or (ii)
$50,000, reduced by the excess, if any, of the highest outstanding balance of
any prior Plan loan(s) during the twelve-month period ending on the day
before the date the Plan loan is made over the outstanding balance of the
Plan loan on the date the loan is made.
13.3 Each loan shall be repaid by the Participant through equal
payroll deductions, on a level amortization basis, commencing with the date
of the loan, over a period of at least 12 and not more than 60 months.
Interest on loans shall be charged at a reasonable rate, as determined by the
Company, and shall be commensurate with the prevailing interest rate being
charged for similarly secured loans by entities in the business of lending
money. Such rate will remain fixed for the term of the loan. A Participant
may prepay the entire balance of his loan at any time without penalty.
13.4 The amount of the loan shall be drawn from the Investment
Funds in which the Participant's Participant Account, Rollover Account or
Transfer Account are invested, in the same manner as withdrawals (as
described in Section A.5 of Appendix A). The Participant's Accounts shall be
reduced by the amount of the loan and a Loan Account shall be established in
the Participant's name and in such amount at the time the loan is granted.
The Loan Account shall represent the Participant's outstanding loan balance.
As the loan is repaid, the Participant's Loan Account shall be reduced by the
principal repaid, the principal and interest shall be restored on a pro rata
basis to the Participant's Accounts from which the loan was made and the
payment will be allocated to the Investment Funds currently being used by the
Participant.
13.5 If a loan is in default, the Company shall liquidate all
or any portion of the Participant's Loan Account balance as necessary to
discharge the Participant's obligation under the loan agreement before any
amounts are paid to or on behalf of such Participant. In no event shall such
liquidation occur prior to the time the Participant is entitled to a
distribution under Article XI. The following events will be considered a
default:
(1) death or Total Disability of the Participant;
(2) termination of the Plan;
(3) retirement or other termination of employment by the
Participant and
(4) failure to make any required payment of loan
principal and interest for 60 days.
13.6 All loans granted under this Article XIII shall be granted
in a uniform and nondiscriminatory manner.
13.7 The Company may amend the terms of, or discontinue, the
loan program as it deems appropriate. The Company may also restrict or
suspend the making of loans if it determines that the program is having
adverse effects on Plan investment earnings or on Participants in general.
ARTICLE XIV
ADMINISTRATION
--------------
14.1 The Company shall be the Plan Administrator and "named
fiduciary," within the meaning of ERISA section 402(a), responsible for the
administration and day-to-day operation of the Plan.
14.2 The Committee shall establish uniform rules and procedures
for the proper administration of the Plan. It shall interpret the Plan in a
uniform and non-discriminatory manner, and its determinations shall be
conclusive and binding upon the Participants.
14.3 The Board of Directors shall appoint no less than three
members of the Committee who are officers of the Company. The Committee
shall elect a chairman from among its members and a secretary who may, but
need not, be a member of the Committee. Members of the Committee shall serve
as such without compensation but the proper expenses of the Committee,
including the compensation of its duly appointed agents, shall be paid by the
Company. All expenses attributable to the administration of the Plan and the
expenses of the Trustee shall be paid out of the Trust Fund except to the
extent paid by the Employer.
14.4 The Company, the Board of Directors and the Committee
shall have the power to assign or delegate any of its respective
responsibilities to subcommittees, members of the Committee or other agents
and may designate one or more subcommittees or other persons to carry out any
of its responsibilities.
14.5 The Company and the Committee may employ such agents and
such clerical and other services as it may deem advisable in carrying out the
provisions of the Plan, and may consult with counsel, who may be counsel for
the Company.
14.6 Any person who believes that he is entitled to benefits
under the Plan may file a claim for such benefits. The Committee may require
claims for benefits to be filed in writing, on such forms and containing such
information as it may deem necessary. Adequate notice shall be provided in
writing to any person whose claim for benefits under the Plan has been wholly
or partially denied. Such notice shall set forth the specific reason for
such denial and specific reference to the pertinent Plan provisions on which
the denial is based. Such notice shall be written in a manner calculated to
be understood by the claimant and shall afford reasonable opportunity to the
claimant whose claim for benefits has been denied for a full and fair review
by the Committee of the decision denying the claim.
ARTICLE XV
TRUSTEE
-------
15.1 All assets of the Plan shall be held pursuant to a Trust
Agreement between a Trustee, designated by the Board of Directors, and the
Company. The Trust Agreement shall provide, among other things, for a Trust
Fund, to be administered by the Trustee, to which all contributions shall be
paid, and the Trustee shall have such rights, powers and duties as shall be
set forth therein. All assets of the Trust Fund shall be held, invested and
reinvested in accordance with the provisions of the Trust Agreement.
15.2 At no time prior to the satisfaction of all liabilities
with respect to Participants and their Beneficiaries shall any part of the
assets of the Plan be used for or diverted to purposes other than for the
exclusive benefit of such persons; provided, however, Employer contributions
may be returned to the Employer (a) within one year after the payment of a
contribution, if made by the Employer by reason of a mistake of fact, or
(b) within one year of the disallowance of a deduction, to the extent a
deduction is disallowed, if a contribution is conditioned upon its
deductibility under Code section 404(a).
15.3 Pursuant to the terms of the Trust Agreement, the Board of
Directors may appoint one or more Investment Managers (individuals and/or
other entities), who may include the Trustee, to direct the investment and
reinvestment of part or all of the Trust Fund, and the Board of Directors may
change the appointment of the Investment Manager from time to time.
15.4 All disbursements by the Trustee, except for the ordinary
expenses of the administration of the Trust Fund, and settlement of duly
authorized investment transactions for the account of the Trust Fund, shall
be made upon the written instructions of the Company.
15.5 The Company shall furnish the Trustee and the Participants
(or Beneficiaries) with notices and information statements when voting rights
with respect to Company stock are to be exercised, in such time and manner as
may be required by applicable law and the certificate of incorporation and
by-laws of the Company. Such statement shall be substantially the same for
Participant's as for holders of such stock in general. The Trustee shall
vote Company stock credited to a Participant's Account under the Stock Fund
(as described in Appendix A) in accordance with the instructions of the
Participant. If the Trustee shall not receive instructions from a
Participant (or Beneficiary), the Trustee shall vote such Company stock
proportionately in the same manner as it votes Company stock with respect to
which it has received voting instructions.
15.6 The Trustee shall respond to a tender or exchange offer
with respect to Company stock credited to a Participant's Accounts under the
Stock Fund (as described in Appendix A) as instructed by the Participant.
The Company shall notify each Participant (or Beneficiary) and utilize its
best efforts to distribute or cause to be distributed to him in a timely
fashion such information as will be distributed to shareholders of such
Company stock in connection with any such tender or exchange offer, together
with a form requesting confidential instruction to the Trustee as to the
manner in which to respond to the tender or exchange offer. If the Trustee
shall not receive instructions from a Participant (or Beneficiary) regarding
any such tender or exchange offer, the Trustee shall not tender or exchange
such Company stock.
ARTICLE XVI
TERMINATION AND AMENDMENT
-------------------------
16.1 The Company expects to continue the Plan indefinitely, but
the continuance of the Plan and the payment of contributions are not assumed
as contractual obligations.
16.2 The Plan may be terminated at any time by the Board of
Directors. If the Plan shall be terminated, the Trustee shall continue to
hold, invest and administer the Trust Fund in accordance with the provisions
of the Trust Agreement and shall make distributions therefrom in accordance
with the provisions of the Plan, as then in effect, pursuant to instructions
filed with the Trustee by the Company upon such termination or from time to
time thereafter. Upon a complete discontinuance of contributions, or upon
termination or partial termination of the Plan, each affected Participant or
Beneficiary shall continue to have a nonforfeitable interest in his Accounts
in the Plan.
16.3 The Plan may be amended at any time and from time to time,
including retroactively, by action of the Board of Directors; provided,
however, that no amendment shall reduce the vested percentage of a
Participant's accrued benefit derived from Employer contributions below the
vested percentage thereof on the date such amendment is adopted or becomes
effective, whichever is later; and provided further, that no amendment shall
decrease the accrued benefit of a Participant. In the event that the vesting
provisions are amended, a Participant with at least 3 Years of Service shall
have the right to elect, within a specified period, to have his nonforfeit-
able percentage computed under this Plan without regard to such amendment.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 Participation in the Plan shall have no effect upon the
employment status of any Employee.
17.2 All benefits payable under the Plan shall be paid solely
from the Trust Fund, and the Company assumes no liability or responsibility
with respect to such payments.
17.3 In the event of any merger or consolidation of the Plan
with, or transfer of any assets or liabilities of the Plan to, any other
plan, each Participant shall be entitled to receive a benefit immediately
after such merger, consolidation, or transfer (computed as if such other plan
had then terminated) which is equal to or greater than the benefit he would
have been entitled to receive immediately before such merger, consolidation,
or transfer (computed as if the Plan had then terminated).
17.4 Except as otherwise provided by law or the issuance of a
"qualified domestic relations order" (within the meaning of Code section
414(p)), no person shall have the right to assign, alienate, transfer,
hypothecate or otherwise subject to lien his interest in or his benefit under
the Plan, nor shall benefits under the Plan be subject to the claims of any
creditor. Any other provision of the Plan to the contrary notwithstanding,
if a qualified domestic relations order requires the distribution of all or
part of an Employee's benefits under the Plan, the establishment or
acknowledgment of the alternate payee's right to benefits under the Plan in
accordance with the terms of such qualified domestic relations order shall in
all events be deemed to be consistent with the terms of the Plan.
17.5 The Company, the Board of Directors, the Committee
(including any subcommittees, individual members and the secretary thereof),
the Trustee, and any person who is deemed to be a fiduciary under the Plan,
shall not be liable for a breach of fiduciary responsibility of another
fiduciary under the Plan except to the extent (a) it shall have participated
knowingly in, or knowingly undertaken to conceal, an act or omission of such
fiduciary, knowing such act or omission was a breach of such fiduciary's
responsibilities, (b) it shall have, through a breach of its fiduciary
responsibilities, enabled such fiduciary to commit a breach of its fiduciary
responsibilities, or (c) it shall have knowledge of a breach of fiduciary
responsibilities by such fiduciary, unless it has made reasonable efforts to
remedy the breach.
17.6 The Company, the Board of Directors, and the Committee
(including any subcommittees, individual members and the secretary thereof)
shall not be liable for the acts or omissions of (a) any person or persons to
whom any authority, power or responsibility has been allocated pursuant to
Section 14.4 or (b) any person or persons who have been designated to carry
out any such authority, power or responsibility pursuant to Section 14.4
except to the extent (i) it shall have violated its fiduciary
responsibilities with respect to (A) such allocation or designation, (B) the
establishment or implementation of the allocation or designation procedures
of Section 14.4 or (C) the continuation of any such allocation or
designation, or (ii) it would otherwise be liable under Section 17.5.
