<PAGE>
As filed with the Securities and Exchange Commission on September 29, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DPL INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1163136
(State of Incorporation) (IRS Employer Identification No.)
Courthouse Plaza SW, Dayton, Ohio 45402
(Address of principal executive office) (Zip Code)
THE DAYTON POWER AND LIGHT COMPANY
EMPLOYEE SAVINGS PLAN
(Full title of the plan)
Stephen F. Koziar, Jr., Esq.
DPL Inc.
Courthouse Plaza SW
Dayton, Ohio 45402
(Name and address of agent for service)
(513) 224-6000
(Telephone number, including area code, of agent for service)
Copies to:
Richard J. Chernesky, Esq.
Chernesky, Heyman & Kress
1100 Courthouse Plaza SW
Dayton, Ohio 45402
<TABLE>
<CAPTION>
Calculation of Registration Fee
- -----------------------------------------------------------------------------
Proposed Proposed
Title of Amount to maximum maximum Amount of
securities be offering aggregate registration
to be registered price per offering fee
registered share (1) price (1)
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares, 300,000
$.01 par value (2) Shares $22.6875 $6,806,250 $2,346.98
- -----------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) and based on the average of the
reported high and low sale prices of DPL Inc. Common Shares on the New
York Stock Exchange on September 27, 1995.
(2) 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.
As permitted by Rule 429 under the Securities Act of 1933, the prospectus
related to this Registration Statement also covers securities registered
under Registration Statement No. 33-53970 on Form S-8.
<PAGE>
The contents of the Registration Statement on Form S-8 File Number 33-53970,
filed on October 30, 1992, are incorporated herein by reference.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Dayton, State
of Ohio, on September 26, 1995.
DPL INC.
By /s/ Peter H. Forster
----------------------
Peter H. Forster
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints P.H. Forster, A.M. Hill and
T.M. Jenkins and each of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities (including his
capacity as a Director and/or Officer of DPL Inc.), to sign any or all
amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
/s/ Tom Danis
---------------- Director September 26, 1995
(T. J. Danis)
----------------- Director
(J. F. Dicke, II)
<PAGE>
Signatures Title Date
/s/ P. H. Forster
----------------- Chairman, Director September 26, 1995
(P. H. Forster) and President (principal
executive officer)
----------------- Director
(E. Green)
----------------- Director
(J. G. Haley)
/s/ A. M. Hill
----------------- Director and CEO September 26, 1995
(A. M. Hill)
----------------- Director
(W A. Hillenbrand)
/s/ D. R. Holmes
----------------- Director September 26, 1995
(D. R. Holmes)
/s/ T. M. Jenkins
----------------- Group Vice President September 26, 1995
(T. M. Jenkins) and Treasurer (principal
financial and accounting
officer)
/s/ B. R. Roberts
----------------- Director September 26, 1995
(B. R. Roberts)
The Plan. Pursuant to the requirements of the Securities Act of 1933,
The Dayton Power and Light Company Employee Savings Plan has caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dayton, State of Ohio, on
September 26, 1995.
THE DAYTON POWER AND LIGHT COMPANY
EMPLOYEE SAVINGS PLAN
/s/ Thomas M. Jenkins
By ---------------------------
Thomas M. Jenkins
Member, Operating Committee
<PAGE>
EXHIBIT INDEX
The following exhibits have been filed with the Securities and
Exchange Commission and are incorporated herein by reference:
Incorporation by Reference
4(a) Copy of Amended of Articles Exhibit 3 to Report on Form
of Incorporation of DPL Inc 10-K for year ended
dated January 4, 1991, and December 31, 1991
amendment dated (File No. 1-9052)
December 3, 1991...........
4(b) Copy of Amendment dated Exhibit 3(b) to Report on
April 20, 1993 to DPL Inc.'s Form 10-K for the year
Amended Articles of ended December 31, 1993
Incorporation.............. (File No. 1-9052)
4(c) Copy of Code of Regulations Exhibit D to 1986 Proxy
of DPL Inc. dated Statement dated March 7, 1986
January 6, 1986............ (File No. 1-2385)
4(d) Copy of Composite Indenture Exhibit 4(a) to Report on
dated as of October 1, 1935, Form 10-K for year ended
between DP&L and Irving Trust December 31, 1985 (File
Company, Trustee with all No. 1-2385)
amendments through the
Twenty-Ninth Supplemental
Indenture..................
4(e) Copy of the Thirtieth Exhibit 4(h) to The Dayton
Supplemental Indenture Power and Light Company's
dated as of March 1, 1982, Registration Statement on
between DP&L and Irving Form S-3 (File
Trust Company, Trustee..... No. 33-53906)
4(f) Copy of the Thirty-First Exhibit 4(h) to The Dayton
Supplemental Indenture Power and Light Company's
dated as of November 1, 1982, Registration Statement on
between DP&L and Irving Form S-3 (File No. 33-56162)
Trust Company, Trustee.....
4(g) Copy of the Thirty-Second Exhibit 4(i) to The Dayton
Supplemental Indenture Power and Light Company's
dated as of November 1, 1982, Registration Statement on
between DP&L and Irving Form S-3 (File No. 33-56162)
Trust Company, Trustee.....
<PAGE>
Incorporation by Reference
4(h) Copy of the Thirty-Third Exhibit 4(e) to Report on
Supplemental Indenture Form 10-K for year ended
dated as of December 1, 1985, December 31, 1985
between DP&L and Irving (File No. 1-2385)
Trust Company, Trustee.....
4(i) Copy of the Thirty- Exhibit 4 to Report on Form
Fourth Supplemental 10-Q for quarter ended
Indenture dated as of June 30, 1986 (File
April 1, 1986, between No. 1-2385)
DP&L and Irving Trust
Company, Trustee..........
4(j) Copy of the Thirty- Exhibit 4(h) to Report on
Fifth Supplemental Form 10-K for year ended
Indenture dated as of December 31, 1986 (File
December 1, 1986, No. 1-9052)
between DP&L and Irving
Trust Company, Trustee....
4(k) Copy of the Thirty- Exhibit 4(i) to The Dayton
Sixth Supplemental Power and Light Company's
Indenture dated as of Registration Statement on
August 15, 1992, Form S-3 (File No. 33-53906)
between DP&L and The
Bank of New York,
Trustee..................
4(l) Copy of the Thirty- Exhibit 4(j) to The Dayton
Seventh Supplemental Power and Light Company's
Indenture dated as of Registration Statement on
November 15, 1992, Form S-3 (File No. 33-56162)
between the Company and
The Bank of New York,
Trustee..................
4(m) Copy of the Thirty- Exhibit 4(k) to The Dayton
Eighth Supplemental Power and Light Company's
Indenture dated as of Registration Statement on
November 15, 1992, Form S-3 (File No. 33-56162)
between the Company and
The Bank of New York,
Trustee..................
4(n) Copy of the Thirty- Exhibit 4(k) to The Dayton
Ninth Supplemental Power and Light Company's
Indenture dated as of Registration Statement on
January 15, 1993, Form S-3 (File No. 33-57928)
between the Company and
The Bank of New York,
Trustee.................
<PAGE>
Incorporation by Reference
4(o) Copy of the Fortieth Exhibit 4(m) to Report on
Supplemental Indenture Form 10-K for the year
dated as of ended December 31, 1992
February 15, 1993, (File No. 1-2385)
between the Company and
The Bank of New York,
Trustee.................
4(p) Copy of the Indenture Exhibit 4 to Report on Form
dated as of August 1, 1986, 10-Q for quarter ended
between DP&L and Morgan September 30, 1986
Guaranty Trust Company (File No. 1-2385)
of New York,Trustee......
4(q) Copy of the Credit Exhibit 4(k) to DPL Inc.'s
Agreement dated as of Registration Statement on
November 2, 1989, Form S-3 (File No. 33-32348)
between DPL Inc., The
Bank of New York, as
agent, and the Banks
named therein...........
4(r) Copy of Rights Exhibit 4 to Report on Form
Agreement dated as of 8-K dated December 3, 1991
December 3, 1991, (File No. 1-9052)
between DPL Inc. and
The First National Bank
of Boston, as rights
agent...................
4(s) Copy of Certificate of Exhibit to Amendment No. 1
Adjustment dated to DPL Inc.'s Registration
August 20, 1992, Statement on Form 8-A dated
pursuant to Rights December 3, 1991
Agreement.............. (File No. 1-9052)
4(t) Form of The Dayton Exhibit 4(b) to The Dayton
Power and Light Company Power and Light Company
Employee Savings Trust, Employee Savings Plan on
revised and restated Form S-8 dated October 30, 1992
November 1, 1992....... (File No. 33-53970)
5(a) Pursuant to Item 8(a)
of Form S-8, an opinion
as to the legality of
the DPL Inc. Common
Shares offered under
The Dayton Power and
Light Company Employee
Savings Plan (the
"Plan") is not required
as such securities are
not original issuance
securities.
<PAGE>
Incorporation by Reference
5(b) The registrant has
submitted the Plan to
the IRS which has
issued a determination
that the Plan is
qualified under Section
401 of the Internal
Revenue Code.
The following exhibits are filed herewith:
Page
4(a) Form of the Dayton
Power and Light Company
Employee Savings Plan,
revised and restated
through August 15,
1995.
23 Consent of Price
Waterhouse
24 Power of Attorney set
forth on signature page
of registration statement.
<PAGE>
Exhibit 4(a)
THE DAYTON POWER AND LIGHT COMPANY
EMPLOYEE SAVINGS PLAN
(Revised and Restated August 15, 1995)
<PAGE>
TABLE OF CONTENTS
ARTICLE I 1
Definitions and Construction 1
1.1 Construction of Plan and Trust 1
1.2 Accrued Benefit 1
1.3 Affiliated Company 1
1.4 Alternate Payee 2
1.5 Beneficiary. 2
1.6 Code 2
1.7 Committee 2
1.8 Compensation 2
1.9 Covered Employee 3
1.10 Disability 3
1.11 DPL Inc. ESOP 3
1.12 DPL Inc. Stock Fund 3
1.13 Effective Date 3
1.14 Elective Deferral 3
1.15 Elective Incentive Compensation 3
1.16 Eligible Employee 4
1.17 Eligible Retirement Plan 4
1.18 Eligible Rollover Distribution 4
1.19 Employee 4
1.20 Employee Elective Contribution 4
1.21 Employer 4
1.22 Employment Date 4
1.23 Entry Date 4
1.24 ERISA 5
1.25 Excess Contributions 5
1.26 Full-Time Employee 5
1.27 Highly Compensated Employee 5
1.28 Hour of Service 6
1.29 Incentive Compensation 7
1.30 Labor Regulations 7
1.31 Leased Employee 7
1.32 Limitation Year 8
1.33 Matching Contribution 8
1.34 Member 8
1.35 Named Fiduciary 8
1.36 Participant 8
1.37 Permissive Aggregation Group 8
1.38 Plan 8
1.39 Plan Administrator 8
<PAGE>
TABLE OF CONTENTS (Cont'd.)
