Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
Atlantic Energy, Inc.
(Exact name of registrant as specified in its charter)
NEW JERSEY 22-2871471
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6801 Black Horse Pike
Egg Harbor Township, New Jersey
(Address of Principal 08234
Executive Offices) (Zip Code)
Atlantic City Electric Company
401K Savings and Investment Plan-A
Atlantic City Electric Company
401K Savings and Investment Plan-B
(Full title of the plans)
M. J. Barron
Vice President and Chief Financial Officer
6801 Black Horse Pike
Egg Harbor Township, New Jersey 08234
(609) 645-4411
(Telephone number, including area code of agent of service)
It is respectfully requested that the Commission send copies of
all notices, orders and communications to:
Joseph J. Devine, Esq.
MESIROV GELMAN JAFFE CRAMER AND JAMIESON
1735 Market Street
Philadelphia, PA 19103-7598
<PAGE>
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to to be maximum maximum Registration
be registered registered offering aggregate Fee
price per offering
share (3) price (3)
Atlantic Energy,
Inc, Common Stock
no par value (1) 12,500 shares $17.875 $223,437.50 $ 77.09
Atlantic Energy,
Inc, Common Stock
no par value (2) 12,500 shares $17.875 $223,437.50 $ 77.09
Participation in
Atlantic City
Electric Company
401K Savings
and Investment Plans
A & B (4) (5) (5) (5)
(1) There are registered hereby 12,500 shares of Common
Stock of Atlantic Energy, Inc. which may be acquired pursuant to
the Atlantic City Electric Company 401K Savings and Investment
Plan-A.
(2) There are registered hereby 12,500 shares of Common
Stock of Atlantic Energy, Inc. which may be acquired pursuant to
the Atlantic City Electric Company 401K Savings and Investment
Plan-B.
(3) Determined in accordance with Rule 457(c) under the
Securities Act of 1933, based upon the average of the high and
low prices reported on the New York Stock Exchange (Composite
Transactions) on September 5, 1996.
(4) 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 plans described herein.
(5) Not applicable.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by Atlantic Energy, Inc.,
a New Jersey corporation (the "Company" or the "Registrant"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995.
(b) The Atlantic City Electric Company 401K Savings and
Investment Plan-A's Annual Report on Form 11-K for the
fiscal year ended December 31, 1995.
(c) The Atlantic City Electric Company 401K Savings and
Investment Plan-B's Annual Report on Form 11-K for the
fiscal year ended December 31, 1995.
(d) All other reports filed by the Company with the
Commission since December 31, 1995 pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the "1934"
Act), including the following:
(i) The Company's definitive Proxy Statement dated March
15, 1996 in connection with the Company's Annual
Meeting of Shareholders;
(ii) The Company's Form 8-K dated February 23, 1996;
(iii) The Company's Form 10-Q for the quarter ended
March 31, 1996;
(iv) The Company's Form 8-K dated May 29, 1996;
(v) The Company's Form 8-K dated June 25, 1996;
(vi) The Company's Form 8-K dated July 25, 1996;
(vii) The Company's Form 8-K dated August 13, 1996;
(viii) The Company's Form 10-Q for the quarter ended June
30, 1996;
(e) The description of the Company's common stock to be
offered hereby which is contained in the
registration statement filed under Section 12 of the
1934 Act, including any amendments or reports filed
for the purpose of updating such description.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act
subsequent to the date of filing this Registration Statement and
prior to the filing of a post-effective amendment which indicates
that all of the securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed
to be incorporated herein by reference and to be a part hereof
from the date of the filing of such documents with the
Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Directors and officers of the Company may be indemnified
against expenses and liabilities incurred by them under certain
circumstances pursuant to Article VI of the By-Laws of the
Company, which are filed as an exhibit to this Registration
Statement, and pursuant to Section 14A:3-5 of the New Jersey
Business Corporation Act.
The Company has insurance policies under which its
directors and officers are insured against certain liabilities
that may be incurred by them in their capacities as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
<PAGE>
Item 8. The following exhibits are filed herewith or
incorporated herein by reference, and are part of this
Registration Statement:
Exhibit
Number Description Method of Filing
4(i) Restated Certificate of Incorporated by reference
Incorporation of Atlantic to File No. 1-9760, Form
Energy, Inc. 10-Q for quarter ended
September 30, 1987.
4(ii) Certificate of Amendment Incorporated by reference
to the Restated Certificate to File No. 33-53511,Form
of Incorporation of S-8 dated May 6, 1994.
Atlantic Energy, Inc.,
filed April 30, 1992
4(iii) By-Laws of Atlantic Incorporated by reference
Energy, Inc., as amended to File No. 1-9760, Form
July 13, 1995. 10-Q for quarter ended
June 30, 1995
Exhibit 3b(2)
4 (iv) Atlantic City Electric Filed herewith.