17.7 If the Committee determines that any person to whom a
payment is due hereunder is incompetent by reason of physical or mental
disability, the Committee shall have the power to cause the payments becoming
due to such person to be made to another for the benefit of the incompetent,
without responsibility of the Committee or the Trustee to see to the
application of such payment. Payments made pursuant to such power shall
operate as a complete discharge of the Committee, the Trustee and the Trust
Fund.
17.8 The Plan shall be construed and enforced in accordance
with the laws of the State of New York, except to the extent preempted by the
laws of the United States.
ARTICLE XVIII
TOP HEAVY PROVISIONS
--------------------
The provisions of this Article XVIII shall become
applicable only under the circumstances described thereunder.
18.1 For purposes of this Article XVIII, the Plan shall be "top
heavy" if, as of the determination date (the last day of such year), the
Year or, in the case of the first Plan Year, the last day of such year), the
present value of the cumulative account balances for "key employees," as
defined in Code section 416(i)(1), under the Plan and all other plans in the
"aggregation group," as defined in Code section 416(g)(2)(A), exceeds 60% of
the present value of the cumulative account balances under all such plans for
all Employees determined as of the applicable "valuation date." For purposes
of this Article XVIII, "valuation date" shall mean the most recent Valuation
Date within a 12-month period ending on the determination date. The present
value of such account balances shall be computed in accordance with Code
section 416(g), and the above percentage ratio shall be determined by a
fraction, the numerator of which is the sum of the present value of the
account balances of key employees under the Plan and all other plans in the
aggregation group, and the denominator of which is the sum of the present
value of the account balances under all such plans, including the Plan, for
all Employees. If an individual has not performed any service for the
Employer at any time during the five-year period ending on a determination
date, any accrued benefit of such individual shall not be taken into account.
18.2 The following provisions shall be applicable to members
only for any Plan Year with respect to which the Plan is top heavy:
(a) Notwithstanding Article V, the Employer shall make
a special contribution on behalf of each non-key employee who has satisfied
the eligibility requirements of the Plan, whether or not a Participant in the
Plan and who is in service at the end of the Plan Year, with respect to such
Plan Year in an amount which equals the lesser of (i) 3% of his compensation
(as defined in Code section 414(s), or, to the extent required by the Code
and Treasury Regulations section 1.415-2(d)) or (ii) the highest percentage
of compensation provided under the Plan for any key employee for such Plan
Year. A non-key employee is an employee who is not a key employee, including
employees who are former key employees. Any such special Employer
contribution shall be credited to such Participant's Company Account.
Notwithstanding the foregoing provisions of this Section 18.2(a), if a
Participant in the Plan is also a participant in any defined benefit plan of
the Employer, then for each Plan Year with respect to which the Plan is top
heavy, such Participant's accrual of a minimum benefit under such defined
benefit plan in accordance with Code section 416(c)(1) shall be deemed to
satisfy the special Employer contribution requirement of this Section
18.2(a). Employer contributions resulting from Before-tax Contributions or
Matching Contributions shall not be counted towards meeting the minimum
required allocations under this Section.
(b) Notwithstanding the provisions of Section 8.1, if
during any Plan Year an Employee participates in both a defined contribution
plan and a defined benefit plan maintained by the Company which comprise a
"top heavy group," as defined in Code section 416(g)(2)(B), the denominators
of the defined benefit plan fraction and the defined contribution plan
fraction, as described in Section 8.1(d), shall be calculated by substituting
"1.0" for "1.25" each place it appears in such Section; provided, however,
that this Section 18.2(b) shall not apply with respect to a plan in the top
heavy group if (i) such plan would satisfy the requirements of Code section
416(h)(2)(A) and (ii) the aggregate accrued benefits and cumulative account
balances of key employees under all plans in the top heavy group do not
exceed 90% of the aggregate accrued benefits and cumulative account balances
under all such plans for all Employees.
<PAGE>
APPENDIX A
INVESTMENT FUNDS
----------------
This Appendix A shall be incorporated in, and be deemed
an integral part of, the Plan. Terms used in this Appendix A shall have the
same meanings as ascribed in the Plan document, unless the context otherwise
clearly requires.
A.1 The Accounts of a Participant shall be invested in
one or more of the following Investment Funds, in accordance with the
election of the Participant pursuant to Section 12.3 of the Plan:
Niagara Mohawk Power Corporation Stock Fund (Stock
Fund) - invested in common stock of Niagara Mohawk
Power Corporation. The Fund's investment income,
net of investment expense, shall automatically be
reinvested in the Fund.
Fidelity Retirement Government Money Market
Portfolio - invested primarily in high quality
money market instruments of U.S. and foreign
issuers, short-term corporate and U.S. government
bonds and certificates of deposit (CDs) with the
objective of preserving capital while providing a
high level of income. The Fund's investment
income, net of investment expense, shall
automatically be reinvested in the Fund.
Fixed Income Fund - invested primarily in high
quality investment contracts from various
financial institutions (usually insurance
companies) that provide a competitive rate of
return with the objective of protecting against
loss of principal while providing a stable rate of
return. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity U.S. Equity Index Portfolio - invested
primarily in the 500 stocks that make up the
Standard and Poors 500 Index with the objective of
duplicating the composition and total return of
the Index. The Fund's investment income net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity U.S. Bond Index Portfolio - invested
primarily in U.S. government, corporate mortgage
and income securities with the objective of
matching the investment returns of the Lehman
Brothers Aggregate Bond Index and providing a
reasonable rate of return with a moderate amount
of risk. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity Growth and Income Portfolio - invested
primarily in common stock of companies offering
capital appreciation while paying current
dividends with the objective of providing long-
term investment performance and an above-average
rate of return. The Fund's investment income, net
of investment expense, shall automatically be
reinvested in the Fund.
Fidelity Growth Company Fund - an aggressive, high
risk fund invested primarily in common stock of
companies with potential for above average growth
with the objective of maximizing long-term capital
appreciation to provide significant investment
returns. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity Overseas Fund - an aggressive, high risk
fund invested primarily in foreign securities with
at least 65% of its total assets in securities of
issuers from at least three countries outside
North America with the objective of providing
long-term capital appreciation. The Fund's
investment income, net of investment expense,
shall automatically be reinvested in the Fund.
A.2 Amounts invested in the Fixed Income Fund may not be
transferred into the Government Money Market Portfolio or the U.S. Bond Index
Portfolio ("money-market funds"). However, a Participant may transfer
amounts from the Fixed Income Fund into one of the non-money-market funds
described in Section A.1 for a period of 180 days, after which such amounts
may be transferred into the Government Money Market Portfolio or the U.S.
Bond Index Portfolio. Transfers out of the Fixed Income Fund may be made at
any time with a maximum of six transfers per year.
A.3 Matching Contributions, and related earnings, invested
in the Stock Fund cannot be transferred out of such Fund until the
Participant attains age 53.
A.4 In the event a Participant does not designate specific
Investment Funds, his Accounts will be invested in the Fidelity Retirement
Government Money Market Portfolio.
A.5 In the event a Participant elects to make an in-
service withdrawal in accordance with Article X, the withdrawal shall be made
from the Investment Funds of the Participant's Accounts in the following
order: Fidelity Overseas Funds, Growth Company Fund, Growth and Income
Portfolio, Stock Fund, U.S. Equity Index Portfolio, U.S. Bond Index
Portfolio, Government Money Market Portfolio and, lastly, the Fixed Income
Fund. Amounts paid from Investment Funds will be paid in cash; provided that
the Participant may elect to receive in stock all of his Accounts invested in
the Stock Fund by giving at least 30 days' advance written notice to the
Committee, in such form and manner as the Committee may prescribe.
<PAGE>
APPENDIX B
EFFECTIVE DATES OF PLAN PROVISIONS
----------------------------------
The Plan as set forth herein, constitutes a restatement of
the Plan effective as of July 1, 1992. Although this restatement is
effective July 1, 1992, the provisions of the Plan relating to compliance
with the Tax Reform Act of 1986, as amended, are effective January 1, 1989.
Amendments effective on or after July 1, 1992 through February 1, 1994 are
effective as stated in the Plan document.
EXHIBIT 99(b)
NIAGARA MOHAWK POWER CORPORATION
NON-REPRESENTED EMPLOYEES'
SAVINGS FUND PLAN
As Amended and Restated Effective as of July 1, 1992
----------------------------------------------------
(Including Amendments Through February 1, 1994)
<PAGE>
TABLE OF CONTENTS
Page
----
Preamble . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE
-------
I. DEFINITIONS . . . . . . . . . . . . . . . . . 2
II. PARTICIPATION . . . . . . . . . . . . . . . . 7
III. PARTICIPANT CONTRIBUTIONS . . . . . . . . . . 9
IV. ACTUAL DEFERRAL PERCENTAGE . . . . . . . . . . 10
V. MATCHING CONTRIBUTIONS . . . . . . . . . . . . 14
VI. AVERAGE CONTRIBUTION PERCENTAGE . . . . . . . 15
VII. ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS . . . 19
VIII. CONTRIBUTION LIMITATIONS . . . . . . . . . . . 23
IX. ACCOUNTS; VESTING . . . . . . . . . . . . . . 25
X. WITHDRAWALS . . . . . . . . . . . . . . . . . 26
XI. DISTRIBUTIONS . . . . . . . . . . . . . . . . 30
XII. INVESTMENT OF FUNDS . . . . . . . . . . . . . 34
XIII. LOANS . . . . . . . . . . . . . . . . . . . . 36
XIV. ADMINISTRATION . . . . . . . . . . . . . . . . 39
XV. TRUSTEE . . . . . . . . . . . . . . . . . . . 40
XVI. TERMINATION AND AMENDMENT . . . . . . . . . . 43
XVII. MISCELLANEOUS . . . . . . . . . . . . . . . . 44
XVIII. TOP HEAVY PROVISIONS . . . . . . . . . . . . . 46
APPENDIX A
APPENDIX B
<PAGE>
NIAGARA MOHAWK POWER CORPORATION
NON-REPRESENTED EMPLOYEES'
SAVINGS FUND PLAN
As Amended and Restated Effective July 1, 1992
Preamble
This Plan was originally established effective January 1, 1965
by the Board of Directors of Niagara Mohawk Power Corporation for the
exclusive benefit of Eligible Employees and their Beneficiaries in order to
provide additional retirement security through a deferred savings and
investment program. The Plan, as amended and restated effective July 1,
1992, is designed as a profit sharing plan which incorporates a cash or
deferred arrangement under section 401(k) of the Internal Revenue Code of
1986, as amended, and Plan provisions are to be interpreted accordingly.
Except as otherwise expressly provided, the provisions of the Plan, as set
forth in this document and as may be amended from time to time, establish the
rights and obligations with respect to Participants on and after July 1, 1992
and transactions under the Plan on and after that date. Rights and
obligations under the Plan with respect to any Employee who terminated
employment with the Employer for any reason prior to July 1, 1992 shall be
determined in accordance with the provisions of the Plan as in effect on the
date of termination.