1.40 Plan Year 9
1.41 Qualified Domestic Relations Order 9
1.42 Quarter 9
1.43 Required Aggregation Group 9
1.44 Rollover Contribution 9
1.45 Salary Reduction Agreement 9
1.46 Termination of Employment 9
1.47 Treasury Regulations 10
1.48 Trust 10
1.49 Trustee 10
1.50 Trust Fund 10
1.51 Trust Fund Account 10
1.52 Valuation Date 10
1.53 Vested Amount 10
1.54 Year 10
ARTICLE II 10
Eligibility and Participation 10
2.1 Eligibility and Participation 10
2.2 Suspension of Participation 11
2.3 Eligibility for Re-Participation 11
ARTICLE III 11
Contributions 11
3.1 Employee Elective Contributions 11
3.2 Limitation on Employee Elective Contributions 12
3.3 Time and Manner of Payment of Employee
Elective Contributions 12
3.4 Voluntary Employee Contributions and
After-Tax Contributions 12
3.5 Rollover Contributions 13
3.6 Transfers from other Employer Plans 13
ARTICLE IV 13
Limitations On Contributions and Allocations 13
4.1 Limitations on Contributions and Allocations 13
4.2 Percentage Limitation on Employee Elective
Contribution 13
4.3 Correcting Excess Contributions 16
4.4 Maximum Annual Additions Limitation 17
4.5 Dual Plan Limitation 18
4.6 Effect of Social Security Increases 19
<PAGE>
TABLE OF CONTENTS (Cont'd.)
ARTICLE V 19
Distributions of Benefits 19
5.1 Eligibility For Benefits 19
5.2 Payment to Alternative Payee 20
5.3 Claims Procedure 20
5.4 Distribution Requirements 21
5.5 Designation of Beneficiary 22
5.6 Written Explanation to Recipients of
Distributions 23
5.7 Payment of Benefits 23
5.8 Payment in Case of Incapacity 24
5.9 Non-Alienation of Benefits 24
5.10 In-Service Distributions 24
ARTICLE VI 25
Hardship Distributions 25
ARTICLE VII 26
Establishment of Trust Fund And Trust Fund Accounts 26
7.1 Trust Fund Accounts 26
7.2 Investment; Funding Policy 26
7.3 Impossibility of Diversion 26
7.4 Purchase of Insurance 27
ARTICLE VIII 27
Valuation 27
8.1 Valuation of Trust Fund 27
8.2 Trust Fund Accounts. 27
8.3 Allocation to Trust Fund Accounts 28
ARTICLE IX 28
Top Heavy Plan Limitations 28
9.1 Determination of Top-Heavy Status 28
9.2 Minimum Allocations 29
9.3 Effect on Section 415 Limitations 30
ARTICLE X 30
Administration 30
10.1 Plan Fiduciaries 30
10.2 Company 31
10.3 Committee. 31
10.4 Interpretations and Adjustments 33
10.5 Action of Committee 33
10.6 Trustee 33
10.7 Indemnification 34
<PAGE>
TABLE OF CONTENTS (Cont'd.)
ARTICLE XI 34
Amendment 34
ARTICLE XII 34
Suspension, Discontinuance or Termination 34
12.1 Termination or Partial Termination of the
Plan 34
12.2 Termination of the Trust 35
12.3 Discontinuance of the Plan 35
ARTICLE XIII 35
General 35
13.1 Severability 35
13.2 Merger of Plans 35
13.3 Plan Not a Contract of Employment 36
13.4 Successor Employer 36
13.5 Expenses 36
13.6 Governing Law 36
13.7 Construction 36
13.8 Limitation of Rights 37
13.9 Headings and Captions 37
13.10 Counterparts 37
13.11 Qualified Status of the Plan 37
<PAGE>
THE DAYTON POWER AND LIGHT COMPANY
EMPLOYEE SAVINGS PLAN
This Declaration of Plan is entered into as of October 8, 1992,
by The Dayton Power and Light Company, an Ohio corporation (the
"Company").
Recitals
A. The Company heretofore established The Dayton Power and
Light Company Employee Savings Plan (the "Plan") effective January 1,
1985, as a profit sharing plan under Section 401(a) of the Code, which
includes a qualified cash or deferred arrangement as defined under Section
401(k) of the Code, designed to enable Eligible Employees of the Company
to elect to have a portion of their Compensation contributed to the Plan
on a tax-deferred basis.
B. The Company desires to modify, amend and restate the Plan
and its related trust in its entirety effective November 1, 1992, unless
otherwise provided for herein.
NOW, THEREFORE, it is hereby declared as follows:
ARTICLE I
Definitions and Construction
1.1 Construction of Plan and Trust.
Where the following words and phrases appear in the Plan, they
shall have the following meanings, unless the context otherwise clearly
indicates. Wherever used herein, the masculine gender includes the
feminine gender and the singular includes the plural.
1.2 Accrued Benefit.
The balance of a Member's Trust Fund Account.
1.3 Affiliated Company.
Any corporation or unincorporated trade or business under
common control with the Company within the meaning of Code 401(d), 414(b)
and 414(c), and any member of an affiliated service group (as
defined in Code 414(m)) which includes the Company, but, in each case,
<PAGE>
only during the periods during which any such corporation, unincorporated
trade or business or affiliated service group satisfies the above mentioned
control or affiliation tests.
1.4 Alternate Payee.
Any spouse, former spouse, child or other dependent of a
Participant who is recognized under a Qualified Domestic Relations
Order as having a right to receive all or a portion of the benefits
payable to such Participant under the Plan.
1.5 Beneficiary.
A person or persons (natural or otherwise), other than an
Alternate Payee, designated by a Participant to receive his death
benefits payable under the Plan.
1.6 Code.
The Internal Revenue Code of 1986, as such may be amended
from time to time.
1.7 Committee.
The Committee referred to in Section 10.3.
1.8 Compensation.
The amount paid to an Employee by the Employer for services
performed during each Plan Year. The term Compensation shall exclude
deferred compensation (except for contributions made through a salary
reduction agreement to a Plan described in Code 401(k), 402(a)(8) or
402(h), a cafeteria plan described in Code 125 or a tax-deferred annuity
under Code 403(b)), Incentive Compensation and any non-cash payments.
Compensation of each Participant which may be taken into account for any
Plan Year shall not exceed $200,000. Compensation for any Plan Year shall
be determined as of the last day of the Plan Year. In determining a
Participant's Compensation who is a 5-percent owner or one of the 10 Highly
Compensated Employees (as those terms are defined in Code 414(q)), the
limitations imposed under Code 414(q)(6) shall apply, except that the term
"family" as used therein, shall include only the Participant's spouse and
any of his lineal descendants who are under the age of 19 before the Plan
Year end. If any of the 5 percent owners or 10 Highly Compensated
Employees aggregate compensation exceeds $200,000, the compensation
considered for each family member shall be prorated among the affected
family members in proportion to each such family member's Compensation
prior to the application of the $200,000 limitation such that the total
compensation equals $200,000. The $200,000 amount referred to in this
Section shall increase at the same time and in the same manner as increases
under Code 415(d) become effective.
<PAGE>
In addition to other applicable limitations set forth in the Plan,
and notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual compensation
of each employee taken into account under the Plan shall not exceed the
OBRA `93 annual compensation limit. The OBRA `93 annual compensation limit
is $150,000, as adjusted by the Commissioner for increases in the cost of
living in accordance with Section 401(a)(17)(B) of the Internal Revenue
Code. The cost-of-living adjustment in effect for a calendar year applies
to any period, not exceeding 12 months, over which compensation is
determined (determination period) beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA `93 annual
compensation limit will be multiplied by a fraction, the numerator of which
is the number of months in the determination period, and the denominator of
which is 12.
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under Section 401(a)(17) of the
Code shall mean the OBRA `93 annual compensation limit set forth in this
provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current Plan
Year, the compensation for that prior determination period is subject to
the OBRA `93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or after January 1,
1994, the OBRA `93 annual compensation limit is $150,000.
1.9 Covered Employee.
All Employees except for Employees (i) who are included in a unit
of Employees covered by a collective bargaining agreement between Employee
representatives and the Employer under which retirement benefits were the
subject of good faith bargaining between the parties, unless the
collective bargaining agreement provides for participation in the Plan or
(ii) who are Leased Employees, except for any Leased Employees who are
treated as an Employee of the Company under Code 414(n) or 414(o).
1.10 Disability.
A Participant is considered disabled hereunder if he qualifies for
benefits under the Employer's long term disability program.
1.11 DPL Inc. ESOP.
The DPL Inc. Employee Stock Ownership Plan, as it may be amended
from time to time.
<PAGE>
1.12 DPL Inc. Stock Fund.
An investment fund which the Trustee invests exclusively in the
common shares of DPL Inc.
1.13 Effective Date.
The date the Plan (and any of its predecessors) first was
effective.
1.14 Elective Deferral.
Any Employer contribution made to the Plan at the election of the
Participant pursuant to a Salary Reduction Agreement or other deferral
mechanism, in lieu of paying such amount to the Participant in cash, or
some other taxable benefit, that is not (but would be but for the
Participant's election) currently available to the Participant on the
date of the election.
1.15 Elective Incentive Compensation.
The portion of an Employee's Incentive Compensation which the
Employee may elect to receive in cash or defer in accordance with Section
3.1 A.(ii).
1.16 Eligible Employee.
Except as provided in Section 3.3 (in the case of a reemployed
former Participant), each Employee who (a) is employed as a Full-Time
Employee; (b) is not a cooperative student (unless such cooperative
student completed 1,000 or more Hours of Service in the prior Eligibility
Year); and (c) is a Covered Employee.
1.17 Eligible Retirement Plan.
An employees' trust described in Code 401(a) which is exempt from
tax under Code 501(a), and any plan described in Code 408(a), 408(b) and
403(a).
1.18 Eligible Rollover Distribution.
Any distribution to a Member of all or any portion of his Accrued
Benefit, except for a distribution which is (i) one of a series of
substantially equal periodic payments (not less frequently than annually)
made (a) for the life (or life expectancy) of the Participant or the
joint lives (or joint life expectancies) of the Participant and his
designated Beneficiary, or (b) for a specified period of 10 years or
more, or (ii) required under Code 401(a)(9).
<PAGE>
1.19 Employee.
Any person employed by and receiving Compensation from
the Employer.
1.20 Employee Elective Contribution.
The Elective Deferral contributions made to the Plan
under Section 3.1.
1.21 Employer.
The Company, DPL Inc., and any Affiliated Company which
adopts the Plan.
1.21.1 Employer Contributions.
Contributions by the Employer to the Trust Fund
pursuant to Section 3.7.
1.21.2 Employer Contribution Account.
The portion of a Member's Trust Fund Account which
is credited with Employer Contributions contributed on his
behalf.
1.22 Employment Date.
The date an Employee is credited with his first Hour of
Service with the Employer following either initial employment or
reemployment.
1.23 Entry Date.
The Entry Date for a new Eligible Employee is the first
day of the first calendar month following the first full calendar
month of employment if the Eligible Employee completed 160 Hours
of Service during such first full calendar month of employment;
thereafter the Entry Date for an Eligible Employee will be
January 1 or (effective upon the date of this amendment) July 1
of each Plan Year, or more often in the discretion of the
Committee.
