<PAGE> Reg. No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933, as amended
OKLAHOMA GAS AND ELECTRIC COMPANY
(Exact name of registrant as specified in charter)
OKLAHOMA 73-0382390
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
101 North Robinson, P.O. Box 321, Oklahoma City, Oklahoma 73101-0321
Telephone: (405)272-3000
(Address of principal executive offices)
Oklahoma Gas and Electric Company
Employees' Retirement Savings Plan
(Full title of plan)
PETER D. CLARKE JAMES G. HARLOW, JR.
Gardner, Carton & Douglas Chairman of the Board and President
321 North Clark Street Oklahoma Gas and Electric Company
Suite 3100 101 North Robinson
Chicago, Illinois 60610 Oklahoma City, Oklahoma 73102
(312) 245-8685 (405) 272-3000
(Name and address of agents for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of each Amount maximum maximum Amount of
class of securities to be offering price aggregate registration
being registered registered per share offering price fee
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Common Stock, Par Value
$2.50 per share(1) 1,500,000 shs. $36.375 (2) $54,562,500 (2) $18,814.79
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) These amounts are estimates made solely for the purpose of
determining the registration fee, and are based on the average of the high
and low prices of the Common Stock as reported by The Wall Street Journal
as New York Stock Exchange - Composite Transactions for January 31, 1994.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed with the Securities and Exchange
Commission, are incorporated herein by reference: (i) the report on Form
11-K for the year ended December 31, 1992, of the Oklahoma Gas and
Electric Company Employees' Thrift Plan (the "Plan"), (ii) the Annual
Report on Form 10-K for the year ended December 31, 1992, of Oklahoma Gas
and Electric Company (the "Registrant"), (iii) the Registrant's Quarterly
Report on Form 10-Q for the quarters ended March 31, 1993, June 30, 1993
and September 30, 1993, (iv) the Registrant's Current Report on Form 8-K
dated October 1, 1993, and (v) the description of the Registrant's Common
Stock contained in Exhibit 28.02 of the Registrant's Annual Report on Form
10-K for the year ended December 31, 1990. All documents filed by the
Registrant or the Plan pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 after the date hereof and prior to the
filing of a post-effective amendment, which indicates that all of the
securities offered hereby have been sold or which deregisters all such
securities remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
The Registrant's Common Stock is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules of the Registrant included or
incorporated by reference in the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1992, to the extent and for the periods
indicated in their reports included or incorporated by reference in said
Form 10-K, have been audited by Arthur Andersen & Co., independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said reports.
The financial statements and schedules of the Plan included in the
Plan's Form 11-K Annual Report for the year ended December 31, 1992, have
been audited by Arthur Andersen & Co., independent public accountants, as
indicated in their report with respect thereto, and are incorporated
herein by reference in reliance upon the authority of said firm as experts
in giving said report.
Item 6. Indemnification of Directors and Officers.
Provisions of the Annotated Oklahoma Statutes provide that the
Company may, and in some circumstances must, indemnify the directors and
officers of the Company against liabilities and expenses incurred by any
such person by reason of the fact that such person was serving in such
capacity subject to certain limitations and conditions set forth in the
statutes. Substantially similar provisions that require such
indemnification are contained in the Company's Restated Certificate of
Incorporation, which is filed as Exhibit 4.01 to the Company's
Post-Effective Amendment No. Two to Registration Statement No. 2-94973 and
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incorporated herein by this reference. The Company's Restated Certificate
of Incorporation also contains provisions limiting the liability of the
Company's directors in certain instances. The Company has an insurance
policy covering its directors and officers against certain personal
liability, which may include liabilities under the Securities Act of 1933,
as amended.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
4.01 Copy of Employees' Retirement Savings Plan of Oklahoma Gas
and Electric Company, formerly known as the Employees'
Thrift Plan.
4.02 Copy of Trust Agreement Under Employees' Retirement Savings
Plan, between Oklahoma Gas and Electric Company and
Fidelity Management Trust Company.
4.03 Restated Certificate of Incorporation, as amended (filed as
Exhibit 4.01 to the Registrant's Post-Effective Amendment
No. Two to Registration Statement No. 2-94973 and
incorporated herein by reference).
4.04 Supplemental Trust Indenture, dated September 14, 1976
(filed as Exhibit 2.19 to Registration Statement 2-59887
and incorporated by reference herein).
4.05 By-laws (filed as Exhibit 4.02 to the Registrant's
Post-Effective Amendment No. Two to Registration Statement
No. 2-94973 and incorporated by reference herein).
5.01 The Registrant hereby undertakes that it: (i) will submit
or has submitted the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and
(ii) has made or will make all changes required by the IRS
in order to qualify the Plan.
23.01 Consent of expert.
24.01 Power of attorney.
Item 9. Undertakings.
A. INDEMNIFICATION
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
in Item 6 above, 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
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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.
B. SUBSEQUENT EXCHANGE ACT DOCUMENTS.
The undersigned Registrant and Plan hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's Annual Report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 and each
filing of the Plan's Annual Report pursuant to Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
C. OTHER
The undersigned Registrant and Plan hereby also undertake
(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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs 1(i) and 1(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant or
Plan pursuant to Section 13 or Section 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.
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SIGNATURES
THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Oklahoma City,
and State of Oklahoma on the 4th day of February, 1994.
OKLAHOMA GAS AND ELECTRIC COMPANY
(Registrant)
/s/ J.G. Harlow, Jr.
By: J.G. Harlow, Jr.
Chairman of the Board and President
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signatures Title Date
---------------- ------------------------------ -------------
/s/ J.G. Harlow, Jr.
J.G. Harlow, Jr. Chairman of the Board of February 4, 1994
Directors, Principal Executive
Officer and Director;
/s/ A.M. Strecker
A.M. Strecker Principal Financial Officer; and February 4, 1994
/s/ B.G. Bunce
B.G. Bunce Principal Accounting Officer. February 4, 1994
_________________________
HERBERT H. CHAMPLIN Director;
WILLIAM E. DURRETT Director;
MARTHA W. GRIFFIN Director;
HUGH L. HEMBREE, III Director;
JOHN F. SNODGRASS Director;
BILL SWISHER Director;
JOHN A. TAYLOR Director; and
RONALD H. WHITE Director.
/s/ J.G. HARLOW, JR.
By: J.G. HARLOW, JR.
(attorney-in-fact) February 4, 1994
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THE PLAN
The undersigned consist of all of the members of the Committee having
the responsibility for the administration of the Oklahoma Gas and Electric
Company Employees' Retirement Savings Plan. Pursuant to the requirements
of the Securities Act of 1933, as amended, the Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Oklahoma City, and State of
Oklahoma on the 4th day of February, 1994.
Oklahoma Gas and Electric Company
Employees' Retirement Savings Plan
By /s/ H.L. Grover
_____________________________________
H.L. Grover
Chairman
By /s/ Irma B. Elliott
____________________________________
Irma B. Elliott
Member
By /s/ R.P. Schmid
___________________________________
R.P. Schmid
Member
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EXHIBIT INDEX
4.01 Copy of Employees' Retirement Savings Plan of Oklahoma Gas
and Electric Company, formerly known as the Employees'
Thrift Plan.
4.02 Copy of Trust Agreement Under Employees' Retirement Savings
Plan, between Oklahoma Gas and Electric Company and
Fidelity Management Trust Company.
4.03 Restated Certificate of Incorporation, as amended (filed as
Exhibit 4.01 to the Registrant's Post-Effective Amendment
No. Two to Registration Statement No. 2-94973 and
incorporated herein by reference).
4.04 Supplemental Trust Indenture, dated September 14, 1976
(filed as Exhibit 2.19 to Registration Statement 2-59887
and incorporated by reference herein).
4.05 By-laws (filed as Exhibit 4.02 to the Registrant's
Post-Effective Amendment No. Two to Registration Statement
No. 2-94973 and incorporated by reference herein).
5.01 The Registrant hereby undertakes that it: (i) will submit
or has submitted the Plan and any amendment thereto to the
Internal Revenue Service ("IRS") in a timely manner and
(ii) has made or will make all changes required by the IRS
in order to qualify the Plan.
23.01 Consent of expert.
24.01 Power of attorney.
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EXHIBIT 4.01
OKLAHOMA GAS AND ELECTRIC COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
(As Amended and Restated Effective December 1, 1993)
<PAGE>
OKLAHOMA GAS AND ELECTRIC COMPANY
EMPLOYEES' RETIREMENT SAVINGS PLAN
(As Amended and Restated Effective December 1, 1993)
ARTICLE 1. - ESTABLISHMENT, TITLE, PURPOSE, INTENT AND EFFECTIVE DATE OF
PLAN
Section 1.1. Establishment, Effective Date and Title of Plan. Oklahoma
Gas and Electric Company (the "Company") established the Oklahoma Gas and
Electric Company Employees' Thrift Plan (the "Plan") effective as of
January 1, 1982. The Plan has been amended and restated twice as of
January 1, 1984, amended and restated as of January 1, 1987, and amended
and restated as of January 1, 1989. The Plan is hereby further amended
and restated effective as of December 1, 1993. The amended plan is
renamed the Oklahoma Gas and Electric Company Employees' Retirement
Savings Plan.
Section 1.2. Purpose of Plan. The purpose of the Plan is to provide
additional financial security to Participants and their Beneficiaries
through systematic savings of a portion of their earnings supplemented by
Company Matching Contributions. The Plan is intended to be a
profit-sharing plan. Unless expressly stated otherwise with respect to a
particular provision, the amended and restated Plan shall apply only to
Participants (and their Beneficiaries) whose Severance Date is on or after
December 1, 1993.
Section 1.3. Intent of Plan. The Company intends that the Plan, as the
same may be amended from time to time, shall constitute a qualified plan
under the provisions of Section 401(a) and related or successor provisions
of the Code and shall be in full compliance with ERISA. The Company
intends that the Plan shall continue to be maintained by it for the above
purposes indefinitely, subject always, however, to the rights reserved to
the Board of Directors to amend and terminate the Plan as set forth below.
ARTICLE 2. - DEFINITIONS
The following terms, when used in the Plan, shall have the following
meanings, unless the context clearly indicates otherwise:
Section 2.1. Accounts. The term "Accounts" refers collectively to a
Participant's After-Tax Contribution Account, Company Matching
Contribution Account, Tax-Deferred Contribution Account, and Transfer
Account, if any, and any sub-account of any of them.
Section 2.2. Actual Contribution Percentage. The term "Actual
Contribution Percentage" means a percentage calculated for purposes of
Section 6.4 for (a) the group of Highly Compensated Employees who are
eligible under Section 3.1 to participate in the Plan or (b) the group of
all other Employees who are eligible under Section 3.1 to participate in
the Plan. For each group being tested, the Actual Contribution Percentage
shall be the average of the following percentages, which shall be
calculated separately for each member of the group: the sum of the
Company Matching Contributions under Section 4.1 and the After-Tax
Contributions under Section 5.1 on behalf of each group member, divided by
the Compensation of each group member. The Committee may elect for each
Plan Year to include the Tax-Deferred Contributions for each Participant
in the numerator of each corresponding percentage under this Section.
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Qualified matching contributions that are taken into account under Section
2.3 shall be excluded from this Section 2.2.
Section 2.3. Actual Deferral Percentage. The term "Actual Deferral
Percentage" means a percentage calculated for purposes of Section 5.6 for
(a) the group of Highly Compensated Employees who are eligible under
Section 3.1 to participate in the Plan or (b) the group of all other
Employees who are eligible under Section 3.1 to participate in the Plan.
For each group being tested, the Actual Deferral Percentage shall be the
average of the following percentages, which shall be calculated separately
for each member of the group: the Tax-Deferred Contributions on behalf of
each group member divided by the Compensation of each group member. The
Committee may elect for each Plan Year to include "qualified matching
contributions" (as defined in the Treasury Regulations under Code Section
401(k)) in the numerator of each percentage calculated under this Section
2.3.
Section 2.4. After-Tax Contribution Account. The term "After-Tax
Contribution Account" means the account maintained for a Participant to
reflect the Participant's After-Tax Contributions, after adjustment for
earnings, losses, changes in market value, fees, expenses, withdrawals and
distributions.
Section 2.5. After-Tax Contributions. The term "After-Tax Contributions"
means the Employee Contributions under Section 5.1 designated as such by
the Participant. All Participant contributions made before January 1,
1984 shall be considered After-Tax Contributions. After-Tax Contributions
are not intended to qualify as "salary reduction" contributions under Code
Section 401(k).
Section 2.6. Authorized Leave of Absence. The term "Authorized Leave of
Absence" means any paid absence by an Employee on account of time during
which no duties are performed due to vacation, holiday, illness,
incapacity, layoff, jury duty, military duty or other leave of absence
authorized by the Company under its standard personnel practices,
administered in a uniform and nondiscriminatory manner. During an
Authorized Leave of Absence, a Participant shall be given credit for Years
of Service, provided that he or she retires or returns to employment with
the Company within the period specified in the Authorized Leave of
Absence.
Section 2.7. Beneficiary. The term "Beneficiary" means the person,
persons or trust designated under Section 3.8 to receive a benefit under
the Plan after the death of a Participant.
Section 2.8. Board of Directors. The term "Board of Directors" or
"Board" means the Board of Directors of Oklahoma Gas and Electric Company
as from time to time constituted.
Section 2.9. Code. The term "Code" means the Internal Revenue Code of
1986, as amended from time to time.
Section 2.10. Committee. The term "Committee" means the Employees'
Financial Programs Committee, as constituted from time to time, which is
appointed to administer the Plan pursuant to Section 13.3.
Section 2.11. Company. The term "Company" means Oklahoma Gas and
Electric Company, a corporation organized and existing under the laws of
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the State of Oklahoma, and any successor thereto which continues the Plan
as provided in Section 16.1, and any Subsidiary or other corporation which
together with Oklahoma Gas and Electric Company is a member of a
"controlled group" of corporations under Code Section 414(b) or (c).
Section 2.12. Company Matching Contribution Account. The term "Company
Matching Contribution Account" means the account maintained for the
Company Matching Contributions allocated on a Participant's behalf, after
adjustment for earnings, losses, changes in market value, fees, expenses,
withdrawals, distributions and Forfeitures.
Section 2.13. Company Matching Contributions. The term "Company Matching
Contributions" means the contributions of the Company described in Section
4.1.
Section 2.14. Compensation. The term "Compensation" means the base
compensation paid to a Participant by the Company during a calendar year,
excluding amounts paid for bonuses, overtime work, shift premiums,
commissions, fringe benefits, Company contributions to employee benefit
plans or arrangements, and reimbursements. For the Plan Year beginning on
January 1, 1993, Compensation shall be limited for all Plan purposes to
the first $235,840 of Compensation per Participant. Effective January 1,
1994, Compensation shall be limited for all Plan purposes to the first
$150,000 of Compensation per Participant, as adjusted by the Secretary of
the Treasury pursuant to Code Section 401(a)(17). Other than for purposes
of Sections 6.2, 6.3, 20.1 and 20.2, "Compensation" shall also include
Tax-Deferred Contributions made by the Company on behalf of a Participant.
For purposes of Section 2.22, the term "Compensation" shall mean the total
compensation received by an Employee from the Company for the Plan Year,
including salary, wages, bonuses, commissions, overtime pay, overtime
premiums, amounts which are Tax-Deferred Contributions under the Plan, and
any other elective contributions that are not included in gross income
under Code Section 125, 402(e)(3) or 402(h).
Section 2.15. Eligible Employee. The term "Eligible Employee" means
every Employee of the Company, excluding any person who is employed within
a collective bargaining unit recognized as such by the Company unless and
until mutually satisfactory agreements have been reached with the union
bargaining agent for coverage of the Employees in the bargaining unit
represented by the union under the terms of the Plan, together with such
other waivers as the Company may deem necessary in light of the local
contractual situations.
Section 2.16. Employee. The term "Employee" means every common law
employee of the Company. The term Employee also means any leased employee
who performs services for the Company to the extent required by Section
414(n) of the Code, and any employer contributions provided on behalf of
such leased employee by the leasing organization shall for all purposes of
the Plan be treated as Company contributions.
Section 2.17. Employee Contributions. The term "Employee Contributions"
means the contributions made by a Participant pursuant to Section 5.1.
Section 2.18. Employment Commencement Date and Reemployment Commencement
Date. The term "Employment Commencement Date" means the first day on
which the Employee actually performs an Hour of Service for the Company.
The term "Reemployment Commencement Date" means the first day following a
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Period of Severance on which the Employee performs an Hour of Service for
the Company.
Section 2.19. ERISA. The term "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended from time to time.
Section 2.20. Fiduciaries. The term "Fiduciaries" means the Board of
Directors, the Committee, the Trustee, the Plan Administrator and the
investment manager, if any, but only with respect to the specific
responsibilities of each for Plan or Trust administration, as described
and allocated in Article 13.
Section 2.21. Forfeiture. The term "Forfeiture" means the portion of a
Participant's Company Matching Contribution Account which by reason of the
provisions of Section 6.4 or 10.3 can no longer become distributable to
him or her. Each Forfeiture shall be applied solely to reduce the amount
of Company Matching Contributions otherwise payable by the Participating
Employer that employed the Participant to whom the Forfeiture is
attributable. No part of any Forfeiture may be applied to increase the
benefits any Participant otherwise would receive under the Plan.
Section 2.22. Highly Compensated Employee. The term "Highly Compensated
Employee" means each Employee who, during the Plan Year under
consideration (the "current Plan Year") or the preceding Plan Year:
(a) was at any time a more-than-five percent (5%) owner of the Company;
(b) received Compensation from the Company in excess of $75,000, as
adjusted by the Secretary of the Treasury pursuant to Section 414(q)(1) of
the Code;
(c) received Compensation from the Company in excess of $50,000, as
adjusted by the Secretary of the Treasury pursuant to Section 414(q)(1) of
the Code, and was in the top twenty percent (20%) of Employees in terms of
Compensation received for that year; or
(d) was at any time an officer and received Compensation greater than
fifty percent (50%) of the amount in effect under Section 415(b)(1)(A) of
the Code for that year.
An Employee who is not described in subsection 2.22(b), (c) or (d)
above for the year preceding the current Plan Year shall not be treated as
being described in subsection 2.22(b), (c) or (d) for the current Plan
Year unless the Employee is one of the 100 Employees paid the greatest
Compensation during the current Plan Year.
For purposes of subsection 2.22(d), no more than 50 Employees (or, if
less, the greater of three Employees or ten percent (10%) of Employees)
shall be treated as officers. However, if all officers of the Company
have less Compensation than the threshold amount stated in subsection
2.22(d) for a particular Plan Year, the officer with the highest
Compensation for the year shall be treated as described in subsection
2.22(d).
Family members (i.e., an Employee's spouse and lineal ascendants or
descendants, and the spouses of such lineal ascendants or descendants) of
a five percent (5%) owner or of a Highly Compensated Employee included in
the group consisting of the ten most highly paid Highly Compensated
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Employees during a Plan Year shall not be treated as separate Employees,
and any Compensation paid to such family members shall be treated as if it
were paid to such five percent (5%) owner or Highly Compensated Employee.
A former Employee shall be treated as a Highly Compensated Employee
if such individual was a Highly Compensated Employee when he or she
separated from service or if such individual was a Highly Compensated
Employee at any time after attaining age 55.
Section 2.23. Hour of Service. The term "Hour of Service" means:
(a) Each hour for which an Employee is directly or indirectly paid or
entitled to payment by the Company for the performance of duties for the
Company;
(b) Each hour for which an Employee is directly or indirectly paid or
entitled to payment by the Company on account of a period of time during
which no duties are performed due to Authorized Leave of Absence;
provided, however, that no hour shall be considered an Hour of Service if
no duties are performed and the Employee is paid or entitled to payment
under the terms of a plan or arrangement maintained solely for the
purposes of complying with applicable workers' compensation, unemployment
compensation or disability insurance laws. The number of Hours of Service
credited to an Employee on account of any single continuous period during
which the Employee performs no duties for the Company shall be limited to
the lesser of 501 or the actual number of hours that would otherwise be
considered Hours of Service; and
(c) Each hour for which back pay, irrespective of mitigation of damages,
is either awarded or agreed to by the Company; provided, however, that:
(i) hours for which back pay is awarded or agreed to for periods described
by subsection 2.23(b) above shall be limited by the rules of that
subsection; (ii) hours shall not be credited under both this subsection
2.23(c) and subsection 2.23(a) or (b) above; and (iii) in the event that
the Company agrees to back pay pursuant to an enforceable, arm's-length
negotiation with an Employee, nothing in this subsection 2.23(c) shall
preclude the Employee from waiving his or her right to credit for such
hours in consideration for the Company's agreement.