<PAGE>
ARTICLE I
DEFINITIONS
-----------
The following words and phrases shall have the meanings provided
below, except as otherwise required by the context. As used in the Plan, the
masculine pronoun shall be deemed to include the feminine, and the singular
number shall be deemed to include the plural, unless a different meaning is
clearly indicated by the context.
"Accounts" means a Participant's accounts maintained for
recordkeeping purposes under the Plan, including a Company
Account, Participant Account, Rollover Account, Transfer Account
and Loan Account, as applicable.
"Affiliate" means the Company and any corporation which
is a member of a controlled group of corporations (as defined in
Code section 414(b)) which includes the Company, any trade or
business (whether or not incorporated) which is under common
control (within the meaning of Code section 414(c)) with the
Company, any organization which is part of an affiliated service
group as defined in Code section 414(m), or any entity required
to be aggregated with the Company in accordance with Code
section 414(o) and the regulations thereunder. For purposes of
determining whether a person is an Employee and the period of
employment of such person, each such other company shall be
included as an Affiliate only for such period or periods during
which such other company is a member of the controlled group,
under common control, an affiliated service group or otherwise
required to be so aggregated.
"After-tax Contributions" means a Participant's after-
tax contributions to the Plan pursuant to Section 3.1. After-
tax contributions shall be made by payroll deduction.
"Before-tax Contributions" means a Participant's before-
tax contributions to the Plan pursuant to Section 3.1. Before-
tax contributions shall be made by payroll reduction.
"Beneficiary" means the person designated by the
Participant in accordance with the provisions of Section 11.6 to
receive any benefits payable under the Plan after the death of
the Participant.
"Board of Directors" means the Board of Directors of the
Company.
"Break in Service" means a 12 consecutive-month period
during which a Participant has not completed more than 500 Hours
of Service.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means the committee for the Plan appointed
by the Board of Directors pursuant to Section 14.3 and shall
include agents and delegates of the committee whenever
applicable.
"Company" means Niagara Mohawk Power Corporation, or any
successor corporation.
"Company Account" means the separate account maintained
for each Participant to which Matching Contributions and related
earnings are credited under Section 9.1.
"Compensation" means the basic annual wages and salary
(not in excess of the statutory dollar limitation under Code
section 401(a)(17), as may be adjusted by the Secretary of the
Treasury) of an Employee from the Employer (other than overtime,
commissions, bonuses, moving allowances or other extra or
additional compensation from the Employer), unreduced by the
Employee's Before-tax Contributions or contributions to a plan
of the Employer qualifying under Code section 125, but excluding
other contributions to this Plan or contributions to other
employee benefit plans of the Employer. For purposes of
applying the dollar limitation on Compensation, the rules of
Code section 414(q)(6) shall apply, except that in applying such
rules, the term "family" shall include only the spouse of the
Employee and lineal descendants of the Employee who have not
attained age 19 before the close of the year. The dollar
limitation, as adjusted, will be allocated among the members of
the family unit in proportion to each such member's
Compensation.
"Effective Date" means July 1, 1992, the date of the
amendment and restatement of the Plan.
"Eligible Employee" means each Employee eligible to
participate in the Plan in accordance with Section 2.1.
"Employee" means any employee of the Employer, other
than an employee covered by a collective bargaining agreement
with the Employer, unless such collective bargaining agreement
expressly provides for coverage under the Plan.
"Employer" means the Company and any Affiliate which
participates in the Plan with the approval of the Board of
Directors.
"ERISA" means the Employee Retirement Income Security
Act of 1934, as amended from time to time.
"Highly Compensated Employee" means an Employee within
the meaning of Code section 414(q).
"Hour of Service" means (1) each hour for which an
Employee is directly or indirectly compensated or entitled to
compensation by the Employer for the performance of duties
during the applicable computation period; (2) each hour for
which an Employee is directly or indirectly compensated or
entitled to compensation by the Employer on account of a period
of time during which no duties are performed (such as vacation,
holidays, sickness, disability, layoff, jury duty, military duty
or leave of absence) during the applicable computation period;
(3) each hour for which back pay is awarded or agreed to by the
Employer without regard to mitigation. The same Hours of
Service shall not be credited both under (1) or (2), as the case
may be, and (3).
Notwithstanding (2) above, (i) no more than 501 Hours
of Service will be credited to an Employee on account of any
single continuous period during which the Employee performs no
duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account
of a period during which no duties are performed is not required
to be credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying with
applicable worker's compensation, or unemployment compensation
or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an
Employee for medical or medically related expenses incurred by
the Employee.
Solely for purposes of determining whether a Year of
Service for purposes of Sections 2.1 and 5.1 has been completed
in a computation period, an Employee who is absent from work for
maternity or paternity reasons shall receive credit for the
Hours of Service which would otherwise have been credited to
such individual but for such absence, or in any case in which
such hours cannot be determined, 8 Hours of Service per day of
such absence; in no case shall more than 501 Hours of Service be
credited for any one such absence. For purposes of this
subsection, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
Employee, (2) by reason of the birth of a child of the Employee,
(3) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement. The Hours of
Service credited under this subsection shall be credited (1) in
the computation period in which the absence begins if the
crediting is necessary to prevent a Break in Service in that
period, or (2) in all other cases, in the following computation
period.
An Employee with respect to whom the Company or an
Affiliate does not maintain records reflecting the number of
hours for which he is paid shall be credited with 45 Hours of
Service for each week or part thereof he is paid or entitled to
be paid by the Company or an Affiliate. The provisions of
Department of Labor regulations section 2530.200b-2(b) and (c)
are incorporated herein by reference.
"Investment Funds" means each of the Investment Funds
provided for in Section 12.2 and set forth in Appendix A.
"Investment Manager" means the individual(s) or other
entity appointed in accordance with Section 15.3 who has
acknowledged in writing that he is a fiduciary with respect to
the Plan and who is:
(a) registered as an investment advisor under the
Investment Advisers Act of 1940;
(b) a bank, as defined in such Act; or
(c) an insurance company qualified to manage, acquire
or dispose of assets of pension plans.
"Loan Account" means a separate account established for
a Participant for the purpose of administering the Participant's
loan.
"Matching Contributions" means the contributions made
to the Plan by the Employer under Section 5.1.
"Participant" means an Employee participating in the
Plan in accordance with Article II.
"Participant Account" means the separate account
maintained for each Participant to which a Participant's Before-
tax Contributions and After-tax Contributions and related
earnings are credited under Section 9.1.
"Plan" means the Niagara Mohawk Power Corporation Non-
Represented Employees' Savings Fund Plan, as amended and
restated in this document (including any Appendix) and as may be
amended from time to time.
"Plan Year" means the calendar year.
"Represented Plan" means the Niagara Mohawk Power
Corporation Represented Employees' Savings Fund Plan (including
any Appendix) as may be amended from time to time.
"Rollover Account" means the separate account
maintained for a Participant to which the Participant's rollover
contributions and related earnings are credited under Section
9.1.
"Service" means a Participant's period of employment
with the Company or any Affiliate.
"Total Disability" means (i) for a Participant who is
covered under the Company's Long-Term Disability Income
Insurance Plan, the Participant's total disability entitling him
to a benefit under such plan; and (ii) for any other
Participant, the total and permanent inability, by reason of
physical or mental infirmity, or both, of a Participant to
perform, without endangering his health, the tasks, functions or
duties assigned to him by the Employer for not less than six
consecutive months; provided that the determination of the
existence or nonexistence of such Participant's Total Disability
shall be made by the Committee pursuant to an examination by a
physician selected or approved by the Committee.
"Transfer Account" means the separate account
maintained for a Participant to which amounts transferred on
behalf of a Participant, and related earnings, are credited
under Section 9.1.
"Trust Agreement" means the agreement between the
Trustee and the Company pursuant to which the Trust Fund is
established and maintained, as provided in Article XV.
"Trust Fund" means the trust under the Plan established
pursuant to the Trust Agreement, as provided for in Article XV.
"Trustee" means the trustee under the Trust Agreement.
"Valuation Date" means any applicable business day.
"Year of Service" means a 12 consecutive-month period
(commencing on the date as of which an individual first becomes
an Employee) during which the Employee has completed at least
1,000 Hours of Service; provided that, if an Employee does not
complete 1,000 Hours of Service during such 12-month period, a
Year of Service means the first Plan Year, beginning with the
Plan Year immediately following the date he first becomes an
Employee, during which he completes at least 1,000 Hours of
Service.
ARTICLE II
PARTICIPATION
-------------
2.1 Each Employee on the Effective Date who was a Participant
in the Plan immediately prior to the Effective Date shall continue as a
Participant as of the Effective Date. Subject to Section 2.4, each other
Employee shall become an Eligible Employee as of the first day of the month
following the first full calendar month after he has attained age 21 and
completed one Year of Service; provided that, effective January 1,
1993, an Employee shall become an Eligible Employee as of the first day of
the month following the first full calendar month after his attainment of age
21 and completion of a month of Service, without regard to completing a Year
of Service.
2.2 Participation in the Plan is purely voluntary. Prior to
the time an Employee first becomes an Eligible Employee, he will be provided
with a written application for membership and an explanation of the Plan.
Each Eligible Employee on or after the Effective Date shall become a
Participant as soon as administratively feasible after his completed
application, in such form and manner as the Committee may prescribe, is
received by the Committee. Once an Employee becomes an Eligible Employee, he
will continue to be an Eligible Employee until he ceases to be an Employee.
Notwithstanding the foregoing, an Employee shall become a Participant if he
makes a rollover contribution to the Plan in accordance with Section 7.1 or
effects a direct plan-to-plan transfer in accordance with Section 7.2 before
becoming an Eligible Employee in accordance with Section 2.1.
2.3 A Participant shall continue as such until his Accounts are
completely distributed under the Plan or transferred to the Represented Plan
pursuant to Section 2.4. Any interest in the Investment Funds of a
Participant who retires or otherwise terminates employment with the Employer
shall be allowed to remain in the Trust Fund, subject to Article XI.
2.4 The Accounts of a Participant who becomes represented by a
collective bargaining agreement with the Employer shall be transferred to the
Represented Plan as soon as administratively feasible. If a participant in
the Represented Plan becomes an Eligible Employee, his accounts under the
Represented Plan shall be transferred to corresponding Accounts under this
Plan and he shall become a Participant in the Plan as of the date of such
transfer and shall be eligible to make contributions to the Plan in
accordance with Article III as soon as administratively feasible following
receipt by the Committee of his completed application for membership in
accordance with Section 2.2.
2.5 If an Eligible Employee terminates employment with the
Employer and is reemployed by the Employer, he shall be an Eligible Employee
as of his date of reemployment, and shall participate in the Plan as soon as
administratively feasible after applying for membership in accordance with
Section 2.2.