1.24 ERISA.
The Employee Retirement Security Act of 1974, as such
may be amended from time to time.
1.25 Excess Contributions.
The excess of the aggregate amount of Employee Elective
Contributions actually made on behalf of Highly Compensated
Employees for such Plan Year, over the maximum amount of such
<PAGE>
contributions permitted under Section 4.2 (determined by reducing
contributions made on behalf of Highly Compensated Employees in
order of their Actual Deferral Ratios (as described in Section
4.2 C.1.) beginning with the highest of such ratios).
1.26 Full-Time Employee.
Each Employee who completes 1,000 or more Hours of
Service per Eligibility Year. "Eligibility Year" means the first
year computed beginning with the date employment commences and
ending on the anniversary thereof. Thereafter, Eligibility Year
means the Plan Year, beginning with the Plan Year in which the
first anniversary of an Employee's employment occurs.
1.27 Highly Compensated Employee.
A. Each Employee who during the Plan Year or
preceding Year: (i) was a 5-percent owner (as defined under Code
414(q)); (ii) received Compensation from the Employer in excess
of $75,000; (iii) received Compensation from the Employer in
excess of $50,000 and was in the "top-paid group" as defined
below; or (iv) was, at any time, an officer who received
Compensation greater than 50% of the amount under Code
415(b)(1)(A) in effect for the Limitation Year. The amounts
specified in this Subsection (ii), (iii) and (iv) above shall
increase at the same time and in the same manner as increases
under Code 415(d) become effective.
B. The following special rules apply to this
definition:
(i) Any Employee who did not satisfy the
requirements of Subsection A (ii), and (iii) or (iv) above for
the preceding Plan Year will not be deemed to satisfy the
requirements of Subsection A (ii), (iii) or (iv) above for the
current Plan Year unless he was among the highest 100 paid
Employees for the current Year;
(ii) For purposes of Subsection A (iii)
above, "top-paid group" means the top 20% of the Employees based
on Compensation received during the Year. In determining the
number of Employees to be included in the top-paid group, the
following Employees are excluded:
(a) Employees who have not completed 6
months of employment;
(b) Employees who normally work less than 17-
1/2 hours per week;
(c) Employees who have not attained age 21;
<PAGE>
(d) Employees who are represented by a
collective bargaining representative; or
(e) Non-resident aliens.
(iii) No more than 50 officers, or, if less,
the greater of (a) 3 or (b) 10% of the largest number of
Employees employed at any time during the Year will be Highly
Compensated Employees under Subsection A (iv) above. If no
officer satisfies the requirements of Subsection A (iv) above,
the highest paid officer will be a Highly Compensated Employee.
(iv) If any individual is a Family Member of
(a) a 5-percent owner or (b) one of the 10 highest paid Employees
who is also considered a Highly Compensated Employee, then such
Family Member will not be considered an Employee. Any
Compensation or benefits paid to the Family Member who is not
considered an Employee because of the preceding sentence will be
considered paid to the related Highly Compensated Employee. For
purposes of this Subsection (iv), "Family Member" means an
Employee's spouse and the lineal ascendants or descendants of
both the Employee and such Employee's spouse.
C. Highly Compensated Employee shall also include any
former Employee who separated from service prior to the Plan
Year, performed no services for the Employer during the Plan
Year, and was a Highly Compensated Employee either (i) for his
separation year or (ii) during any Plan Year ending on or after
his 55th birthday. If such former Employee separated from
service before January 1, 1987, he is a Highly Compensated
Employee only if he was a 5-percent owner, or received
Compensation in excess of $50,000 during (1) the Year of his
separation of service (or the Year preceding such separation
Year) or (2) any Year ending on or after such individual's 55th
birthday (or the last Year ending before such individual's 55th
birthday).
1.28 Hour of Service.
An hour, determined under the Employer's customary
personnel practices: (a) which is compensable for the performance
of duties, provided, however, that each hour will be credited to
the Year when the duties are performed, and an hour paid at a
premium rate will be counted only as a single hour; (b) for which
no duties are performed (whether or not the Employee remains an
Employee) due to vacation, holiday, illness, incapacity
(including disability), jury duty, or approved leave of absence,
provided, however, that Hours of Service credited under this
subpart (b) shall in no event exceed a maximum of eight hours per
business day, 40 hours per week or 501 hours (except in the case
of U.S. military service) for any continuous period of absence
whether or not it occurs in a single computation period; or (c)
which is not credited under subparts (a) or (b) but for which
back pay is payable, provided that these hours will not be
reduced for any interim earnings opportunities and will be
credited for the Years when the pay was lost rather than when
payment was made. However, no Hours of Service will be credited
<PAGE>
for payment under a plan maintained solely to comply with
applicable workers' compensation, unemployment compensation or
disability insurance laws, or for a payment which only reimburses
an Employee for his medical or medically-related expenses. Hours
will be credited to the Year in which the absence occurs unless
the absence extends beyond one year. If it does, the hours will
be allocated between not more than the first two Years on a
reasonable basis consistently applied for all Employees in the
same reasonably defined job classification.
In applying these rules, no more than one Hour of
Service will be credited for any hour of an Employee's employment
or absence from employment. To the extent not included in this
definition, the rules in Paragraphs (b) and (c) of Labor
Regulation 2530.200b-2 (relating to the calculation of Hours of
Service when no duties are performed and to crediting Hours of
Service in computation periods) are made part of the Plan as
provided by Labor Regulation 2530-200b-2(f).
1.29 Incentive Compensation.
Employee compensation derived from the DP&L Management
Achievement Recognition Program, or any successor program thereto
designated as such by the Committee, in effect at the beginning
of the Plan Year.
1.30 Labor Regulations.
Department of Labor Regulations issued under ERISA.
1.31 Leased Employee.
Any person who is not an Employee of the Employer who
performs services for the Employer (the "Recipient") pursuant to
an agreement between the Recipient and any other entity, on a
substantially full-time basis for a period of at least one year,
if such services are of the type historically performed in the
business field of the Recipient by Employees. Notwithstanding
the foregoing, if such Leased Employees (i) constitute less than
20% of the Recipient's non-highly compensated work force and (ii)
are covered by a money purchase pension plan providing (a) a non-
integrated employer contribution rate for each participant of at
least 10% of compensation (including amounts which are excluded
from the participant's gross income under Code 125, 402(a)(8),
402(h) or 403(b)); (b) for full and immediate vesting; and (c)
for immediate participation, then such persons shall not be
Leased Employees.
1.32 Limitation Year.
The calendar year, unless the Employer designates some
other twelve (12) consecutive month period for purpose of
determining the maximum benefit limitation under Code 415.
<PAGE>
1.33 Matching Contribution.
An Employer Contribution made to the DPL Inc. ESOP on
account of Employee Elective Contributions made to the Plan.
1.34 Member.
A Participant, a deferred vested Participant with a
retained interest in the Plan, or a former Participant who has
elected not to participate, but not an Alternate Payee.
1.35 Named Fiduciary.
A fiduciary under the Plan (as defined in ERISA
402(a)(2)).
1.35.1 Non-Elective Contributions.
Employer Contributions with respect to which an
Eligible Employee may not elect to have the contributions paid to
him in cash or other taxable benefits in lieu of being
contributed to the Plan.
1.36 Participant.
An Eligible Employee who has elected to contribute to
the Plan as provided in Section 2.1 or who has an interest in the
Plan.
1.37 Permissive Aggregation Group.
The Required Aggregation Group of plans plus any other
plan or plans of the Employer which, when considered as a group
with the Required Aggregation Group, would satisfy the
requirements of Code 401(a)(4) and 410.
1.38 Plan.
The Dayton Power and Light Company Employee Savings
Plan, as it may be amended from time to time.
1.39 Plan Administrator.
The Committee.
1.40 Plan Year.
The Employer's accounting year.
<PAGE>
1.41 Qualified Domestic Relations Order.
Any judgment, decree or order (including an approved
property settlement agreement) which: (i) relates to the
provision of child support, alimony payments or marital property
rights to a spouse, former spouse, child or other dependent of a
Participant; (ii) is made pursuant to a state domestic relations
law (including community property law); (iii) creates, recognizes
or assigns to an Alternate Payee or Payees the right to receive
all or a part of a Participant's Accrued Benefits; and (iv) meets
the requirements set forth in Code 414(p).
1.41.1 Qualified Non-Elective Contribution.
Non-Elective Contributions which the Employer elects to
treat as a Qualified Non-Elective Contribution (as defined in
Treasury Regulation 1.401(k)-1(g)(13)(ii) and 1.401(k)-
1(b)(5)), which are nonforfeitable and subject to the
distribution requirements applicable to Employee Elective
Contributions.
1.42 Quarter.
The three month period ending on the last day of March,
June, September or December.
1.43 Required Aggregation Group.
The Plan and any other qualified plans of the Employer
in which at least one Key Employee as defined under Code 416(i),
participates or participated at any time during the determination
period (regardless of whether any such plan has terminated), or
the Plan or any other qualified plans of the Employer which
enables the Plan to meet the requirements of Code 401(a)(4) or
410.
1.44 Rollover Contribution.
Any contribution to the Plan by a Participant of an
amount defined under Code 402(c), 403(a)(4) or 408(d)(3).
1.45 Salary Reduction Agreement.
A written election by a Participant authorizing the
Employer to reduce a specified percentage of his Compensation (or
to forgo an increase in his Compensation) and contribute it to
the Plan, rather than being paid to him in the form of cash or
some other taxable benefit.
<PAGE>
1.45.1 Settlement Date.
The date (including any extensions) upon which the
Employer is required to file its federal income tax return for
the preceding year.
1.46 Termination of Employment.
The date an Employee resigns, is discharged, dies,
retires, is disabled, or otherwise terminates employment with the
Employer for any reason.
1.47 Treasury Regulations.
Department of Treasury Regulations issued under the
Code.
1.48 Trust.
The Dayton Power and Light Company Employee Savings
Trust entered into between the Company and the Trustee
established for the purpose of funding the benefits under the
Plan.
1.49 Trustee.
The person or persons appointed as Trustee, or
Successor Trustee or Trustees, of the Trust pursuant to Section
10.6.
1.50 Trust Fund.
All plan assets held by the Trustee pursuant to the
terms of the Trust.
1.51 Trust Fund Account.
The account established for each Member under Section 8.2.
1.52 Valuation Date.
Each business day of the Plan Year.
1.53 Vested Amount.
One hundred percent of a Participant's Accrued Benefit
attributable to Employee Elective Contributions and Employer
Contributions.
1.54 Year.
A consecutive 365 (or, where appropriate, 366) day period.
<PAGE>
ARTICLE II
Eligibility and Participation
2.1 Eligibility and Participation.
Unless he elects not to participate in the Plan, each
Eligible Employee will be treated as a Participant in the Plan on
his Entry Date. The Committee will notify each Eligible Employee
at least 30 days before the Employee's Entry Date and will
provide him with a Salary Reduction Agreement and investment
election form. By accepting participation in the Plan, each
Eligible Employee agrees to be bound by the terms and conditions
of the Plan and must deliver to the Committee all information
required by the Committee.