(d) Notwithstanding anything in the Plan to the contrary, an Employee who
is absent from work due to (i) the pregnancy of the Employee, (ii) the
birth of a child of the Employee, (iii) the placement of a child in
connection with the adoption of the child by the Employee, or (iv) the
caring for the child by the Employee during the period immediately
following the child's birth or placement for adoption, shall be treated as
having completed certain Hours of Service for a limited period. The
Employee will be treated as completing either (i) the number of Hours of
Service that normally would have been credited but for the absence or,
(ii) if the normal work hours are unknown, eight Hours of Service for each
normal workday during the leave, to a maximum per Plan Year of 501 Hours
of Service, but only for purposes of preventing a One-Year Period of
Severance. The Hours of Service required to be credited under this
subsection 2.23(d) must be credited only in the Plan Year in which the
absence begins for one of the permitted reasons or, if crediting in such
year is not necessary to prevent a One-Year Period of Severance in that
Plan Year, in the following Plan Year.
Hours of Service shall be credited on the records of the Company to
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the employment periods to which the payment relates rather than to the
periods in which payment is actually made. All Employees for whom the
Company does not keep records of the number of hours worked shall be
credited with 45 Hours of Service for each week for which they are paid or
entitled to payment. Special rules for treatment of Hours of Service to
be credited for time spent on Authorized Leave of Absence are set forth in
29 CFR Section 2530.200b-2(b) and (c), issued by the United States
Department of Labor, which are incorporated herein by reference.
Section 2.24. Investment Fund or Funds. The term "Investment Fund" or
"Funds" means any one or all of the funds provided for in Article 8.
Section 2.25. Number and Context. The singular may include the plural
and vice versa, unless the context clearly indicates to the contrary. The
words "hereof," "herein," and other similar compounds of the word "here"
shall mean and refer to the entire Plan, not to any particular provision
or section.
Section 2.26. Participant. The term "Participant" means any Eligible
Employee who has elected to participate in the Plan pursuant to Section
3.2.
Section 2.27. Participating Employer. The term "Participating Employer"
means Oklahoma Gas and Electric Company or any Subsidiary that is
participating in the Plan pursuant to Article 19.
Section 2.28. Payroll Period. The term "Payroll Period" means the
biweekly period on the basis of which an Employee is paid by the Company.
Section 2.29. Period of Severance. The term "Period of Severance" means
the period of time commencing on an Employee's Severance Date and ending
on the Employee's Reemployment Commencement Date. The term "One-Year
Period of Severance" means a Period of Severance of twelve consecutive
months.
Section 2.30. Permanent Disability. The term "Permanent Disability"
means the permanent incapacity of a Participant to perform the duties of
his or her employment for the Company by reason of physical or mental
impairment. Permanent Disability shall be deemed to exist when so
determined by the Committee, based upon the written opinion of a licensed
physician who has been approved by the Committee. The final decision of
the Committee with respect to Permanent Disability shall be conclusive for
all purposes of the Plan and Trust.
Section 2.31. Plan. The term "Plan" means the Oklahoma Gas and Electric
Company Employees' Retirement Savings Plan, as set forth herein and as
from time to time amended and in effect.
Section 2.32. Plan Administrator. The term "Plan Administrator" means
the person, persons or corporation from time to time designated as such by
the Committee, with the administrative responsibilities for the Plan set
forth in Section 13.2.
Section 2.33. Plan Year. The term "Plan Year" means the administrative
year of the Plan and Trust ending each December 31.
Section 2.34. Regular Contributions. The term "Regular Contributions"
means a Participant's Employee Contributions up to and including 6% of
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Compensation.
Section 2.35. Severance Date. The term "Severance Date" means a
severance from service with the Company which shall occur on the earlier
of:
(a) The date on which an Employee quits, retires, is discharged or dies,
whichever occurs first; or
(b) The later of:
(i) One year after the first day of a period in which an Employee remains
absent from the service of the Company with or without pay for any reason
other than quitting, retirement or discharge; or
(ii) The end of an Authorized Leave of Absence.
If an Employee incurs a Severance Date under subsection 2.35(a) and
performs an Hour of Service within the twelve-consecutive-month period
beginning on the Severance Date, the Employee shall not have incurred a
Period of Severance and the entire period shall constitute a period of
service.
Section 2.36. Subsidiary. The term "Subsidiary" means any corporation,
domestic or foreign, of which 50% or more of the voting stock is owned
directly or indirectly by Oklahoma Gas and Electric Company.
Section 2.37. Supplemental Contributions. The term "Supplemental
Contributions" means a Participant's Employee Contributions of more than
6% of Compensation.
Section 2.38. Tax-Deferred Contribution Account. The term "Tax-Deferred
Contribution Account" means the account maintained for the Participant's
Tax-Deferred Contributions, after adjustment for earnings, losses, changes
in market value, fees, expenses, withdrawals and distributions.
Section 2.39. Tax-Deferred Contributions. The term "Tax-Deferred
Contributions" means the Employee Contributions under Section 5.1
designated as such by the Participant. Tax-Deferred Contributions are
intended to qualify as "salary reduction" contributions under Section
401(k) of the Code.
Section 2.40. Transfer Account. The term "Transfer Account" means the
fully vested bookkeeping account established and maintained as provided in
Section 16.3.
Section 2.41. Trust. The term "Trust" means the trust or trusts
established pursuant to Section 12.1.
Section 2.42. Trustee. The term "Trustee" means the trustee or trustees
appointed by the Board of Directors pursuant to Section 12.2, and any
successor trustee or trustees.
Section 2.43. Valuation Date. The term "Valuation Date" means a
quarterly date as of which the Investment Funds are valued and
Participants' Accounts adjusted as provided in Article 9. Valuation Dates
shall fall on the last day of each calendar quarter or on such other dates
as shall be determined from time to time by the Committee.
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Section 2.44. Valuation Period. The term "Valuation Period" means the
period between two consecutive Valuation Dates.
Section 2.45. Year of Service. The term "Year of Service" means each
twelve-month period of service as an Employee of the Company, regardless
of whether or not such months of service are consecutive. Service with a
"related employer" shall be included in determining an Employee's Years of
Service. A "related employer" is any trade or business under common
control (as defined in Sections 414(b) and (c) of the Code) with Oklahoma
Gas and Electric Company.
For Employees who were employed by Mustang Fuel Corporation or
Mustang Gas Products Company on September 29, 1986, employment with
Mustang Fuel Corporation or Mustang Gas Products Company prior to
September 29, 1986 shall be included in determining Years of Service under
this Section 2.45.
ARTICLE 3. - ELIGIBILITY AND PARTICIPATION
Section 3.1. Eligibility to Participate. Each Eligible Employee shall be
eligible to participate in the Plan after the end of the first period of
twelve consecutive months, commencing as of the Employee's Employment
Commencement Date or any anniversary thereof, during which the Employee
completes 1,000 or more Hours of Service.
Section 3.2. Election to Participate. Each Eligible Employee may become
a Participant in the Plan as of the first day of the first Payroll Period
beginning after he or she has satisfied the requirements of Section 3.1,
by completing and filing with the Plan Administrator such forms as may be
required by the Plan Administrator at least 15 days preceding such date or
by such other dates as the Committee shall determine. An Eligible
Employee who does not elect to become a Participant when first eligible,
may elect to participate as of the first day of any subsequent Payroll
Period by telephoning the Trustee according to procedures established by
the Trustee, provided that he or she is employed as an Eligible Employee
on such date.
Section 3.3. Participation Fees. An annual administrative fee shall be
charged to each Participant and former Participant (or their Beneficiaries
or alternate payees) with any balance in his or her Accounts under the
Plan. The fee shall be deducted on a quarterly basis from the
Participant's Accounts in the amount and in the manner prescribed by the
Plan Administrator.
Section 3.4. Becoming a Noncontributing Participant. A Participant shall
become a Noncontributing Participant for the period during which:
(a) He or she is on an unpaid leave of absence;
(b) He or she has voluntarily elected to suspend Employee Contributions
as provided in Section 5.3;
(c) His or her Employee Contributions are automatically suspended because
he or she has taken a withdrawal pursuant to Section 10.4(g), (h), (i),
(j), or (k); or
(d) He or she is no longer employed as an Eligible Employee.
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Section 3.5. Status of Noncontributing Participant. During the period
that a Participant is a Noncontributing Participant he or she shall be
entitled to all the rights, privileges and benefits of a Participant,
except that:
(a) No Employee Contributions shall be made on his or her behalf;
(b) No Company Matching Contribution shall be made on his or her behalf;
(c) If he or she is a Noncontributing Participant pursuant to Section
3.4(a) or (d), no withdrawals pursuant to Section 10.4 and no loans
pursuant to Section 10.6 may be requested.
A Noncontributing Participant who becomes eligible to make Employee
Contributions may so elect by delivering written notice to the Trustee in
advance of the first day of a Payroll Period.
Section 3.6. Status of Terminated Participant. Except as provided in
Section 11.1 for Account balances of $3,500 or less, a terminated
Participant shall be entitled to maintain his or her Accounts in the Plan
until such time as distributions are required pursuant to Section 11.1,
unless he or she requests an earlier commencement of payments pursuant to
Section 11.1. The Participant shall have only those rights, privileges
and benefits under the Plan as provided in this Section 3.6 and in
Sections 3.7, 7.2, 8.5, 8.6 and in Articles 9 and 11. This Section 3.6
shall apply to any former Participant (or Beneficiary) who has any balance
in his or her Accounts as of December 1, 1993.
Section 3.7. Participation upon Reemployment. If an Employee is an
Eligible Employee on his or her Reemployment Commencement Date, he or she
shall be eligible to become a Participant as of the first day of the first
Payroll Period coincident with or following his or her Reemployment
Commencement Date, provided that he or she has delivered to the Plan
Administrator a written election under Section 3.2, and an election as to
Investment Funds as provided in Section 8.4. If he or she does not elect
to become a Participant as of such date, he or she may elect to become a
Participant as of the first day of any succeeding Payroll Period according
to Section 3.2.
(a) Restoration of Forfeitures. If the Participant's Period of Severance
is less than five years, the amount of his or her Forfeitures under
Section 10.3 as of his or her most recent Severance Date shall be
recredited to his or her Company Matching Contribution Account without
interest or adjustment as of the Valuation Date next following his or her
Reemployment Commencement Date.
(b) Restoration of Years of Participation and Years of Service. If the
Participant either had a Vested Percentage under Section 10.3 in his or
her Company Matching Contribution Account as of his or her Severance Date
or if his or her Period of Severance is less than five years, the
Participant shall be entitled, in the event he or she elects to become a
Participant following his or her reemployment, to a reinstatement of his
or her Years of Participation and his or her Years of Service accrued as
of his or her Severance Date.
Section 3.8. Beneficiary Designation. A Participant may designate a
Beneficiary in writing on a form provided by the Plan Administrator. Such
a designation may be in favor of one or more Beneficiaries, may include
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contingent as well as primary designations, may apportion or specify the
benefits payable hereunder, and may include named or yet unnamed trustees
under any will or living trust. The designation may be changed at any
time or times by filing a new designation form with the Plan
Administrator. Any designation shall become effective upon receipt
thereof acknowledged by the Plan Administrator during the Participant's
lifetime. The most recent designation received by the Plan Administrator
shall control as of any date. If a Participant designates a Beneficiary
without providing that the Beneficiary must be living at the time of each
distribution, and if the Beneficiary survives the Participant but dies
before receiving all of the benefits so designated, then the remaining
benefits shall be distributed to the Beneficiary's spouse, if any,
otherwise to the Beneficiary's then-living descendants, per stirpes, if
any, otherwise to the Beneficiary's estate. If Beneficiaries are named
without specifying the proportions payable to each, distribution shall be
made in equal shares to the Beneficiaries entitled thereto. In the
absence of a written and receipted designation of Beneficiary, or if all
designated Beneficiaries predecease the Participant, the Participant's
spouse, if any, otherwise the Participant's then-living descendants (with
distribution being made per stirpes), if any, otherwise the Participant's
estate, shall be considered the designated Beneficiary. All Beneficiary
designations should include the full name and post office address of the
Beneficiary. Distribution to a Beneficiary hereunder other than to the
estate of a Participant shall not be subjected to claims against the
Participant. A married Participant's sole primary Beneficiary shall,
while the Participant is married, automatically be his or her current
spouse unless the spouse consents in writing to the designation of a
different primary Beneficiary or Beneficiaries. Such spousal consent
shall acknowledge the financial effect of the designation and shall also
acknowledge the non-spouse Beneficiary, class of Beneficiaries or
contingent Beneficiaries and the specific form of payment, if any, chosen
by the Participant. The consent shall be witnessed by a Plan
representative or a notary public.
ARTICLE 4. - COMPANY MATCHING CONTRIBUTIONS
Section 4.1. Amount of Company Matching Contributions. Subject to the
provisions of Section 6.1, the Company shall make Company Matching
Contributions to the Plan for each calendar month on behalf of each
Participant, on the following basis:
(a) If the Participant has completed fewer than 20 full Years of Service,
the Company shall contribute fifty percent (50%) of the Regular
Contributions deposited during such month by such Participant; provided,
however, that the amount of Employee Contributions for which the Company
shall make a Company Matching Contribution shall not exceed six percent
(6%) of the Participant's Compensation; and
(b) If the Participant has completed 20 or more full Years of Service,
the Company shall contribute seventy-five percent (75%) of the Regular
Contributions deposited during such month by such Participant; provided,
however, that the amount of Employee Contributions for which the Company
shall make a Company Matching Contribution shall not exceed six percent
(6%) of the Participant's Compensation.
Section 4.2. Time and Form of Company Matching Contributions. Company
Matching Contributions shall be made as soon as reasonably practicable
after the last business day of the calendar month to which they relate.
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Company Matching Contributions may be made in the form of cash or common
stock of Oklahoma Gas and Electric Company or in a combination thereof, as
the Company elects. To the extent that Company Matching Contributions are
made in the form of Oklahoma Gas and Electric Company common stock, the
number of shares to be contributed shall be determined by dividing the
amount of the contribution to be made in the form of stock by the closing
price of such stock as reported as New York Stock Exchange-Composite
Transactions on the date to which such contribution relates. Such stock
may be stock which has been purchased by the Company for this purpose,
authorized but unissued stock of Oklahoma Gas and Electric Company, or
treasury stock held by Oklahoma Gas and Electric Company. Regardless of
the form of contribution, all Company Matching Contributions shall be
invested in the OG&E Common Stock Fund when contributed to the Trust.
ARTICLE 5. - EMPLOYEE CONTRIBUTIONS
Section 5.1. Employee Regular and Supplemental Contributions. For each
Payroll Period, each Participant shall contribute to the Plan an amount
not less than two percent (2%) nor more than fifteen percent (15%) of his
or her Compensation, which contributions shall be designated by the
Participant, in whole multiples of one percent (1%) of Compensation, on
the following basis:
(a) Contributions not exceeding the first six percent (6%) of
Compensation shall be designated Regular Contributions. Regular
Contributions may be designated as After-Tax Contributions or Tax-Deferred
Contributions in any combination, provided that any such designation is
made in whole multiples of one percent (1%) of Compensation.
(b) Contributions exceeding the first six percent (6%) of Compensation
shall be designated Supplemental Contributions. Supplemental
Contributions may be designated as After-Tax Contributions or Tax-Deferred
Contributions, in any combination, provided that any such designation is
made in whole multiples of one percent (1%) of Compensation.
All Employee Contributions shall be effected by payroll deductions in
accordance with procedures established by the Committee.
Section 5.2. Change in Employee Contribution Percentages. The rate of
Regular and Supplemental Contributions may be changed from one whole
multiple of one percent (1%) to another by any Participant as to Employee
Contributions to be made in the future, effective as of the first day of
any Payroll Period and within the limitations of Section 5.1, by
submitting the required information in advance to the Trustee; provided,
however, that a Participant's Supplemental Contributions shall be
completely suspended during any period in which his or her Regular
Contribution percentage is less than six percent (6%).
Section 5.3. Suspension of Employee Contributions. A Participant may
suspend his or her Regular Contributions and/or Supplemental Contributions
as of the first day of any Payroll Period by submitting the required
information to the Trustee prior to the start of the such Payroll Period.
A Participant may resume Employee Contributions by similar advance notice
to the Trustee.
Section 5.4. Deduction of Employee Contributions. The Company shall
deduct Employee Contributions from the Compensation of the Participant and
shall transmit biweekly the sums so deducted to the Trustee for investment
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as the Participant shall have directed. A statement of the amount of each
Participant's Employee Contributions shall be delivered to the Trustee by
the Plan Administrator.
Section 5.5. Yearly Limitation on Tax-Deferred Contributions. No
Participant shall be permitted to have Tax-Deferred Contributions made
under the Plan during any calendar year in excess of $8,994 (reduced by
the Participant's elective deferrals for such year under any other salary
reduction arrangement under Code Section 401(k) or 403(b)), as adjusted by
the Secretary of the Treasury each year. Any Tax-Deferred Contributions
made by the Company on behalf of a Participant in excess of the adjusted
$8,994 limit for any calendar year shall be returned to the Participant
(as adjusted for earnings and losses attributable thereto during the Plan
Year to which such excess relates) no later than the April 15 following
the close of the calendar year to which such excess relates.
Section 5.6. Reduction of Tax-Deferred Contributions by the Committee.
The Committee may decrease the maximum Tax-Deferred Contributions
permitted to be made on behalf of certain Participants as determined by
the Committee each Plan Year; may for certain Participants designate
Tax-Deferred Contributions as After-Tax Contributions under the rules
provided in Section 5.l; or may distribute Tax-Deferred Contributions to
certain Participants, as adjusted for earnings and losses thereon through
the end of the Plan Year in which they were made, within the first 2-1/2
months of the Plan Year following the Plan Year in which the contributions
were made, to the extent necessary to meet for any Plan Year either of the
following tests:
(a) The average Actual Deferral Percentage of the Highly Compensated
Employees is not more than 1.25 times the average Actual Deferral
Percentage of all other Employees; or
(b) The excess of the average Actual Deferral Percentage of the Highly
Compensated Employees over the average Actual Deferral Percentage of all
other Employees is not more than 2 percentage points and the average
Actual Deferral Percentage of the Highly Compensated Employees is not more
than 2 times the average Actual Deferral Percentage of all other
Employees.
ARTICLE 6. - LIMITATIONS ON CONTRIBUTIONS TO THE PLAN
Section 6.1. Company Matching Contribution and Tax-Deferred Contribution
Limitations. Company Matching Contributions and Tax-Deferred
Contributions made by any Participating Employer shall be made only on
behalf of Participants who are Employees of the Participating Employer,
and Company Matching Contributions and Tax-Deferred Contributions shall be
made only from current or accumulated earnings or profits of such
Participating Employer. If any Participating Employer is prevented from
making a contribution which it otherwise would have made by reason of
having no current or accumulated earnings or profits, or because such
earnings or profits are less than the contribution which it otherwise
would have made, then so much of the contribution which such Participating
Employer was so prevented from making may be made for the benefit of
Participants who are Employees of such Participating Employer by any of
the other Participating Employers to the extent of its current or
accumulated earnings or profits. If the Participating Employers do not
file a consolidated federal income tax return, the contribution by each
such other Participating Employer shall be limited to that portion of its
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total current and accumulated earnings or profits remaining after
adjustment for its contributions on behalf of Participants who are its own
Employees which the total prevented contribution bears to the total
current and accumulated earnings or profits of all such Participating
Employers remaining after adjustment for all contributions on behalf of
Participants who are their own Employees. Notwithstanding the foregoing
provisions of this Section 6.1, Oklahoma Gas and Electric Company may
waive the earnings and profits limitation under this Section 6.1 for any
Plan Year. The amount of contributions made by any Participating Employer
for a Plan Year shall not exceed the amount deemed to be deductible in
computing the taxable income of such Participating Employer (taking into
account all contributions under all of such Participating Employer's
qualified plans and all privileges and limitations of carryovers and
carryforwards as established by law) for the purpose of computing taxes on
or measured by income under the provisions of the Code and/or any other
laws in effect from time to time.