ARTICLE III
PARTICIPANT CONTRIBUTIONS
-------------------------
3.1 Subject to Section 3.4 and Articles IV, VI, and VIII, a
Participant may elect to make (i) Before-tax Contributions in an amount
ranging from 2% to 15% (in whole percentages) of his Compensation for the
Plan Year; (ii) After-tax Contributions in an amount ranging from 2% to 10%
(in whole percentages) of his Compensation for the Plan Year; or (iii) a
combination of Before-tax Contributions and After-tax Contributions (in whole
percentages), not to exceed in the aggregate 15% of his Compensation for the
Plan Year (provided that After-tax Contributions in the aggregate shall not
exceed 10% of his Compensation for the Plan Year).
3.2 The Employer shall contribute, or have contributed, to the
Plan the amount of a Participant's Before-tax Contributions and After-tax
Contributions elected pursuant to Section 3.1. All such contributions,
together with any related earnings, shall be credited to the Participant's
Participant Account.
3.3 A Participant may discontinue or change the rate of his
Before-tax Contributions or After-tax Contributions, or both, as of any
payroll period by providing at least 30 days' advance written notice to the
Committee, in such form and manner as the Committee may prescribe.
3.4 Notwithstanding the provisions of Article IV, the maximum
amount of Before-tax Contributions credited to the Participant Account on
behalf of a Participant in any calendar year may not exceed $9,240 (as may be
adjusted by the Secretary of the Treasury) and any Before-tax Contributions
made to the Participant Account in excess of such amount, plus any related
earnings on such excess amount, shall be distributed to the Participant no
later than April 15 following the close of the
calendar year in which such excess Before-tax Contributions are made.
ARTICLE IV
ACTUAL DEFERRAL PERCENTAGE
--------------------------
4.1 (a) If the actual deferral percentage (as defined in
paragraph (c) below) of Compensation for Participants who are Highly
Compensated Employees is more than the amount permitted under the deferral
limitations set forth in paragraph (b) below, there shall be a reduction in
the portion of the Before-tax Contributions credited to the Participant
Accounts of those Participants who are Highly Compensated Employees and who
elected to contribute at the highest Before-tax Contribution percentage rate,
such that the deferral limitations are satisfied. The Employer shall
distribute to such Participants any excess Before-tax Contributions, and any
related earnings, no later than 2 1/2 months following the Plan Year in which
such excess Before-tax Contributions are made. Excess Before-tax
Contributions shall be treated as annual additions for purposes of Section
8.1. In addition, if the Employer determines that Before-tax Contributions
would be in excess of the deferral limitations set forth in paragraph (b)
below, the Employer may in its sole discretion suspend, in whole or in part,
Before-tax Contributions to the Plan made on behalf of Participants who are
Highly Compensated Employees (in which case the amounts which would
ordinarily be deferred in a payroll period shall be paid directly to such
Participants).
(b) The actual deferral percentage for any Plan Year
beginning on or after the Effective Date of all Eligible Employees who are
Highly Compensated Employees shall not exceed, alternatively: (A) 125% of
the actual deferral percentage for all Eligible Employees who are not Highly
Compensated Employees; or (B) 200% of the actual deferral percentage for
Eligible Employees who are not Highly Compensated Employees, provided that
the actual deferral percentage for all Eligible Employees who are Highly
Compensated Employees does not exceed the actual deferral percentage for all
other Eligible Employees by more than 2%, or such other amount that the
Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 4.1, the actual
deferral percentage for a specified group of Participants for a Plan Year
shall be the average of the ratios, calculated separately for each Eligible
Employee in such group, of (i) the amount of Before-tax Contributions to the
Participant Account and Matching Contributions to the Company Account (to the
extent taken into account for purposes of the actual deferral percentage
test) made on behalf of each Eligible Employee for such Plan Year to (ii) the
Eligible Employee's Compensation for such Plan Year. However, for purposes
of determining the actual deferral percentage for a Plan Year of one of the
ten most highly-paid Highly Compensated Employees, the Before-tax
Contributions (and Matching Contributions, if treated as Before-tax
Contributions for purposes of the actual deferral percentage test) and
Compensation of such Highly Compensated Employee shall include the Before-tax
Contributions (and Matching Contributions, if treated as Before-tax
Contributions for purposes of the actual deferral percentage test) and
Compensation for the Plan Year of "family members" (as defined in Code
section 414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in
determining the actual deferral percentage both for Eligible Employees who
are not Highly Compensated Employees and for Eligible Employees who are
Highly Compensated Employees. In addition, for purposes of determining the
actual deferral percentage test, Before-tax Contributions and Matching
Contributions must be made before the last day of the 12-month period
immediately following the Plan Year to which contributions relate.
(d) The Employer may, to the extent permitted under
Treasury Regulations section 1.401(k)-1(f)(3), recharacterize as After-tax
Contributions for such Plan Year all or a portion of the Before-tax
Contributions for Participants who are Highly Compensated Employees to the
extent necessary to comply with the limitations set forth in paragraph (b)
above. The amount of excess Before-tax Contributions to be recharacterized
or distributed with respect to a Participant for the Plan Year shall be
reduced by any excess deferrals previously distributed to such Participant
under Section 3.4 for the Participant's taxable year ending with or within
such Plan Year.
(e) The actual deferral percentage for any Participant
who is a Highly Compensated Employee in the Plan Year who is eligible to have
Before-tax Contributions made on his behalf under two or more arrangements
described in Code section 401(k) that are maintained by the Employer shall be
determined as if such Before-tax Contributions were made under a single
arrangement.
(f) If a reduction in the amount of Before-tax
Contributions on behalf of a Participant is required because of the
application of paragraph (a) above, the reduction shall be treated as taxable
earnings to the Participant for the pay period in which the reduction occurs,
and the Employer shall withhold any taxes required by law on such taxable
earnings.
(g) If a distribution of excess Before-tax Con-
tributions (and related earnings) is required because of the application of
paragraph (a) above, the Employer shall withhold any taxes required by law on
such distribution.
(h) In the event the Employer is required to reduce the
Before-tax Contributions made on behalf of a Participant as a result of the
application of the provisions of paragraph (a) above, the Matching
Contributions under Section 5.1 made on behalf of the Participant for the
remainder of the Plan Year shall be applied to the reduced amount of Before-
tax Contributions.
ARTICLE V
MATCHING CONTRIBUTIONS
----------------------
5.1 Subject to the provisions of Articles VI and VII, the
Employer shall contribute to the Plan on behalf of each Participant an amount
equal to 50% of such Participant's Before-tax Contributions, After-tax
Contributions, or both, made pursuant to Section 3.1; provided that,
effective January 1, 1993, the Employer shall make such Matching
Contributions on behalf of only those Participants who have completed a Year
of Service; and provided further that the amount of Matching Contributions
made on behalf of a Participant for any Plan Year shall not exceed 2% of his
Compensation for the Plan Year (2.5% of such Compensation if he has completed
10 Years of Service or has attained age 40 with at least 6 Years of Service;
3% of such Compensation if he has completed 15 Years of Service or has
attained age 45 with at least 11 Years of Service). Such Matching
Contributions and related earnings shall be credited to the Participant's
Company Account.
ARTICLE VI
AVERAGE CONTRIBUTION PERCENTAGE
-------------------------------
6.1 (a) If the contribution percentage (as defined in
paragraph (c) below) of Compensation for Participants who are Highly
Compensated Employees is more than the amount permitted under the special
limitations set forth in paragraph (b) below, there shall be a reduction in
the After-tax Contributions credited to the Participant Accounts and the
Matching Contributions credited to the Company Accounts of those Participants
who are Highly Compensated Employees on the basis of the respective portions
of such amounts attributable to each such Participant so that such special
limitations are satisfied. Any excess After-tax Contributions or Matching
Contributions made to the Plan, plus any related earnings, shall be
distributed to such Participants no later than 2 1/2 months following the
Plan Year in which such excess After-tax Contributions or Matching
Contributions are made. Excess After-tax Contributions shall be treated as
annual additions for purpose of Section 8.1. In addition, if the Employer
determines that After-tax Contributions or Matching Contributions would be in
excess of the special limitations set forth in paragraph (b) below, the
Employer may, in its sole discretion, suspend, in whole or in part, After-tax
Contributions or Before-tax Contributions to the Plan made on behalf of
Participants who are Highly Compensated Employees and, therefore, related
Matching Contributions with respect to such Participants (in which case the
Before-tax Contributions that would ordinarily be contributed to the Plan on
such Participants' behalf in a payroll period shall be paid directly to such
Participants).
(b) The contribution percentage for any Plan Year of
all Eligible Employees who are Highly Compensated Employees shall not exceed,
alternatively: (A) 125% of the contribution percentage for all Eligible
Employees who are not Highly Compensated Employees, or (B) 200% of the
contribution percentage for Eligible Employees who are not Highly Compensated
Employees, provided that the contribution percentage for Eligible Employees
who are Highly Compensated Employees does not exceed the contribution
percentage for all other Eligible Employees by more than 2%, or such other
amount that the Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 6.1, the average
contribution percentage for a specified group of Participants for a Plan Year
shall be the average of the ratios, calculated separately for each Eligible
Employee in such group of (i) the amount of After-tax Contributions to the
Participant Account and the amount of Matching Contributions to the Company
Account (to the extent not taken into account for purposes of the actual
deferral percentage test) made on behalf of each Eligible Employee for such
Plan Year to (ii) the Eligible Employee's Compensation for such Plan Year.
However, for purposes of determining the average contribution percentage for
a Plan Year of one of the ten most highly-paid Highly Compensated Employees,
the Matching Contributions (to the extent not taken into account for purposes
of the actual deferral percentage test) and Compensation of such Highly
Compensated Employee shall include the Matching Contributions (to the extent
not taken into account for purposes of the actual deferral percentage test)
and Compensation for the Plan Year of "family members" (as defined in Code
section 414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees in
determining the average contribution percentage both for Eligible Employees
who are not Highly Compensated Employees and for Eligible Employees who are
Highly Compensated Employees. In addition, for purposes of determining the
contribution percentage test, Matching Contributions will be considered made
for a Plan Year if made before the last day of 12-month period immediately
following the Plan Year to which contributions relate.
(d) The average contribution percentage for any
Participant who is a Highly Compensated Employee in the Plan Year who is
eligible to make After-tax Contributions under two or more arrangements
described in Code section 401(m) that are maintained by the Employer shall be
determined as if such After-tax Contributions were made under a single
arrangement.
(e) If a reduction in the amount of After-tax
Contributions or Before-tax Contributions on behalf of a Participant is
required because of the application of paragraph (a) above, the reduction
shall be treated as taxable earnings to the Participant for the pay period in
which the reduction occurs, and the Employer shall withhold any taxes
required by law on such taxable earnings.
(f) If a distribution of excess Matching Contributions
(and related earnings) is required because of the application of (a) above,
the Employer shall withhold any taxes required by law on such distribution.
(g) In the event the Employer is required to reduce the
Before-tax Contributions made on behalf of a Participant as a result of the
application of the provisions of paragraph (a) above, the Matching
Contributions under Section 5.1 made on behalf of the Participant for the
remainder of the Plan Year shall be applied to the reduced amount of Before-
tax Contributions.