Company 401K Savings and
Investment Plan-A, as
amended, dated April 1, 1995
and January 1, 1996.
4 (v ) Atlantic City Electric Filed herewith.
Company 401K Savings and
Investment Plan-B, as
amended, dated April 1, 1995
and January 1, 1996.
23 Independent Auditors' Filed herewith.
Consent
24 Powers of Attorney Filed herewith.
An opinion of counsel is not being filed because the
securities being registered are not original issuance securities,
and the Registrant undertakes to submit the Plan and any
amendments thereto to the Internal Revenue Service in order to
secure a determination letter in a timely manner and will make
all changes required by the Internal Revenue Service in order to
qualify the Plan under Section 401 of the Internal Revenue Code.
<PAGE>
Item 9. UNDERTAKINGS
A. Rule 415 Offering
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement; and
(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change in such information in the
registration statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii)
above do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. Filings Incorporating Subsequent Exchange Documents by
Reference
The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
C. Filing of Registration Statement on Form S-8
Insofar as indemnification for the liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers, and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
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
Township of Egg Harbor, the State of New Jersey on the 9th day of
September, 1996.
Atlantic Energy, Inc.
By: /s/ J.L. Jacobs
(J.L. Jacobs, Chairman,
Chief Executive Officer
and Director)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following
persons in the capacities and on the date indicated.
Signature
(i) Principal Executive Officer
By: /s/ J.L. Jacobs Date: September 9, 1996
(J.L. Jacobs)
Title: Chairman, Chief Executive Officer
and Director
By: /s/ M. J. Barron Date: September 9, 1996
(M. J. Barron)
Title: Vice President and
Chief Financial Officer
(iii) A Majority of the Directors:
Gerald A. Hale*
Matthew Holden, Jr.* Cyrus H. Holley*
J.L. Jacobs* Kathleen MacDonnell*
Richard B. McGlynn* Bernard J. Morgan*
Harold J. Raveche* Michael J. Chesser
By: /s/ M. J. Barron Date: September 9, 1996
(M. J. Barron)
Attorney-in-Fact
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Township of Egg Harbor, State of New Jersey, on September 9,
1996.
Atlantic City Electric Company
401k Savings and Investment Plans A & B
By: /s/ M. J. Barron
M. J. Barron, Chairman,
Benefits/Trusts Investment Committee
****<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Method of Filing
4(i) Restated Certificate of Incorporated by reference
Incorporation of Atlantic to File No. 1-9760, Form
Energy, Inc. 10-Q for quarter ended
September 30, 1987.
4(ii) Certificate of Amendment Incorporated by reference
to the Restated Certificate to File No. 33-53511,Form
of Incorporation of S-8 dated May 6, 1994.
Atlantic Energy, Inc.,
filed April 30, 1992.
4(iii) By-Laws of Atlantic Incorporated by reference
Energy, Inc., as amended to File No. 1-9760, Form
July 13, 1995 10-Q for quarter ended
June 30, 1995
Exhibit 3b(2)
4 (iv) Atlantic City Electric Filed herewith.
Company 401K Savings and
Investment Plan-A, as
amended, dated April 1, 1995
and January 1, 1996.
4 (v) Atlantic City Electric Filed herewith.
Company 401K Savings and
Investment Plan-B, as
amended, dated April 1, 1995
and January 1, 1996.
23 Independent Auditors' Filed herewith.
Consent
24 Powers of Attorney Filed herewith.
Exhibit 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Atlantic Energy, Inc. on Form S-8 of our reports
dated (i) February 2, 1996, appearing in the Annual Report on
Form 10-K of Atlantic Energy, Inc. for the year ended December
31, 1995, (ii) February 2, 1996, appearing in the Proxy Statement
dated March 15, 1996 of Atlantic Energy, Inc. in connection with
Atlantic Energy, Inc.'s Annual Meeting of Shareholders, (iii) July
31, 1996, appearing in the Annual Report on Form 11-K of the
Atlantic City Electric Company 401K Savings and Investment Plan
- - A for the fiscal year ended December 31, 1995, and (iv) July
31, 1996, appearing in the Annual Report on Form 11-K of Atlantic
City Electric Company 401K Savings and Investment Plan-B for the
fiscal year ended December 31, 1995.
DELOITTE & TOUCHE LLP
Parsippany, New Jersey
September 9, 1996
Exhibit 24
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B,and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this________ day of June, 1996.