Section 6.2. Maximum Annual Additions to Participant Accounts.
Notwithstanding any other provision of the Plan, the "total additions" on
behalf of a Participant for any "limitation year" shall not exceed an
amount equal to the lesser of:
(a) Thirty thousand dollars ($30,000), as adjusted by the Secretary of
the Treasury under Section 415(d) of the Code; or
(b) Twenty-five percent (25%) of the Compensation paid to the Participant
by the Company in that limitation year.
For purposes of this Section 6.2 and Section 6.3, the term "total
additions" shall mean, with respect to each Participant for each Plan
Year, the aggregate of the Company Matching Contributions allocated to his
or her Company Matching Contribution Account, the Tax-Deferred
Contributions allocated to his or her Tax-Deferred Contribution Account
and the contributions made by the Participant to his or her After-Tax
Contribution Account. If any Participant's total additions exceed the
applicable maximum limitation set forth above, contributions (and the
earnings attributable thereto during the Plan Year) shall be returned to
the Participant and/or held in a suspense account for the Participating
Employer to the extent necessary and in the following priority:
(a) First, Supplemental After-Tax Contributions shall be returned to the
Participant;
(b) Second, Regular After-Tax Contributions shall be returned to the
Participant and Company Matching Contributions relating thereto shall be
held in a suspense account for the Participating Employer;
(c) Third, Supplemental Tax-Deferred Contributions shall be returned to
the Participant; and
(d) Fourth, Regular Tax-Deferred Contributions shall be returned to the
Participant and Company Matching Contributions relating thereto shall be
held in a suspense account for the Participating Employer.
Amounts held in a suspense account for a Participating Employer shall be
used to reduce future Company Matching Contributions by such Participating
Employer. For purposes of this Section 6.2 and Section 6.3, the term
"limitation year" shall mean the Plan Year and the term "Compensation"
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shall be defined pursuant to Treasury Regulation Section 1.415-2(d).
Section 6.3. Participation in More than One Plan of Company. In the
event that the total additions which otherwise would be made to the
Participant's Accounts under all defined contribution plans of the Company
for any Plan Year exceed the limitations set forth in Section 6.2, the
excess total additions shall be attributable first to the Plan as may be
required under Section 6.2 so that no such excess total additions are
made.
In the event that the Participant is also a participant in one or
more tax-qualified defined benefit pension plans of the Company, the sum
of such Participant's defined benefit plan fraction and defined
contribution plan fraction, as determined pursuant to Code Section 415(e)
for any Plan Year, may not exceed 1.0.
The defined benefit plan fraction for any Plan Year is a fraction,
the numerator of which is the Participant's projected annual benefit under
any defined benefit plan of the Company, and the denominator of which is
the lesser of (a) 1.25 multiplied by the annual dollar limitation on
projected annual benefits in effect under Code Section 415(b)(1)(A) or (b)
1.4 multiplied by one hundred percent (100%) of the Participant's average
annual Compensation during the three consecutive calendar years when the
Compensation paid to him or her was the highest. Notwithstanding the
foregoing, if the Participant was a participant in any defined benefit
plan of the Company as of December 31, 1982, the denominator of the
defined benefit plan fraction will not be less than 1.25 multiplied by the
Participant's accrued benefit under such plan as of December 31, 1982.
The defined contribution plan fraction for any Plan Year is a
fraction, the numerator of which is the sum of the total additions to the
Participant's Accounts under all defined contribution plans of the
Company, and the denominator of which is the sum of the maximum aggregate
amounts which could have been contributed under Code Section 415(c) for
the current Plan Year and for all prior Plan Years of such Participant's
employment by the Company. The "maximum aggregate amount" for any Plan
Year shall be equal to the lesser of (a) 1.25 multiplied by the dollar
limitation on contributions in effect for such Plan Year under Code
Section 415(c)(1)(A) or (b) 1.4 multiplied by twenty-five percent (25%) of
the Participant's Compensation for the Plan Year. The Company may, in
calculating the defined contribution plan fraction, elect to apply the
transitional rule provided in Code Section 415(e)(6).
If the sum of a Participant's defined contribution plan and defined
benefit plan fractions would otherwise exceed 1.0 for any Plan Year, then
the benefit which would otherwise be accrued with respect to such
Participant under any applicable tax-qualified defined benefit pension
plan shall be considered not to have been accrued and will be limited to
the extent necessary so that the sum does not exceed 1.0.
Section 6.4. Limitation on Amount of Company Matching Contributions and
After-Tax Contributions. The Committee may forfeit the amount of the
nonvested Company Matching Contributions made for certain Participants;
return the After-Tax Contributions made by certain Participants (as
adjusted for earnings and losses thereon during the Plan Year to which
such contributions relate) and the amount of the vested Company Matching
Contributions made for such Participants (as adjusted for earnings and
losses thereon during the Plan Year to which such contributions relate)
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within 2-1/2 months following the close of the Plan Year to which they
relate, as determined by the Committee each Plan Year, to the extent
necessary to meet for any Plan Year either of the following tests:
(a) The average Actual Contribution Percentage of the Highly Compensated
Employees is not more than 1.25 times the average Actual Contribution
Percentage of all other Employees; or
(b) The excess of the average Actual Contribution Percentage of the
Highly Compensated Employees over the average Actual Contribution
Percentage of all other Employees is not more than 2 percentage points and
the average Actual Contribution Percentage of is not more than 2 times the
average Actual Contribution Percentage of all other Employees.
However, except as otherwise provided by Treasury regulations, for each
Plan Year in which the nondiscrimination test of subsection 5.6(b) is
relied upon to satisfy the requirements of Section 5.6, Company Matching
Contributions and After-Tax Contributions must meet the nondiscrimination
test set forth in subsection 6.4(a). The amount of any Company Matching
Contributions which are forfeited under this Section 6.4 shall be
considered a Forfeiture and used in accordance with Section 2.21.
ARTICLE 7. - PARTICIPANT ACCOUNTS
Section 7.1. Establishment of Participant Accounts. The Committee shall
maintain, or cause to be maintained, for each Participant a Company
Matching Contribution Account, a Regular After-Tax Contribution Account
and/or a Regular Tax-Deferred Contribution Account, a Supplemental
After-Tax Contribution Account and/or a Supplemental Tax-Deferred
Contribution Account, and such Transfer Account as may be required under
the terms of Section 16.3. Each Account shall be adjusted on every
Valuation Date to show the balance therein immediately after the next
preceding Valuation Date increased by the amount of contributions thereto,
and reduced by the amount of any distributions, withdrawals, or
Forfeitures therefrom since such preceding Valuation Date.
Section 7.2. Quarterly Statement of Account Balances. As soon as
practicable after the close of each calendar quarter, the Plan
Administrator shall prepare and deliver to each Participant a statement of
the balances in such person's Participant Accounts as of the close of such
calendar quarter.
Section 7.3. Nonforfeitability of Employee Contribution Accounts. The
entire interest of each Participant in his or her Regular After-Tax
Contribution Account, Regular Tax-Deferred Contribution Account,
Supplemental After-Tax Contribution Account and Supplemental Tax-Deferred
Contribution Account, if any, shall be at all times fully vested and
nonforfeitable.
ARTICLE 8. - INVESTMENT FUNDS
Section 8.1. Establishment of Funds. The Committee shall cause the
Trustee to establish and maintain the following Investment Funds:
(a) Fidelity Managed Income Portfolio. This option seeks to preserve the
amount invested and to earn a competitive level of income over time. The
goal is to maintain a stable $1 share price, but the yield will fluctuate.
This option purchases short- and long-term investment contracts that meet
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the credit quality standards of Fidelity Management Trust Company. An
investment contract is an unsecured agreement where the purchaser agrees
to pay for the life of the contract and repay the money when the contracts
become due. The issuers of investment contracts may be insurance
companies, banks or other approved financial institutions.
(b) Fidelity Asset Manager: Income. This fund seeks a high level of
income by maintaining a diversified portfolio of stocks, bonds and
short-term, interest-bearing instruments. The fund emphasizes investments
in bonds and other short-term instruments for income and price stability.
The fund's "neutral mix" is 20 percent stocks, 30 percent bonds and 50
percent short-term instruments. This mix will vary as the fund manager
gradually adjusts the fund's holdings - within defined ranges - based on
the current outlook for different markets.
(c) Fidelity Asset Manager. This fund seeks high total return with
moderate risk over the long term. The fund may invest in stocks, bonds
and other short-term instruments, both in the U.S. and abroad. The fund's
"neutral mix" is 40 percent stocks, 40 percent bonds and 20 percent
short-term instruments. This mix will vary as the fund manager gradually
adjusts the fund's holdings - within defined ranges - based on the current
outlook for different markets.
(d) Fidelity Asset Manager: Growth. This fund seeks to maximize total
return over the long-term by investing in a more aggressive mix of stocks,
bonds and other short-term securities. The fund may invest in both U.S.
and foreign securities. The fund's "neutral mix" is 65 percent stocks, 30
percent bonds, and 5 percent short-term instruments. This mix will vary
as the fund manager gradually adjusts the fund's holdings - within defined
ranges - based on the current outlook for different markets.
(e) OG&E Common Stock Fund. This investment is primarily in Oklahoma Gas
and Electric Company common stock, which stock shall be contributed by the
Company or purchased: (i) from Oklahoma Gas and Electric Company, (ii) on
the open market or (iii) by participation in a dividend reinvestment or
similar plan available to Oklahoma Gas and Electric Company's shareholders
in general. A small portion of this fund may be invested in short-term
investments for liquidity purposes to accommodate daily trading.
Interests in this fund are expressed in terms of "units" and not in shares
of stock to permit same day trading and valuations.
Section 8.2. Investment in Funds. Each of the Investment Funds shall be
invested without distinction between principal and income within the
investment directive for that Fund. The OG&E Common Stock Fund shall be
administered on a unitized share accounting basis with segregation of
units to the individual Participant Accounts. Pending payment of costs,
expenses or anticipated benefits, or acquisition of permanent investments,
the Trustee may hold any portion of any of the Investment Funds in
obligations issued or fully guaranteed as to payment of principal or
interest by the Federal government, short-term demand notes, short-term
commercial paper, collective trust funds investing in short-term
investments or in cash and may deposit any uninvested funds with any bank
selected by the Trustee.
Section 8.3. Investment of Company Matching Contributions. All Company
Matching Contributions shall be invested at the time contributed to the
Trust in the OG&E Common Stock Fund. Prior to attaining age 55, a
Participant may not transfer amounts from his or her Company Matching
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Contribution Account into any other Investment Fund. Upon attaining age
55, and thereafter, a Participant may transfer amounts from his or her
Company Matching Contribution Account as provided in Section 8.5.
Section 8.4. Investment of Employee Contributions and Transfer Accounts.
Each Participant shall have the right to file a written election with the
Committee directing that his or her Employee Contributions and Transfer
Account be invested in specified multiples of one percent (1%) of each of
such amounts up to one hundred percent (100%) thereof, in any one or more
of the Investment Funds. A Participant's initial investment election
shall be made as of his or her initial commencement of participation in
the Plan by submitting the required form to the Committee at the time of
the Participant's election to participate pursuant to Section 3.2. In the
absence of an effective election, one hundred percent (100%) of the
Participant's Employee Contributions and Transfer Account shall be
invested in the Fidelity Managed Income Portfolio.
Section 8.5. Change in Participant's Investment Election. Each
Participant may elect to change the investment of future Employee
Contributions and any future transfers to his or her Transfer Account in
any multiple of one percent (1%) of each of such amounts effective as of
any business day, by submitting the required information to the Trustee.
Each Participant may also elect to change the investment of the balances
in his or her Tax-Deferred Contribution Account, After-Tax Contribution
Account, Transfer Account and, after attaining age 55, the balance in his
or her Company Matching Contribution Account, in any multiple of one
percent (1%) of such balances, effective as of any business day, by
submitting the required information to the Trustee.
Section 8.6. Participant Voting Rights. Each Participant shall be
entitled to direct the Trustee with respect to any shares of Oklahoma Gas
and Electric Company common stock in the OG&E Common Stock Fund (including
fractional shares) allocated to his or her Accounts as to the manner in
which such shares shall be voted and as to the exercise of any other
rights appertaining to such shares. The Trustee shall not vote any
allocated shares as to which no such directions are received. The
Committee shall cause all information provided to shareholders of Oklahoma
Gas and Electric Company common stock to be concurrently provided to all
such Participants.
ARTICLE 9. - VALUATIONS AND ADJUSTMENTS
Section 9.1. Computation of Fair Market Value of Funds. As soon as
reasonably practicable after each Valuation Date, the Trustee shall make a
valuation of the net assets of the Funds based on the fair market values
of the Fund's assets as of such Valuation Date.
Section 9.2. Allocation of Gain or Loss in Each Fund. The earnings,
losses, and changes in market value in each Fund shall be allocated to
each Participant's Account in the same ratio that the balance in each such
Account invested in such Fund immediately after the next preceding
Valuation Date, less withdrawals and distributions therefrom subsequent to
such next preceding Valuation Date, bears to the total amount of all such
balances in such Accounts invested in such Fund immediately after the next
preceding Valuation Date, decreased by the total of all such withdrawals
and distributions from all such Accounts.
Section 9.3. Allocation of Dividends in the OG&E Common Stock Fund. All
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dividends received on shares of Oklahoma Gas and Electric Company common
stock held in the OG&E Common Stock Fund shall be used by the Trustee to
purchase additional shares of Oklahoma Gas and Electric Company common
stock as described in Section 4(e) of the Trust. All shares of Oklahoma
Gas and Electric Company common stock obtained with such dividends shall
be added to the OG&E Common Stock Fund and allocated to the Accounts of
the Participants in proportion to their respective interests in such Fund.
Section 9.4. Allocation of Company Matching Contributions. For the
purposes of allocating the Company Matching Contribution for each month,
the Company Matching Contribution Account of each Participant shall be
credited with the number of units of the OG&E Stock Fund equal to the
amount calculated in accordance with Section 4.1.
ARTICLE 10. - DISTRIBUTIONS AND WITHDRAWALS
Section 10.1. Distributions after a Severance Date. Each Participant who
incurs a Severance Date shall be entitled to a distribution of that
portion (or all) of his or her Accounts determined in accordance with
Section 10.2 or 10.3, whichever is applicable, payable in accordance with
the provisions of Article 11 hereof.
Section 10.2. Termination by Reason of Death, Permanent Disability or
Retirement. If a Participant's service is terminated by reason of
Permanent Disability or death or after he or she becomes eligible for
Normal or Early Retirement under the terms of the Oklahoma Gas and
Electric Company Employees' Retirement Plan, such Participant (or his or
her Beneficiary) shall be entitled to a distribution of the entire balance
in his or her Accounts determined as of the Valuation Date immediately
following the date of termination, plus any unallocated Employee
Contributions credited after the Valuation Date.
Section 10.3. Termination by Resignation, Release or Discharge. If a
Participant's service is terminated for a reason other than death or
Permanent Disability and before he or she becomes eligible for Normal or
Early Retirement under the terms of the Oklahoma Gas and Electric Company
Employees' Retirement Plan, such Participant shall be entitled to a
distribution of the entire balance in his or her Employee Contribution
Accounts and Transfer Account and, to the extent the Participant is
vested, the vested balance in his or her Company Matching Contribution
Account, in each case determined as of the Valuation Date immediately
following the date of termination, plus any unallocated Employee
Contributions credited after the Valuation Date.
A Participant's vested balance in his or her Company Matching
Contribution Account as of any Valuation Date shall be determined as
follows:
(a) An amount equal to:
(i) The sum of:
(1) the entire balance in the Participant's Company Matching Contribution
Account as of such Valuation Date; and
(2) the total debits against the Participant's Company Matching
Contribution Account as of such Valuation Date attributable to in-service
withdrawals under Section 10.4 hereof and prior distributions under this
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Section 10.3 which were made before a One-Year Period of Severance, if
any;
multiplied by
(ii) The Participant's Vesting Percentage as specified in the schedule
below, determined as of such Valuation Date;
less
(iii) The total debits against the Participant's Company Matching
Contribution Account as of such Valuation Date attributable to in-service
withdrawals under Section 10.4 hereof and prior distributions under this
Section 10.3 which were made before a One-Year Period of Severance, if
any.
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Vesting Schedule
----------------
Full Years of Participation
in Plan Vesting Percentage
-----------------------------------------------------
Less than 3 years 0%
3 30%
4 40%
5 60%
6 80%
7 100%
provided, however, that if the Participant is employed by the Company when
he or she attains age 65 or after he or she becomes eligible for Normal or
Early Retirement under the terms of the Oklahoma Gas and Electric Company
Employees' Retirement Plan, his or her Vesting Percentage shall be one
hundred percent (100%).
Any amount in a Participant's Company Matching Contribution Account
which is not distributable as set forth above shall be a Forfeiture and
shall, together with other Forfeitures arising during the same Plan Year,
be applied to reduce future Company Matching Contributions. A record of
the total debits against the Participant's Company Matching Contribution
Account for distributions from such Account pursuant to this Section 10.3
shall be maintained for the purposes of determining the Participant's
vested balance in such Account prior to the expiration of a five-year
Period of Severance.
For purposes of the above vesting schedule, the Participant's Years
of Participation in the Plan shall mean his or her Years of Service with
the Company commencing on or after January 1, 1982; provided, however,
that any Participant whose Employment Commencement Date was prior to
January 1, 1982 and who elected to participate in the Plan on or before
the beginning of the July 1, 1982 Valuation Period or when he or she was
first eligible to become a Participant (whichever is later), shall be
entitled, upon completion of three full Years of Participation in the
Plan, to have his or her Years of Service with the Company which are prior
to the date on which he or she was first eligible to participate in the
Plan included as Years of Participation. Notwithstanding the foregoing,
for Employees of Enogex Inc., Enogex Products Corporation and their
subsidiaries who did not elect to participate in the Plan when first
eligible or who did elect to participate in the Plan when first eligible
and who have not completed three full Years of Participation in the Plan,
only Years of Service commencing on or after September 30, 1986 shall be
included in determining a Participant's Years of Participation. Also, and
notwithstanding the foregoing, Employees of Enogex Inc., Enogex Products
Corporation and their subsidiaries, who elected to participate in the Plan
when first eligible, shall be entitled, upon completion of three full
Years of Participation, to have all service with Mustang Fuel Corporation
and Mustang Gas Products Company treated as Years of Service for the
Company in determining Years of Participation.
Section 10.4. In-Service Withdrawals. Prior to the termination of his or
her employment with the Company, a Participant may withdraw, for any
reason, as of any business day, such part or all of the balance,
determined immediately after the preceding Valuation Date, in his or her
After-Tax Contribution Account as described in subsections (a), (b), (c),
(d), (e) and (f) of this Section 10.4; such part or all of the vested
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balance, determined immediately after the preceding Valuation Date, in his
or her Company Matching Contribution Account as described in subsection
(g) of this Section 10.4; and such part or all of the balance, determined
immediately after the preceding Valuation Date, in his or her Employee
Tax-Deferred Contribution Account as described in subsections (h), (i),
(j), (k), (l) and (m) of this Section 10.4.