2.2 Suspension of Participation.
Subject to the Participant's interest in his Trust Fund
Account, if any, a Participant shall cease to be a Participant in
the Plan (i) on his Termination of Employment, (ii) on the date
upon which he no longer is an Eligible Employee or (iii) for the
period in which he elects not to participate in the Plan.
2.3 Eligibility for Re-Participation.
If the Employer rehires a former Participant, he will
become a Participant in the Plan, on the date he is credited with
an Hour of Service after his reemployment if he is then a Covered
Employee and if he files a Salary Reduction Agreement with the
Committee.
ARTICLE III
Contributions
3.1 Employee Elective Contributions.
A. Each Participant may make Employee Elective
Contributions by entering into a Salary Reduction Agreement with
the Employer, effective as to future Compensation, on a form
provided by the Committee. The Salary Reduction Agreement shall
be applicable to all payroll periods during which the election is
in effect and shall not exceed the following:
(i) Unless the Committee otherwise directs,
a Participant may make an Employee Elective Contribution to the
Plan of (a) up to 25% (in whole percentages) of his Compensation,
or (b) a fixed dollar amount per pay period (in multiples of
$25.00).
<PAGE>
(ii) Unless the Committee otherwise directs,
a Participant may make an Employee Elective Contribution to the
Plan of 25%, 50%, 75% or 100% of his Elective Incentive
Compensation, if any.
B. A Participant may elect to amend his Salary
Reduction Agreement not later than November 30 of any Plan Year
to be effective for the following Plan Year, or more often in the
discretion of the Committee. Beginning on the following January
1, the Participant's Employee Elective Contributions will be
based on the amended Salary Reduction Agreement.
C. A Participant may voluntarily suspend his Elective
Deferrals by giving written notice to the Committee not later
than the 10th day before the payroll date the suspension is to
become effective. The Participant may initiate further Elective
Deferrals at the same time and the same manner as provided for in
Section 3.1 B.
3.2 Limitation on Employee Elective Contributions.
For any Plan Year, Employee Elective Contributions must
satisfy the following requirements:
A. The amount of a Participant's Employee Elective
Contribution (including the amount of a Participant's Qualified
Non-Elective Contribution treated as an Employee Elective
Contribution, if any), together with Elective Deferrals
contributed to the DPL Inc. ESOP or another Plan, whether or not
related to the Employer, which are required by law to be
aggregated with such Employee Elective Contributions, shall not
exceed the dollar limits provided for in Code 402(g). The
amount of a Participant's Employee Elective Contribution made by
the Employer in any calendar year shall further be limited to the
maximum amount allowable as a deduction to the Employer under
Code 404.
B. To the extent that a Participant has made Employee
Elective Contributions during a calendar year in excess of the
amount specified in Section 3.2 A ("Excess Deferral"), the Excess
Deferral, together with income thereon, shall be distributed to
the Participant from the Plan not later than April 15 following
the end of the taxable year in which the Excess Deferral was
made. If the Participant has made Employee Elective
Contributions under the Plan and another plan, contract or
arrangement resulting in an Excess Deferral, the Participant
shall notify the Committee in writing not later than March 1st
following the end of the taxable year in which the Excess
Deferral was made, of the amount of Excess Deferrals allocated to
the Plan. The Employer will notify the Plan on behalf of the
Participant of any Excess Deferral calculated by taking into
account only the Plan and other plans maintained by the Employer.
<PAGE>
3.3 Time and Manner of Payment of Employee Elective
Contributions.
Employee Elective Contributions shall be paid to the
Trust Fund as soon as practical after the end of each payroll
period but in no event later than 90 days from the payroll date
which such Employee Elective Contributions were withheld from the
Participant's Compensation.
3.4 Voluntary Employee Contributions and After-Tax Contributions.
For Plan Years beginning after December 31, 1988, none
permitted.
3.5 Rollover Contributions.
Any Eligible Employee may request the Committee's
permission to make a Rollover Contribution to the Trust. Any
request filed under this Section must (i) be in writing, (ii)
include the amount of the Rollover Contribution, (iii) include a
written certification from the Employee that the amount qualifies
as a Rollover Contribution, and (iv) be made in cash. If the
Committee or the Participant determines that any amount deposited
under this Section is not a Rollover Contribution, the entire
amount will be immediately returned to the Participant. The
Committee may set a minimum rollover amount which will be
permitted under this provision. The Eligible Employee shall be
one hundred percent vested in his Rollover Contribution.
3.6 Transfers from other Employer Plans.
The Employer may transfer a Participant's account from
The Dayton Power and Light Company Savings Plan For Collective
Bargaining Employees or any other Eligible Retirement Plan
sponsored by the Employer to the Trust. Any such transfers shall
be subject to the distribution and withdrawal provisions of the
Plan.
3.7 Employer Contributions.
For each Plan Year beginning after December 31, 1993,
the Employer may make an Employer Contribution to the Plan, the
amount and allocation of which shall be determined by such
Eligible Employee's designation under the Personal Choice Account
Plan, a welfare benefit plan sponsored by the Employer.
3.8 Qualified Non-Elective Contributions.
Beginning after December 31, 1993, the Employer may
make a discretionary Qualified Non-Elective Contribution, the
exact percentage to be determined each year by the Committee,
with respect to any or all Eligible Employees. Any Qualified Non-
Elective Contribution shall be deemed an Employee Elective
Contribution.
<PAGE>
3.9 Time and Manner of Payment of Employer Contributions.
The Employer shall pay Employer Contributions to the
Trustee not later than the Settlement Date, provided, however
that Qualified Non-Elective Contributions shall be paid to the
Trust Fund not later than the end of the 12-month period
immediately following the Plan Year to which such contributions
relate.
ARTICLE IV
Limitations on Contributions and Allocations
4.1 Limitations on Contributions and Allocations.
The amount and allocation of contributions under the
Plan and Trust are subject to certain limitations, set forth in
this Article IV, ERISA and the Code. The Employer may limit,
revoke or amend at any time a Participant's Salary Reduction
Agreement, or distribute any Excess Deferrals or Employee
Elective Contributions, to assure that in any Plan Year, the Plan
does not exceed the maximum limits imposed by the Code 401(k)
and 415, that would cause the Plan to exceed the maximum amount
allowable as a deduction to the Employer under Code 404 and/or
to prevent disqualification of the Plan.
4.2 Percentage Limitation on Employee Elective
Contribution.
In addition to the dollar limitation on Employee
Elective Contributions set forth in Section 3.2, for Plan Years
beginning after December 31, 1986, Employee Elective
Contributions shall satisfy the nondiscrimination requirements
under Code 401(k) for each Plan Year.
The "Actual Deferral Percentage" ("ADP") for the group
of Eligible Highly Compensated Employees shall not exceed the ADP
for the group of all other Eligible Employees by an amount
specified under one of the following tests:
A. The ADP for the group of Eligible Highly
Compensated Employees is not more than the ADP for the group of
all other Eligible Employees multiplied by 1.25; or
B. The excess of the ADP for the group of Eligible
Highly Compensated Employees over the ADP for the group of all
other Eligible Employees is not more than 2 percentage points,
and the ADP for the group of Eligible Highly Compensated
Employees is not more than the ADP for the group of all other
Eligible Employees multiplied by 2.
C. In determining whether the Plan satisfies the ADP
test, the following rules apply:
<PAGE>
1. The ADP is the average of the "Actual Deferral
Ratios" calculated separately for each Eligible Employee (whether
or not he made any Employee Elective Contributions to the Plan)
in each specific group (i.e. Eligible Highly Compensated
Employees and all other Eligible Employees).
2. The Actual Deferral Ratio (expressed as a
percentage) is determined by dividing the amount of the Employee
Elective Contributions allocated to the Employee for the Plan
Year by the Employee's "414(s) Compensation" for such Plan Year,
rounded to the nearest 1/100 of 1%. For purposes of this
calculation, the Committee may for any Plan Year treat Qualified
Non-Elective Contributions made to this Plan and/or Qualified Non-
Elective Contributions (and/or qualified Matching Contributions)
made to the DPL Inc. ESOP made on behalf of an Employee as an
Employee Elective Contribution. For purposes of this Section,
any Excess Deferral distributed under Section 3.2 shall be
treated as an Employee Elective Contribution.
3. "414(s) Compensation" shall mean "415
Compensation" (as defined in Section 4.4) plus any elective
contributions made by the Employer on behalf of the Employees
that are not includable in their gross income under Code 125,
402(a)(8), 402(h) and 403(b). 414(s) Compensation of each
Participant which may be taken into account for any Plan Year
shall not exceed $200,000 (adjusted at the same time and in the
same manner as provided for under Code 415(d)). An Employee's
414(s) Compensation shall be limited to the portion of the Plan
Year in which the Employee was an Eligible Employee.
4. Plans that are aggregated for purposes of Code
401(a)(4) or 410(b) (other than the average benefit percentage
test), are to be treated as a single plan for purposes of Code
401(k) and Treasury Regulation 1.401(k)-1(b). The Employer may
not combine contributions and allocations under plans which are
mandatorily disaggregated for purposes of Code 410(b), such as a
plan described in Code 4975(e)(7) or 409 (an ESOP) with
contributions and allocations under a plan not described in Code
4975(e)(7) or 409 (a non-ESOP), except as permitted under
Treasury Regulation 1.4975-11(e), for purposes of Code 401(k).
Plans may be aggregated under this Subsection C.4 only if they
have the same plan year. In addition, plans that are not
actually aggregated for a year for purposes of Code 410(b)
(other than the average benefit percentage test) may not be
aggregated for purposes of Code 401(k) and Treasury Regulation
1.401(k)-1(b).
5. If a Highly Compensated Employee participates in
two or more plans (including the Plan) which include qualified
cash or deferred arrangements, the Actual Deferral Ratio of such
Employee shall be the sum of the ratios computed under each cash
or deferred arrangement. If a Highly Compensated Employee
participates in two or more plans (including the Plan) which
include qualified cash or deferred arrangements that have
different plan years, all cash or deferred arrangements ending
with or within the same calendar year shall be treated as a
single plan.
<PAGE>
6. If an individual is a Family Member of a Highly
Compensated Employee because such Employee is either a 5-percent
owner or one of the ten Highly Compensated Employees paid the
greatest 414(s) Compensation during the Year, the family
aggregation rules under Code 414(q)(6) shall apply and the
family group shall be treated as one Highly Compensated Employee
with their Actual Deferral Ratio determined by combining the
414(s) Compensation and Employee Elective Contributions of all
the eligible family members. "Family Member" as used herein
means, with respect to any employee, such employee's spouse and
lineal ascendants or descendants and the spouses of such lineal
ascendants or descendants.
7. Employee Elective Contributions may be taken into
account under this Section if (a) the Employee Elective
Contribution is allocated to the Employee under the Plan as of
the date within the Plan Year and (b) the Employee Elective
Contribution relates to 414(s) Compensation that would have been
received by the Employee in the Plan Year but for the Employee's
election to defer it. For purposes of (a) above, an Employee
Elective Contribution is considered to be allocated as of a date
within the Plan Year only if (x) the allocation is not contingent
upon the Employee's participation in the Plan or performance of
services on any later date and (y) the Employee Elective
Contribution is actually paid to the Trust no later than the end
of the 12-month period immediately following the Plan Year to
which it relates. Employee Elective Contributions that do not
satisfy these requirements may not be taken into account in
applying the ADP test for any Plan Year.