/s/ Gerald A. Hale
Gerald A. Hale
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic Energy,
Inc., a New Jersey corporation ("Atlantic Energy"), does hereby
appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k)Savings and Investments Plan-A and
Savings and Investment Plan-B,and any and all amendments thereto,
including post-effective amendments, and (b) in connection with
the preparation, delivery and filing of any and all
registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this________ day of June, 1996.
/s/ Matthew Holden, Jr.
Matthew Holden, Jr.
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k)Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this____________ day of June, 1996.
/s/ Cyrus H. Holley
Cyrus H. Holley
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this_______________day of June, 1996.
/s/ Richard B. McGlynn
Richard B. McGlynn
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for her
and in her name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in her name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as her own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this___________day of June, 1996.
/s/ Kathleen MacDonnell
Kathleen MacDonnell
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this_____________ day of June, 1996.
/s/ Bernard J. Morgan
Bernard J. Morgan
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this _______________day of June, 1996.
/s/ Harold J. Raveche
Harold J. Raveche
<PAGE>
ATLANTIC ENERGY, INC.
POWER OF ATTORNEY
The undersigned, a director or officer of Atlantic
Energy, Inc., a New Jersey corporation ("Atlantic Energy"), does
hereby appoint J. L. JACOBS, M. J. BARRON, L.M. WALTERS AND J. E.
FRANKLIN II and each of them (with power to act without the
other), including full power of substitution and revocation, as
the undersigned's true and lawful attorneys-in-fact and agents,
with full power and authority to act in all capacities for him
and in his name, place and stead in connection with (a) the
filing with the Securities and Exchange Commission, pursuant to
the Securities Act of 1933, as amended, of a registration
statement on Form S-8 which pertains to the offering of 25,000
shares of common stock, without par value, pursuant to Atlantic
City Electric Company's 401(k) Savings and Investments Plan-A and
401(k) Savings and Investment Plan-B, and any and all amendments
thereto, including post-effective amendments, and (b) in
connection with the preparation, delivery and filing of any and
all registrations, qualifications or notifications under the
applicable securities law of any and all states or other
jurisdictions with respect to the common stock to be sold
thereunder. Such attorneys-in-fact and agents, or any of them,
are also granted full power and authority to execute and deliver
for the undersigned and in his name, place and stead all such
other documents or instruments and to take such further action as
they, or any of them, deem appropriate. The undersigned hereby
ratifies and adopts as his own act and deed the acts lawfully
taken by said attorneys-in-fact and agents, or any of them, or by
their respective substitutes pursuant to the powers and
authorities granted herein.
IN WITNESS WHEREOF, the undersigned has executed this
document as of this_____________ day of June, 1996.
/s/ J. L. Jacobs
J. L. Jacobs
Exhibit 4 (iv)
ATLANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN-A
As Amended and Restated Effective as of January 1, 1994
<PAGE>
ATLANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN-A
As Amended and Restated Effective January 1, 1994
Preamble
This Plan was originally established effective June 1,
1980 by the Board of Directors of Atlantic City Electric Company
for the exclusive benefit of Eligible Employees and their
Beneficiaries in order to provide additional retirement security
through a deferred savings and investment program. The Plan
incorporates a cash or deferred arrangement under section 401(k)
of the Internal Revenue Code of 1986, as amended, and Plan
provisions are to be interpreted accordingly. The Plan, as
amended and restated effective January 1, 1994, contains those
modifications required to comply with the provisions of the Tax
Reform Act of 1986, as amended. Except as otherwise expressly
provided, the provisions of the Plan, as set forth in this
document and as may be amended from time to time, establish the
rights and obligations with respect to Participants on and after
January 1, 1994 and transactions under the Plan on and after that
date. Rights and obligations under the Plan with respect to any
Employee who terminated employment with the Employer for any
reason prior to January 1, 1994 shall be determined in accordance
with the provisions of the Plan as in effect on the date of
termination.
<PAGE>
ARTICLE I
DEFINITIONS
The following words and phrases shall have the meanings
provided below, except as otherwise required by the context. As
used in the Plan, the masculine pronoun shall be deemed to
include the feminine, and the singular number shall be deemed to
include the plural, unless a different meaning is clearly
indicated by the context.
"Accounts" means a Participant's accounts maintained
for recordkeeping purposes under the Plan, including a Pre-
tax Contribution Account, After-tax Contribution Account,
Employer Matching Account and Rollover Account, as
applicable.
"Affiliate" means the Company and any corporation which
is a member of a controlled group of corporations (as
defined in Code section 414(b)) which includes the Company,
any trade or business (whether or not incorporated) which is
under common control (within the meaning of Code section
414(c)) with the Company, any organization which is part of
an affiliated service group as defined in Code section
414(m), or any entity required to be aggregated with the
Company in accordance with Code section 414(o) and the
regulations thereunder. For purposes of determining whether
a person is an Employee and the period of employment of such
person, each such other company shall be included as an
Affiliate only for such period or periods during which such
other company is a member of the controlled group, under
common control, an affiliated service group or otherwise
required to be so aggregated.