Any withdrawal under this Section 10.4 may be made by submitting the
required information to the Trustee. For each withdrawal, the Participant
may indicate the Fund from which the withdrawal is to be made. If no such
indication of the applicable Fund is made, such withdrawal shall be made
pro rata from the Funds in which the Participant's Accounts to which the
withdrawal relates are invested. All withdrawals must be for at least
$300 or one hundred percent (l00%) of the Participant's After-Tax
Contribution Account balance, whichever is less. A Participant may make
only one withdrawal pursuant to this Section 10.4 in any Plan Year. All
such withdrawals shall be made in cash. Withdrawals shall be deemed made
in the following order:
(a) The amount of any contributions made to the Participant's
Supplemental After-Tax Contribution Account before 1987;
(b) The amount of any contributions made to the Participant's Regular
After-Tax Contribution Account before 1987;
(c) The amount of any increment in value in the Participant's
Supplemental After-Tax Contribution Account attributable to contributions
made before 1987;
(d) The amount of any increment in value in the Participant's Regular
After-Tax Contribution Account attributable to contributions made before
1987;
(e) The balance in the Participant's Supplemental After-Tax Contribution
Account attributable to contributions made after 1986 and earnings accrued
thereon;
(f) The balance in the Participant's Regular After-Tax Contribution
Account attributable to contributions made after 1986 and earnings accrued
thereon;
(g) The vested balance in the Participant's Company Matching Contribution
Account;
(h) The amount of any increment in value credited to the Participant's
Supplemental Tax-Deferred Contribution Account as of December 31, 1988;
(i) The amount of any increment in value credited to the Participant's
Regular Tax-Deferred Contribution Account as of December 31, 1988;
(j) The amount of contributions made to the Participant's Supplemental
Tax-Deferred Contribution Account;
(k) The amount of contributions made to the Participant's Regular
Tax-Deferred Contribution Account;
(l) The amount of any increment in value credited to the Participant's
Supplemental Tax-Deferred Contribution Account after December 31, 1988;
and
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(m) The amount of any increment in value credited to the Participant's
Regular Tax-Deferred Contribution Account after December 31, 1988;
provided, however, that the Participant shall be permitted to withdraw
such amounts pursuant to subsections 10.4(h), (i), (j) or (k) only as the
Committee shall authorize upon satisfactory proof provided to the
Committee that (i) a hardship exists, which hardship shall be limited to
the Participant's immediate and heavy financial need, and (ii) such
withdrawal is necessary to satisfy such immediate and heavy financial
need. The determination of the existence of an immediate and heavy
financial need and of the amount necessary to meet that need shall be made
by the Committee in a nondiscriminatory manner. A distribution will be
deemed to be made on account of an immediate and heavy financial need of
the Participant if the Participant provides evidence satisfactory to the
Committee that the distribution is on account of:
(1) Medical expenses described in Section 213(d) of the Code incurred by
the Participant, the Participant's spouse or any dependent of the
Participant (as defined in Section 152 of the Code);
(2) Purchase (excluding mortgage payments) of a principal residence for
the Participant;
(3) Payment of tuition for the next semester or quarter of post-secondary
education for the Participant, his or her spouse, children or dependents;
or
(4) The need to prevent the eviction of the Participant from his or her
principal residence or foreclosure on the mortgage of the Participant's
principal residence.
A withdrawal shall be necessary to satisfy a Participant's immediate
and heavy financial need only if:
(A) All of the following requirements are met:
(i) the amount of the withdrawal is not in excess of the amount of the
immediate and heavy financial need;
(ii) the Participant has obtained all distributions, other than hardship
distributions, and all nontaxable loans available at the time of the
requested withdrawal under all plans maintained by the Company;
(iii) the Employee Contributions of any Participant who makes a
hardship withdrawal under subsections 10.4(h), (i), (j) or (k) shall be
suspended until the first day of the first Payroll Period beginning after
the end of the twelve-month period beginning on the date of receipt of the
withdrawal; and
(iv) a Participant may not make Tax-Deferred Contributions during the
calendar year immediately following the calendar year of the hardship
withdrawal in excess of the applicable dollar limit under Section 5.5 for
such next calendar year less the amount of such Participant's Tax-Deferred
Contributions for the calendar year of the hardship withdrawal; or
(B) All of the requirements of any additional method prescribed by the
Commissioner of Internal Revenue under which distributions will be deemed
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necessary to satisfy an immediate and heavy financial need are met.
A Participant who has attained age 59-1/2 on or before the date on
which he or she otherwise would receive a withdrawal pursuant to
subsections 10.4(h), (i), (j) or (k) shall not be required to provide
evidence of a hardship to qualify for a withdrawal from his or her
Tax-Deferred Contribution Account. Notwithstanding any other provision in
this Section 10.4, a Participant described in the preceding sentence shall
be permitted to withdraw all or any portion of his or her Tax-Deferred
Contributions and the income allocable thereto pursuant to subsections
10.4(l) and (m).
Upon making a withdrawal described in subsection 10.4(g) above, the
Participant shall be suspended from making further Employee Contributions
to the Plan for a period of twelve months following such withdrawal.
A record of the total debits against the Participant's Company
Matching Contribution Account for withdrawals from such Account shall be
maintained for the purposes of determining his or her vested balance in
his or her Company Matching Contribution Account upon a Severance Date
under the provisions of Section 10.3.
Section 10.5. Indebtedness to Trust. If a Participant is in default or
indebted to the Trust, the amount of such default or indebtedness shall be
deducted from any amounts payable to him or her or to his or her
Beneficiary under this Article 10 and shall be paid to the Trust.
Section 10.6. Loans to Participants. Upon the signed application of any
Participant on a form provided by the Plan Administrator, the Committee
may in its absolute discretion, grant a loan or loans from the
Participant's Accounts to such Participant upon the following specific
conditions:
(a) The loan is one which is not made available to highly-compensated
Participants in an amount greater in proportion to the size of such
Participants' Accounts than that available to other Participants;
(b) No Participant may have more than two loans outstanding at any time;
(c) The loan shall bear reasonable interest consistent with its nature as
a prudent investment of the Trust. At the time any loan is approved, the
Committee shall establish a reasonable interest rate thereon, taking into
account such factors as (i) the amount of the requested loan, (ii) the
term during which the requested loan would be outstanding, and (iii) the
security held under the requested loan;
(d) The loan shall be adequately secured by assignment of a portion of
the Participant's Accounts in an amount equal to the principal amount of
the loan. In the event that a Participant shall default upon his or her
obligation to repay amounts loaned to him, the Trustee may offset amounts
owed by such Participant against benefits owed to him or her hereunder
without being in violation of Section 14.1. To the extent the loan is
secured by a Transfer Account which is subject to Article 17, such loan
may not be made without the prior written consent of the Participant's
spouse;
(e) The maximum amount which may be loaned hereunder to any Participant
will be established by the Committee and, whether by one or more loans,
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shall not exceed the lesser of (i) $50,000, reduced by the excess (if any)
of the highest outstanding balance of all loans to the Participant from
all tax-qualified plans of the Company during the one-year period ending
on the day before the date on which such loan is made, over the
outstanding balance of all loans to the Participant from all tax-qualified
plans of the Company on the date on which such loan is made, or (ii) fifty
percent (50%) of the vested balance of the Participant's Accounts as of
the last preceding Valuation Date;
(f) Every Participant applying for a loan hereunder shall state on the
application the reason for seeking the loan and the uses to which the loan
proceeds will be put. Refusal of the Committee to grant any loan shall
not preclude future applications by the same Participant, and application
for or acceptance of a loan hereunder shall not of itself be construed to
constitute termination of participation in or waiver of any rights under
the Plan;
(g) All loans granted under the Plan shall be repaid pursuant to a
written repayment schedule and evidenced by a written promissory note
payable to the Trustee. In no event shall loans be extended for a period
in excess of five years. The loan shall be repaid by regular payroll
deductions effective as of the first Payroll Period beginning after the
date on which the Participant receives the loaned amount. In no event
shall principal and interest payments by Participant-debtors be less
frequent than quarterly on a level amortization basis. In the event of a
default in payment of either principal or interest which is due under the
terms of any loan, the Trustee may declare the full amount of the loan due
and payable and may take whatever action that may be lawful to remedy the
default. No Participant who has once defaulted on a loan extended
hereunder shall be granted any additional loan whatever; and
(h) A separate segregated account shall be established for each
Participant who is granted a loan. The segregated account will be
credited with the amount of the loan from the Participant's Accounts and
such credits shall represent charges against such Accounts. The amount of
the loan shall be charged to a Participant's Accounts in the following
order: (i) Regular Tax-Deferred Contributions; (ii) Supplemental
Tax-Deferred Contributions; (iii) the amount of any increment in value
attributable to Regular Tax-Deferred Contributions; (iv) the amount of any
increment in value attributable to Supplemental Tax-Deferred
Contributions; (v) the vested balance in his or her Company Matching
Contribution Account; (vi) Regular After-Tax Contributions made after 1986
and the earnings (or losses) accrued thereon; (vii) Supplemental After-Tax
Contributions made after 1986 and the earnings (or losses) accrued
thereon; (viii) the amount of any increment in value in his or her Regular
After-Tax Contribution Account attributable to contributions made before
1987; (ix) the amount of any increment in value in his or her Supplemental
After-Tax Contribution Account attributable to contributions made before
1987; (x) the amount of Regular After-Tax Contributions made before 1987;
(xi) the amount of Supplemental After-Tax Contributions made before 1987;
and (xii) the balance in his or her Transfer Account, if any.
The portion of the loan withdrawn from an Account shall be charged on a
pro rata basis against the Investment Fund or Funds in which the Account
is invested. Segregated accounts shall not share in the dividends,
earnings, losses and gains of the Trust under Sections 9.3 and 9.4, but
rather will be credited with amounts of the interest payments made
pursuant to the loan agreement and promissory note. Similarly, the
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dividends, earnings, gains and losses of the Trust that are allocated
under Sections 9.3 and 9.4 shall not include the interest payments. Each
payment of principal on the loan will be credited to the Participant's
Accounts in the reverse order that the loaned amount was charged to such
Accounts and will be invested in the same percentages as the Accounts are
invested at such time or, if there is no current balance in such Accounts,
in the percentages which the Accounts were invested prior to the loan.
Each payment of interest will be credited to the Participant's Accounts in
the same proportions as the loaned amounts were charged to the Accounts
and will be invested in the same manner as the principal payments.
ARTICLE 11. - DISTRIBUTION OF BENEFITS
Section 11.1. Distribution of Benefits Upon Termination of Employment.
Upon termination of employment (other than by reason of death) a
Participant may request either that the vested balance of his or her
Accounts be distributed to him or her following his or her termination of
employment or that distribution be deferred until a later date, provided,
however, that if the vested balance in the Participant's Accounts does not
exceed $3,500 in the aggregate, the Trustee shall distribute the benefit
in one lump sum payment within 20 days after the Participant's termination
of employment without the Participant's consent; and provided further,
that a Participant who is eligible for Normal or Early Retirement under
the Oklahoma Gas and Electric Company Employees' Retirement Plan at the
time of his or her termination of employment may defer distribution until
the April 1 of the calendar year following the calendar year in which he
or she attains age 70-1/2. Distributions to a Participant who is not
eligible for Normal or Early Retirement under the Oklahoma Gas and
Electric Company Employees' Retirement Plan at the time of his or her
termination of employment shall commence no later than 60 days after the
end of the Plan Year in which the Participant attains age 65 in the form
chosen by the Participant.
Section 11.2. Manner of Distribution. Subject to the provisions of
Section 11.1, a Participant may elect to receive his or her distribution
in the form of a lump sum or in the form of installments, or in any
combination thereof as follows:
(a) Lump-sum distributions. A Participant may request that his or her
Accounts be distributed in whole or in part in a lump sum as of any
business day by submitting a request to the Trustee at least 20 days in
advance. The Participant may specify the Accounts from which any partial
lump-sum distribution shall be made.
(b) Installment distributions. A Participant may request distribution of
his or her Accounts by installment payments that shall:
(i) Begin no later than 20 days after the Trustee receives the
Participant's request;
(ii) Be substantially equal in amount; and
(iii) Be made at regular intervals, not less frequently than annually,
over a definite period, which may be for any period providing that it does
not exceed the life expectancy of the Participant.
A Participant who elects installment distributions may elect to receive a
lump sum of part or all of the remaining balance in his or her Accounts at
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any time by notifying the Trustee at least 20 days in advance.
Section 11.3. Required Beginning Date. Distributions to any Participant
whose Severance Date has not occurred prior to the April 1 of the calendar
year following the calendar year in which he or she attains age 70-1/2
shall in no event commence later than such April 1 regardless of whether
his or her employment continues after such date.
Section 11.4. Form of Distribution. Distribution may be made in cash or
in kind, or partly in cash and partly in kind, as the Participant may
elect. Such election shall include the opportunity to request that
distribution of such Participant's interest in the OG&E Common Stock Fund
shall be made in kind in full shares of the common stock of Oklahoma Gas
and Electric Company with fractions of a share being paid in cash. Common
stock of Oklahoma Gas and Electric Company and other property so
distributed shall be valued at its fair market value on the Valuation Date
as of which the benefit is determined.
Section 11.5. Distribution of Benefits upon Death of Participant. Death
benefits shall be paid under the Plan as follows:
(a) Death before Commencement of Benefits. In the event that a
Participant dies prior to the commencement of distribution of his or her
Accounts hereunder, then the Participant's entire balance in his or her
Accounts shall be distributed within five years after the date of the
Participant's death in such manner as the Participant designates in the
Beneficiary designation form under Section 3.8 or, in the absence of such
a designation, in the manner provided in Section 11.2 as the Beneficiary
shall direct; provided, however, that if the balance in the Participant's
Accounts does not exceed $3,500 in the aggregate, the Trustee shall
distribute such benefit in a lump sum distribution following the
Participant's death.
(b) Death after Commencement of Benefits. In the event that a
Participant dies after the commencement of distribution of his or her
Accounts over a period certain as provided in Section 11.2(b),
distribution shall continue to the Participant's Beneficiary as provided
under the terms of the installment distribution; provided, however, that
the Beneficiary may accelerate payments as provided in Section 11.2(a).
Section 11.6. Distribution to Alternate Payees. Except as provided in
any "qualified domestic relations order" as defined in Code Section
414(p), payment of benefits assigned to an alternate payee shall not
commence until 20 days following the later of the Participant's "earliest
retirement age" (as defined under Code Section 414(p)(4)(B)) or the day
after the Plan Administrator recognizes such qualified domestic relations
order pursuant to Code Section 414(p). The alternate payee must request
payment from the Trustee. The form of payment to any alternate payee
shall be determined pursuant to the terms of the applicable qualified
domestic relations order, which shall be limited to the forms of payment
otherwise available to a Participant other than the Qualified Joint and
Survivor Annuity. An alternate payee shall be permitted to designate a
Beneficiary pursuant to the provisions of Section 3.8, except that a
married alternate payee shall not be subject to the requirement that his
or her sole primary Beneficiary be his or her spouse. If the alternate
payee dies before all benefits assigned to the alternate payee are
distributed from the Plan, any remaining benefits shall be payable as
provided in Section 11.5.
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Section 11.7. Eligible Rollover Distributions. A Participant or other
"distributee" who is entitled to receive an "eligible rollover
distribution," notwithstanding any provision of the Plan to the contrary
that would otherwise limit the distributee's election under this Section
11.7, may elect, at the time and in the manner prescribed by the Plan
Administrator, to have all or a portion of an eligible rollover
distribution paid directly to an "eligible retirement plan" provided that
such eligible retirement plan provides for the acceptance of direct
rollovers. For purposes of this Section 11.7, an "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 made not less frequently than
annually for the life (or life expectancy) of the distributee or the joint
lives (or life expectancies) of the distributee and his or her
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 the employer securities). An
"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(b), 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. For purposes of this Section 11.7, a "distributee"
includes any Participant, a surviving spouse, and a spouse or former
spouse who is an alternate payee under a qualified domestic relations
order, as defined in Code Section 414(p).
ARTICLE 12. - THE RETIREMENT SAVINGS TRUST
Section 12.1. Establishment of Trust. All of the funds of the Plan shall
be held as a separate trust or trusts comprised of the Investment Funds
and such other funds and accounts as shall be appropriate, to be held,
invested and distributed in accordance with provisions of the Plan in
providing benefits to Participants in the Plan and their Beneficiaries.
Section 12.2. Appointment of Trustee. The Trust or Trusts shall be held
by such Trustee or Trustees as may be appointed by the Board of Directors
from time to time, under a trust instrument or instruments which shall be
approved by the Board of Directors and shall constitute part of the Plan.
ARTICLE 13. - ADMINISTRATION
Section 13.1. Allocation of Responsibilities among Fiduciaries. The
Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically allocated to them
under the Plan. In general, the Board of Directors shall have the sole
responsibility for authorizing the Company Matching Contributions required
under the Plan; the sole authority to appoint and remove the Trustee or
Trustees, members of the Committee and any investment manager; and the
sole authority to amend or terminate, in whole or in part, the Plan and
Trust. The Committee shall be responsible for reviewing the performance
of the Trustee and any investment manager appointed by the Board of
Directors, and recommending to the Board of Directors the appointment,
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retention or termination of the Trustee and any investment manager. In
addition, the Committee shall establish an investment policy which shall
be communicated to the Trustee and any investment manager. The Committee
shall have the sole responsibility for the administration of the Plan,
which responsibility is specifically described in the Plan and Trust. The
Plan Administrator shall have the duties provided under Section 13.2. The
Trustee shall have the sole responsibility for the administration of the
Trust and the management of the assets under the Trust, all as
specifically provided in the Trust and subject to the investment policy
adopted by the Committee. The Trustee will be responsible only for the
assets of the Trust which it manages. If an investment manager is
appointed, the investment manager will have sole responsibility for the
management of the assets of the Trust specifically allocated to it. Each
Fiduciary warrants that any directions given, information furnished or
action taken by it shall be in accordance with the provisions of the Plan
and Trust, as the case may be, authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary may rely
upon any such direction, information or action of another Fiduciary as
being proper under the Plan and Trust, and is not required under the Plan
or Trust to inquire into the propriety of any such direction, information
or action except that each Fiduciary shall not be relieved from liability
for a breach of fiduciary responsibility by a co-Fiduciary under Section
405(a) of Title I of ERISA. It is intended under the Plan and Trust that
each Fiduciary shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under the Plan.
Section 13.2. Plan Administrator. A Plan Administrator shall be
appointed by the Committee to serve at the Committee's discretion. The
Plan Administrator shall exercise such authority and responsibility as it
deems appropriate in order to comply with ERISA and governmental
regulations issued thereunder relating to:
(a) Reports and notifications to Participants;
(b) Reports to and registration with the Internal Revenue Service;
(c) Annual reports to the United States Department of Labor; and
(d) Any other actions required by ERISA or the Plan.
Section 13.3. Committee.
(a) Appointment. The Committee shall consist of two or more members
appointed by the Board of Directors who may also be officers, directors,
employees, agents or shareholders of Oklahoma Gas and Electric Company.
Committee members may resign by written notice to, or may be removed by,
the Board of Directors, which shall appoint a successor to fill any
vacancy on the Committee, howsoever caused. The Secretary of Oklahoma Gas
and Electric Company shall advise the Trustee in writing of the names of
the members of the Committee and of any changes which may occur in its
membership from time to time;
(b) Specific Powers and Duties. The Committee shall have such powers as
may be necessary to discharge its duties hereunder, including, but not
limited to, the following:
(i) The discretionary authority to construe and interpret the Plan,
decide all questions of eligibility and determine the amount, manner and
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time of payment of any benefits hereunder;
(ii) To prescribe procedures to be followed by Participants and
Beneficiaries filing applications for benefits;
(iii) To cause to be prepared and to cause the Plan Administrator to
distribute, in such manner as the Committee determines to be appropriate,
information explaining the Plan and Trust;
(iv) To receive from any Participating Employer and from Participants,
either directly or through the Plan Administrator, such information as
shall be necessary for the proper administration of the Plan and Trust;
(v) To furnish to Oklahoma Gas and Electric Company upon request such
annual or other reports with respect to the administration of the Plan as
are reasonable and appropriate;
(vi) To receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, receipts and disbursements,
and assets of the Trust;
(vii) To appoint or employ individuals to assist in the administration
of the Plan and any other agents (corporate or individual) as it deems
advisable, including legal counsel and such clerical, medical, accounting,
auditing, actuarial and other services as it may require in carrying out
the provisions of the Plan; provided, however, that no agent except an
investment manager or fiduciary named in the Plan shall be appointed or
employed in a position that would require or permit him or her: (1) to
exercise discretionary authority or control over the acquisition,
disposition or management of Trust assets; (2) to render investment advice
for a fee or other compensation; or (3) to exercise discretionary
authority or responsibility for Plan administration; and
(viii) To discharge all other duties set forth herein;
(c) Limitation on Powers. The Committee shall have no power to add to,
subtract from or modify any of the terms of the Plan, to change or add to
any benefits provided by the Plan, or to waive or fail to apply any
requirements for eligibility under the Plan;
(d) Conflicts of Interest. No member of the Committee shall participate
in any action on matters involving solely his or her own rights or
benefits as a Participant under the Plan. Any such matters shall instead
be determined by the other members of the Committee;
(e) Trustee's Directions. The Committee shall direct the Trustee
concerning disbursements which shall be made out of the Trust pursuant to
the provisions of the Plan and Trust. Any Committee direction to the
Trustee shall be in writing and may be signed by any member of the
Committee or any party authorized by the Committee;
(f) Committee Procedures. The Committee may act at a meeting or by
writing without a meeting, by the vote or assent of a majority of its
members. The Committee may also adopt such bylaws and rules as it deems
desirable for the conduct of its affairs and the administration of the
Plan;
(g) Committee Records. The Committee shall keep a record of all of its
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meetings and shall keep all such books of account, records and other data
as may be necessary or desirable in its judgment for the administration of
the Plan. The Committee shall keep on file, in such form as it deems
convenient and proper, all reports of the Trust received from the Trustee;
(h) Compensation; Reimbursement. Members of the Committee shall not
receive compensation for their services as such members, but Oklahoma Gas
and Electric Company shall reimburse them for any necessary expenses
incurred in the discharge of their duties;
(i) Certain Indemnification. The Plan Administrator and members of the
Committee shall be indemnified by Oklahoma Gas and Electric Company for
all liability, joint or several, for their acts and omissions and for the
acts and omissions of their agents and other Fiduciaries in the
administration and operation of the Plan. The Plan Administrator and
members of the Committee shall also be indemnified by Oklahoma Gas and
Electric Company against all costs and expenses reasonably incurred by
them in connection with the defense of any action, suit or proceeding in
which they may be made party defendants by reason of their being or having
been Plan Administrator or members of the Committee, whether or not then
serving as such, including the cost of reasonable settlements (other than
amounts paid to Oklahoma Gas and Electric Company) made to avoid costs of
litigation and payment of any judgment or decree entered in such action,
suit or proceeding. Oklahoma Gas and Electric Company shall not, however,
indemnify the Plan Administrator or any member of the Committee with
respect to any act finally adjudicated to have been caused by the willful
misconduct of such individuals; or with respect to the cost of any
settlement unless the settlement has been approved by a court of competent
jurisdiction. The right of indemnification shall not be exclusive of any
other right to which the Plan Administrator or member of the Committee may
be legally entitled and it shall inure to the benefit of the duly
appointed legal representatives of such individual; and
(j) Dissenting Committee Members. A dissenting Committee member who,
within a reasonable time after he or she has knowledge of any action or
failure to act by the Committee, registers his or her dissent in writing
delivered to the Committee shall not be responsible for any such action or
failure to act.