8. The Committee shall maintain records to
demonstrate compliance with the ADP test (including the extent to
which the Plan used qualified non-elective contributions or
qualified Matching Contributions made to the DPL Inc. ESOP) to
satisfy the applicable requirements of this Section.
To the extent not included in this Section, the
provisions of Code 401(k)(3) and 401(m)(9) and Treasury
Regulations 1.401(k)-l(b) and 1.401(m)-2 are incorporated and
made a part of the Plan as provided for in Treasury Regulations
1.401(k)-l(b)(2)(iii).
4.3 Correcting Excess Contributions.
In the event that the limitations set forth in Section
4.2 are exceeded, the Committee, to the extent necessary, shall
adjust the Excess Contributions in a manner that will reduce
future Employee Elective Contributions made on behalf of Highly
Compensated Employees, and further, in the Committee's
discretion, may use any correction method permitted under Code
401(k) including, without limitation, distributing Excess
Contributions (and income allocable thereto) no later than the
15th day of the third month after the close of the Plan Year for
which the Excess Contributions are made. In no event may the
Employer defer distributing Excess Contributions (and income
allocable thereto) to the Highly Compensated Employee later than
<PAGE>
twelve months after the end of the Plan Year for which the Excess
Contributions were made. The amount of Excess Contributions to be
distributed or recharacterized for a Plan Year shall be reduced
by the amount of Excess Deferrals distributed for the taxable
year ending with or within the Plan Year. The Committee may use
any reasonable method permitted by Treasury Regulations 1.401(k)-
1(f)(4)(ii) for determining the income allocable to the Excess
Contributions, provided that such method does not violate Code
401(a)(4), is used consistently for all affected Participants
and for all corrective Excess Contribution distributions made
under the Plan for the Plan Year and is used by the Plan for
allocating income to Participants' accounts. Excess
Contributions shall be distributed to the Highly Compensated
Employees on an Employee by Employee basis, first to the Highly
Compensated Employee with the highest Actual Deferral Ratio until
the ADP test is met or until such Participant's Actual Deferral
Ratio is equal to that of the Highly Compensated Employee with
the next highest Actual Deferral Ratio. If further Excess
Contribution distributions are required, the above process shall
be repeated until the Highly Compensated Employee group satisfies
the ADP test. Excess Contributions shall be distributed to the
Highly Compensated Employee, first from the Plan, then from the
DPL Inc. ESOP.
4.4 Maximum Annual Additions Limitation.
Notwithstanding anything contained in the Plan and the
Trust to the contrary, in no event shall the Annual Additions
allocated to any Participant's Trust Fund Account under the Plan
and any other defined contribution plan sponsored by the Employer
(whether or not terminated) exceed in each Limitation Year the
lesser of (i) the greater of (a) $30,000, as adjusted to reflect
any increases in the cost-of-living under Code 415(d) or (b) 25%
of the amount determined under Code 415(b)(l)(A) in effect for
such Year, or (ii) 25% of the Participant's "415 Compensation"
for such Limitation Year.
If, as a result of the allocation of forfeitures in the
DPL Inc. ESOP, a reasonable error in estimating a Participant's
Compensation, or under other facts and circumstances determined
in accordance with Treasury Regulation 1.415-6(b)(6), the
maximum Annual Additions are exceeded for any Participant for the
Limitation Year, the Committee shall return any excess Employee
Elective Contributions (together with any earnings thereon) made
by a Participant for the Plan Year to the extent that the return
would reduce the excess Annual Additions amount in the
Participant's account. If after returning such contributions to
the Participant, an excess still exists, such excess amount shall
be adjusted from the DPL Inc. ESOP, in accordance with its
provisions.
For purposes of this Section, "Annual Additions" shall
mean the sum of (i) Employer contributions, (ii) Employee
contributions, (iii) forfeitures, if any, and (iv) amounts
allocated to an individual medical account, as defined in Code
415(1)(2), which is part of a pension or annuity plan maintained
by the Employer, and amounts derived from contributions paid or
accrued in taxable years ending after December 31, 1985, which
are attributable to post-retirement medical benefits allocated to
<PAGE>
the Trust Fund Account of a Key Employee, as defined in Code
419A(d)(3), under a welfare benefit fund, maintained by the
Employer, as defined in Code 419(e), which are credited to a
Participant's Trust Fund Account with respect to any Plan Year.
For purposes of this Section, in applying Code 414(b)
and (c) in the definition "Affiliated Company", the phrase "more
than 50 percent" shall be substituted for the phrase "at least 80
percent" each place it appears in Code 1563(a)(1).
For purposes of this Section, "415 Compensation" shall
mean wages within the meaning of Code 3401(a) and all other
payments of compensation to an Employee by the Employer for which
the Employer is required to furnish the Employee a written
statement under Code 6041(d) and 6051(a)(3).
4.5 Dual Plan Limitation.
If a Participant is also a participant in one or more
defined benefit plans maintained by the Employer (whether or not
terminated), the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction shall not exceed one (1.0) in
any Limitation Year. If that limit is exceeded, the
Participant's Annual Addition under the Plan will be reduced as
provided for in Section 4.4.
The "Defined Benefit Plan Fraction" for any Plan Year
is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan (determined at the close
of the Plan Year) and the denominator of which is the lesser of
(i) the product of 1.25 multiplied by the dollar limitation in
effect under Code 415(b)(l)(A) for such Limitation Year or (ii)
the product of 1.4 multiplied by the amount which may be taken
into account under Code 415(b)(l)(B) with respect to such
Participant under the Plan for such Limitation Year.
If the Employee was a Participant as of the end of the
first day of the first Limitation Year beginning after December
31, 1986 in one or more defined benefit plans maintained by the
Employer which were in existence on May 6, 1986, the denominator
of the Defined Benefit Plan Fraction will not be less than 1.25
multiplied by the sum of the Participant's accrued annual
benefits under the Plan, determined at the close of the
Limitation Year beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the Plan made after
May 5, 1986.
The "Defined Contribution Plan Fraction" for any Plan
Year is a fraction, the numerator which is the sum of the Annual
Additions to the Participant's account in such Plan Year and for
all prior Plan Years and the denominator of which is the sum of
the lesser of the following amounts determined for such Plan Year
and for each prior Plan Year during which the Participant was
employed by the Employer: (i) the product of 1.25 multiplied by
the dollar limitation in effect under Code 415(c)(1)(A), or (ii)
1.4 multiplied by 25% of the Participant's Compensation for such
Plan Year.
<PAGE>
If the Employee was a Participant in the Plan as of the
end of the first day of the first Limitation Year beginning after
December 31, 1986 in one or more defined contribution plans
maintained by the Employer which were in existence on May 6,
1986, the numerator of the Defined Contribution Plan Fraction
will be adjusted if the sum of such fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of
the Plan. Under such adjustment, an amount equal to the product
of (a) the excess of the sum of the fractions over 1.0 times (b)
the denominator of this fraction, will be permanently subtracted
from the numerator of this fraction. The adjustment is
calculated using the fractions as they would be computed as of
the end of the last Limitation Year beginning before January 1,
1987 and disregarding any changes in the terms and conditions of
the Plan made after May 6, 1986, but using the Code 415
limitation applicable to the first Limitation Year beginning on
or after January 1, 1987. The Annual Addition for any Limitation
Year beginning before January 1, 1987 shall not be recomputed to
treat all Employee contributions as Annual Additions.
For purposes of this Section, all the defined benefit
plans of the Employer (whether or not terminated) are to be
treated as one defined benefit plan and all of the defined
contribution plans of the Employer (whether or not terminated)
are to be treated as one defined contribution plan. The
Committee shall have the power, in order to give effect to the
foregoing limitations, to reduce or limit additions to the
Participants Trust Fund Accounts under the Plan, provided such
reduction and/or limitations shall be made in a uniform and
nondiscriminatory manner.
The above limitations are intended to comply with the
provisions of Code 415 as amended so that the maximum benefits
provided by plans of the Employer shall not exceed the maximum
amount allowable under Code 415 and Treasury Regulations
thereunder. In the event there are any discrepancies between the
provision of this Section and the provisions of Code 415 and the
Treasury Regulations thereunder, such discrepancies shall be
resolved in such a way as to give full effect to the provisions
of Code 415 as if such applicable provisions were incorporated
herein by reference.
4.6 Effect of Social Security Increases.
No benefit will be decreased by reason of any increase
in the benefit levels payable under Title II of the Social
Security Act or any increase in the wage base under such Title
II, if such increases take place after the earlier of (i) the
date of first receipt of such benefits or (ii) the date of a
Participant's Termination of Employment.
<PAGE>
ARTICLE V
Distributions of Benefits
5.1 Eligibility For Benefits.
A. Subject to Sections 5.2 and 5.4, a Member's Vested
Amount will be distributed in one lump sum payment as of a
Valuation Date as soon as practicable after the Participant's
Termination of Employment. In order to be eligible to receive
his Vested Amount, the Participant or his Beneficiary must
complete and file an application for benefits in the form
required by the Committee.
B. Notwithstanding the foregoing, upon a
Participant's Termination of Employment, if his Vested Amount is
$3,500 or less, and has never exceeded $3,500 at any time prior
to the distribution, the Committee shall direct the Trustee to
cause the Participant's entire Vested Amount in the Plan to be
paid in full. Notwithstanding the foregoing, no distribution may
be made under this Subsection 5.1 B. after the Participant's 65th
birthday, or in the case where the Participant's Vested Amount
exceeds (or at any time prior to the distribution exceeded)
$3,500, unless the Participant completes and files an application
for benefits in the form required by the Committee.
5.2 Payment to Alternative Payee.
A Member's benefits shall be adjusted to effect any
Qualified Domestic Relations Order. If the Committee is unable
to immediately determine whether an order is a Qualified Domestic
Relations Order, it will segregate any amounts which may be
payable to an Alternate Payee as if the order had been a
Qualified Domestic Relation Order. If, within 18 months of
receipt of the claim, the Committee determines that the order is
a Qualified Domestic Relations Order, it will pay all amounts
held in such separate account (including any income, gains and
losses attributable to such account) as provided in such order.
However, if the Committee determines that the order is not a
Qualified Domestic Relations Order or if no determination may be
made within that period, all amounts held in such account
(including income, gains and losses attributable to the account)
shall be recredited to the Participant. Any further claim filed
under this Section by an Alternate Payee will apply prospectively
only.