"After-tax Contributions" means a Participant's after-
tax contributions to the Plan pursuant to Section 3.1.
After-tax contributions shall be made by payroll deduction
or by single sum payments in accordance with procedures
established by the Committee.
"After-tax Contribution Account" means the separate
account maintained for a Participant to which the
Participant's After-tax Contributions and related earnings
are credited under Section 9.1.
"Beneficiary" means the person designated by the
Participant in accordance with the provisions of Section
11.6 to receive any benefits payable under the Plan after
the death of the Participant.
"Board of Directors" means the Board of Directors of
Atlantic Energy, Inc.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means the Benefits/Trusts Investment
Committee appointed by the Board of Directors, or its
delegate, pursuant to Section 14.3.
"Company" means Atlantic City Electric Company, or any
successor corporation.
"Compensation" means the basic annual wages and salary
(not in excess of the statutory dollar limitation under Code
section 401(a)(17), as may be adjusted by the Secretary of
the Treasury) paid to an Employee in cash or stock of the
Company for services rendered to the Employer (other than
overtime, bonuses, and all other forms of extra
compensation), unreduced by the Employee's Pre-tax
Contributions or contributions to a plan of the Employer
qualifying under Code section 125, but excluding Employer
contributions to any other plan of deferred compensation or
contributions to other employee benefit plans of the
Employer, the value of any fringe benefits provided by the
Employer, amounts paid in reimbursement of, or in lieu of,
expenses incurred by the Participant in the performance of
his duties, or the value of non-money awards or gifts made
by the Employer. For purposes of applying the dollar
limitation on Compensation, the rules of Code section
414(q)(6) shall apply, except that in applying such rules,
the term "family" shall include only the spouse of the
Employee and lineal descendants of the Employee who have not
attained age 19 before the close of the year. The dollar
limitation, as adjusted, will be allocated among the members
of the family unit in proportion to each such member's
Compensation.
"Disability Retirement Date" means the date of a
Participant's retirement under the disability retirement
provisions of any qualified defined benefit pension plan
sponsored by the Employer or an Affiliate.
"Early Retirement Date" means the date of a
Participant's retirement under the early retirement
provisions of any qualified defined benefit pension plan
sponsored by the Employer or an Affiliate.
"Effective Date" means January 1, 1994, the date of the
amendment and restatement of the Plan.
"Eligible Employee" means each Employee eligible to
participate in the Plan in accordance with Section 2.1.
"Employee" means any employee of the Employer, other
than a leased employee or an employee covered by a
collective bargaining agreement with the Employer, unless
such collective bargaining agreement expressly provides for
coverage under the Plan.
"Employer" means the Company and any Affiliate which
participates in the Plan with the approval of the Board of
Directors.
"Employer Matching Account" means the separate account
maintained for each Participant to which Matching
Contributions and related earnings are credited under
Section 9.1.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Highly Compensated Employee" means an Employee within
the meaning of Code section 414(q).
"Hour of Service" means (1) each hour for which an
Employee is directly or indirectly compensated or entitled
to compensation by the Employer for the performance of
duties during the applicable computation period; (2) each
hour for which an Employee is directly or indirectly
compensated or entitled to compensation by the Employer on
account of a period of time during which no duties are
performed (such as vacation, holidays, sickness, disability,
layoff, jury duty, military duty or leave of absence) during
the applicable computation period; (3) each hour for which
back pay is awarded or agreed to by the Employer without
regard to mitigation. The same Hours of Service shall not
be credited both under (1) or (2), as the case may be, and
(3).
Notwithstanding (2) above, (i) no more than 501 Hours
of Service will be credited to an Employee on account of any
single continuous period during which the Employee performs
no duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on
account of a period during which no duties are performed is
not required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation,
or unemployment compensation or disability insurance laws;
and (iii) Hours of Service are not required to be credited
for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the
Employee.
"Investment Funds" means each of the Investment Funds
provided for in Section 12.2 and set forth in Appendix A.
"Matching Contributions" means the contributions made
to the Plan by the Employer under Section 5.1.
"Normal Retirement Age" means age 65, except that if
the Participant is covered by any qualified defined benefit
pension plan sponsored by the Employer or by any Affiliate,
and if the normal retirement age established thereunder
shall be lower than age 65, such lower normal retirement age
shall also be deemed to be the Participant's Normal
Retirement Age under the Plan.
"Participant" means an Employee participating in the
Plan in accordance with Article II.
"Plan" means the Atlantic Electric 401(k) Savings and
Investment Plan-A, as amended and restated in this document
(including any Appendices) and as may be amended from time
to time.