Section 13.4. Information from Participant. The Committee may require a
Participant to complete and file with the Committee an application for
benefits and all other forms approved by the Committee, and to furnish all
pertinent information requested by such Committee. The Committee may rely
upon all such information so furnished to it, including the Participant's
current mailing address.
Section 13.5. Notification of Participant's Address. Each Participant
and Beneficiary entitled to benefits under the Plan must file with the
Committee, in writing, his or her post office address and each change of
post office address. Any communication, statement or notice addressed to
such person at his or her latest post office address as filed with the
Committee shall, on deposit in the United States mail with postage
prepaid, be binding upon such person for all purposes of the Plan and the
Committee shall not be obliged to search for, or to ascertain the
whereabouts of, any such person.
Section 13.6. Claims and Appeal Procedure. All claims for benefits shall
be submitted in writing to the Committee which shall process them and
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approve or disapprove them within 90 days after the date the claim is
received. If special circumstances arise and the Committee cannot process
the claim within 90 days, the Committee shall notify the claimant that the
time for making the decision is extended for up to 90 additional days. If
the Committee fails to notify the claimant within the applicable period,
the claim shall be considered denied. If the Committee makes a
determination to deny benefits to a claimant, the denial shall be stated
in writing and delivered or mailed to the claimant. Such notice shall set
forth the specific reasons for the denial, written in a manner that may be
understood by the claimant, and shall describe the steps necessary for
appeal. A Participant or Beneficiary whose claim for benefits has been
denied shall have a period of 60 days in which to appeal to the Committee
and submit additional information to the Committee. The Committee shall
consider the request at its next scheduled meeting. If the claim is again
denied in writing, the Participant or Beneficiary may request a hearing
within 30 days of the second denial and the Committee shall afford a
reasonable opportunity for a hearing to any Participant or Beneficiary for
a review of its decision denying the claim, which hearing shall be held
within 60 days following receipt of the request. The claimant shall have
an opportunity to present evidence and appear before the Committee. The
Committee shall review all evidence submitted by the claimant and shall
make its decision regarding the claim within 120 days following the
receipt of the request for a hearing and shall provide the claimant with a
written decision. The decision of the Committee regarding the claim shall
be final and conclusive.
ARTICLE 14. - NATURE AND CONSTRUCTION OF RIGHTS AND DUTIES
Section 14.1. Nonalienation of Benefits. Except as required for federal
income tax withholding purposes or pursuant to a "qualified domestic
relations order" under Section 401(a)(13) of the Code, assignment of
benefits under the Plan or their pledge or encumbrance in any manner shall
not be permitted or recognized under any circumstances nor shall such
benefits be subject to attachment or other legal process for the debts
(including payments for alimony or support) of any Participant, former
Participant or Beneficiary. This Section 14.1 shall not apply to any
default or indebtedness to the Trust as provided in Sections 10.5 and
10.6.
Section 14.2. Payments to Incapacitated Participant or Beneficiary. If
the Committee shall find that a Participant, former Participant or
Beneficiary is unable to care for his or her affairs because of illness or
accident, or is a minor, or has died, the Committee may direct that any
payment due him or her, unless claim therefor shall have been made by a
duly appointed legal representative, shall be paid to his or her spouse, a
child, a parent, or other blood relative or to a person with whom he or
she resides, and any such payment so made shall be in complete discharge
of the liabilities of the Plan therefor.
Section 14.3. Payment on Inability to Locate Participant or Beneficiary.
Subject to all applicable laws relating to unclaimed property, if the
Committee or Trustee mails by registered or certified mail, postage
prepaid, to the last known address of a Participant or a Beneficiary, a
notification that he or she is entitled to a distribution hereunder, and
if the notification is returned by the United States Postal Service as
being undeliverable because the addressee cannot be located at the address
indicated, and if the Committee and Trustee have no knowledge of such
Participant's or Beneficiary's whereabouts within three years from the
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date the notification was mailed, or if within three years from the date
the notification was mailed to such Participant or Beneficiary he or she
does not respond thereto by informing the Committee or Trustee of his or
her whereabouts, then, and in either of said events, upon the December 31
coincident with or next succeeding the third anniversary of the mailing of
such notification, the then undistributed share in the Trust of such
Participant or Beneficiary shall be paid to the person or persons who
would have been entitled to take such share in the event of the death of
the Participant or Beneficiary whose whereabouts are unknown, assuming
that such death occurred as of the December 31 coincident with or next
succeeding the third anniversary of the mailing of such notification. In
the event such alternate payment cannot be made, and subject to the
applicable state laws concerning escheat, the aggregate amount of such
Participant's Accounts shall be held in a suspense account until the end
of the next Plan Year and then treated as a Forfeiture; provided, however,
that such amount shall be reinstated to the proper Participant's Accounts
upon a valid claim therefor by the Participant or Beneficiary.
Section 14.4. Interest in Trust Governed by Terms of Plan. No
Participant, former Participant, Beneficiary or any other person shall
have any interest in or right under the Plan or in any part of the assets
or earnings thereof held in the Trust except as and to the extent provided
in the Plan.
Section 14.5. Trust as Sole Source of Benefits. The Trust shall be the
sole source of all benefits provided for in the Plan.
Section 14.6. Uniformity of Treatment. Whenever in the administration of
the Plan action by the Board of Directors (with respect to contributions)
or the Committee (with respect to eligibility or classification of
Employees, contributions or benefits) is required, such action shall be
uniform in nature as applied to all persons similarly situated, and no
such action shall be taken which shall discriminate in favor of Employees
who are officers, shareholders or highly compensated Employees.
Section 14.7. Exclusive Benefit of Participants and Beneficiaries.
Notwithstanding any provision to the contrary in the Plan, no part of the
assets of the Trust (other than such part as is required to pay taxes and
expenses) shall be used for, or diverted to, purposes other than for the
exclusive benefit of Participants and Beneficiaries; provided, however,
that upon the Company's request a contribution which was made by it upon a
mistake of fact, or conditioned upon initial qualification of the Plan or
upon the deductibility of the contribution under Section 404 of the Code
shall be returned to the Company which made the contribution within one
year after the payment of the mistaken contribution, the denial of
qualification or the disallowance of the deduction (to the extent
disallowed), whichever is applicable.
Section 14.8. No Contract of Employment. Nothing contained in the Plan
shall be construed as a contract of employment between the Company and any
Employee, or as a right of any Employee to be continued in the employment
of the Company, or as a limitation on the right of the Company to
discharge its Employees with or without cause.
Section 14.9. Form of Actions and Notices. Any action by Oklahoma Gas
and Electric Company pursuant to the provisions of the Plan shall be
evidenced by a resolution of the Board of Directors certified by its
secretary or assistant secretary, or by written instrument executed by any
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person authorized by the Board of Directors to take such action, and the
Fiduciaries shall be fully protected in acting in accordance with any such
written instrument or resolution received by them.
Section 14.10. Partial Invalidity Not To Affect Remaining Provisions. In
case any provisions of the Plan shall be held unlawful or invalid for any
reason, the illegality or invalidity shall not affect the remaining
provisions, and the Plan shall be construed and enforced as if the
unlawful or invalid provisions had never been inserted.
ARTICLE 15. - AMENDMENT AND TERMINATION
Section 15.1. Plan and Trust Amendment. Oklahoma Gas and Electric
Company reserves the right at any time and from time to time to amend the
Plan and Trust in whole or in part, and either retroactively or
prospectively, by action of the Board of Directors through a written
instrument delivered to the Trustee; provided, however, that:
(a) Except as expressly provided to the contrary herein, no such
amendment shall authorize or permit any part of the corpus or income of
the Trust to be used for or diverted to purposes other than for the
exclusive benefit of Participants or Beneficiaries, or deprive any of them
of funds then held for their account;
(b) No amendment shall increase the duties or liabilities of the Trustee
without its written consent; and
(c) Notwithstanding anything herein to the contrary, any amendment may be
made to the Plan and Trust that the Board of Directors deems necessary or
appropriate to comply with any statute or regulation, including
requirements for qualification, exempt status and deductibility of
contributions under the Code, and such amendment shall have retroactive
effect if necessary for such purposes.
Section 15.2. Permanency of Plan. Oklahoma Gas and Electric Company has
established the Plan with a bona fide intention that the Plan and Trust
shall be permanent. However, Oklahoma Gas and Electric Company realizes
that circumstances not now foreseen or circumstances beyond its control
may make it either impossible or inadvisable to continue to make
contributions as herein provided.
Section 15.3. Termination of Plan. In the event that the Board of
Directors notifies the Trustee in writing that it is impossible or
inadvisable for Oklahoma Gas and Electric Company to continue to make its
contributions as herein provided, the Board of Directors shall have the
power to discontinue contributions to the Trust or to terminate the Plan
by appropriate resolutions. In the event of (i) termination of the Plan,
(ii) dissolution, merger, consolidation or reorganization of Oklahoma Gas
and Electric Company where the successor company does not continue the
Plan in accordance with Section 16.1, (iii) partial termination with
respect to a group of Participants, or (iv) complete discontinuance of
contributions without any further action of the Company, the Company
Matching Contribution Accounts of all affected Participants shall become
fully vested and nonforfeitable. There shall be no Company contributions
after the date the Plan terminates. However, the Committee and the Trust
shall remain in existence, and all of the provisions of the Plan (other
than the provisions relating to contributions and Forfeitures) which, in
the sole opinion of the Committee are necessary, shall remain in full
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force and effect.
Section 15.4. Distribution Upon Termination. Upon termination of Plan
and Trust, after payment of all expenses (including Trustee's fees) and
proportionate adjustments to the Participant's Accounts, where
appropriate, to reflect such expenses, gains, losses, and allocations to
the date of termination, each Participant shall be entitled to receive any
amounts then credited to his or her Accounts, distributed as provided in
Article 11; provided, however, that the Committee and the Trustee shall
not be required to effect such distribution until written evidence of
approval of such termination and distribution has been received from the
Internal Revenue Service. If such benefits do not exhaust the assets of
the Trust, any remaining assets shall be allocated among the Accounts of
continuing Participants in the proportion that the aggregate balance in
their Accounts bears to each other. Upon termination, the Committee may
authorize the payment to Participants or Beneficiaries of such amounts in
cash or in kind, with all such assets being measured at their fair market
value. The Trustee shall continue to hold, invest, administer and
distribute the assets of the Trust pursuant to the terms of the Plan until
no Trust assets remain in its hands. If a Participant dies after
termination of the Plan and before all of his or her interest in the Trust
has been paid, the undistributed portion shall be distributed to his or
her Beneficiary in a lump sum.
ARTICLE 16. - SUCCESSOR COMPANY; PLAN MERGER, CONSOLIDATION OR TRANSFER OF
ASSETS
Section 16.1. Continuation by Successor. In the event of the
dissolution, merger, consolidation or reorganization of Oklahoma Gas and
Electric Company, or other circumstances whereby a successor continues to
carry on a substantial part of its business, the successor shall have the
option for 90 days thereafter to make provision for the continuance of the
Plan. In that event, such successor shall be substituted for Oklahoma Gas
and Electric Company under the Plan upon filing a written election to that
effect with the Trustee. The substitution of the successor shall
constitute an assumption of Plan liabilities by the successor and the
successor shall have all of the powers, duties and responsibilities of
Oklahoma Gas and Electric Company under the Plan.
Section 16.2. Merger or Consolidation of Plan. In the event of any
merger or consolidation of the Plan with, or transfer in whole or in part
of the assets and liabilities of the Trust to, any other plan of deferred
compensation maintained or to be established for the benefit of all or
some of the Participants of the Plan, the assets of the Trust applicable
to such Participants shall be transferred to the other trust only if:
(a) Each Participant would (if the plan then terminated) receive a
benefit immediately after the merger, consolidation or transfer which is
equal to or greater than the benefit he or she would have been entitled to
receive immediately before the merger, consolidation or transfer (if the
Plan had then terminated);
(b) Resolutions of the Board of Directors of Oklahoma Gas and Electric
Company, and of any new or successor employer of the affected
Participants, shall authorize such transfer of assets; and in the case of
the new or successor employer, its resolutions shall include an assumption
of liabilities with respect to such Participants' inclusion in the new or
successor employer's plan; and
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(c) Such other plan is qualified under Sections 401(a) and 501(a) of the
Code.
Section 16.3. Transfer of Assets From Other Qualified Plans. The Board
of Directors may approve the transfer in whole or in part of the assets
and liabilities of any other plan of deferred compensation qualified under
Sections 401(a) and 501(a) of the Code into the Trust established under
this Plan, including a transfer that may cause the Plan to be deemed a
transferee plan within the meaning of Section 401(a)(11)(B)(iii) of the
Code. The amounts so transferred shall be deposited into the Trust and a
fully vested and nonforfeitable Transfer Account shall be established for
each affected Participant; provided, however, that any amount which is
subject to the "transferee plan" rules must be accounted for separately
within the Transfer Account. The separate accounting of the "transferee
plan" amounts shall be made by allocating separately to such amounts their
allocable share of any gains, losses and other applicable credits and
charges on a reasonable and consistent basis. Each Participant's Transfer
Account, if any, shall share in adjustments made to the Trust on
subsequent Valuation Dates pursuant to Article 9, but shall not share in
Company Matching Contribution allocations at any time. A Participant may
not make an in-service withdrawal from his or her Transfer Account, but
may receive a loan pursuant to Section 10.6. Upon termination of
employment or death, the total amount of a Participant's Transfer Account
shall be distributed in accordance with Articles 11 and 17.
ARTICLE 17. - JOINT AND SURVIVOR ANNUITY REQUIREMENTS
Section 17.1. Applicability. The provisions of this Article 17 shall
apply only to amounts transferred to the Plan on or after January 1, 1985
pursuant to Section 16.3 and subject to the transferee plan rules of
Section 401(a)(11)(B)(iii) of the Code ("Transferee Plan Amounts"). With
respect to the Transferee Plan Amounts (as adjusted for any subsequent
earnings or losses), the provisions of this Article 17 shall take
precedence over any conflicting provision in the Plan.
Section 17.2. General Rules. Unless an optional form of benefit under
Article 11 is selected pursuant to a Qualified Election within the 90-day
period ending on the date that distribution of benefits otherwise would
commence, Transferee Plan Amounts shall be paid in the form of a Qualified
Joint and Survivor Annuity. In addition, unless a form of benefit under
Article 11 has been selected within the Election Period pursuant to a
Qualified Election, if a Participant dies before benefits have commenced,
the Participant's Transferee Plan Amount shall be applied toward the
purchase of a Qualified Preretirement Survivor Annuity for the life of the
Surviving Spouse.
Notwithstanding either of the foregoing general rules, if the
Participant's Transferee Plan Amount does not exceed $3,500 when such
payments are to begin, it shall be immediately distributed in one lump sum
payment. In all other cases, the Participant and Spouse (or the Surviving
Spouse) may consent in writing to receive an immediate lump sum payment of
the Transferee Plan Amount.
Section 17.3. Definitions. The following terms shall have the following
meanings for purposes of this Article 17:
(a) Election Period means the period beginning on the first day of the
Plan Year in which the Participant attains age 35 and ends on the date of
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the Participant's death. If a Participant separates from service before
the first day of the Plan Year in which he or she attains age 35, with
respect to the Transferee Plan Amounts as of the date of separation, the
Election Period shall begin on the date of separation.
(b) Qualified Election means a waiver of a Qualified Joint and Survivor
Annuity or a Qualified Preretirement Survivor Annuity, as such waiver is
further described in this subsection 17.3(b). The waiver must be in
writing and must be consented to by the Participant's Spouse. The
Spouse's consent must be witnessed by the Plan Administrator or notary
public and must acknowledge the financial effect of the waiver. If the
Qualified Election designates a non-Spouse Beneficiary or a specific form
of payment, the Spouse's consent must also acknowledge the non-Spouse
Beneficiary, class of Beneficiaries or contingent Beneficiaries, and the
specific form of payment, if any. Notwithstanding this consent
requirement, if the Participant establishes to the satisfaction of the
Plan Administrator that such written consent cannot be obtained because
there is no Spouse, the Participant is legally separated from the Spouse
or the Spouse cannot be located, a waiver will be deemed a Qualified
Election. Any consent necessary under this provision will be valid only
with respect to the Spouse who signs the consent, or in the event of a
deemed Qualified Election, the designated Spouse. Additionally, a
revocation of a prior waiver may be made by a Participant without the
consent of the Spouse at any time before the commencement of benefits.
The number of revocations shall not be limited.
(c) Qualified Joint and Survivor Annuity means, with respect to a married
Participant, an annuity for the life of the Participant with a survivor
annuity for the life of the Spouse which is not less than fifty percent
(50%) and not more than one hundred percent (100%) of the amount of the
annuity which is payable during the joint lives of the Participant and the
Spouse and which is the amount of benefit which can be purchased with the
Participant's Transferee Plan Amount. With respect to an unmarried
Participant, a Qualified Joint and Survivor Annuity means an annuity for
the life of the Participant.
(d) Qualified Preretirement Survivor Annuity means an annuity for the
life of the Surviving Spouse which is the amount of benefit which can be
purchased with the Participant's Transferee Plan Amount.
(e) Spouse (or Surviving Spouse) means the spouse or surviving spouse of
the Participant, provided that a former spouse will be treated as the
spouse or surviving spouse to the extent required under a "qualified
domestic relations order" as described in Section 414(p) of the Code.
ARTICLE 18. - CONSTRUCTION
The Plan and the Trust forming a part thereof shall be construed and
administered according to the laws of the State of Oklahoma to the extent
such laws are not preempted by ERISA or subsequent amendments thereto or
any other laws of the United States of America.
ARTICLE 19. - MULTIPLE EMPLOYER PROVISIONS
Section 19.1. Participating Employers. The Board of Directors may
authorize any other corporation or business organization to participate in
the Plan, with participation to commence upon such date as the Board of
Directors shall determine in its discretion. Upon receiving such
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authorization, said corporation or business organization shall become a
Participating Employer immediately upon causing its board of directors to
adopt a written resolution electing such participation.
Section 19.2. Plan's Application to Each Participating Employer. It is
intended that the contribution, Forfeiture and allocation provisions of
the Plan shall apply separately to each Participating Employer, if there
be more than one, and to the Participants of each Participating Employer.