5.3 Claims Procedure.
The Committee will provide Members or Beneficiaries
with a written application to claim benefits in accordance with
Section 5.1. Any denial by the Committee of a claim for benefits
under the Plan shall be provided to the applicant in writing
within 90 days after the application is filed with the Committee,
stating (i) the reason(s) why the claim was denied, (ii) the
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provisions of the Plan upon which the denial was based, (iii) a
description of any material needed to complete the claim and the
reason such material is required and (iv) an explanation of the
Plan's review procedure. If an applicant's claim is denied or if
the applicant does not receive a notice of denial within the
specified time period, the applicant shall have 60 days from the
earlier of the (a) date of denial or (b) expiration of the 90 day
claim period to request that the Committee review the claim. The
procedures to appeal the denial of a claim shall be as follows:
(1) the applicant shall request a review in writing, (2) the
applicant may examine the Plan documents and (3) the applicant
may submit his comments and questions in writing. Appeals not
timely filed shall be barred. If an appeal request is made, the
Committee or a "Subcommittee" designated by the Committee shall
then conduct a hearing for a full and fair review of the denied
benefits within the next 60 days. The applicant shall be given at
least ten days prior written notice of the hearing date, time and
location. An applicant may represent himself or have his
appointed representative represent him and may submit written or
oral evidence and argument in support of his claim at the
hearing. Recommendation of the Subcommittee shall be furnished
for review and approval of the Committee within 30 days of the
hearing. A written decision of the review shall be made by the
Committee within 60 days following the hearing on the applicant's
request for review (or 120 days if special circumstances so
warrant, as determined by the Committee). Such decision shall
include the specific reasons (including Plan references) upon
which the decision was based. The Committee's decision shall be
final and binding upon all parties.
In exercising any discretion or authority under the
Plan, the Committee will act in a consistent and non-
discriminatory manner treating all persons in similar
circumstances in a similar manner.
5.4 Distribution Requirements.
Notwithstanding any provision in the Plan to the
contrary, all distributions of a Participant's Vested Amount
shall be subject to the following:
A. Distribution to a Member will begin not later than
the 60th day after the end of the Plan Year in which the latest
of the following events occurs: (i) his 65th birthday, (ii) the
tenth anniversary of his participation in the Plan, or (iii) the
Participant's Termination of Employment.
B. Distribution to a Beneficiary will begin as soon
as possible after a Member's death.
C. Notwithstanding any provision in the Plan to the
contrary, a Participant's Vested Amount must be distributed
pursuant to this Subsection no later than April 1 of the calendar
year following the calendar year in which the Participant attains
age 70-1/2, whether or not he has Terminated Employment. For Non-
5-percent owners who attained age 70-1/2 before January 1, 1988,
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such Participant's Vested Amount must be distributed no later
than the later of (i) April 1 of the calendar year following the
calendar year in which the Participant attains age 70-1/2, or
(ii) the Participant's Termination of Employment.
D. Amounts attributable to Employee Elective
Contributions may not be distributed before one of the following
events occurs:
1. The Employee's Disability or Termination of
Employment;
2. The Employee's attainment of age 59 1/2;
3. The Employee's hardship, subject to the
limitations of Article VI herein;
4. The termination of the Plan unless the
Employer establishes or maintains a successor plan (other than an
ESOP or a simplified employee pension as defined in Code 408(k))
(for this purpose, a "successor plan" is any other defined
contribution plan maintained by the Employer provided it exists
at the time the Plan is terminated or within the period ending 12
months after distribution of all assets from the Plan; provided,
however, that if fewer than 2% of the Eligible Employees are
eligible under such other plan of the Employer at any time during
the 12 months before or the 12 months after the Plan's date of
termination, there is no successor plan);
5. The date of sale or other disposition by the
Company to an entity that is not an Affiliated Company of
substantially all of the assets (at least 85% of the assets) used
in the Company's trade or business, unless the Company continues
to maintain the Plan after such sale or other disposition with
respect to Employees who continue employment with the purchaser
of the assets; or
6. The date of sale or other disposition by the
Company of its interest in a subsidiary to an entity which is not
an Affiliated Company, but only with respect to the Employees who
do not continue employment with the subsidiary.
Subsections 5 and 6, shall not apply if the purchaser
maintains the Plan after any such sale. For this purpose, the
purchaser is deemed to maintain the Plan if it adopts the Plan,
if its employees accrue benefits under the Plan or if the Plan is
merged or consolidated with, or any assets or liabilities of the
Plan are transferred to, a plan maintained by the purchaser. A
purchaser is not treated as maintaining the Plan merely because a
plan that it maintains accepts rollover contributions of amounts
distributed by the Plan.
5.5 Designation of Beneficiary.
A Member may designate a Beneficiary to whom his
benefits under the Plan shall be paid if he dies before he
receives all of such benefits. Any such designation shall be in
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writing on a form prescribed by the Committee, and shall be
effective upon the filing of the form with the Committee during
the Member's lifetime. Each Beneficiary designation form filed
with the Committee shall cancel any such form previously filed
with the Committee. Any Beneficiary designation shall comply
with requirements under Code 417(a)(2), that (i) the spouse of
the Member consents in writing to such designation, if required;
(ii) such election designates a Beneficiary which may not be
changed without spousal consent (or the consent of the spouse
expressly permits designations by the Member without any
requirement of further spousal consent) and (iii) the spouse's
consent acknowledges the effect of such designation and is
witnessed by a Plan representative or Notary Public. Any
Beneficiary designation previously made by a Member shall be
automatically revoked upon the marriage or remarriage of the
Member. Once a spouse consents to a Beneficiary designation by
the Member, it may not be revoked by the spouse. Notwithstanding
the foregoing, the spousal consent requirements shall not apply
under the conditions or circumstance set forth in Code
417(a)(2)(B).
If any Member fails to designate a Beneficiary in a
manner provided for in this Section, or the Beneficiary
designated by the Member predeceases him, such Member's Vested
Amount shall be paid as follows:
A. To the Member's surviving spouse; or
B. If there is no surviving spouse, to the personal
representative of the Member's estate.
5.6 Written Explanation to Recipients of Distributions.
The Trustee shall provide the recipient of a
distribution from the Plan with such written explanation(s) as
are required under the Code, ERISA or the rules thereunder.
5.7 Payment of Benefits.
The Committee will provide the Trustee written
direction specifying the name of the person to receive benefits,
his address and the amount of such payment. Distribution of a
Member's Vested Accrued Benefit shall be made in cash, except
that any Participant who retires (i) after reaching age 55 with
10 years of employment with the Company or (ii) after reaching
age 65 may elect to receive the portion of their Trust Fund
Account that is invested in the DPL Inc. Stock Fund in common
shares of DPL Inc. in lieu of cash. The Trustee shall withhold
taxes on any distribution to the extent required by law. The
Trustee shall pay such benefits only from the Trust Fund.
For distributions made after December 31, 1992, a
Member may elect to have any Eligible Rollover Distribution paid
directly to another Eligible Retirement Plan, in a manner
described in Code 401(a)(31) and the rules issued thereunder.
<PAGE>
In such case, the Member shall notify the Committee in writing
specifying the Eligible Retirement Plan to which such
distribution is to be paid. The Trustee shall directly transfer
the Member's Vested Amount to the specified Eligible Retirement
Plan. In order to make an Eligible Rollover Distribution, the
Member must complete and file a transfer in the form required by
the Committee.
5.8 Payment in Case of Incapacity.
If the Committee receives an order from a court of
competent jurisdiction that a Member (or Beneficiary) is legally,
physically or mentally incapable of personally receiving any
payment under the Plan, the Committee shall instruct the Trustee
to make payment to one or more persons or institutions named in
that order for the maintenance or custody of the person entitled
to receive benefits.
5.9 Non-Alienation of Benefits.
Neither the Plan nor any of the Trust assets, or any
interest of the Participants and their Beneficiaries shall be
subject to the claims of creditors (whether bankruptcy creditors
or otherwise), conveyance, transfer, assignment, garnishment,
attachment, levy, encumbrance or other judicial process, whether
relating to the Employer, any Participant or Beneficiary, and the
Committee and Trustee shall not be liable nor give any effect to
any such claim, conveyance, transfer, assignment, garnishment,
attachment, levy, encumbrance or other judicial process. Any
transfer, assignment, conveyance or encumbrance of an interest
shall be void, except with respect to (i) federal income tax
withholding; (ii) indebtedness of a Participant to the Plan, if
any, and (iii) Qualified Domestic Relations Orders.
5.10 In-Service Distributions.
Subject to any Qualified Domestic Relations Order, a
Participant may withdraw his Trust Fund Account if he has
attained age 59-1/2 on the date of his withdrawal. No withdrawal
will be allowed which exceeds the value of the Participant's
Trust Fund Account not subject to a Qualified Domestic Relations
Order. If a Participant makes a withdrawal under this Section,
he will not be permitted to make Employee Elective Contributions
to the Plan and all other plans maintained by the Employer
(except health or welfare benefit plans) for 12 months following
the date of withdrawal.
ARTICLE VI
Hardship Distributions
In the event of a serious financial hardship, a
Participant may apply to the Committee for withdrawal of all or a
portion of his Employee Elective Contribution Account (excluding
any earnings thereon credited to such account after December 31,
1988). The amount of any hardship distribution shall not exceed
<PAGE>
the amount that is necessary to satisfy the Member's (including
his spouse and dependents) immediate and heavy financial need
which he is unable to eliminate out of other resources which are
reasonably available to him (including assets of his spouse and
minor children which are reasonably available to him). The
Committee, as it deems necessary, may require the Participant to
furnish evidence of his immediate and heavy financial need and
shall consider all such relevant facts and circumstances in
determining whether the Participant is eligible for a hardship
withdrawal. The Committee may rely on the Participant's written
representation of his hardship, unless the Employer has actual
knowledge to the contrary, that the Participant's need cannot be
reasonably relieved (i) through reimbursement or compensation by
insurance or otherwise, (ii) by liquidation of the Participant's
assets, (iii) by cessation of Employee Elective Contributions to
the Plan, (iv) by some other distribution or nontaxable loan from
plans maintained by the Employer or by any other employer or (v)
by borrowing from commercial sources on reasonable commercial
terms in an amount sufficient to satisfy the need. For purposes
of the preceding sentence, a Participant's need will not be
deemed to be reasonably relieved by one of the actions listed in
(i) through (v) of this Section, if the effect would be to
increase the amount of the Participant's need. If a Participant
makes a hardship withdrawal, he will not be permitted to make
Employee Elective Contributions to the Plan and all other plans
maintained by the Employer (except health or welfare benefit
plans) for 12 months following the date of the withdrawal.
Events which are deemed to qualify as hardships include, without
limitation:
A. Expenses for Medical Care (described in Code
213(d)) previously incurred by the Participant, his spouse or
"dependents" as defined in Code 152, or necessary for such
persons to obtain Medical Care;
B. Costs directly related to the purchase of a
Participant's primary home (excluding mortgage payments);
C. Payment of tuition and related educational fees
for the next 12 months of post-secondary education for the
Participant, his spouse, children or dependents;
D. Prevention of eviction or foreclosure on the
Participant's principal residence; and
E. Payment of any federal, state or local income
taxes or penalties reasonably anticipated to result from the
hardship distribution.
Hardship withdrawals shall be made by the Committee on
a consistent and non-discriminatory manner on the basis of all
relevant facts and circumstances, and shall not otherwise effect
the Participant's rights under the Plan. In order to be eligible
for a hardship distribution, the Participant must complete and
<PAGE>
file a hardship distribution request in the form required by the
Committee. The Committee, in its discretion, may expand the
events which qualify as hardships hereunder as permitted under
the Code, ERISA or the rules thereunder.