6.2 If both the actual deferral percentage and the average
contribution percentage of the Highly Compensated Employees exceeds 1.25
multiplied by the actual deferral percentage and average contribution
percentage of the non-Highly Compensated Employees, multiple use will occur.
In the event of multiple use, if one or more Highly Compensated Employees
participate in a plan(s) subject to both the actual deferral percentage and
average contribution percentage tests and the sum of the two percentages of
those Highly Compensated Employees subject to either or both tests exceeds
the "aggregate limit," then the average contribution percentage of those
Highly Compensated Employees who also participate in a salary deferral
arrangement will be reduced (beginning with the Highly Compensated Employee
whose average contribution percentage is the highest) so that the limit is
not exceeded. For the purposes of this Section, "aggregate limit" shall mean
the sum of (i) 125% of the greater of the actual deferral percentage or the
average contribution percentage for non-Highly Compensated Employees for the
Plan Year and (ii) the lesser of 200% of, or two plus, the smaller of such
actual deferral percentage or average contribution percentage.
ARTICLE VII
ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS
----------------------------------------
7.1 Subject to the provisions of the Plan and to rules of
uniform application to be promulgated by the Committee, and in addition to
any contributions to the Plan made in accordance with Article III, a
Participant may make a contribution to the Plan, in cash, which qualifies as
a "rollover amount", "rollover contribution" or "eligible rollover
distribution" under Code section 401(a)(31), 402(c), 403(a)(4) or 408(d)(3).
A Participant who wishes to make such a contribution shall timely file with
the Committee, in such form and manner as the Committee may prescribe, a
written notice requesting approval for such contribution, affirming that his
contribution qualifies as a rollover amount, rollover contribution or
eligible rollover distribution. Investment of such contribution, as between
or among the Investment Funds, as applicable, shall be as directed by the
Participant in accordance with the provisions of Sections 12.3 and 12.4. The
Committee shall direct the Trustee as to the manner in which the contribution
is to be invested. In addition to the written notice required under this
Section 7.1, the Committee may require such further documentation from the
Participant, or the applicable trustee, plan sponsor, custodian or other
appropriate person, as evidence of the contribution constituting a rollover
amount, rollover contribution or eligible rollover distribution, and until
such written notice and documentary evidence satisfactory to the Committee
have been so provided, the Committee shall not approve such contribution to
the Plan. The Committee shall be fully protected in relying on such written
and documentary evidence presented by or on behalf of the Participant.
Contributions made by the Participant pursuant to this Section 7.1 shall be
credited to the Participant's Rollover Account. An Employee shall be
permitted to make a rollover contribution to the Plan in accordance with this
Section 7.1 before becoming an Eligible Employee in accordance with Section
2.1 and, upon effecting such rollover contribution, shall be considered a
Participant with respect to his Rollover Account.
7.2 Subject to Section 2.4, other applicable provisions of the
Plan and to rules of uniform application to be promulgated by the Committee,
and in addition to contributions to the Plan in accordance with Article III
and Section 7.1, a Participant may have transferred directly to the Plan on
his behalf his accrued benefit in another employee benefit plan qualified
under Code section 401(a), provided such other plan is not required to
provide automatic survivor benefits (such as a defined benefit plan or money
purchase pension plan or the transferee plan of any such plan). A
Participant who wishes to have such amount transferred shall timely file with
the Committee a written notice, in such form and manner as the Committee may
prescribe, requesting approval for such transfer, affirming that the transfer
is from a tax-qualified plan. Such transfer shall be effected directly from
the transferor plan without distribution to the Participant, as soon as
practicable after receipt of such notice by the Committee. Investment of
such transferred amount, as between or among the Investment Funds, as
applicable, shall be as directed by the Participant in accordance with the
provisions of Sections 12.3 and 12.4. In addition to the written notice
required under this Section 7.2, the Committee may require such further
documentation from the Participant, or the applicable trustee, plan sponsor,
custodian or other appropriate person, as evidence of the transfer being from
a plan qualified under Code section 401(a), and until such written notice and
documentary evidence satisfactory to the Committee have been so provided, the
Committee shall not approve such transfer to the Plan. The Committee shall
be fully protected in relying on such written and documentary evidence
presented by or on behalf of the Participant. Transfers made by the
Participant pursuant to this Section 7.2 shall be credited to the
Participant's Transfer Account. An Employee shall be permitted to effect a
transfer to the Plan in accordance with this Section 7.2 before becoming an
Eligible Employee in accordance with Section 2.1 and, upon effecting such
transfer, shall be considered a Participant with respect to his Transfer
Account.
7.3 Upon the occurrence of an event of withdrawal as described
in Article X or distribution as described in
Article XI, and notwithstanding any other provisions of the Plan to the
contrary that would otherwise limit a distributee's election under this
Section, effective January 1, 1993, a distributee may elect, at the time and
in the manner prescribed by the Company, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan specified
by the distributee in a direct rollover. For purposes of this Section 7.3,
the following definitions apply:
"Eligible rollover distribution" is any distribution of all or
any portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not include:
any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the distributee and the
distributee's designated beneficiary, or for a specified period
of ten years or more; any distribution to the extent such
distribution is required under Code section 401(a)(9); and the
portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities).
"Eligible retirement plan" is an individual
retirement account described in Code section
408(a), an individual retirement annuity described
in Code section 408(b), an annuity plan described
in Code section 403(a), or a qualified trust
described in Code section 401(a), that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account
or individual retirement annuity.
"Distributee" includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code section 414(p),
are distributees with regard to the interest of the
spouse or former spouse.
"Direct rollover" is a payment by the Plan to the
eligible retirement plan specified by the
distributee.
ARTICLE VIII
CONTRIBUTION LIMITATIONS
------------------------
8.1 (a) Any provision of the Plan to the contrary
notwithstanding, no contributions or other annual additions to a
Participant's interest in the Trust Fund will be made in any Plan Year in
excess of the lesser of $30,000 or 25% of the Participant's compensation
(within the meaning of Code section 415(c)(3)). The $30,000 amount may be
adjusted by the Secretary of the Treasury.
(b) Any provision of the Plan to the contrary
notwithstanding, in the case of a Participant who is a participant in a
defined benefit plan of the Employer, his maximum annual additions shall not
exceed the amount which will result in a defined contribution plan fraction
which when added to the defined benefit plan fraction of such Participant
will exceed 1.0 for any Plan Year.
(c) For purposes of applying this Section 8.1, all
defined benefit plans of the Company and its Affiliates, and all defined
contribution plans of the Company and its Affiliates, including the Plan,
shall be combined or aggregated and the maximum benefit or annual additions
limitation shall be determined on the basis of a Participant's annual
additions and benefits under all such plans.
(d) For purposes of this Section 8.1, (i) a defined
contribution plan means a plan described in Code section 414(i); (ii) a
defined benefit plan means a plan described in Code section 414(j); however,
in the case of a defined benefit plan which provides a benefit derived from
employer contributions which is based partly on the balance of the separate
account of a participant, such plan shall be treated as a defined
contribution plan to the extent benefits are based on the separate account of
a participant and as a defined benefit plan with respect to the remaining
portion of the benefits under the plan; (iii) the defined benefit plan
fraction for a Participant shall be a fraction the numerator of which is the
lesser of (a) the product of 1.25 multiplied by the dollar limitation in
effect for the plan, or (b) the product of 1.4 multiplied by the amount equal
to 100% of the Participant's average compensation for his high three years
projected annual benefit under the plan, if such plan provided the maximum
benefit allowed by law; (iv) the defined contribution plan fraction for a
Participant shall be a fraction the numerator of which is the sum of the
annual additions to the Participant's accounts under all defined contribution
plans of the Company and its Affiliates (as determined in accordance with
Code section 415(h)) and the denominator of which is the sum of the lesser of
the following amounts for such Plan Year and for each prior Plan Year: (a)
the product of 1.25 multiplied by the dollar limitation in effect for such
Plan Year, or (b) the product of 1.4 multiplied by the 25% of Participant's
compensation (within the meaning of Code section 415(c)(3)); and (v) annual
addition means for any Plan Year (A) Employer contributions, (B) Employee
contributions, (C) forfeitures, if any, (D) amounts allocated to an
individual medical account, as defined in Code section 415(l)(2), which is
part of a pension or annuity plan maintained by the Employer, and (E) amounts
derived from contributions which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as defined in
Code section 419A(d)(3), under a welfare benefit fund, as defined in Code
section 419(e), maintained by the Employer.
ARTICLE IX
ACCOUNTS; VESTING
-----------------
9.1 As appropriate, the Committee shall maintain the following
individual Plan Accounts on behalf of each Participant:
(i) Participant Account, credited separately with Before-
tax Contributions and After-tax Contributions made pursuant to
Section 3.1, and related earnings;
(ii) Company Account, credited with Matching Contributions
made pursuant to Section 5.1, and related earnings;
(iii) Rollover Account, credited with the Participant's
rollover contributions, if any, made pursuant to Section 7.1,
and related earnings;
(iv) Transfer Account, credited with amounts, if any,
transferred directly to the Plan on behalf of the Participant,
pursuant to Section 7.2, and related earnings;
(v) Loan Account, reflecting any loans and loan repayments
made pursuant to Article XIII.
9.2 A Participant's interest in each of his Accounts shall be
fully vested at all times.
9.3 A Participant who forfeited all or a portion of his Company
Account under the prior vesting provisions of the Plan as in effect as of his
date of termination prior to January 1, 1989, and who is reemployed by the
Employer after January 1, 1989, may elect within the earlier of (i) the date
on which occurs the fifth consecutive one-year Break in Service from the date
he received his Plan distribution, or (ii) 5 years from the date of such
reemployment to repay to the Plan an amount equal to the distribution he
received upon his prior termination. Upon such repayment, the amount of such
Participant's Company Account so forfeited shall be restored to his credit by
an additional Employer contribution.
ARTICLE X
WITHDRAWALS
-----------
10.1 A Participant may elect to withdraw all or any portion of
his After-tax Contributions and related earnings credited to his Participant
Account by providing an advance written application to the Committee, in such
form and manner as the Committee may prescribe.
10.2 A Participant may elect to withdraw that portion of the
Matching Contributions and related earnings credited to his Company Account
for at least 24 months by providing an advance written application to the
Committee, in such form and manner as the Committee may prescribe; except
that a Participant who has completed at least 5 years of active Plan
participation may elect to withdraw all or any portion of the Matching
Contributions and related earnings credited to his Company Account by
providing such advance written application to the Committee.
10.3 Upon advance written application to the Committee, in such
form and manner as the Committee may prescribe, a Participant who is an
Employee and has attained age 59 1/2 may make a withdrawal in cash from any
or all of his Accounts; provided that such Participant may elect to receive
in stock all of his Accounts invested in the Stock Fund (as described in
Appendix A).