In all other respects, the Plan shall constitute a single plan for all
Participating Employers.
Section 19.3. Continuity of Employment. Except as expressly provided to
the contrary herein, the concept of "employment" shall be deemed to refer
equally to employment with any Participating Employer, so that for the
purpose of measuring Years of Service or for any other purpose under the
Plan, employment with any Participating Employer shall be deemed to be the
equivalent of employment with any other Participating Employer, and
employment with any Participating Employer may be combined with employment
with any other Participating Employer as if all employment had been with
any one Participating Employer. Regardless of the duration of service
with any particular Participating Employer in any given year or the number
of Participating Employers for whom an Employee works, an Employee will
not be credited with more than one Year of Service in any Plan Year.
Section 19.4. Instructions to Trustee. Unless Oklahoma Gas and Electric
Company otherwise so states in its instructions to the Trustee, its
directive to the Trustee shall apply to the entire trust fund without
distinction as to the portion thereof contributed by any one Participating
Employer.
Section 19.5. Amendment by Board of Directors. The Board of Directors
shall be vested with the sole power to amend the Plan and Trust by an
instrument in writing delivered to the Trustee, the Committee and each
Participating Employer. Such amendment shall bind all Participating
Employers, except that no such amendment shall bind any Participating
Employer which, within 90 days after its receipt of notice of such
amendment from Oklahoma Gas and Electric Company, shall have given notice
pursuant to Section 19.6 of its termination of Plan participation.
Section 19.6. Withdrawal by Participating Employer. By instrument in
writing, duly executed and delivered to the Trustee, the Committee and
Oklahoma Gas and Electric Company (if such terminating Participating
Employer is not Oklahoma Gas and Electric Company), the board of directors
of any Participating Employer shall have the right, with the consent of
the Board of Directors, to amend the Plan and Trust in such a way as to
withdraw its participation in the Plan and Trust. In such event said
Participating Employer shall forthwith cease to be a party to the Plan and
Trust. Oklahoma Gas and Electric Company shall thereupon determine that
portion of the trust fund which represents, with respect to those
Participants who are at such time Employees of such Participating
Employer, an amount which bears to the total trust fund the same ratio
which the actuarial reserve for such Participants bears to the total
actuarial reserve in the trust fund. The Trustee, at the direction of
Oklahoma Gas and Electric Company, shall do one of the following: (a) set
aside such assets for the exclusive benefit of those Participants who are
then Employees of such Participating Employer; (b) deliver such assets to
the trustee to be selected by such Participating Employer; or (c)
terminate the Plan and liquidate the Trust with respect to such
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Participating Employer in accordance with Article 15, after first
obtaining any necessary governmental approval.
ARTICLE 20. - SPECIAL PROVISIONS FOR TOP-HEAVY PLANS
Section 20.1. Top-Heavy Plan Definitions. The definitions relating to
Top-Heavy Plan provisions are as follows:
(a) The term "Top-Heavy Plan" or "Top-Heavy" means the Plan or refers to
the Plan if, as of the Determination Date, the aggregate of the Accounts
of Key Employees under the Plan exceeds sixty percent (60%) of the
aggregate of the Accounts of all Employees under the Plan, as determined
in accordance with the provisions of Section 416(g) of the Code. The
determination of whether the Plan is Top-Heavy shall be made after
aggregating all other tax-qualified plans of the Company which are
required to be aggregated pursuant to Section 416(g)(2) of the Code and
after aggregating any other such plan of the Company which may be taken
into account under the permissive aggregation rules of Section
416(g)(2)(A)(ii) of the Code if such permissive aggregation thereby
eliminates the Top-Heavy status of any plan within such permissive
aggregation group. The Plan is "Super Top-Heavy" if, as of the
Determination Date, the Plan would meet the test specified above for being
a Top-Heavy Plan if ninety percent (90%) were substituted for sixty
percent (60%) in each place in which it appears in this subsection
20.1(a). The plans which are required to be aggregated include (i) all
tax-qualified plans of the Company in which a Key Employee participates
and all tax-qualified plans of the Company in which a Key Employee
participated which were terminated within the five-year period ending on
the Determination Date, and (ii) all other tax-qualified plans of the
Company which enable a plan described in (i) to meet the requirements of
Section 401(a)(4) or Section 410 of the Code. The plans which are
permitted to be aggregated include the plans which are required to be
aggregated plus any plan or plans of the Company which, when considered as
a group with the required aggregation group, would continue to satisfy the
requirements of Sections 401(a)(4) and 410 of the Code. For the purposes
of these Top-Heavy provisions, Employees and Key Employees shall include
only such individuals who performed any services for the Company at any
time during the five-year period ending on the Determination Date.
(b) The term "Determination Date," for purposes of determining whether
the Plan is Top-Heavy for a particular Plan Year, means the last day of
the preceding Plan Year.
(c) The term "Key Employee" means any Employee or former Employee
(including a Beneficiary of any such Employee or former Employee, if a
Participant) who at any time during the Plan Year or any of the four
preceding Plan Years is:
(i) An individual who receives as annual Compensation more than fifty
percent (50%) of the dollar limit under Code Section 415(b)(1)(A) and who
is an officer of the Company (but in no event shall more than fifty
Employees or, if less, ten percent (10%) of all Employees be taken into
account under this paragraph (i) as Key Employees);
(ii) One of the ten Employees owning (or considered as owning within the
meaning of Code Section 318) the largest interests in the Company,
provided that the Employee's interest is more than a one-half percent
(.5%) interest in the Company and such Employee also had Compensation
38
<PAGE>
exceeding the maximum dollar limitation under Code Section 415(c)(1)(A) in
effect for the calendar year in which the Determination Date falls;
(iii) A person owning (or considered as owning within the meaning of
Code Section 318) more than five percent (5%) of the outstanding stock of
the Company or stock possessing more than five percent (5%) of the total
combined voting power of all stock of the Company; or
(iv) A person who receives as annual Compensation from the Company more
than One Hundred Fifty Thousand Dollars ($150,000) and who would be
described in paragraph (iii) of this subsection if "one percent (1%)" were
substituted for "five percent (5%)."
For purposes of applying Code Section 318 to the provisions of this
subsection (c), subparagraph (C) of Code Section 318(a)(2) shall be
applied by substituting "five percent (5%)" for "fifty percent (50%)." In
addition, the rules of subsections (b), (c) and (m) of Code Section 414
shall not apply for purposes of determining top-ten ownership or ownership
percentage in the Company under this subsection (c).
(d) The term "Non-Key Employee" means any Employee (including a
Beneficiary of such Employee, if a Participant) who is not a Key Employee.
(e) For purposes of this Section 20.1 and Section 20.2, the term
"Compensation" shall be defined pursuant to Treasury Regulations Section
1.415-2(d).
Section 20.2. Requirements in Plan Years in Which Plan Is Top-Heavy.
Notwithstanding anything herein to the contrary, if the Plan is Top-Heavy
as determined pursuant to Code Section 416 for any Plan Year, then the
Plan shall meet the following requirements for any such Plan Year:
(a) Minimum Vesting Requirements. A Participant's Vesting Percentage
under Section 10.3 in his or her Company Matching Contribution Account
shall be determined in accordance with the following schedule:
Years of Service Vesting Percentage
-------------------------------------------------
Less than Two 0%
At least Two but less than Three 20%
At least Three but less than Four 40%
At least Four but less than Five 60%
At least Five but less than Six 80%
Six or more 100%
In the event that the Top-Heavy Plan ceases thereafter to be Top-Heavy,
each Participant's Vesting Percentage shall again be determined under
Section 10.3, provided that a Participant's Vesting Percentage shall not
be reduced thereby. To the extent required by Code Section 411(a)(10) and
final Regulations of the Department of Treasury under Code Section 416, if
the determination of a Participant's Vesting Percentage is changed from
the use of Section 10.3 to the use of this Section 20.2(a), each
Participant with at least three Years of Service may elect to continue to
have his or her Vesting Percentage computed under the formerly applied
vesting schedule.
(b) It is intended that the Company will meet the minimum contribution
39
<PAGE>
requirements of Code Sections 416(c) and 416(h) by providing a minimum
Company contribution (including Company Matching Contributions already
made on behalf of the Participant under Article 4) for such Plan Year for
each Participant who is a Non-Key Employee (regardless of whether he or
she has made Tax-Deferred Contributions), in accordance with whichever of
the following paragraphs is applicable:
(i) If the Company does not maintain a tax-qualified defined benefit
pension plan, or if the Company maintains such a pension plan in which no
Participant can participate, the minimum contribution per Participant
shall be three percent (3%) of the Participant's Compensation for that
Plan Year;
(ii) If the Company maintains a tax-qualified defined benefit pension plan
in which one or more Participants may participate, and that pension plan
is not Top-Heavy under Code Section 416(g)(1)(A)(i), the minimum
contribution per Participant shall be four percent (4%) of the
Participant's Compensation for that Plan Year, provided (i) that the Plan
is not Super Top-Heavy, (ii) that the increased one percent (1%)
contribution is necessary to avoid the application of Code Section
416(h)(1) (relating to adjustment of the combined plan contributions and
benefits limitation which would substitute 1.0 for 1.25 in the defined
contribution and defined benefit fractions under Code Section 415) and
(iii) that such combined plan benefit and contribution limitations would
otherwise be exceeded if such minimum contribution were not so increased;
and
(iii) If the Company maintains a tax-qualified defined benefit pension
plan in which one or more Participants may participate, and that pension
plan is Top-Heavy under Code Section 416(g)(1)(A)(i), the minimum
contribution per Participant shall be five percent (5%) of the
Participant's Compensation for that Plan Year; provided, however, that if
the Plan is not Super Top-Heavy the minimum contribution shall be
increased to seven and one-half percent (7.5%) if necessary to avoid the
application of Code Section 416(h)(1) (relating to adjustment of the
combined plan contributions and benefits limitation which would substitute
1.0 for 1.25 in the defined contribution and defined benefit fractions
under Code Section 415) and if such combined plan benefit and contribution
limitations otherwise would be exceeded if an increased minimum
contribution is not made.
The minimum Company contribution under this subsection 20.2(b), to the
extent not already credited or allocated to the appropriate Participants'
Accounts because it is in addition to Company contributions already made
on behalf of the Participant under Article 4, shall be made to
Participants' Company Matching Contribution Accounts. Notwithstanding
anything in this subsection 20.2(b) to the contrary, the applicable
minimum contribution required under this subsection shall in no event
exceed, in terms of a percentage of Compensation, the contribution made
for the Key Employee for whom such percentage is highest for the Plan Year
after taking into account contributions or benefits under other
tax-qualified plans in the Plan's aggregation group as provided pursuant
to Code Section 416(c)(2)(B)(ii). Furthermore, no minimum contribution
will be required under this subsection 20.2(b) (or the minimum
contribution shall be reduced, as the case may be) for a Participant for
any Plan Year if the Company maintains another tax-qualified plan under
which a minimum benefit or contribution is being accrued or made for such
Plan Year in whole or in part for the Participant in accordance with Code
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<PAGE>
Section 416(c).
IN WITNESS WHEREOF, the Company has caused this amended and restated
Plan to be signed on this day of ,1993.
OKLAHOMA GAS AND ELECTRIC COMPANY
By
------------------------------
Its
------------------------------
ATTEST:
----------------------------
Its
----------------------------
41
<PAGE>
Exhibit 4.02
TRUST AGREEMENT
Between
_________________________________________________________
OKLAHOMA GAS & ELECTRIC COMPANY
And
FIDELITY MANAGEMENT TRUST COMPANY
_________________________________________________________
OKLAHOMA GAS & ELECTRIC COMPANY RETIREMENT SAVINGS PLAN
TRUST
Dated as of November 30, 1993
<PAGE>
TABLE OF CONTENTS
Section Page
1 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Exclusive Benefit and Reversion of Sponsor Contributions . . 2
3 Disbursements . . . . . . . . . . . . . . . . . . . . . . . 2
(a) Directions from Administrator
(b) Limitations
4 Investment of Trust . . . . . . . . . . . . . . . . . . . . 2
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Sponsor Stock
(f) Notes
(g) Guaranteed Investment Contracts
(h) Reliance of Trustee Directions
(i) Trustee Powers
5 Recordkeeping and Administrative Services to Be Performed. . 12
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 Compensation and Expenses . . . . . . . . . . . . . . . . . 14
7 Directions and Indemnification . . . . . . . . . . . . . . . 14
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
8 Resignation or Removal of Trustee . . . . . . . . . . . . . 15
(a) Resignation
(b) Removal
-i-
<PAGE>
TABLE OF CONTENTS
(Continued)
Section Page
9 Successor Trustee . . . . . . . . . . . . . . . . . . . . . 16
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 Termination . . . . . . . . . . . . . . . . . . . . . . . . 16
11 Resignation, Removal, and Termination Notices . . . . . . . 16
12 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13 Amendment or Modification . . . . . . . . . . . . . . . . . 17
14 General . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
15 Governing Law . . . . . . . . . . . . . . . . . . . . . . . 18
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
Schedules
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Investment Options
D. Sponsor's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Telephone Exchange Procedures
-ii-
<PAGE>
TRUST AGREEMENT, dated as of the 30th day of November 1993, between
Oklahoma Gas & Electric Company, an Oklahoma corporation, having an
office at 101 North Robinson Street, Oklahoma City, OK 73102 (the
"Sponsor"), and FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts
trust company, having an office at 82 Devonshire Street, Boston,
Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Oklahoma Gas & Electric
Company Retirement Savings Plan (the "Plan"); and
WHEREAS, the Sponsor has previously established a trust (the "Prior
Trust"); and
WHEREAS, the Sponsor now desires to adopt a restated trust with the
Trustee to hold and invest plan assets under the Plan, including assets
held in the Prior Trust, for the exclusive benefit of participants in
the Plan and their beneficiaries; and
WHEREAS, the Oklahoma Gas & Electric Company Employees' Financial
Programs Committee (the "Named Fiduciary") is the named fiduciary of
the Plan (within the meaning of section 402(a) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid
plan assets in trust among several investment options selected by the
Named Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan;
and
WHEREAS, the Oklahoma Gas & Electric Retirement Company Employees'
Financial Programs Committee (the "Administrator") is the administrator
of the Plan (within the meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely
ministerial in nature and are provided within a framework of plan
1
<PAGE>
provisions, guidelines and interpretations conveyed in writing to the
Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the
Trustee agree as follows:
Section 1. Trust. The Sponsor hereby adopts, restates, and renames
the Prior Trust, the Oklahoma Gas & Electric Company Retirement Savings
Plan Trust (the "Trust"), with the Trustee. The Trust shall consist of
an initial contribution of money or other property acceptable to the
Trustee in its sole discretion, made by the Sponsor or transferred from
a previous trustee under the Plan, such additional sums of money and
Sponsor Stock (hereinafter defined) as shall from time to time be
delivered to the Trustee under the Plan, all investments made therewith
and proceeds thereof, and all earnings and profits thereon, less the
payments that are made by the Trustee as provided herein, without
distinction between principal and income. The Trustee hereby accepts
the Trust on the terms and conditions set forth in this Agreement. In
accepting this Trust, the Trustee shall be accountable for the assets
received by it, subject to the terms and conditions of this Agreement.
Section 2. Exclusive Benefit and Reversion of Sponsor Contributions.
Except as provided under applicable law, no part of the Trust may be
used for, or diverted to, purposes other than the exclusive benefit of
the participants in the Plan or their beneficiaries prior to the
satisfaction of all liabilities with respect to the participants and
their beneficiaries.
Section 3. Disbursements.
(a) Directions from Administrator. The Trustee shall make
disbursements in the amounts and in the manner that the Administrator
directs from time to time in writing. The Sponsor hereby directs that,
pursuant to the Plan, a participant in-service withdrawal request may
be made by telephone and the Trustee shall process such request only
after the identity of the participant is verified by use of a personal
identification number ("PIN") and social security number. The Trustee
shall have no responsibility to ascertain any direction's compliance
with the terms of the Plan or of any applicable law or the direction's
effect for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement.
(b) Limitations. The Trustee shall not be required to make
any disbursement in excess of the net realizable value of the assets of
the Trust at the time of the disbursement. The Trustee shall not be
required to make any disbursement in cash unless the Administrator has
provided a written direction as to the assets to be converted to cash
for the purpose of making the disbursement.
Section 4. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have
no responsibility for the selection of investment options under the
Trust and shall not render investment advice to any person in
connection with the selection of such options.
(b) Available Investment Options. The Named Fiduciary shall
2
<PAGE>
direct the Trustee as to what investment options: (i) the Trust shall
be invested in during the participant recordkeeping reconciliation
period, and (ii) the investment options in which Plan participants may
invest, subject to the following limitations. The Named Fiduciary may
determine to offer as investment options only (i) securities issued by
the investment companies advised by Fidelity Management & Research
Company ("Mutual Funds"), (ii) equity securities issued by the Sponsor
or an affiliate which are publicly-traded and which are "qualifying
employer securities" within the meaning of section 407(d)(5) of ERISA
("Sponsor Stock"), (iii) notes evidencing loans to Plan participants in
accordance with the terms of the Plan, (iv) guaranteed investment
contracts chosen by the Trustee, and (v) collective investment funds
maintained by the Trustee for qualified plans; provided that the
Trustee shall be considered a fiduciary with investment discretion only
with respect to Plan assets that are invested in guaranteed investment
contracts chosen by the Trustee or in collective investment funds
maintained by the Trustee for qualified plans. The investment options
initially selected by the Named Fiduciary are identified on Schedules
"A" and "C" attached hereto. The Named Fiduciary may add additional
investment options or delete investment options, in either case, with
the consent of the Trustee and upon mutual amendment of this Trust
Agreement and the Schedules thereto to reflect such additions or
deletions.
(c) Participant Direction. Each Plan participant shall
direct the Trustee in which investment option(s) to invest the assets
in the participant's individual accounts. Such directions may be made
by Plan participants by use of the telephone exchange system maintained
for such purposes by the Trustee or its agent, in accordance with
written Telephone Exchange Procedures attached hereto as Schedule "G".
A participant shall be considered a named fiduciary of the Plan under
ERISA for purposes of using the telephone exchange system to provide
investment directions to the Trustee for the participant's individual
account. In the event that the Trustee fails to receive a proper
direction, the assets shall be invested in the securities of the fund
set forth for such purpose on Schedule "C", until the Trustee receives
a proper direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it
has received from the Trustee a copy of the prospectus for each Mutual
Fund selected by the Named Fiduciary as a Plan investment option. Trust
investments in Mutual Funds shall be subject to the following
limitations:
(i) Execution of Purchases and Sales. Purchases and sales
of Mutual Funds (other than for Exchanges) shall be made on the date on
which the Trustee receives from the Sponsor in good order all
information and documentation necessary to accurately effect such
purchases and sales (or in the case of a purchase, the subsequent date
on which the Trustee has received a wire transfer of funds necessary to
make such purchase). Exchanges of Mutual Funds shall be made in
accordance with the Telephone Exchange Procedures attached hereto as
Schedule "G".
(ii) Voting. At the time of mailing of notice of each
annual or special stockholders' meeting of any Mutual Fund, the Trustee
shall send a copy of the notice and all proxy solicitation materials to
each Plan participant who has shares of the Mutual Fund credited to the
participant's accounts, together with a voting direction form for
return to the Trustee or its designee. The participant shall have the
right to direct the Trustee as to the manner in which the Trustee is to
vote the shares credited to the participant's accounts (both vested and
unvested).
3
<PAGE>
The Trustee shall vote the shares as directed by the participant. The
Trustee shall not vote shares for which it has received no directions
from the participant. During the participant recordkeeping
reconciliation period, the Sponsor shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote the shares of
the Mutual Funds in the Trust. With respect to all rights other than
the right to vote, the Trustee shall follow the directions of the
participant and if no such directions are received, the directions of
the Named Fiduciary. The Trustee shall have no duty to solicit
directions from participants or the Sponsor or the Named Fiduciary.
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be
made via the Oklahoma Gas & Electric Common Stock Fund which shall
consist of shares of Sponsor Stock and short-term liquid investments,
including a commingled money market fund ("Fidelity Employee Benefit
U.S. Government Reserves Portfolio") maintained by the Trustee,
necessary to satisfy the Fund's cash needs for transfers and payments.
A cash target range shall be determined in conjunction with the Sponsor
for the cash portion of the Oklahoma Gas & Electric Common Stock Fund.