ARTICLE VIII
Establishment of Trust Fund And Trust Fund Accounts
7.1 Trust Fund Accounts.
The Trustee will establish and maintain a Trust Fund
Account for each Participant in the Plan. The balance of each
Trust Fund Account will be the sum of all amounts credited to
that account less the sum of all amounts debited against that
account.
7.2 Investment; Funding Policy.
The Trustee shall keep the Trust Funds invested as
provided for in the Trust Agreement. The Committee will establish
and periodically review a policy which defines the Plan's funding
needs and policy and will notify the Trustee of such policy and
any changes in it.
7.3 Impossibility of Diversion.
The Trust exists for the exclusive benefit of Members
and their Beneficiaries and for paying the reasonable expenses of
administering the Plan and Trust. No contribution or payment by
the Employer to the Trustee, nor any income of the Trust Fund,
shall in any event revert or be credited to or be used for the
benefit of the Employer, except that the Trustee shall return to
the Employer upon written request of the Committee:
A. Any contributions made by the Employer because of
a mistake in fact, provided that such contributions are returned
to the Employer within one year after the date any such
contribution was made;
B. Any contributions made for Plan years during which
the Plan does not initially qualify under Code 401(a), provided
that such contributions are returned to the Employer within one
year after the date of denial of qualification; and
C. Any contributions, to the extent that their
deduction is disallowed under Code 404, provided that such
disallowed contributions are returned to the Employer within one
year after the disallowance of the deduction.
Notwithstanding the foregoing, the Trustee shall return
to each Participant, upon the written direction of the Committee,
any contributions or part thereof described in this Section that
<PAGE>
are made to the Trust by the Employer pursuant to a Participant's
Salary Reduction Agreement, Rollover Contributions and transfers
from other qualified retirement plans, if any.
7.4 Purchase of Insurance.
No contracts insuring the life of any Participant may
be purchased under the Plan.
ARTICLE VIII
Valuation
8.1 Valuation of Trust Fund.
The Trustee shall determine the fair market value of
the Trust assets and liabilities as of each Valuation Date. In
determining the fair market value of the Trust assets, the
Trustee shall value assets held in the Trust Fund at the closing
sale price (i) as quoted by the National Association of
Securities Dealers, as published in a general circulation daily
newspaper or (ii) on the New York Stock Exchange - Consolidated
Transactions Tape, as of the prior business day. Trust assets
which are not readily tradable on an established market shall be
valued by an independent appraiser as defined under Treasury
Regulations prescribed under Code 170(a)(1).
8.2 Trust Fund Accounts.
The Trustee shall establish and maintain for each
Member a Trust Fund Account including separate records which
reflect amounts attributable to the following types of
contributions:
A. Employee Elective Contributions
(including Qualified Non-Elective Contributions)
B. Rollover Contributions
C. Transfers from other Employer plans
D. Employer Contributions
8.3 Allocation to Trust Fund Accounts.
After each Valuation Date, any earnings or losses (net
appreciation or net depreciation) of the Trust Fund will be
allocated to each Participant's Trust Fund Account:
<PAGE>
A. In the same ratio which the value of each
Participant's Trust Fund Account (determined as of the date of
the most recent allocation under this Section) bears to the value
of all Participants' Trust Fund Accounts (as of the same date).
Before that allocation is made, any withdrawals made by the
Participant since the most recent valuation shall be subtracted
from his Trust Fund Account. Any Employee Elective Contributions
made pursuant to Section 3.1 (including Qualified Non-Elective
Contributions), Rollover Contributions made pursuant to Section
3.5, transfers from other Employer plans made pursuant to Section
3.6, and/or Employer Contributions made pursuant to Section 3.7
shall be allocated to the Participant's Trust Fund Account on the
date the Trustee receives it; or
B. In any other method agreed to by the Trustee and
the Committee which results in the allocation based on Trust Fund
Account balances but which reflects the period the amounts are
held in the Trust Fund.
Notwithstanding the foregoing, Participants' Trust Fund
Accounts with segregated investments or in segregated accounts
shall receive only the income, gain loss or expenses attributable
to such segregated investments.
At the end of each Quarter, the Trustee will deliver to
each Member a statement of his Trust Fund Account.
ARTICLE IV
Top Heavy Plan Limitations
The following provisions shall be effective in a Plan
Year that the Plan and the Trust is "Top-Heavy" as defined in
this Article IX.
9.1 Determination of Top-Heavy Status.
As of each Plan Year, the Employer shall compute the
aggregate amounts allocated to the accounts of all "Key
Employees" of the Employer. For this purpose, the term "Key
Employee" shall mean any Employee, former Employee, or
Beneficiary thereof who, at any time during the Plan Year or any
of the four preceding Plan Years, is or was (i) an officer of the
Employer having an annual Compensation in excess of 50% of the
dollar limitation then in effect under Code 415(b)(1)(A), (ii)
one of the ten Employees having an annual Compensation in excess
of the dollar limitation then in effect under Code 415(c)(1)(A)
and owning (or considered as owning, within the meaning of Code
318) the largest interests in the Employer, (iii) a 5-percent
owner (as defined in Code 416(i)(1)(B)(i)), or (iv) a 1-percent
owner (as defined in Code 416(i)(1)(B)(ii)). For purposes of
determining percentage ownership in the foregoing sentence, the
rules of Code 416(i)(1)(B) shall apply and the rules of Code
414(b), 414(c) and 414(m) shall not apply.
<PAGE>
If the aggregate amounts allocated to the accounts of
all Key Employees exceeds sixty percent of the aggregate amount
allocated to the accounts of all Participants, then the Plan
shall be deemed to be top-heavy ("Top-Heavy") for the Plan Year
next following such Plan Year (and in the case of the initial
Plan Year, for the Plan Year ending with such Plan Year). The
account balances attributable to a Participant who has not
performed an Hour of Service to the Employer at any time during
the five-year period ending on the determination date shall be
disregarded. For purposes of making the above determination,
there shall be considered each plan of the Employer in which any
Key Employee is a participant and which is a part of the Required
Aggregation Group. There shall also be considered any
distributions (including distributions under a terminated plan
which was part of the Employer's aggregation group) made with
respect to any Participant within the five-year period ending on
the determination date. At the option of the Employer, any other
qualified plans maintained by it may be included in the group of
Plans for purposes of determining the top-heavy status of the
Plan, provided that the group of plans would continue to meet the
requirements of Code 401(a)(4) and 410 with such plans being
taken into account. If any plans of the Employer are aggregated
with the Plan as described in the preceding sentence, the Plan
shall be deemed to be top heavy only if the aggregate present
value of accrued benefits of Key Employees in the aggregated
group of plans exceeds sixty percent of the aggregate present
value of accrued benefits of all employees in the aggregated
group of plans. For purposes of determining the present value of
accrued benefits, the rules of Code 416(g) shall apply with the
accrued benefit of a Participant other than a Key Employee being
determined under (a) the method, if any, that is used for accrual
purposes for all plans of the Employer or (b) if there is no
method described in this paragraph (a) above, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted
under the fractional rule of Code 411(b)(1)(C).
The determination date for purposes of calculating the
top-heavy ratio is the last day of the preceding Plan Year. The
valuation date for purposes of calculating the top-heavy ratio is
the last day of the Plan Year.
9.2 Minimum Allocations.
For each Plan Year that the Plan is Top-Heavy, there
shall be allocated to the account of each Participant who is not
a Key Employee and who is employed by the Employer on the last
day of the Plan Year, irrespective of whether he has completed
1,000 Hours of Service with the Employer during the Plan Year, an
amount not less than three percent of each such Participant's
Compensation (without taking into account Social Security and
similar contributions and benefits). Notwithstanding the
foregoing, if the contribution for any Plan Year made by the
Employer is less than three percent of the aggregate Compensation
of all Participants, then the amount allocable to each non-Key
Employee shall be such lesser percentage. For purposes of this
Section, Employee Elective Contributions made by Key Employees
shall be included in determining the largest percentage of
contributions (as a percent of a Participant's Compensation)
allocated to Key Employees. The Committee may consider qualified
<PAGE>
non-elective contributions made to the DPL Inc. ESOP on behalf of
non-Key Employees as satisfying the minimum Top-Heavy
Contribution allocated to non-Key Employees, provided that to the
extent such qualified non-elective contributions are used for
this purpose, they shall not be used to satisfy the ADP test. If
the Employer maintains both a defined contribution plan and a
defined benefit plan, with a non-Key Employee who participates
(or could participate) in both plans, then the Top-Heavy minimum
benefit will be provided in the defined benefit plan.
9.3 Effect on Section 415 Limitations.
If the Employer maintains both a defined contribution
plan and a defined benefit plan with a Participant who
participates, or could participate, in both plans, then for
purposes of computing the defined contribution fraction and
defined benefit fraction described in Section 4.5, the dollar
limitation of Code 415(b)(l)(A) and 415(c)(l)(A) shall be
multiplied by 1.0 in lieu of 1.25 unless the Plan is not super
Top-Heavy (as described in Code 416(h)) and either (i) the
Participant does not participate in a defined benefit plan
sponsored by the Employer or an Affiliated Employer, he receives
an annual allocation at least equal to 4% of his Compensation for
that Year under the Plan or (ii) if the Participant also
participates in a defined benefit plan sponsored by the Employer
or an Affiliated Employer, the Employer has elected to provide
the minimum defined benefit plan accrual (defined in Code
416(c)(1) as adjusted by Code 416(h)(2)(A)(ii)(I)) under the
Employer's defined benefit plan.
ARTICLE X
Administration
10.1 Plan Fiduciaries.
The person or persons designated in Sections 10.2, 10.3
and 10.6 and the persons they designate to carry out or help
carry out their duties or responsibilities are fiduciaries under
the Plan and Trust. Each fiduciary shall have only those powers,
duties, responsibilities and obligations as are specifically
given to such fiduciary under the Plan or the Trust or delegated
to him by another fiduciary. Each fiduciary may assume that any
direction, information or action of another fiduciary is proper
and need not inquire into the propriety of such action, direction
or information. Except as provided by law, no fiduciary will be
responsible for the malfeasance, misfeasance or nonfeasance of
any other fiduciary. A fiduciary may also be a Participant in
the Plan provided he meets the eligibility requirements. Except
as permitted by law, no Employee or member of the Committee shall
receive any compensation from the Plan or Trust for services as a
fiduciary. No fiduciary guarantees the Trust Fund in any manner
against investment loss or depreciation in asset value.
<PAGE>
10.2 Company.
The Company shall have the sole responsibility for (i)
appointing and removing the Trustee, (ii) appointing and removing
members of the Committee, (iii) appointing and removing any
Investment Manager, as defined in the Trust, (iv) making
contributions provided for under Article III, (v) amending or
terminating, in whole or in part, the Plan or the Trust, (vi)
approving the amount of Employer Contributions to be made to the
Plan and (vii) acting on a matter referred to it by the
Committee.
10.3 Committee.
The Company will designate and name members of a
Committee and fix the number of its members from time to time
which shall have authority to administer the Plan on behalf of
the Company. Committee members shall serve at the pleasure of
the Company's Board of Directors.