10.4 (a) Upon at least 30 days' advance written application of
a Participant to the Committee, in such form and manner as the Committee may
prescribe, the Committee shall determine whether the Participant is entitled
to make a hardship withdrawal of Before-tax Contributions credited to his
Participant Account, or of amounts credited to his Rollover Account or
Transfer Account, as applicable, subject to the provisions of this
Section 10.4. A hardship entitling a Participant to make a withdrawal will
exist if the Committee determines that the Participant has an immediate and
heavy financial need. A distribution based upon financial hardship cannot
exceed the amount required to meet the immediate financial need created by
the hardship and not reasonably available from reserves or other resources of
the Participant. The determination of the existence of financial hardship
and the amount required to be distributed to meet the need created by the
hardship shall be made by the Committee in accordance with uniform and
nondiscriminatory standards established by the Committee. In no event may
the amount of such hardship withdrawal exceed the amount necessary to
constitute security for repayment of any outstanding loan made pursuant to
Article XIII.
(b) For purposes of this Section 10.4:
(i) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the
Participant if the distribution is on account of
(1) medical expenses described in Code section 213(d)
incurred by the Participant, his spouse, or any
dependents (as defined in Code section 152(a)) or
necessary for these persons to obtain medical care
described in Code section 213(d); (2) the purchase
(excluding mortgage payments) of a principal residence
for the Participant; (3) the payment of tuition and
related educational fees for the next 12 months of post-
secondary education for the Participant, his spouse, or
any dependents; (4) the need to prevent the eviction of
the Participant from, or the foreclosure on the mortgage
of, the Participant's principal residence; or (5) other
events or conditions as prescribed or permitted by the
Internal Revenue Service through publication of
documents of general applicability;
(ii) In addition to the events described in (b)(i)
above, the Committee may determine on a
nondiscriminatory basis other events or conditions which
establish a Participant's immediate and heavy financial
need;
(iii) A distribution will be deemed necessary to
satisfy an immediate and heavy financial need of a
Participant if (1) the distribution is not in excess of
the amount of the immediate and heavy financial need of
the Participant (such amount may include any amount
necessary to pay any Federal, state or local taxes or
penalties reasonably anticipated to result from the dis-
tribution) and (2) the Participant has obtained all
distributions, other than hardship withdrawals, and all
nontaxable loans available under the Plan and any other
plan maintained by the Employer in which the Participant
participates; and
(iv) A Participant who receives a hardship
withdrawal in accordance with this Section shall have
contributions to his Participant Account suspended for
12 months after receipt of the hardship withdrawal; the
maximum amount of Before-tax Contributions which a
Participant may have credited to his Participant Account
in the tax year following the tax year in which he
receives a hardship withdrawal shall be the applicable
amount described in Section 3.4 for such tax year
reduced by the amount of Before-tax Contributions
credited to his Participant Account in the tax year in
which he receives the hardship withdrawal.
10.5 As soon as administratively feasible after the date as of
which a Participant has elected to make a withdrawal in accordance with this
Article X, the Committee shall direct the Trustee to effect such withdrawal.
The withdrawal shall be made from the Investment Funds in which the
Participant's Accounts are invested in accordance with the provisions of
Appendix A.
10.6 If, because of a withdrawal prior to January 1, 1989, all
or a portion of a Participant's Company Account has been forfeited under the
vesting provisions of the Plan as in effect prior to January 1, 1989, such
Participant may elect, within 5 years from that date, to repay to the Plan
the amount so withdrawn. Upon such repayment the amount of such
Participant's Company Account so forfeited shall be restored to his credit by
an additional Employer contribution.
10.7 Withdrawals under this Article X shall be made in the
following order:
(i) After-tax Contributions made prior to January 1,
1987;
(ii) After-tax Contributions made on or after January 1,
1987 and related earnings;
(iii) Rollover contributions to the Plan from the Niagara
Mohawk Power Corporation Employee Stock Ownership
Plan as in effect prior to May 1, 1989 or from
other plans;
(iv) Matching Contributions and related earnings;
(v) Before-tax Contributions and related earnings after
the attainment of age 59 1/2.
ARTICLE XI
DISTRIBUTIONS
-------------
11.1 The entire interest of a Participant in his Participant
Account, Company Account, Rollover Account and Transfer Account, as
applicable, shall become payable upon any of the following events:
(i) retirement under the Niagara Mohawk Pension Plan;
(ii) Total Disability;
(iii) death;
(iv) other termination of employment with the Employer;
(v) the Participant's attainment of age 59 1/2; or
(vi) financial hardship, but only to the extent provided
under Section 10.4.
11.2 Upon Total Disability, attainment of age 59 1/2 or
termination of employment with the Employer for any reason, a Participant (or
his Beneficiary in the event of death) may elect distribution of his
Accounts, to be made no earlier than the 1st or 15th of the month next
following the date of such event, by providing at least 30 days' advance
written application to the Committee, in such form and manner as the
Committee may prescribe.
11.3 If at termination of employment for any reason the value
of a Participant's Accounts does not exceed $3,500, his Accounts shall be
distributed in a single sum in cash, except that the Participant may elect to
receive in stock all of his Accounts invested in the Stock Fund (as described
in Appendix A). If at termination of employment for any reason the value of
a Participant's Accounts exceeds $3,500 he may elect (i) to receive a single
sum distribution of his Accounts in cash (except that he may also elect to
receive in stock all of his Accounts invested in the Stock Fund); or (ii) to
have his Accounts retained in the Plan, in which case (1) all amounts
credited to his Accounts shall, to the fullest extent practicable, be
transferred to and invested in the Fidelity Retirement Government Money
Market Portfolio (as described in Appendix A) until withdrawal or
distribution, and (2) the Participant may not make a partial withdrawal of
his Accounts. Notwithstanding the foregoing provisions of Section 11.2 or
this Section 11.3, if the value of a Participant's Accounts exceeds $3,500,
(i) distribution shall not be made prior to the Participant's attainment of
age 65 without the written consent of the Participant (or his surviving
spouse); and (ii) in the case of a Participant who retires under the Niagara
Mohawk Pension Plan, and with respect to his benefits accrued as of June 30,
1992 only, the Participant may elect to receive distribution of his Accounts
in quarterly installments over a period not to exceed 10 years.
If a distribution is one to which Code sections
401(a)(11) and 417 do not apply, such distribution may commence less than 30
days after the notice required under Treasury Regulations section 1.411(a)-
11(c) is given, provided that: (1) the Plan Administrator clearly
informs the Participant that the Participant has a right to period of at
least 30 days after receiving the notice to consider the decision of whether
or not to elect a distribution (and, if applicable, a particular distribution
option), and (2) the Participant, after receiving the notice, affirmatively
elects a distribution.
11.4 Except as otherwise required under Sections 11.2 and 11.3,
all payments due under this Article XI shall commence no later than 60 days
following the close of the Plan Year in which the latest of the following
occurs:
(a) the attainment by the Participant of age 65;
(b) the 10th anniversary of the year in which the
Participant commenced participation in the Plan; or
(c) the termination of the Participant's employment
with the Employer.
11.5 Any other provision of the Plan to the contrary
notwithstanding, payment of a benefit under the Plan to a Participant shall
commence no later than the April 1st next following the Plan Year in which
the Participant attains age 70 1/2.
11.6 A Participant may, prior to termination of his employment
with the Employer, designate a Beneficiary to whom distribution of his
interest in the Trust Fund shall be paid in the event of his death prior to
the full receipt of such interest; provided, however, that in the event the
Participant is married on the date of his death, such Beneficiary shall be
deemed to be the Participant's surviving spouse. The Participant may elect
to change or revoke his designated Beneficiary at any time; provided,
however, that in the event prior to such change or revocation such
Beneficiary is the Participant's surviving spouse, such election shall not be
effective unless such surviving spouse provides written consent which
acknowledges the effect of such election and is witnessed by a notary public.
The affirmative designation of any Beneficiary and any elected change or
revocation thereof by a Participant shall be made on forms provided by the
Committee and shall not in any event be effective unless and until filed with
the Committee. If no designated or deemed Beneficiary survives the
Participant, or if an unmarried Participant fails to designate a Beneficiary
under the Plan, the amount payable upon the death of the Participant shall be
paid to his estate.
11.7 Notwithstanding the foregoing provisions of this Article
XI, a Participant entitled to a distribution under the Plan may instruct the
Committee, in such form and manner as the Committee may prescribe, to have
all or a portion of the amount of such distribution transferred directly from
the Trust Fund to a tax-qualified plan of another employer, an individual
retirement account or an individual retirement annuity.
ARTICLE XII
INVESTMENT OF FUNDS
-------------------
12.1 The Company each pay period will transfer over to the
Trustee contributions made to the Plan to be held in trust and invested as
provided herein and in the Trust Agreement.
12.2 The Trust Fund will be invested in the Investment Funds
set forth in Appendix A.
12.3 Matching Contributions will be invested in the Stock Fund,
as described in Appendix A. Each Participant will designate the proportion
of his Before-tax Contributions and After-tax Contributions (expressed as a
percentage in multiples of 1%), his rollover contributions under Section 7.1,
and amounts transferred to the Plan pursuant to Section 2.4 or 7.2, as
applicable, to be invested in each Investment Fund. Such designation may be
changed at any time by giving advance written notice to the Committee, in
such form and manner as the Committee may prescribe, except that the change
shall apply only to the Participant's future contributions. If no
designation is made, the Participants' Accounts shall be invested in
accordance with the provisions in Appendix A. By giving advance written
notice to the Committee, in such form and manner as the Committee may
prescribe, a Participant may also transfer the amount equivalent to his
interest or any partial interest from one Investment Fund to the other, as
limited by the terms and conditions of the various Investment Funds. The
rights of a Participant to transfer among Investment Funds are subject to the
restrictions set forth in Appendix A.
12.4 Each Participant shall have an interest in each Investment
Fund in which he has elected to have invested all or any part of his Before-
tax and After-tax Contributions under Section 3.1, his Matching Contributions
under Section 5.1, his rollover contributions under Section 7.1 and
transferred amounts under Section 7.2. His interest at any time in the
Investment Funds shall be equal to the sum of such contributions and
transferred amounts, adjusted from time to time to reflect his proportionate
share of the income and losses realized by such Investment Funds and of the
net appreciation or depreciation in the value of such Investment Funds.
12.5 As of each Valuation Date, the Committee shall ascertain
from the Trustee the value of each Investment Fund and shall on such basis
determine the value of the interests of Participants. Each Participant will
be furnished a statement of his Accounts at least annually.
ARTICLE XIII
LOANS
-----
13.1 Upon advance written application to the Committee, in such
form and manner as the Committee may prescribe, a Participant shall be
permitted to borrow from his Accounts in accordance with criteria established
by the Committee on a uniform and nondiscriminatory basis. A Participant
shall be permitted to have no more than one loan outstanding at one time;
provided, that effective February 1, 1994, a Participant shall be permitted
to have no more than two loans outstanding at one time; and provided further
that the Committee in its discretion may charge the Participant, on a uniform
and nondiscriminatory basis, reasonable administrative fees for a loan. Any
such loan(s) shall be evidenced by a promissory note. A Participant may
obtain a first loan for any reason. The Participant may obtain a second
loan, if needed, only for one or more of the following reasons: purchase of
a principal residence, post-secondary education for the Participant or his
dependents, unreimbursed medical expenses, or to avoid foreclosure or
eviction from the Participant's principal residence.