The Trustee is responsible for ensuring that the actual cash held in
the Oklahoma Gas & Electric Common Stock Fund falls within the agreed
upon range over time. Each participant's proportional interest in the
Oklahoma Gas & Electric Common Stock Fund shall be measured in units of
participation, rather than shares of Sponsor Stock. Such units shall
represent a proportionate interest in all of the assets of the Oklahoma
Gas & Electric Common Stock Fund, which includes shares of Sponsor
Stock, short-term investments and at times, receivables for dividends
and/or Sponsor Stock sold and payables for Sponsor Stock purchased. A
Net Asset Value ("NAV") per unit will be determined daily for each unit
outstanding of the Oklahoma Gas & Electric Common Stock Fund. The
return earned by the Oklahoma Gas & Electric Common Stock Fund will
represent a combination of the dividends paid on the shares of Sponsor
Stock held by the Oklahoma Gas & Electric Common Stock Fund, gains or
losses realized on sales of Sponsor Stock, appreciation or depreciation
in the market price of those shares owned, and interest on the
short-term investments held by the Oklahoma Gas & Electric Common Stock
Fund. Dividends received by the Oklahoma Gas & Electric Common Stock
Fund are reinvested in additional shares of Sponsor Stock. Investments
in Sponsor Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust may
be invested in Sponsor Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named Fiduciary
shall continually monitor the suitability under the fiduciary duty
rules of section 404(a)(1) of ERISA (as modified by section 404(a)(2)
of ERISA) of acquiring and holding Sponsor Stock. The Trustee shall
not be liable for any loss, or by reason of any breach, which arises
from the directions of the Named Fiduciary with respect to the
acquisition and holding of Sponsor Stock, unless it is clear on their
face that the actions to be taken under those directions would be
prohibited by the fiduciary duty rules or would be contrary to the
terms of the Plan or this
Agreement.
(iii) Execution of Purchases and Sales. (A) Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on the
open market on the date on which the Trustee receives from the Sponsor
in good
4
<PAGE>
order all information and documentation necessary to accurately effect
such purchases and sales (or, in the case of purchases, the subsequent
date on which the Trustee has received a wire transfer of the funds
necessary to make such purchases). Exchanges of Sponsor Stock shall be
made in accordance with the Telephone Exchange Procedures attached hereto
as Schedule "G". Such general rules shall not apply in the following
circumstances:
(1) If the Trustee is unable to determine the number
of shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such day as a
result of market conditions; or
(3) If the Trustee is prohibited by the Securities
and Exchange Commission, the New York Stock Exchange, or any other
regulatory body from purchasing or selling any or all of the shares
required to be purchased or sold on such day.
In the event of the occurrence of any of the circumstances described in
(1), (2), or (3) above, the Trustee shall purchase or sell such shares as
soon as possible thereafter and shall determine the price of such
purchases or sales to be the average purchase or sales price of all such
shares purchased or sold, respectively. The Trustee may follow directions
from the Named Fiduciary to deviate from the above purchase and sale
procedures provided that such direction is made in writing by the Named
Fiduciary.
(B) Use of an Affiliated Broker. The Sponsor hereby authorizes
the Trustee to use Fidelity Brokerage Services, Inc. ("FBSI") to provide
brokerage services in connection with any purchase or sale of Sponsor
Stock in accordance with directions from Plan participants. FBSI shall
execute such directions directly or through its affiliate, National
Financial Services Company ("NFSC"). The provision of brokerage services
shall be subject to the following:
(i) As consideration for such brokerage services, the
Sponsor agrees that FBSI shall be entitled to remuneration under this
authorization provision in the amount of three and one-half cents ($.035)
commission on each share of Sponsor Stock. Any change in such
remuneration may be made only by a signed agreement between Sponsor and
Trustee.
(ii) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86-128, the Trustee will
provide the Sponsor with the following documents: (1) a description of
FBSI's brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a
form by which the Sponsor may terminate this authorization to use a broker
affiliated with the Trustee. The Trustee will provide the Sponsor with
this termination form annually, as well as an annual report which
summarizes all securities transaction-related charges incurred
by the Plan, and the Plan's annualized turnover rate.
(iii) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions, shall, upon
consummation of such transaction, become the successor broker in
5
<PAGE>
accordance with the terms of this authorization provision.
(iv) The Trustee and FBSI shall continue to rely on this
authorization provision until notified to the contrary. The Sponsor
reserves the right to terminate this authorization upon thirty (30) days
written notice to FBSI (or its successor) and the Trustee, in accordance
with Section 11 of this Agreement.
(v) Securities Law Reports. The Named Fiduciary shall be
responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Sponsor Stock,
including, without limitation, any reports required under section 13 or 16
of the Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of
Sponsor Stock pending the filing of any report. The Trustee shall
provide to the Named Fiduciary such information on the Trust's ownership
of Sponsor Stock as the Named Fiduciary may reasonably request in order to
comply with Federal or state securities laws.
(vi) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement the provisions of this Section shall govern
the voting and tendering of Sponsor Stock. The Sponsor, after
consultation with the Trustee, shall provide and pay for all printing,
mailing, tabulation and other costs associated with the voting and
tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock prepares
for an annual or special stockholders' meeting, the Sponsor shall notify
the Trustee 30 days in advance of the intended record and meeting dates.
The Sponsor shall cause a copy of all proxy solicitation materials to be
sent to the Trustee. Based on these materials the Trustee shall prepare a
voting instruction form. At the time of mailing of notice of each annual
or special stockholders' meeting of the issuer of the Sponsor Stock, the
Sponsor shall cause a copy of the notice and all proxy solicitation
materials to be sent to each Plan participant with an interest in Sponsor
Stock held in the Trust, together with the foregoing voting instruction
form to be returned to the Trustee or its designee. The form shall show
the proportional interest in the number of full and fractional shares of
Sponsor Stock credited to the participant's accounts held in the Oklahoma
Gas & Electric Common Stock Fund. The Sponsor shall provide the Trustee
with a copy of any materials provided to the participants and shall
certify to the Trustee that the materials have been mailed or otherwise
sent to participants.
(2) Each participant with an interest in the
Oklahoma Gas & Electric Common Stock Fund shall have the right, acting in
the capacity of a named fiduciary within the meaning of section 402 of
ERISA, to direct the Trustee as to the manner in which the Trustee is to
vote (including not to vote) that number of shares of Sponsor Stock
reflecting such participant's proportional interest in the Oklahoma Gas &
Electric Common Stock Fund (both vested and unvested). Directions from a
participant to the Trustee concerning the voting of Sponsor Stock shall be
communicated in writing, or by mailgram or similar means. These
directions shall be held in confidence by the Trustee and shall not be
divulged to the Sponsor, or any officer or employee thereof, or any
other person. Upon its receipt of the directions, the Trustee shall vote
6
<PAGE>
the shares of Sponsor Stock reflecting the participant's proportional
interest in the Oklahoma Gas & Electric Common Stock Fund as directed by
the participant. The Trustee shall not vote shares of Sponsor Stock
reflecting a participant's proportional interest in the Oklahoma Gas &
Electric Common Stock Fund for which it has received no direction from the
participant.
(3) The Trustee shall vote that number of shares of
Sponsor Stock not credited to participants' accounts which is determined
by multiplying the total number of shares not credited to participants'
accounts by a fraction of which the numerator is the number of shares of
Sponsor Stock reflecting such participants' proportional interest in the
Oklahoma Gas & Electric Common Stock Fund credited to participants'
accounts for which the Trustee received voting directions from
participants and of which the denominator is the total number of
shares of Sponsor Stock reflected in the proportional interests of all
participants under the Plan. The Trustee shall vote those shares of
Sponsor Stock not credited to participants' accounts which are to be voted
by the Trustee pursuant to the foregoing formula in the same proportion on
each issue as it votes those shares reflecting participants' proportional
interest in the Oklahoma Gas & Electric Common Stock Fund for which it
received voting directions from participants. The Trustee shall not vote
the remaining shares of Sponsor Stock not credited to participants'
accounts.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any
securities held in the Trust that are Sponsor Stock, the Sponsor shall
notify each Plan participant with an interest in such Sponsor Stock of the
tender offer and utilize its best efforts to timely distribute or cause to
be distributed to the participant the same information that is distributed
to shareholders of the issuer of Sponsor Stock in connection with the
tender offer, and, after consulting with the Trustee, shall provide
and pay for a means by which the participant may direct the Trustee
whether or not to tender the Sponsor Stock reflecting such participant's
proportional interest in the Oklahoma Gas & Electric Common Stock Fund
(both vested and unvested). The Sponsor shall provide the Trustee with a
copy of any material provided to the participants and shall certify to the
Trustee that the materials have been mailed or otherwise sent to
participants.
(2) Each participant shall have the right to direct
the Trustee to tender or not to tender some or all of the shares of
Sponsor Stock reflecting such participant's proportional interest in the
Oklahoma Gas & Electric Common Stock Fund (both vested and unvested).
Directions from a participant to the Trustee concerning the tender of
Sponsor Stock shall be communicated in writing, or by mailgram or such
similar means as is agreed upon by the Trustee and the Sponsor under the
preceding paragraph. These directions shall be held in confidence by the
Trustee and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the performance
of the Trustee's services hereunder. The Trustee shall tender or not
tender shares of Sponsor Stock as directed by the participant. The
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Trustee shall not tender shares of Sponsor Stock reflecting a
participant's proportional interest in the Oklahoma Gas & Electric Common
Stock Fund for which it has received no direction from the participant.
(3) The Trustee shall tender that number of shares
of Sponsor Stock not credited to participants' accounts which is
determined by multiplying the total number of shares of Sponsor Stock not
credited to participants' accounts by a fraction of which the numerator is
the number of shares of Sponsor Stock reflecting participants'
proportional interests in the Oklahoma Gas & Electric Common Stock Fund
for which the Trustee has received directions from participants to tender
(which directions have not been withdrawn as of the date of this
determination) and of which the denominator is the total number of shares
of Sponsor Stock reflected in the proportional interests of all
participants under the Plan.
(4) A participant who has directed the Trustee to
tender some or all of the shares of Sponsor Stock reflecting the
participant's proportional interest in the Oklahoma Gas & Electric Common
Stock Fund may, at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of the tendered shares
reflecting the participant's proportional interest, and the Trustee
shall withdraw the directed number of shares from the tender offer prior
to the tender offer withdrawal deadline. Prior to the withdrawal
deadline, if any shares of Sponsor Stock not credited to participants'
accounts have been tendered, the Trustee shall redetermine the number of
shares of Sponsor Stock that would be tendered under Section
4(e)(vi)(B)(3) if the date of the foregoing withdrawal were the date
of determination, and withdraw from the tender offer the number of shares
of Sponsor Stock not credited to participants' accounts necessary to
reduce the amount of tendered Sponsor Stock not credited to participants'
accounts to the amount so redetermined. A participant shall not be
limited as to the number of directions to tender or withdraw that the
participant may give to the Trustee.
(5) A direction by a participant to the Trustee to
tender shares of Sponsor Stock reflecting the participant's proportional
interest in the Oklahoma Gas & Electric Common Stock Fund shall not be
considered a written election under the Plan by the participant to
withdraw, or have distributed, any or all of his withdrawable shares. The
Trustee shall credit to each proportional interest of the participant from
which the tendered shares were taken the proceeds received by the Trustee
in exchange for the shares of Sponsor Stock tendered from that interest.
Pending receipt of directions (through the Administrator) from the
participant or the Named Fiduciary, as provided in the Plan, as to the
remaining investment options in which the proceeds should be invested, the
Trustee shall invest the proceeds in the Mutual Fund described in Schedule
"C".
(vi) Shares Credited. For all purposes of this Section, the
number of shares of Sponsor Stock deemed "credited" or "reflected" to a
participant's proportional interest shall be determined as of the last
preceding valuation date. The trade date is the date the transaction is
valued.
(vii) General. With respect to all rights other than the right
to vote, the right to tender, and the right to withdraw shares previously
tendered, in the case of Sponsor Stock credited to a participant's
proportional interest in the Oklahoma Gas & Electric Common Stock Fund,
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<PAGE>
the Trustee shall follow the directions of the participant and if no such
directions are received, the directions of the Named Fiduciary. The
Trustee shall have no duty to solicit directions from participants. With
respect to all rights other than the right to vote and the right to
tender, in the case of Sponsor Stock not credited to participants'
accounts, the Trustee shall follow the directions of the Named Fiduciary.
(viii) Conversion. All provisions in this Section 4(e) shall
also apply to any securities received as a result of a conversion of
Sponsor Stock.
(f) Notes. The Administrator shall act as the Trustee's agent
for participant loan notes and as such shall (i) collect and remit all
principal and interest payments to the Trustee and (ii) keep the proceeds
of such loans separate from the other assets of the Administrator and
clearly identify such assets as Plan assets. To originate a participant
loan, the Plan participant shall direct the Trustee as to the term and
amount of the loan to be made from the participant's individual account.
Such directions shall be made by Plan participants by use of the telephone
exchange system maintained for such purpose by the Trustee or its agent.
The Trustee shall determine, based on the current value of the
participant's account on the date of the request and any guidelines
provided by the Sponsor, the amount available for the loan. Based on the
monthly interest rate supplied by the Sponsor in accordance with the terms
of the Plan, the Trustee shall advise the participant of such interest
rate, as well as the installment payment amounts. The Trustee shall
distribute the loan note with the proceed check to the participant and
obtain spousal consent if applicable. The Trustee also shall distribute
truth-in-lending disclosure to the participant. To facilitate
recordkeeping, the Trustee may destroy the original of any promissory note
made in connection with a loan to a participant under the Plan, provided
that the Trustee first creates a duplicate by a photographic or optical
scanning or other process yielding a reasonable facsimile of the
promissory note and the Plan participant's signature thereon, which
duplicate may be reduced or enlarged in size from the actual size of the
original promissory note. In any proceeding to enforce payment of such
promissory note, such a duplicate shall be treated as the original for all
purposes, and the Plan participant shall waive any defense he might
otherwise have to enforcement of the promissory note by reason of the
Trustee's failure to produce the original promissory note.
(g) Guaranteed Investment Contracts. Trust investments in
guaranteed investment contracts ("GICs") shall be subject to the following
limitations:
(i) Commingled Pool Investments. To the extent that the Named
Fiduciary selects as an investment option the Fidelity Managed Income
Portfolio of the Fidelity Group Trust for Employee Benefit Plans (the
"Group Trust"), the Sponsor hereby (A) agrees to the terms of the Group
Trust and adopts said terms as a part of this Agreement and (B)
acknowledges that it has received from the Trustee a copy of the Group
Trust, the Declaration of Separate Fund for the Fidelity Managed Income
Portfolio of the Group Trust, and the Circular for the Fidelity Managed
Income Portfolio.
(h) Reliance of Trustee on Directions.
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<PAGE>
(i) The Trustee shall not be liable for any loss, or by reason
of any breach, which arises from any participant's exercise or
non-exercise of rights under this Section 4 over the assets in the
participant's accounts, except arising from the Trustee's negligence or
bad faith.
(ii) The Trustee shall not be liable for any loss, or by
reason of any breach, which arises from the Named Fiduciary's exercise or
non-exercise of rights under this Section 4, unless it was clear on their
face that the actions to be taken under the Named Fiduciary's directions
were prohibited by the fiduciary duty rules of section 404(a) of ERISA or
were contrary to the terms of the Plan or this Agreement.
(i) Trustee Powers. The Trustee shall have the following powers
and authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of this
Section 4, to sell, exchange, convey, transfer, or otherwise dispose of
any property held in the Trust, by private contract or at public auction.
No person dealing with the Trustee shall be bound to see to the
application of the purchase money or other property delivered to the
Trustee or to inquire into the validity, expediency, or propriety of any
such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this Section 4, to
invest in guaranteed investment contracts and short term investments
(including interest bearing accounts with the Trustee or money market
mutual funds advised by affiliates of the Trustee) and in collective
investment funds maintained by the Trustee for qualified plans, in which
case the provisions of each collective investment fund in which the Trust
is invested shall be deemed adopted by the Sponsor and the provisions
thereof incorporated as a part of this Trust as long as the fund remains
exempt from taxation under Sections 401(a) and 501(a) of the Internal
Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held as part
of the Trust to be registered in the Trustee's own name, in the name of
one or more of its nominees, or in the Trustee's account with the
Depository Trust Company of New York and to hold any investments in bearer
form, but the books and records of the Trustee shall at all times show
that all such investments are part of the Trust.
(iv) To keep that portion of the Trust in cash or cash
balances as the Named Fiduciary or Administrator may, from time to time,
deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein
granted.
(vi) With prior approval from the Sponsor, (i) to settle,
compromise, or submit to arbitration any claims, debts, or damages due to
or arising from the Trust; (ii) to commence or defend suits or legal or
administrative proceedings; to represent the Trust in all suits and legal
and administrative hearings; and (iii) to pay all reasonable expenses
arising from any such action, from the Trust if not paid by the Sponsor.
(vii) To employ legal, accounting, clerical, and other
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<PAGE>
assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from the
Trust if not paid by the Sponsor.
(viii) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of
the foregoing powers and the purposes of the Trust.
Section 5. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping
and administrative functions described in Schedule "A" attached hereto.
These recordkeeping and administrative functions shall be performed within
the framework of the Administrator's written directions regarding the
Plan's provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder,
and shall report the value of the assets held in the Trust as of the last
day of each fiscal quarter of the Plan and, if not on the last day of a
fiscal quarter, the date on which the Trustee resigns or is removed as
provided in Section 8 of this Agreement or is terminated as provided in
Section 10 (the "Reporting Date"). Within thirty (30) days following each
Reporting Date or within sixty (60) days in the case of a Reporting Date
caused by the resignation or removal of the Trustee, or the termination of
this Agreement, the Trustee shall file with the Administrator a written
account setting forth all investments, receipts, disbursements, and other
transactions effected by the Trustee between the Reporting Date and the
prior Reporting Date, and setting forth the value of the Trust as of the
Reporting Date. Except as otherwise required under ERISA, upon the
expiration of six (6) months from the date of filing such account with the
Administrator, the Trustee shall have no liability or further
accountability to anyone with respect to the propriety of its acts or
transactions shown in such account, except with respect to such acts or
transactions as to which the Sponsor shall within such six (6) month
period file with the Trustee written objections.
(c) Inspection and Audit. All records generated by the Trustee
in accordance with paragraphs (a) and (b) shall be open to inspection and
audit, during the Trustee's regular business hours prior to the
termination of this Agreement, by the Administrator or any person
designated by the Administrator. Upon the resignation or removal of the
Trustee or the termination of this Agreement, the Trustee shall provide to
the Administrator, at no expense to the Sponsor, in the format regularly
provided to the Administrator, a statement of each participant's accounts
as of the resignation, removal, or termination, and the Trustee shall
provide to the Administrator or the Plan's new recordkeeper such further
records as are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the current
qualified status of the Plan is attached hereto as Schedule "F". The
Trustee's provision of the recordkeeping and administrative services set
forth in this Section 5 shall be conditioned on the Sponsor delivering to
the Trustee a copy of any amendment to the Plan as soon as
administratively feasible following the amendment's adoption, with, if
requested, an IRS determination letter or an opinion of counsel
substantially in the form of Schedule "F" covering such amendment, and on
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<PAGE>
the Administrator providing the Trustee on a timely basis with all the
information the Administrator reasonably deems necessary for the Trustee
to perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator shall
be responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall
provide the Administrator with such information as the Administrator may
reasonably request to make these filings. The Administrator shall also be
responsible for making any disclosures to Participants required by law,
except such disclosures as may be required under federal or state
truth-in-lending laws with regard to Participant loans.
Section 6. Compensation and Expenses. Within thirty (30) days of receipt
of the Trustee's bill, which shall be computed and billed in accordance
with Schedule "B" attached hereto and made a part hereof, as amended from
time to time, the Sponsor shall send to the Trustee a payment in such
amount or the Sponsor may direct the Trustee to deduct such amount from
participants' accounts. If there is a dispute regarding the bill
submitted by the Trustee, the Sponsor shall give the Trustee reasonably
prompt notice, the payment shall be suspended during the dispute and both
parties will use their best efforts to resolve the dispute quickly. All
expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes
of any kind whatsoever that may be levied or assessed under existing or
future laws upon or in respect of the Trust or the income thereof, shall
be a charge against and paid from the appropriate Plan participants'
accounts.