"Plan Administrator" means the person or persons
appointed by the Board of Directors pursuant to Section 14.1
and shall include agents and delegates of the Plan
Administrator whenever applicable.
"Plan B" means the Atlantic Electric 401(k) Savings and
Investment Plan-B (including any Appendices) as may be
amended from time to time.
"Plan Year" means the calendar year.
"Pre-tax Contributions" means a Participant's before-
tax contributions to the Plan pursuant to Section 3.1. Pre-
tax contributions shall be made by payroll reduction.
"Pre-tax Contribution Account" means the separate
account maintained for each Participant to which a
Participant's Pre-tax Contributions and related earnings are
credited under Section 9.1.
"Rollover Account" means the separate account
maintained for a Participant to which a Participant's
rollover contributions or direct transfer amounts, or both,
and related earnings are credited under Section 9.1.
"Service" means a Participant's period of employment
with the Company or any Affiliate.
"Trust Agreement" means the agreement between the
Trustee and the Company pursuant to which the Trust Fund is
established and maintained, as provided in Article XV.
"Trust Fund" means the trust under the Plan established
pursuant to the Trust Agreement, as provided for in Article
XV.
"Trustee" means the trustee under the Trust Agreement.
"Valuation Date" means the last day of the Plan Year
and each other interim date during the Plan Year as of which
a valuation of the Trust Fund is made.
ARTICLE II
PARTICIPATION
2.1 Each Employee on the Effective Date who was a
Participant in the Plan immediately prior to the Effective Date
shall continue as a Participant as of the Effective Date.
Subject to Section 2.4, each other Employee shall become an
Eligible Employee upon his completion of one Hour of Service;
provided that an Employee who is not a regular, full-time
Employee shall become an Eligible Employee upon completion of
1,000 Hours of Service during the twelve consecutive-month period
commencing on the date he first performs an Hour of Service or,
if such Employee does not complete 1,000 Hours of Service during
such 12-month period, during a subsequent Plan Year.
<PAGE>
2.2 Participation in the Plan is purely voluntary.
Eligible Employees will be provided with a written application
for membership and an explanation of the Plan. Each Eligible
Employee on or after the Effective Date shall become a
Participant as soon as administratively feasible after his
completed application, in such form and manner as the Plan
Administrator may prescribe, is received by the Plan
Administrator. Once an Employee becomes an Eligible Employee, he
will continue to be an Eligible Employee until he ceases to be an
Employee.
2.3 A Participant shall continue as such until his Accounts
are completely distributed under the Plan or transferred to
Plan B pursuant to Section 2.4. Any interest in the Investment
Funds of a Participant who retires or otherwise terminates
employment with the Employer shall be allowed to remain in the
Trust Fund, subject to Article XI.
2.4 The Accounts of a Participant who becomes represented
by a collective bargaining agreement with the Employer shall be
transferred to Plan B as soon as administratively feasible. If a
participant in Plan B becomes an Eligible Employee, his accounts
under Plan B shall be transferred to corresponding Accounts under
this Plan and he shall become a Participant in the Plan as of the
date of such transfer and shall be eligible to make contributions
to the Plan in accordance with Article III as soon as
administratively feasible following receipt by the Plan
Administrator of his completed application for membership in
accordance with Section 2.2.
2.5 If an Eligible Employee terminates employment with the
Employer and is reemployed by the Employer, he shall be an
Eligible Employee as of his date of reemployment, and shall
participate in the Plan as soon as administratively feasible
after applying for membership in accordance with Section 2.2.
ARTICLE III
PARTICIPANT CONTRIBUTIONS
3.1 Subject to Section 3.4 and Articles IV, VI, and VIII, a
Participant may elect to make (i) Pre-tax Contributions in an
amount ranging from 1% to 10% (in whole percentages) of his
Compensation for the Plan Year; (ii) After-tax Contributions in
an amount ranging from 1% to 10% (in whole percentages) of his
Compensation for the Plan Year; or (iii) a combination of Pre-tax
Contributions and After-tax Contributions (in whole percentages),
not to exceed, in the aggregate, 20% of his Compensation for the
Plan Year.
3.2 The Employer shall contribute, or have contributed, to
the Plan the amount of a Participant's Pre-tax Contributions and
After-tax Contributions elected pursuant to Section 3.1. All
Pre-tax Contributions, together with any related earnings, shall
be credited to the Participant's Pre-tax Contribution Account.
All After-tax Contributions, together with any related earnings,
shall be credited to the Participant's After-tax Contribution
Account.
3.3 A Participant may discontinue or change the rate of his
Pre-tax Contributions or After-tax Contributions, or both, as of
any payroll period by providing written notice to the Plan
Administrator, in such form and manner as the Plan Administrator
may prescribe.