13.2 The minimum amount that a Participant shall be permitted
to borrow is $1,000. The maximum amount that a Participant shall be
permitted to borrow under this Plan is the lesser of (i) 50% of the aggregate
of such Participant's Before-tax Contributions and related earnings and the
amount credited to his Rollover Account and Transfer Account (reduced by the
balance of any amounts which remain outstanding under a Plan loan); or (ii)
$50,000, reduced by the excess, if any, of the highest outstanding balance of
any prior Plan loan(s) during the twelve-month period ending on the day
before the date the Plan loan is made over the outstanding balance of the
Plan loan on the date the loan is made.
13.3 Each loan shall be repaid by the Participant through equal
payroll deductions, on a level amortization basis, commencing with the date
of the loan, over a period of at least 12 and not more than 60 months.
Interest on loans shall be charged at a reasonable rate, as determined by the
Company, and shall be commensurate with the prevailing interest rate being
charged for similarly secured loans by entities in the business of lending
money. Such rate will remain fixed for the term of the loan. A Participant
may prepay the entire balance of his loan at any time without penalty.
13.4 The amount of the loan shall be drawn from the Investment
Funds in which the Participant's Participant Account, Rollover Account or
Transfer Account are invested, in the same manner as withdrawals (as
described in Section A.5 of Appendix A). The Participant's Accounts shall be
reduced by the amount of the loan and a Loan Account shall be established in
the Participant's name and in such amount at the time the loan is granted.
The Loan Account shall represent the Participant's outstanding loan balance.
As the loan is repaid, the Participant's Loan Account shall be reduced by the
principal repaid, the principal and interest shall be restored on a pro rata
basis to the Participant's Accounts from which the loan was made and the
payment will be allocated to the Investment Funds currently being used by the
Participant.
13.5 If a loan is in default, the Company shall liquidate all
or any portion of the Participant's Loan Account balance as necessary to
discharge the Participant's obligation under the loan agreement before any
amounts are paid to or on behalf of such Participant. In no event shall such
liquidation occur prior to the time the Participant is entitled to a
distribution under Article XI. The following events will be considered a
default:
(1) death or Total Disability of the Participant;
(2) termination of the Plan;
(3) retirement or other termination of employment by the
Participant; or
(4) failure to make any required payment of loan
principal and interest for 60 days.
13.6 All loans granted under this Article XIII shall be granted
in a uniform and nondiscriminatory manner.
13.7 The Company may amend the terms of, or discontinue, the
loan program as it deems appropriate. The Company may also restrict or
suspend the making of loans if it determines that the program is having
adverse effects on Plan investment earnings or on Participants in general.
ARTICLE XIV
ADMINISTRATION
--------------
14.1 The Company shall be the Plan Administrator and "named
fiduciary," within the meaning of ERISA section 402(a), responsible for the
administration and day-to-day operation of the Plan.
14.2 The Committee shall establish uniform rules and procedures
for the proper administration of the Plan. It shall interpret the Plan in a
uniform and nondiscriminatory manner, and its determinations shall be
conclusive and binding upon the Participants.
14.3 The Board of Directors shall appoint no less than three
members of the Committee who are officers of the Company. The Committee
shall elect a chairman from among its members and a secretary who may, but
need not, be a member of the Committee. Members of the Committee shall serve
as such without compensation but the proper expenses of the Committee,
including the compensation of its duly appointed agents, shall be paid by the
Company. All expenses attributable to the administration of the Plan and the
expenses of the Trustee shall be paid out of the Trust Fund except to the
extent paid by the Employer.
14.4 The Company, the Board of Directors and the Committee
shall have the power to assign or delegate any of its respective
responsibilities to subcommittees, members of the Committee or other agents
and may designate one or more subcommittees or other persons to carry out any
of its responsibilities.
14.5 The Company and the Committee may employ such agents and
such clerical and other services as it may deem advisable in carrying out the
provisions of the Plan, and may consult with counsel, who may be counsel for
the Company.
14.6 Any person who believes that he is entitled to benefits
under the Plan may file a claim for such benefits. The Committee may require
claims for benefits to be filed in writing, on such forms and containing such
information as it may deem necessary. Adequate notice shall be provided in
writing to any person whose claim for benefits under the Plan has been wholly
or partially denied. Such notice shall set forth the specific reason for
such denial and specific reference to the pertinent Plan provisions on which
the denial is based. Such notice shall be written in a manner calculated to
be understood by the claimant and shall afford reasonable opportunity to the
claimant whose claim for benefits has been denied for a full and fair review
by the Committee of the decision denying the claim.
ARTICLE XV
TRUSTEE
-------
15.1 All assets of the Plan shall be held pursuant to a Trust
Agreement between a Trustee, designated by the Board of Directors, and the
Company. The Trust Agreement shall provide, among other things, for a Trust
Fund, to be administered by the Trustee, to which all contributions shall be
paid, and the Trustee shall have such rights, powers and duties as shall be
set forth therein. All assets of the Trust Fund shall be held, invested and
reinvested in accordance with the provisions of the Trust Agreement.
15.2 At no time prior to the satisfaction of all liabilities
with respect to Participants and their Beneficiaries shall any part of the
assets of the Plan be used for or diverted to purposes other than for the
exclusive benefit of such persons; provided, however, Employer contributions
may be returned to the Employer (a) within one year after the payment of a
contribution, if made by the Employer by reason of a mistake of fact, or (b)
within one year of the disallowance of a deduction, to the extent a deduction
is disallowed, if a contribution is conditioned upon its deductibility under
Code section 404(a).
15.3 Pursuant to the terms of the Trust Agreement, the Board of
Directors may appoint one or more Investment Managers (individuals and/or
other entities), who may include the Trustee, to direct the investment and
reinvestment of part or all of the Trust Fund, and the Board of Directors may
change the appointment of the Investment Manager from time to time.
15.4 All disbursements by the Trustee, except for the ordinary
expenses of the administration of the Trust Fund, and settlement of duly
authorized investment transactions for the account of the Trust Fund, shall
be made upon the written instructions of the Company.
15.5 The Company shall furnish the Trustee and the Participants
(or Beneficiaries) with notices and information statements when voting rights
with respect to Company stock are to be exercised, in such time and manner as
may be required by applicable law and the certificate of incorporation and
by-laws of the Company. Such statement shall be substantially the same for
Participants as for holders of such stock in general. The Trustee shall vote
Company stock credited to a Participant's Account under the Stock Fund (as
described in Appendix A) in accordance with the instructions of the
Participant. If the Trustee shall not receive instructions from a
Participant (or Beneficiary), the Trustee shall vote such Company stock
proportionately in the same manner as it votes Company stock with respect to
which it has received voting instructions.
15.6 The Trustee shall respond to a tender or exchange offer
with respect to Company stock credited to a Participant's Accounts under the
Stock Fund (as described in Appendix A) as instructed by the Participant.
The Company shall notify each Participant (or Beneficiary) and utilize its
best efforts to distribute or cause to be distributed to him in a timely
fashion such information as will be distributed to shareholders of Company
stock in connection with any such tender or exchange offer, together with a
form requesting confidential instructions to the Trustee as to the manner in
which to respond to the tender or exchange offer. If the Trustee shall not
receive instructions from a Participant (or Beneficiary) regarding any such
tender or exchange offer, the Trustee shall not tender or exchange such
Company stock.
ARTICLE XVI
TERMINATION AND AMENDMENT
-------------------------
16.1 The Company expects to continue the Plan indefinitely, but
the continuance of the Plan and the payment of contributions are not assumed
as contractual obligations.
16.2 The Plan may be terminated at any time by the Board of
Directors. If the Plan shall be terminated, the Trustee shall continue to
hold, invest and administer the Trust Fund in accordance with the provisions
of the Trust Agreement and shall make distributions therefrom in accordance
with the provisions of the Plan, as then in effect, pursuant to instructions
filed with the Trustee by the Company upon such termination or from time to
time thereafter. Upon a complete discontinuance of contributions, or upon
termination or partial termination of the Plan, each affected Participant or
Beneficiary shall continue to have a nonforfeitable interest in his Accounts
in the Plan.
16.3 The Plan may be amended at any time and from time to time,
including retroactively, by action of the Board of Directors; provided,
however, that no amendment shall reduce the vested percentage of a
Participant's accrued benefit derived from Employer contributions below the
vested percentage thereof on the date such amendment is adopted or becomes
effective, whichever is later; and provided further, that no amendment shall
decrease the accrued benefit of a Participant. In the event that the vesting
provisions are amended, a Participant with at least 3 Years of Service shall
have the right to elect, within a specified period, to have his nonforfeit-
able percentage computed under this Plan without regard to such amendment.
ARTICLE XVII
MISCELLANEOUS
-------------
17.1 Participation in the Plan shall have no effect upon the
employment status of any Employee.
17.2 All benefits payable under the Plan shall be paid solely
from the Trust Fund, and the Company assumes no liability or responsibility
with respect to such payments.
17.3 In the event of any merger or consolidation of the Plan
with, or transfer of any assets or liabilities of the Plan to, any other
plan, each Participant shall be entitled to receive a benefit immediately
after such merger, consolidation, or transfer (computed as if such other plan
had then terminated) which is equal to or greater than the benefit he would
have been entitled to receive immediately before such merger, consolidation,
or transfer (computed as if the Plan had then terminated).
17.4 Except as otherwise provided by law or the issuance of a
"qualified domestic relations order" (within the meaning of Code section
414(p)), no person shall have the right to assign, alienate, transfer,
hypothecate or otherwise subject to lien his interest in or his benefit
under the Plan, nor shall benefits under the Plan be subject to the claims of
any creditor. Any other provision of the Plan to the contrary
notwithstanding, if a qualified domestic relations order requires the
distribution of all or part of an Employee's benefits under the Plan, the
establishment or acknowledgment of the alternate payee's right to benefits
under the Plan in accordance with the terms of such qualified domestic
relations order shall in all events be deemed to be consistent with the terms
of the Plan.
17.5 The Company, the Board of Directors, the Committee
(including any subcommittees, individual members and the secretary thereof),
the Trustee, and any person who is deemed to be a fiduciary under the Plan,
shall not be liable for a breach of fiduciary responsibility of another
fiduciary under the Plan except to the extent (a) it shall have participated
knowingly in, or knowingly undertaken to conceal, an act or omission of such
fiduciary, knowing such act or omission was a breach of such fiduciary's
responsibilities, (b) it shall have, through a breach of its fiduciary
responsibilities, enabled such fiduciary to commit a breach of its fiduciary
responsibilities, or (c) it shall have knowledge of a breach of fiduciary
responsibilities by such fiduciary, unless it has made reasonable efforts to
remedy the breach.