Section 7. Directions and Indemnification.
(a) Identity of Administrator and Named Fiduciary. The Trustee
shall be fully protected in relying on the fact that the Named Fiduciary
and the Administrator under the Plan are the individuals or persons named
as such above or such other individuals or persons as the Sponsor may
notify the Trustee in writing.
(b) Directions from Administrator. Whenever the Administrator
provides a direction to the Trustee, the Trustee shall not be liable for
any loss, or by reason of any breach, arising from the direction if the
direction is contained in a writing (or is oral and immediately confirmed
in a writing) signed by any individual whose name and signature have been
submitted (and not withdrawn) in writing to the Trustee by the
Administrator in the form attached hereto as Schedule "D", provided the
Trustee reasonably believes the signature of the individual to be genuine.
Such direction may also be made via EDT in accordance with procedures
agreed to by the Administrator and the Trustee; provided, however, that
the Trustee shall be fully protected in relying on such direction as if it
were a direction made in writing by the Administrator. The Trustee shall
have no responsibility to ascertain any direction's (i) accuracy, (ii)
compliance with the terms of the Plan or any applicable law, or (iii)
effect for tax purposes or otherwise, unless it is clear on the
direction's face that the actions to be taken under the direction would be
prohibited by the fiduciary duty rules of section 404(a) of ERISA or would
be contrary to the terms of the Plan or this Agreement.
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<PAGE>
(c) Directions from Named Fiduciary. Whenever the Named
Fiduciary or Sponsor provides a direction to the Trustee, the Trustee
shall not be liable for any loss, or by reason of any breach, arising from
the direction (i) if the direction is contained in a writing (or is oral
and immediately confirmed in a writing) signed by any individual whose
name and signature have been submitted (and not withdrawn) in writing to
the Trustee by the Named Fiduciary in the form attached hereto as Schedule
"E" and (ii) if the Trustee reasonably believes the signature of the
individual to be genuine, unless it is clear on the direction's face that
the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of section 404(a) of ERISA or would be contrary to
the terms of the Plan or this Agreement.
(d) Co-Fiduciary Liability. In any other case, the Trustee
shall not be liable for any loss, or by reason of any breach, arising from
any act or omission of another fiduciary under the Plan except as provided
in section 405(a) of ERISA.
(e) Indemnification. The Sponsor shall indemnify the Trustee
against, and hold the Trustee harmless from, any and all loss, damage,
penalty, liability, cost, and expense, including without limitation,
reasonable attorneys' fees and disbursements, that may be incurred by,
imposed upon, or asserted against the Trustee by reason of any claim,
regulatory proceeding, or litigation arising from any act done or omitted
to be done by any individual or person with respect to the Plan or Trust,
excepting only any and all loss, etc., arising from the Trustee's
negligence or bad faith.
(f) Survival. The provisions of this Section 7 shall survive
the termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty
(60) days' notice in writing to the Sponsor, unless a shorter period of
notice is agreed upon by the Sponsor.
(b) Removal. The Sponsor may remove the Trustee at any time
upon sixty (60) days' notice in writing to the Trustee, unless a shorter
period of notice is agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for
any reason, the Sponsor may in writing appoint a successor trustee under
this Agreement. The successor trustee shall have all of the rights,
powers, privileges, obligations, duties, liabilities, and immunities
granted to the Trustee under this Agreement. The successor trustee and
predecessor trustee shall not be liable for the acts or omissions of the
other with respect to the Trust.
(b) Acceptance. When the successor trustee accepts its
appointment under this Agreement, title to and possession of the Trust
assets shall immediately vest in the successor trustee without any further
action on the part of the predecessor trustee. The predecessor trustee
shall execute all instruments and do all acts that reasonably may be
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<PAGE>
necessary or reasonably may be requested in writing by the Sponsor or the
successor trustee to vest title to all Trust assets in the successor
trustee or to deliver all Trust assets to the successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of
the Trustee or successor trustee, or through reorganization,
consolidation, or merger, or any similar transaction, shall, upon
consummation of the transaction, become the successor trustee under this
Agreement.
Section 10. Termination. This Agreement may be terminated at any time by
the Sponsor upon sixty (60) days' notice in writing to the Trustee. On
the date of the termination of this Agreement, the Trustee shall forthwith
transfer and deliver to such individual or entity as the Sponsor shall
designate, all cash and assets then constituting the Trust. If, by the
termination date, the Sponsor has not notified the Trustee in writing as
to whom the assets and cash are to be transferred and delivered, the
Trustee may bring an appropriate action or proceeding for leave to deposit
the assets and cash in a court of competent jurisdiction. The Trustee
shall be reimbursed by the Sponsor for all costs and expenses of the
action or proceeding including, without limitation, reasonable attorneys'
fees and disbursements.
Section 11. Resignation, Removal, and Termination Notices. All notices
of resignation, removal, or termination under this Agreement must be in
writing and mailed to the party to which the notice is being given by
certified or registered mail, return receipt requested, to the Sponsor c/o
Harvey Harris, Oklahoma Gas & Electric, 101 North Robinson, Oklahoma City,
OK 73101, and to the Trustee c/o John M. Kimpel, Fidelity Investments, 82
Devonshire Street, Boston, Massachusetts 02109, or to such other addresses
as the parties have notified each other of in the foregoing manner.
Section 12. Duration. This Trust shall continue in effect without limit
as to time, subject, however, to the provisions of this Agreement relating
to amendment, modification, and termination thereof.
Section 13. Amendment or Modification. This Agreement may be amended or
modified at any time and from time to time only by an instrument executed
by both the Sponsor and the Trustee. Notwithstanding the foregoing, to
reflect increased operating costs the Trustee may once each calendar year
(not to commence before November 30, 1996) amend Schedule "B" without the
Sponsor's consent upon ninety (90) days written notice to the Sponsor.
Section 14. General.
(a) Performance by Trustee, its Agents or Affiliates. The
Sponsor acknowledges and authorizes that the services to be provided under
this Agreement shall be provided by the Trustee, its agents or affiliates,
including Fidelity Investments Institutional Operations Company or its
successor, and that certain of such services may be provided pursuant to
one or more other contractual agreements or relationships.
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<PAGE>
(b) Entire Agreement. This Agreement contains all of the
terms agreed upon between the parties with respect to the subject matter
hereof.
(c) Waiver. No waiver by either party of any failure or
refusal to comply with an obligation hereunder shall be deemed a waiver of
any other or subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this
Agreement shall inure to the benefit of, and shall bind, the successors
and assigns of the respective parties.
(e) Partial Invalidity. If any term or provision of this
Agreement or the application thereof to any person or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision
of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
(f) Section Headings. The headings of the various sections
and subsections of this Agreement have been inserted only for the purposes
of convenience and are not part of this Agreement and shall not be deemed
in any manner to modify, explain, expand or restrict any of the provisions
of this Agreement.
Section 15. Governing Law.
(a) Massachusetts Law Controls. The validity, construction,
effect, and administration of this Agreement shall be governed by and
interpreted in accordance with the banking laws of the Commonwealth of
Massachusetts to the extent they govern the activities of the Trustee and
otherwise in accordance with the laws of Oklahoma, except to the extent
those laws are superseded under section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to
the Plan, and in the event of any conflict between the provisions of the
Plan and the provisions of this Agreement, the provisions of this
Agreement shall control.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the day and year first
above written.
OKLAHOMA GAS & ELECTRIC
COMPANY
Attest: ______________________ By:__________________________
Secretary
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: ______________________ By:__________________________
Assistant Clerk Senior Vice President
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<PAGE>
Schedule "A"
RECORDKEEPING & ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of five (5) plan investment options:
-Fidelity Managed Income Portfolio
-Fidelity Asset Manager
-Fidelity Asset Manager: Income
-Fidelity Asset Manager: Growth
-Oklahoma Gas & Electric Common Stock Fund
* Maintenance of six (6) money classifications:
-Tax-Deferred Basic
-Tax-Deferred Supplemental
-Non-Deferral Basic
-Non-Deferral Supplemental
-Company
-Pension Rollover
* Processing of mutual fund trades and Oklahoma Gas & Electric Common
Stock Fund trades.
The Trustee will provide only the recordkeeping and administrative
services set forth on this Schedule "A" and no others.
Processing
* Daily processing of contribution data.
* Daily processing of transfers and changes of future allocations.
* Daily processing of withdrawals.
Other
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* l099-Rs
* Participant Loans
* Performance of section 401(k) limitation testing upon request. In order
to obtain this service, the client shall be required to provide the
information identified in the Fidelity Discrimination Testing Package
Guidelines.
* Employee communications describing available investment options,
including multimedia informational materials and group presentations.
* Daily processing in-service withdrawals via telephone due to specific
circumstances authorized by the Sponsor.
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<PAGE>
OKLAHOMA GAS & ELECTRIC FIDELITY MANAGEMENT TRUST COMPANY
COMPANY
By: __________________ By: ____________________________
Senior Vice President
Date: _________________ Date: ____________________________
18
<PAGE>
Schedule "B"
FEE SCHEDULE
Annual Participant Fee: $12 per participant* per year
(Billed and payable quarterly) to the extent that assets managed
by Fidelity are equal to or less
than $32.1 million;
$10 per participant* per year to
the extent that assets managed by
Fidelity are equal to or less
than $35.8 million but greater
than $32.1 million; and
$8 per participant* per year to
the extent that assets managed
by Fidelity are equal to or less
than $39.4 million but greater
than $35.8 million.
Loan Fee Establishment fee of $35.00 per
loan; annual fee of $15.00 per
loan.
Return of Excess Fee $25.00 per participant, a
(due to failure of ADP one-time charge per calculation
and ACP Testing) and check generation.
Remote Access Fee (optional) $1,000 per year, plus a monthly
charge for TYMNET usage. A
one-time installation fee of
$1,500 will also be charged to
the Sponsor in the first year.
Other Fees: separate charges for optional use of remote access, ADP
testing, extraordinary expenses resulting from large numbers of
simultaneous manual transactions or from errors not caused by
Fidelity, or for reports not contemplated in this Agreement. The
Administrator may withdraw reasonable administrative fees from the
Trust by written direction to the Trustee.
* This fee will be imposed pro rata for each calendar quarter, or any
part thereof, that it remains necessary to maintain a participant's
account(s) as part of the Plan's records, e.g., vested, deferred,
forfeiture, top-heavy and terminated participants who must remain on
file through calendar year-end for 1099-R reporting purposes.
Management Fee for Fidelity Employee
Benefit U.S. Government Reserves Portfolio: .42%.
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<PAGE>
Trustee Fees
To the extent that assets are invested in Sponsor Stock, .10% of such
assets in the Trust payable pro rata quarterly on the basis of such
assets as of the calendar quarter's last valuation date, subject to a
minimum of $10,000 and a maximum of $35,000 per year.
# Note: These fees have been negotiated and accepted based on current
plan assets of $129 million, current participation of 3400
participants and projected net cash flows of $5.5 million per year.
Fees will be subject to revision if these Plan characteristics change
significantly by either falling below or exceeding current projected
levels. Fees also have been based on the use of up to six Fidelity
Fund investment options, and such fees will be subject to revision if
additional investment options are added or deleted.
OKLAHOMA GAS & ELECTRIC FIDELITY MANAGEMENT TRUST
COMPANY COMPANY
By: ___________________ By: ______________________
Senior Vice President
Date: _________________ Date: ____________________
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<PAGE>
Schedule "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby directs
the Trustee that participants' individual accounts may be invested in the
following investment options:
-Fidelity Managed Income Portfolio
-Fidelity Asset Manager
-Fidelity Asset Manager: Income
-Fidelity Asset Manager: Growth
-Oklahoma Gas & Electric Common Stock Fund
The fund advised by Fidelity Management Trust Company referred to in
Section 4(c) shall be Fidelity Managed Income Portfolio.
OKLAHOMA GAS & ELECTRIC COMPANY
By: __________________________________
Date
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Schedule "D"
[Administrator's Letterhead]
Ms. Jacqueline W. McCarthy
Fidelity Investments Institutional Operations Company
82 Devonshire Street
Boston, Massachusetts 02109
[Name of Plan]
*** NOTE: This schedule should contain names and signatures for ALL
individuals who will be providing directions to Fidelity
representatives in connection with the Plan.
Fidelity representatives will be unable to accept directions from
any individual whose name does not appear on this schedule.***
Dear Ms. McCarthy:
This letter is sent to you in accordance with Section 7(b) of the
Trust Agreement, dated as of [date], between [name of Plan Sponsor] and
Fidelity Management Trust Company. [I or We] hereby designate [name of
individual], [name of individual], and [name of individual], as the
individuals who may provide directions upon which Fidelity Management
Trust Company shall be fully protected in relying. Only one such
individual need provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[ADMINISTRATOR]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
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<PAGE>
Schedule "E"
[Named Fiduciary's Letterhead]
Ms. Jacqueline W. McCarthy
Fidelity Investments Institutional Operations Company
82 Devonshire Street
Boston, Massachusetts 02109
[Name of Plan]
Dear Ms. McCarthy:
This letter is sent to you in accordance with Section 7(c) of the
Trust Agreement, dated as of [date], between [name of Plan Sponsor] and
Fidelity Management Trust Company. [I or We] hereby designate [name of
individual], [name of individual], and [name of individual], as the
individuals who may provide directions upon which Fidelity Management
Trust Company shall be fully protected in relying. Only one such
individual need provide any direction. The signature of each designated
individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or we] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[NAMED FIDUCIARY]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
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Schedule "F"
[Law Firm Letterhead]
Jacqueline W. McCarthy
Fidelity Institutional Retirement
Services Company
82 Devonshire Street - A8B
Boston, MA 02109
[Name of Plan]
Dear Ms. McCarthy:
In accordance with your request, this letter sets forth our opinion
with respect to the qualified status under section 401(a) of the Internal
Revenue Code of 1986 (including amendments made by the Employee Retirement
Income Security Act of 1974) (the "Code"), of the [name of plan], as
amended to the date of this letter (the "Plan").
The material facts regarding the Plan as we understand them are as
follows. The most recent favorable determination letter as to the Plan's
qualified status under section 401(a) of the Code was issued by the
[location of Key District] District Director of the Internal Revenue
Service and was dated [date] (copy enclosed). The version of the Plan
submitted by [name of company] (the "Company") for the District Director's
review in connection with this determination letter did not contain
amendments made effective as of [date]. These amendments, among other
matters, [brief description of amendments]. [Subsequent amendments were
made on [date] to amend the provisions dealing with [brief description of
amendments].]
The Company has informed us that it intends to submit the Plan to the
[location of Key District] District Director of the Internal Revenue
Service and to request from him a favorable determination letter as to the
Plan's qualified status under section 401(a) of the Code. The Company may
have to make some modifications to the Plan at the request of the Internal
Revenue Service in order to obtain this favorable determination letter,
but we do not expect any of these modifications to be material. The
Company has informed us that it will make these modifications.
Based on the foregoing statements of the Company and our review of the
provisions of the Plan, it is our opinion that the Internal Revenue
Service will issue a favorable determination letter as to the qualified
status of the Plan, as modified at the request of the Internal Revenue
Service, under section 401(a) of the Code, subject to the customary
condition that continued qualification of the Plan, as modified, will
depend on its effect in operation.
[Furthermore, in that the assets are in part invested in common stock
issued by the Company or an affiliate, it is our opinion that the Plan is
an "eligible individual account plan" (as defined under Section 407(d)(3)
of ERISA) and that the shares of common stock of the Company held and to
be purchased under the Plan are "qualifying employer securities" (as
defined under Section 407(d)(5) of ERISA). Finally, it is our opinion
that interests in the Plan are not required to be registered under the
Securities Act of 1933, as amended, or, if such registration is required,
that such interests are effectively registered under said Act.]
24
<PAGE>
Sincerely,
[name of law firm]
By [signature]
[name of partner]
25
<PAGE>
Schedule "G"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by
Fidelity Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) on each
business day. A "business day" is any day on which the New York Stock
Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at
its discretion.
Mutual Funds, Sponsor Stock Fund and Fidelity
Managed Income Portfolio
I. Exchanges Between Mutual Funds, Sponsor Stock Fund and Fidelity
Managed Income Portfolio
Participants may call on any business day to exchange between mutual
funds, Sponsor Stock and Fidelity Managed Income Portfolio. If the
request is received before 4:00 p.m. (EST), it will receive that
day's trade date. Calls received after 4:00 p.m. (EST) will be
processed on a next day basis.
II. Exchange Restrictions
It is the intention of the Trustee to maintain a sufficient liquidity
reserve in the Sponsor Stock Fund to meet exchange, redemption or
withdrawal requests. However, if there is insufficient liquidity in
the Sponsor Stock Fund to allow for same day exchanges, the Trustee
will be required to sell shares of Sponsor Stock to meet the exchange
requests. If this occurs, the subsequent exchange into other Plan
investment options will take place five (5) business days later.
This allows for settlement of the stock trade at the custodian and
the corresponding transfer to Fidelity.
OKLAHOMA GAS & ELECTRIC COMPANY
By: ______________________________
Date
26
<PAGE>
EXHIBIT 23.01
CONSENT
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
reports dated February 23, 1993, included or incorporated by reference
in Oklahoma Gas and Electric Company's Annual Report on Form 10-K for
the year ended December 31, 1992, of our report dated March 12, 1993,
included in the Form 11-K Annual Report of the Oklahoma Gas and
Electric Company Employees' Thrift Plan for the year ended December
31, 1992, and to all references to our Firm included in this Registration
Statement.
ARTHUR ANDERSEN & CO.
Oklahoma City, Oklahoma
February 4, 1994
<PAGE>
EXHIBIT 24.01
POWER OF ATTORNEY
WHEREAS, OKLAHOMA GAS AND ELECTRIC COMPANY, an Oklahoma
corporation (herein referred to as the "Company"), is to file with the
Securities and Exchange Commission, under the provisions of the
Securities Act of 1933, as amended, a Registration Statement relating
to the issuance and sale of additional participation interests and not
more than an additional 1,500,000 shares of Common Stock, par value
$2.50 per share, pursuant to the Company's Employees' Retirement Savings
Plan (the "Plan"); and
WHEREAS, each of the undersigned holds the office or offices in
the Company hereinbelow set opposite his name, respectively;
NOW, THEREFORE, each of the undersigned hereby constitutes and
appoints J.G. HARLOW, JR., A.M. STRECKER and B.G. BUNCE, and each of
them individually, his attorney, with full power to act for him
and in his name, place and stead, to sign his name in the capacity
or capacities set forth below to a Registration Statement relating
to the issuance of and sale of an unlimited amount of participation
interests and not more than an additional 1,500,000 shares of Common
Stock pursuant to the Plan and to any and all amendments (including
post-effective amendments) to such Registration Statement, and
hereby ratifies and confirms all that said attorney may or shall lawfully
do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
this 12th day of October, 1993.
J.G. Harlow, Jr., Chairman and President, /s/ J.G. Harlow, Jr.
Principal Executive Officer --------------------------
and Director
Herbert H. Champlin, Director /s/ Herbert H. Champlin
--------------------------
William E. Durrett, Director /s/ William E. Durrett
--------------------------
Martha W. Griffin, Director /s/ Martha W. Griffin
--------------------------
Hugh L. Hembree, III, Director /s/ Hugh L. Hembree, III
--------------------------
John F. Snodgrass, Director /s/ John F. Snodgrass
--------------------------
Bill Swisher, Director /s/ Bill Swisher
--------------------------
John A. Taylor, Director /s/ John A. Taylor
--------------------------
Ronald H. White, M.D., Director /s/ Ronald H. White, M.D.
--------------------------
B.G. Bunce, Principal Accounting Officer /s/ B.G. Bunce
--------------------------
A.M. Strecker, Principal Financial Officer /s/ A.M. Strecker
--------------------------
1
<PAGE>
STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
On the date indicated above, before me Lawanna Rogers, a Notary
Public in and for said County and State, personally appeared the above
named directors and officers of OKLAHOMA GAS AND ELECTRIC COMPANY, an
Oklahoma corporation, and known to me to be the persons whose names are
subscribed to the foregoing instrument, and they severally acknowledged
to me that they executed the same as their own free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal on the 12th day of October, 1993.
/s/ Lawanna Rogers
My Commission Expires: ______________________________________
December 20, 1994 Notary Public in and for the County of
Oklahoma, State of Oklahoma
2