3.4 Notwithstanding the provisions of Article IV, the
maximum amount of Pre-tax Contributions credited to the Pre-tax
Contribution Account on behalf of a Participant in any calendar
year may not exceed $9,240 (as may be adjusted by the Secretary
of the Treasury), and any Pre-tax Contributions made to the Pre-
tax Contribution Account in excess of such amount, plus any
related earnings on such excess amount, shall be distributed to
the Participant no later than April 15 following the close of the
calendar year in which such excess Pre-tax Contributions are
made.
ARTICLE IV
ACTUAL DEFERRAL PERCENTAGE
4.1 (a) If the actual deferral percentage (as defined in
paragraph (c) below) of Compensation for Participants who are
Highly Compensated Employees is more than the amount permitted
under the deferral limitations set forth in paragraph (b) below,
there shall be a reduction in the portion of the Pre-tax
Contributions credited to the Pre-tax Contribution Accounts of
those Participants who are Highly Compensated Employees and who
elected to contribute at the highest Pre-tax Contribution
percentage rate, such that the deferral limitations are
satisfied. The Employer shall distribute to such Participants
any excess Pre-tax Contributions, and any related earnings, no
later than 2 1/2 months following the Plan Year in which such
excess Pre-tax Contributions are made. Excess Pre-tax
Contributions shall be treated as annual additions for purposes
of Section 8.1. In addition, if the Employer determines that
Pre-tax Contributions would be in excess of the deferral
limitations set forth in paragraph (b) below, the Employer may in
its sole discretion suspend, in whole or in part, Pre-tax
Contributions to the Plan made on behalf of Participants who are
Highly Compensated Employees (in which case the amounts which
would ordinarily be deferred in a payroll period shall be paid
directly to such Participants).
(b) The actual deferral percentage for any Plan Year
beginning on or after the Effective Date of all Eligible
Employees who are Highly Compensated Employees shall not exceed,
alternatively: (A) 125% of the actual deferral percentage for
all Eligible Employees who are not Highly Compensated Employees;
or (B) 200% of the actual deferral percentage for Eligible
Employees who are not Highly Compensated Employees, provided that
the actual deferral percentage for all Eligible Employees who are
Highly Compensated Employees does not exceed the actual deferral
percentage for all other Eligible Employees by more than 2%, or
such other amount that the Secretary of the Treasury shall
prescribe.
(c) For purposes of this Section 4.1, the actual
deferral percentage for a specified group of Participants for a
Plan Year shall be the average of the ratios, calculated
separately for each Eligible Employee in such group, of (i) the
amount of Pre-tax Contributions to the Pre-tax Contribution
Account and Matching Contributions to the Employer Matching
Account (to the extent taken into account for purposes of the
actual deferral percentage test) made on behalf of each Eligible
Employee for such Plan Year to (ii) the Eligible Employee's
Compensation for such Plan Year. However, for purposes of
determining the actual deferral percentage for a Plan Year of one
of the ten most highly-paid Highly Compensated Employees, the
Pre-tax Contributions (and Matching Contributions, if treated as
Pre-tax Contributions for purposes of the actual deferral
percentage test) and Compensation of such Highly Compensated
Employee shall include the Pre-tax Contributions (and Matching
Contributions, if treated as Pre-tax Contributions for purposes
of the actual deferral percentage test) and Compensation for the
Plan Year of "family members" (as defined in Code section
414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees
in determining the actual deferral percentage both for Eligible
Employees who are not Highly Compensated Employees and for
Eligible Employees who are Highly Compensated Employees. In
addition, for purposes of determining the actual deferral
percentage test, Pre-tax Contributions and Matching Contributions
must be made before the last day of the 12-month period
immediately following the Plan Year to which contributions
relate.
(d) The Employer may, to the extent permitted under
Treasury Regulations section 1.401(k)-1(f)(3), recharacterize as
After-tax Contributions for such Plan Year all or a portion of
the Pre-tax Contributions for Participants who are Highly
Compensated Employees to the extent necessary to comply with the
limitations set forth in paragraph (b) above. The amount of
excess Pre-tax Contributions to be recharacterized or distributed
with respect to a Participant for the Plan Year shall be reduced
by any excess deferrals previously distributed to such
Participant under Section 3.4 for the Participant's taxable year
ending with or within such Plan Year.
(e) The actual deferral percentage for any Participant
who is a Highly Compensated Employee in the Plan Year who is
eligible to have Pre-tax Contributions made on his behalf under
two or more arrangements described in Code section 401(k) that
are maintained by the Employer shall be determined as if such
Pre-tax Contributions were made under a single arrangement.