The Committee shall have the full power to administer
the Plan and may act for and on behalf of the Company in all
matters, discretionary or otherwise, under the Plan, and shall
take such actions as are necessary to carry out its duties,
subject to the requirements of ERISA, which include, without
limitation, the following:
A. To make and enforce such rules and regulations as
it deems necessary or proper for the administration of the Plan
or as required to comply with applicable law;
B. To interpret the Plan, including supplying any
omissions in accordance with the intent of the Plan;
C. To decide all questions concerning the Plan and
the eligibility of any Employee to become a Participant;
D. To determine the existence and duration of
approved leave of absences and Disabilities;
E. To compute the amount of benefits to be
distributed to any Member or Beneficiary and to determine the
person or persons to whom such amounts will be distributed;
F. To authorize or deny payment of benefits;
G. To employ accountants, actuaries, agents,
consultants, physicians and attorneys (who may be counsel to the
Company) as may be needed to assist in administering the Plan;
<PAGE>
H. To communicate with Employees regarding their
participation and benefits under the Plan and other matters
concerning the Plan;
I. To keep such records and submit such filings,
elections, applications, tax returns or other documents or forms
as may be required under the Code, ERISA or by any other law;
J. To delegate its powers and duties hereunder;
K. To be designated agent for service of legal
process
upon the Plan;
L. To review bonding and insurance requirements and
agreements;
M. To establish and enforce the rules, regulations,
procedures concerning investment policies and investment programs
that it considers desirable;
N. To periodically (at least annually) receive and
evaluate reports of Trustees and Investment Managers;
O. To periodically (at least annually) review the
performance of the Trustee and Investment Managers;
P. To establish any accounts required by the Plan or
Trust;
Q. To report at least annually to the Company on
investment performance of the Trust Fund;
R. To establish and enforce such rules with respect
to Participant's (and transactions directed by such Participant
under the Plan) who are subject to the provisions of Section 16
of the Securities Exchange Act of 1934 (the "1934 Act") as may be
necessary or desirable to enable such Participant's participation
in the Plan (and transactions directed by such Participant under
the Plan) to qualify for any exemption from Section 16 of the
1934 Act;
S. To make and enforce such rules as it deems
necessary or desirable to prevent violation of the Code, ERISA or
any other law; and
T. To perform any other act or acts necessary or
desirable to the performance of its powers and duties hereunder.
<PAGE>
10.4 Interpretations and Adjustments.
The Committee shall have the discretionary authority
under the Plan to determine the eligibility for participation and
benefits and to interpret and construe the terms of the Plan and
Trust. An interpretation of the Plan or the Trust and a decision
by the Committee on any matter within its authority and
discretion, made in good faith, shall be binding on all persons,
to the extent permitted by law. A misstatement or other mistake
of fact shall be corrected when it becomes known and the person
responsible shall make adjustments as they consider equitable and
practicable. In the event of a conflict between the provisions
of the Plan, the Trust or any written action, the provisions of
the Plan shall control.
10.5 Action of Committee.
Any action permitted or required to be taken by the
Committee may be taken by a majority vote of its members either
by a vote at a meeting or in an action in writing signed by a
majority of the members of the Committee without a meeting. All
Committee members must be notified of the proposed action and
must have an opportunity to vote. Minutes of all meetings of the
Committee shall be kept by a Secretary appointed by the Committee
members. The Committee may adopt such by-laws and regulations as
it deems desirable for the conduct of its affairs. All notices
required or authorized to be given by the Committee must be in
writing and signed by a member or members of the Committee
designated as having authority to execute documents on its behalf
or by persons authorized in writing to act for the Committee.
In administering the Plan, the Committee may, to the
extent permitted by law, rely on tables, valuations,
certificates, opinions and reports furnished by any accountant,
actuaries, agents, consultants, physicians and attorneys employed
by the Committee or the Company. In addition, the Committee may
inspect the Employer's books and records to determine any fact in
connection with acts to be performed by it under the Plan.
10.6 Trustee.
The Trustee shall have the duties and powers set forth
in the Trust Agreement executed between the Employer and the
Trustee.
10.7 Indemnification.
Each fiduciary (as defined under ERISA 3(21), other
than a bank or trust company or an insurance company acting as a
fiduciary) shall be indemnified by the Company (to the extent not
covered by any applicable insurance) and not from the Trust Fund,
against liabilities, costs and expenses actually and reasonably
incurred by them, including attorney fees, judgments, fines, and
<PAGE>
amounts paid in settlement (other than amounts paid in settlement
which the Company does not approve), in connection with any
threatened, pending or completed action, suit or proceeding which
such fiduciary may be a party to by reason of the exercise or
failure to exercise by such fiduciary of any of the powers,
authority, responsibility or discretion provided under the Plan
and the Trust, or reasonably believed by such fiduciary to be
provided thereunder, and any action taken by such fiduciary in
connection with the foregoing if they acted in good faith and in
a manner reasonably believed to be in or not opposed to the best
interest of the Plan. This Section 10.7 shall not apply with
respect to any action or proceeding if the fiduciary (i) had
reasonable cause to believe that its conduct was unlawful, (ii)
acted with gross negligence or with willful misconduct in the
performance of its duties or (iii) embezzled or diverted Trust
Funds for its benefit; nor will indemnification be provided
hereunder for a fiduciary for excise taxes imposed under Code
4975.
ARTICLE XI
Amendment
The Committee may amend any or all provisions of the
Plan and or the Trust Agreement at any time, including, without
limitation, to make any amendments it determines necessary or
desirable, with or without retroactive effect, to comply with the
Code, ERISA, or any other law. Except as permitted by law, no
amendment may decrease a Participant's Accrued Benefit, or
eliminate or reduce any benefit or eliminate an optional method
of distribution with respect to benefits attributable to a
Participant's service before the adoption of the amendment.
ARTICLE XII
Suspension, Discontinuance or Termination
12.1 Termination or Partial Termination of the Plan.
The Committee may terminate or partially terminate the
Plan at any time. If the Plan is terminated or partially
terminated without termination of the Trust, the Trust will be
continued until terminated by the Committee or until all Trust
assets have been distributed.
In the event of liquidation of the Trust, the expenses
of liquidating the Plan and Trust may be paid by the Trust Fund
if not paid by the Employer.
12.2 Termination of the Trust.
If the Plan is terminated or partially terminated, the
Trust may be terminated by the Committee. The Trust Fund and
each account under the Trust Fund will be valued as provided in
Section 8.1 and allocated as provided in Section 8.3. The
Committee will determine the method and means of distribution and
<PAGE>
will certify that information to the Trustee. After receiving
that certification and after making necessary adjustments to
reflect additional earnings, losses and liquidation expenses, the
Trustee will distribute the Trust assets promptly; provided that
the distribution will not be made before the time the Participant
could have withdrawn his Employee Elective Contributions under
Section 5.4 D.
12.3 Discontinuance of the Plan.
The Company expects to continue the Plan indefinitely
but does not assume a contractual obligation to do so. Any
suspension of Employee Elective Contributions will not constitute
a discontinuance of the Plan. If Employee Elective Contributions
are suspended or discontinued, the Trust will be continued until
terminated by the Committee or until all Trust assets have been
distributed.
ARTICLE XIII
General
13.1 Severability.
If any provision of the Plan is held by any court or
tribunal, board or authority of competent jurisdiction to be
illegal, unenforceable or in conflict with the Code, ERISA or any
other law, such invalidation shall not affect any of the Plan's
other provisions, and the Plan shall be construed and enforced as
if such provisions had not been included.
13.2 Merger of Plans.
No merger or consolidation of the Plan, with or
transfer of assets or liabilities of the Plan to, any other plan
or trust fund established for the benefit of the Participants
shall occur unless the Participants in the Plan are entitled to
receive benefits immediately after the merger, consolidation or
transfer which are equal to or greater than the benefits they
would have been entitled to receive immediately before the
merger, consolidation or transfer, and the plan and trust that
are being merged with the Plan and Trust are qualified under Code
401(a) and 501(a).
13.3 Plan Not a Contract of Employment.
Nothing contained in the Plan shall be construed as a
contract of employment between the Employer and any Employee or
as a right of any Employee to be continued in the employment of
the Employer or as a limitation of the right of the Employer to
discharge any of its Employees, with or without cause.
<PAGE>
13.4 Successor Employer.
In the event of the dissolution, merger, consolidation
or reorganization of the Employer, provision may be made by which
the Plan and Trust will be continued by the successor, and, in
such event, such successor shall be substituted for the Employer
under the Plan. 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 the Employer under the Plan.
13.5 Expenses.
The Company may, but shall not be obligated to, pay all
the expenses of administering the Plan, including the Trustee's
compensation and expenses, any investment fees (except for
brokerage fees and commissions) incurred by the Trust, the
Committee's expenses and any other expenses incurred at the
direction of the Committee. Any such expenses not paid by the
Company shall be paid out of the Trust Fund. The Trust Fund
shall pay all brokerage fees and commissions.
13.6 Governing Law.
The Plan and Trust will be construed, administered and
enforced in accordance to the laws of the State of Ohio, to the
extent that such laws are not inconsistent with or preempted by
ERISA.
13.7 Construction.
If the Plan and Trust contains contradictory clauses or
if there appears to be a conflict between its provisions, the
following rules of construction will apply:
A. The interpretation that favors the Plan and Trust
as a tax favored qualified employee benefit plan and permits the
deduction of Employer Contributions for federal income tax
purposes will prevail over any interpretation that might render
the Plan and Trust taxable or prevent such deduction.
B. Subject to Subsection A above, the rules
established under the laws of the State of Ohio for the
construction of like instruments will apply.
13.8 Limitation of Rights.
Neither the establishment of the Plan or Trust, nor any
amendment thereto, nor the creation of any Trust Fund Account, or
the payment of any benefit, will be construed as giving to any
Participant or other person any legal or equitable right against
the Employer, Committee, Trustees, Plan or Trust. Each
Participant expressly agrees by participation herein, that he
will look solely to the assets held in his Trust Fund Account for
the payment of any benefit to which he is entitled to under the
Plan.
<PAGE>
13.9 Headings and Captions.
The heading and captions herein are provided for
convenience of reference only and are not to be considered in the
construction of the Plan or its provisions.
13.10 Counterparts.
The Plan may be executed in any number of counterparts,
each of which is an original; all counterparts constitute one and
the same instrument; sufficiently evidenced by any one
counterpart.
13.11 Qualified Status of the Plan.
The Plan and the Trust are intended to qualify as a
qualified employee benefit plan under Code 401(a) and 501(a).
The Plan and the Trust Agreement may be modified and amended
retroactively, if necessary, to qualify under Code 401(a) and
501(a).
<PAGE>
Exhibit 23
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January
18, 1995, which appears on page 27 of the 1994 Annual Report to
Shareholders of DPL Inc., which is incorporated by reference in
DPL Inc.'s Annual Report on Form 10-K for the year ended December
31, 1994. We also consent to the incorporation by reference of
our report on the Financial Statement Schedule, which appears on
page II-2 of such Annual Report on Form 10-K. We also consent to
the incorporation by reference in the Registration Statement of
our report dated June 12, 1995 appearing on page 2 of the Annual
Report of the Dayton Power and Light Employee Savings Plan on
Form 11-K for the year ended December 31, 1994.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Dayton, Ohio
September 29, 1995