17.6 The Company, the Board of Directors, and the Committee
(including any subcommittees, individual members and the secretary thereof)
shall not be liable for the acts or omissions of (a) any person or persons to
whom any authority, power or responsibility has been allocated pursuant to
Section 14.4 or (b) any person or persons who have been designated to carry
out any such authority, power or responsibility pursuant to Section 14.4
except to the extent (i) it shall have violated its fiduciary
responsibilities with respect to (A) such allocation or designation, (B) the
establishment or implementation of the allocation or designation procedures
of Section 14.4 or (C) the continuation of any such allocation or
designation, or (ii) it would otherwise be liable under Section 17.5.
17.7 If the Committee determines that any person to whom a
payment is due hereunder is incompetent by reason of physical or mental
disability, the Committee shall have the power to cause the payments becoming
due to such person to be made to another for the benefit of the incompetent,
without responsibility of the Committee or the Trustee to see to the
application of such payment. Payments made pursuant to such power shall
operate as a complete discharge of the Committee, the Trustee and the Trust
Fund.
17.8 The Plan shall be construed and enforced in accordance
with the laws of the State of New York, except to the extent preempted by the
laws of the United States.
ARTICLE XVIII
TOP HEAVY PROVISIONS
--------------------
The provisions of this Article XVIII shall become applicable
only under the circumstances described thereunder.
18.1 For purposes of this Article XVIII, the Plan shall be "top
heavy" if, as of the determination date (the last day of the preceding Plan
Year or, in the case of the first Plan Year, the last day of such year), the
present value of the cumulative account balances for "key employees," as
defined in Code section 416(i)(1), under the Plan and all other plans in the
"aggregation group," as defined in Code section 416(g)(2)(A), exceeds 60% of
the present value of the cumulative account balances under all such plans for
all Employees determined as of the applicable "valuation date." For purposes
of this Article XVIII, "valuation date" shall mean the most recent Valuation
Date within a 12-month period ending on the determination date. The present
value of such account balances shall be computed in accordance with Code
section 416(g), and the above percentage ratio shall be determined by a
fraction, the numerator of which is the sum of the present value of the
account balances of key employees under the Plan and all other plans in the
aggregation group, and the denominator of which is the sum of the present
value of the account balances under all such plans, including the Plan, for
all Employees. If an individual has not performed any service for the
Employer at any time during the five-year period ending on a determination
date, any accrued benefit of such individual shall not be taken into account.
18.2 The following provisions shall be applicable to members
only for any Plan Year with respect to which the Plan is top heavy:
(a) Notwithstanding Article V, the Employer shall make
a special contribution on behalf of each non-key employee who has satisfied
the eligibility requirements of the Plan, whether or not a Participant in the
Plan and who is in service at the end of the Plan Year, with respect to such
Plan Year in an amount which equals the lesser of (i) 3% of his compensation
(as defined in Code section 414(s), or, to the extent required by the Code
and Treasury Regulations section 1.415-2(d)) or (ii) the highest percentage
of compensation provided under the Plan for any key employee for such Plan
Year. Any such special Employer contribution shall be credited to such
Participant's Company Account. Notwithstanding the foregoing provisions of
this Section 18.2(a), if a Participant in the Plan is also a participant in
any defined benefit plan of the Employer, then for each Plan Year with
respect to which the Plan is top heavy, such Participant's accrual of a
minimum benefit under such defined benefit plan in accordance with Code
section 416(c)(1) shall be deemed to satisfy the special Employer
contribution requirement of this Section 18.2(a). Employer contributions
resulting from Before-tax Contributions or Matching Contributions shall not
be counted towards meeting the minimum required allocations under this
Section.
(b) Notwithstanding the provisions of Section 8.1, if
during any Plan Year an Employee participates in both a defined contribution
plan and a defined benefit plan maintained by the Company which comprise a
"top heavy group," as defined in Code section 416(g)(2)(B), the denominators
of the defined benefit plan fraction and the defined contribution plan
fraction, as described in Section 8.1(d), shall be calculated by substituting
"1.0" for "1.25" each place it appears in such Section; provided, however,
that this Section 18.2(b) shall not apply with respect to a plan in the top
heavy group if (i) such plan would satisfy the requirements of Code section
416(h)(2)(A) and (ii) the aggregate accrued benefits and cumulative account
balances of key employees under all plans in the top heavy group do not
exceed 90% of the aggregate accrued benefits and cumulative account balances
under all such plans for all Employees.
<PAGE>
APPENDIX A
INVESTMENT FUNDS
----------------
This Appendix A shall be incorporated in, and be deemed
an integral part of, the Plan. Terms used in this Appendix A shall have the
same meanings as ascribed in the Plan document, unless the context otherwise
clearly requires.
A.1 The Accounts of a Participant shall be invested in
one or more of the following Investment Funds, in accordance with the
election of the Participant pursuant to Section 12.3 of the Plan:
Niagara Mohawk Power Corporation Stock Fund (Stock
Fund) - invested in common stock of Niagara Mohawk
Power Corporation. The Fund's investment income,
net of investment expense, shall automatically be
reinvested in the Fund.
Fidelity Retirement Government Money Market
Portfolio - invested primarily in high quality
money market instruments of U.S. and foreign
issuers, short-term corporate and U.S. government
bonds and certificates of deposit (CDs) with the
objective of preserving capital while providing a
high level of income. The Fund's investment
income, net of investment expense, shall
automatically be reinvested in the Fund.
Fixed Income Fund - invested primarily in high
quality investment contracts from various
financial institutions (usually insurance
companies) that provide a competitive rate of
return with the objective of protecting against
loss of principal while providing a stable rate of
return. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity U.S. Equity Index Portfolio - invested
primarily in the 500 stocks that make up the
Standard and Poors 500 Index with the objective of
duplicating the composition and total return of
the Index. The Fund's investment income net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity U.S. Bond Index Portfolio - invested
primarily in U.S. government, corporate mortgage
and income securities with the objective of
matching the investment returns of the Lehman
Brothers Aggregate Bond Index and providing a
reasonable rate of return with a moderate amount
of risk. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity Growth and Income Portfolio - invested
primarily in common stock of companies offering
capital appreciation while paying current
dividends with the objective of providing long-
term investment performance and an above-average
rate of return. The Fund's investment income, net
of investment expense, shall automatically be
reinvested in the Fund.
Fidelity Growth Company Fund - an aggressive, high
risk fund invested primarily in common stock of
companies with potential for above-average growth
with the objective of maximizing long-term capital
appreciation to provide significant investment
returns. The Fund's investment income, net of
investment expense, shall automatically be
reinvested in the Fund.
Fidelity Overseas Fund - an aggressive, high risk
fund invested primarily in foreign securities with
at least 65% of its total assets in securities of
issuers from at least three countries outside
North America with the objective of providing
long-term capital appreciation. The Fund's
investment income, net of investment expense,
shall automatically be reinvested in the Fund.
A.2 Amounts invested in the Fixed Income Fund may not be
transferred into the Government Money Market Portfolio or the U.S. Bond Index
Portfolio ("money-market funds"). However, a Participant may transfer
amounts from the Fixed Income Fund into one of the non-money-market funds
described in Section A.1 for a period of 180 days, after which such amounts
may be transferred into the Government Money Market Portfolio or the U.S.
Bond Index Portfolio, or both. Transfers out of the Fixed Income Fund may be
made at any time with a maximum of six transfers per year.
A.3 Matching Contributions, and related earnings, invested
in the Stock Fund cannot be transferred out of such Fund until the
Participant attains age 53.
A.4 In the event a Participant does not designate specific
Investment Funds, his Accounts will be invested in the Fidelity Retirement
Government Money Market Portfolio.
A.5 In the event a Participant elects to make an in-
service withdrawal in accordance with Article X, the withdrawal shall be made
from the Investment Funds of the Participant's Accounts in the following
order: Fidelity Overseas Fund, Growth Company Fund, Growth and Income
Portfolio, Stock Fund, U.S. Equity Index Portfolio, U.S. Bond Index
Portfolio, Government Money Market Portfolio and, lastly, the Fixed Income
Fund. Amounts paid from Investment Funds will be paid in cash; provided that
the Participant may elect to receive in stock all of his Accounts invested in
the Stock Fund by giving at least 30 days' advance written notice to the
Committee, in such form and manner as the Committee may prescribe.
<PAGE>
APPENDIX B
EFFECTIVE DATES OF PLAN PROVISIONS
----------------------------------
The Plan as set forth herein, constitutes a restatement of
the Plan effective as of July 1, 1992. Although this restatement is
effective July 1, 1992, the provisions of the Plan relating to compliance
with the Tax Reform Act of 1986, as amended, are effective January 1, 1989.
Amendments effective on or after July 1, 1992 through February 1, 1994 are
effective as stated in the Plan document.
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ William F. Allyn
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Edmund M. Davis
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ William E. Davis
-----------------------------
Title: Director, Chairman of the Board
of Directors and Chief Executive
Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ William J. Donlon
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Edward W. Duffy
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ John M. Endries
-----------------------------
Title: Director and President
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Bonnie Guiton
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ John G. Haehl, Jr.
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Paul Kaleta
-----------------------------
Title: Vice President - Law and General
Counsel
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Henry A. Panasci
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Patti McGill Peterson
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ John W. Powers
-----------------------------
Title: Senior Vice President - Finance and
Corporate Services and Principal
Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Donald B. Riefler
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Arthur Roos
-----------------------------
Title: Vice President - Treasurer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Stephen B. Schwartz
-----------------------------
Title: Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ Steven W. Tasker
-----------------------------
Title: Controller and Principal
Accounting Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, an officer
and/or director of Niagara Mohawk Power Corporation, which Corporation
proposes to file with the Securities and Exchange Commission a Registration
Statement on Form S-3 pursuant to the provisions of the Securities Act of
1933, as amended, with respect to the issuance and sale of up to 2,500,000
shares of Niagara Mohawk Power Corporation Common Stock under the terms and
conditions of the Corporation's Dividend Reinvestment and Common Stock
Purchase Plan to be set forth in such Registration Statement, has made,
constituted and appointed and by these presents does hereby make, constitute
and appoint JOHN W. POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J.
KALETA, and each of them, his true and lawful attorneys, for him and in his
name, place and stead, and in his office and capacity as aforesaid, to sign
and file said Registration Statement and any and all amendments thereto and
any and all other documents to be signed and filed with the Securities and
Exchange Commission in connection therewith, hereby granting to said JOHN W.
POWERS, STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, and each of
them, full power and authority to do and perform each and every act as fully,
to all intents and purposes, as he might or could do if personally present,
hereby ratifying and confirming in all respects that said JOHN W. POWERS,
STEVEN W. TASKER, ARTHUR W. ROOS and PAUL J. KALETA, or any of them, as said
attorneys, may or shall lawfully do or cause to be done by virtue thereof.
IN WITNESS WHEREOF, the undersigned has set his hand and seal this
29th day of July, 1994.
By:/s/ John G. Wick
-----------------------------
Title: Director