(f) If a reduction in the amount of Pre-tax
Contributions on behalf of a Participant is required because of
the application of paragraph (a) above, the reduction shall be
treated as taxable earnings to the Participant for the pay period
in which the reduction occurs, and the Employer shall withhold
any taxes required by law on such taxable earnings.
(g) If a distribution of excess Pre-tax Contributions
(and related earnings) is required because of the application of
paragraph (a) above, the Employer shall withhold any taxes
required by law on such distribution.
(h) In the event the Employer is required to reduce
the Pre-tax Contributions made on behalf of a Participant as a
result of the application of the provisions of paragraph (a)
above, the Matching Contributions under Section 5.1 made on
behalf of the Participant for the remainder of the Plan Year
shall be applied to the reduced amount of Pre-tax Contributions.
ARTICLE V
MATCHING CONTRIBUTIONS
5.1 Subject to the provisions of Articles VI and VII, the
Employer shall contribute to the Plan on behalf of each
Participant an amount equal to the lesser of (i) 50% of the first
6% of such Participant's Pre-tax Contributions made pursuant to
Section 3.1, or (ii) 3% of such Participant's Compensation.
Matching Contributions and related earnings shall be credited to
the Participant's Employer Matching Account.
ARTICLE VI
AVERAGE CONTRIBUTION PERCENTAGE
6.1 (a) If the contribution percentage (as defined in
paragraph (c) below) of Compensation for Participants who are
Highly Compensated Employees is more than the amount permitted
under the special limitations set forth in paragraph (b) below,
there shall be a reduction in the After-tax Contributions
credited to the After-tax Contribution Accounts and the Matching
Contributions credited to the Employer Matching Accounts of those
Participants who are Highly Compensated Employees on the basis of
the respective portions of such amounts attributable to each such
Participant so that such special limitations are satisfied. Any
excess After-tax Contributions or Matching Contributions made to
the Plan, plus any related earnings, shall be distributed to such
Participants no later than 2 1/2 months following the Plan Year
in which such excess After-tax Contributions or Matching
Contributions are made. Excess After-tax Contributions shall be
treated as annual additions for purpose of Section 8.1. In
addition, if the Employer determines that After-tax Contributions
or Matching Contributions would be in excess of the special
limitations set forth in paragraph (b) below, the Employer may,
in its sole discretion, suspend, in whole or in part, After-tax
Contributions or Pre-tax Contributions to the Plan made on behalf
of Participants who are Highly Compensated Employees and,
therefore, related Matching Contributions with respect to such
Participants (in which case the Pre-tax Contributions that would
ordinarily be contributed to the Plan on such Participants'
behalf in a payroll period shall be paid directly to such
Participants).
(b) The contribution percentage for any Plan Year of
all Eligible Employees who are Highly Compensated Employees shall
not exceed, alternatively: (A) 125% of the contribution
percentage for all Eligible Employees who are not Highly
Compensated Employees, or (B) 200% of the contribution percentage
for Eligible Employees who are not Highly Compensated Employees,
provided that the contribution percentage for Eligible Employees
who are Highly Compensated Employees does not exceed the
contribution percentage for all other Eligible Employees by more
than 2%, or such other amount that the Secretary of the Treasury
shall prescribe.
(c) For purposes of this Section 6.1, the average
contribution percentage for a specified group of Participants for
a Plan Year shall be the average of the ratios, calculated
separately for each Eligible Employee in such group of (i) the
amount of After-tax Contributions to the After-tax Contribution
Account and the amount of Matching Contributions to the Employer
Matching Account (to the extent not taken into account for
purposes of the actual deferral percentage test) made on behalf
of each Eligible Employee for such Plan Year to (ii) the Eligible
Employee's Compensation for such Plan Year. However, for
purposes of determining the average contribution percentage for a
Plan Year of one of the ten most highly-paid Highly Compensated
Employees, the Matching Contributions (to the extent not taken
into account for purposes of the actual deferral percentage test)
and Compensation of such Highly Compensated Employee shall
include the Matching Contributions (to the extent not taken into
account for purposes of the actual deferral percentage test) and
Compensation for the Plan Year of "family members" (as defined in
Code section 414(q)(6)). "Family members," with respect to such
Highly Compensated Employees, shall be disregarded as separate
employees in determining the average contribution percentage both
for Eligible Employees who are not Highly Compensated Employees
and for Eligible Employees who are Highly Compensated Employees.
In addition, for purposes of determining the contribution
percentage test, Matching Contributions will be considered made
for a Plan Year if made before the last day of 12-month period
immediately following the Plan Year to which contributions
relate.
(d) The average contribution percentage for any
Participant who is a Highly Compensated Employee in the Plan Year
who is eligible to make After-tax Contributions under two or more
arrangements described in Code section 401(m) that are maintained
by the Employer shall be determined as if such After-tax
Contributions were made under a single arrangement.
(e) If a reduction in the amount of After-tax
Contributions or Pre-tax Contributions on behalf of a Participant
is required because of the application of paragraph (a) above,
the reduction shall be treated as taxable earnings to the
Participant for the pay period in which the reduction occurs, and
the Employer shall withhold any taxes required by law on such
taxable earnings.
(f) If a distribution of excess Matching Contributions
(and related earnings) is required because of the application of
(a) above, the Employer shall withhold any taxes required by law
on such distribution.
(g) In the event the Employer is required to reduce
the Pre-tax Contributions made on behalf of a Participant as a
result of the application of the provisions of paragraph (a)
above, the Matching Contributions under Section 5.1 made on
behalf of the Participant for the remainder of the Plan Year
shall be applied to the reduced amount of Pre-tax Contributions.
6.2 If both the actual deferral percentage and the average
contribution percentage of the Highly Compensated Employees
exceeds 1.25 multiplied by the actual deferral percentage and
average contribution percentage of the non-Highly Compensated
Employees, multiple use will occur. In the event of multiple
use, if one or more Highly Compensated Employees participate in a
plan(s) subject to both the actual deferral percentage and
average contribution percentage tests and the sum of the two
percentages of those Highly Compensated Employees subject to
either or both tests exceeds the "aggregate limit," then the
average contribution percentage of those Highly Compensated
Employees who also participate in a salary deferral arrangement
will be reduced (beginning with the Highly Compensated Employee
whose average contribution percentage is the highest) so that the
limit is not exceeded. For the purposes of this Section,
"aggregate limit" shall mean the sum of (i) 125% of the greater
of the actual deferral percentage or the average contribution
percentage for non-Highly Compensated Employees for the Plan Year
and (ii) the lesser of 200% of, or two plus, the smaller of such
actual deferral percentage or average contribution percentage.
ARTICLE VII
ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS
7.1 Subject to the provisions of the Plan and to rules of
uniform application to be promulgated by the Plan Administrator,
and in addition to any contributions to the Plan made in
accordance with Article III, a Participant may make a
contribution to the Plan, in cash, of any amount received from a
qualified plan meeting the requirements of Code sections 401(a)
and 401(k) (i) which is attributable to pre-tax contributions,
and related earnings, or employer matching contributions, and
related earnings, or earnings on after-tax contributions, and
(ii) which qualifies as a "rollover amount", "rollover
contribution" or "eligible rollover distribution" under Code
section 401(a)(31), 402(c), 403(a)(4) or 408(d)(3). A
Participant who wishes to make such a contribution shall timely
file with the Plan Administrator, in such form and manner as the
Plan Administrator may prescribe, a written notice requesting
approval for such contribution, affirming that his contribution
qualifies as a rollover amount, rollover contribution or eligible
rollover distribution. Investment of such contribution, as
between or among the Investment Funds, as applicable, shall be as
directed by the Participant in accordance with the provisions of
Sections 12.3 and 12.4. The Plan Administrator shall direct the
Trustee as to the manner in which the contribution is to be
invested. In addition to the written notice required under this
Section 7.1, the Plan Administrator may require such further
documentation from the Participant, or the applicable trustee,
plan sponsor, custodian or other appropriate person, as evidence
of the contribution constituting a rollover amount, rollover
contribution or eligible rollover distribution, and until such
written notice and documentary evidence satisfactory to the Plan
Administrator have been so provided, the Plan Administrator shall
not approve such contribution to the Plan. The Plan
Administrator shall be fully protected in relying on such written
and documentary evidence presented by or on behalf of the
Participant. Contributions made by the Participant pursuant to
this Section 7.1 shall be credited to the Participant's Rollover
Account.
7.2 Subject to Section 2.4, other applicable provisions of
the Plan and to rules of uniform application to be promulgated by
the Plan Administrator, and in addition to contributions to the
Plan in accordance with Article III and Section 7.1, a
Participant may have transferred directly to the Plan on his
behalf his accrued benefit in another employee benefit plan
qualified under Code sections 401(a) and 401(k), provided such
plan is not required to provide automatic survivor benefits (such
as a defined benefit plan or money purchase plan or the
transferee plan of any such plan). A Participant who wishes to
have such amount transferred shall timely file with the Plan
Administrator a written notice, in such form and manner as the
Plan Administrator may prescribe, requesting approval for such
transfer, affirming that the transfer is from a tax-qualified
plan. Such transfer shall be effected directly from the
transferor plan without distribution to the Participant, as soon
as practicable after receipt of such notice by the Plan
Administrator. Investment of such transferred amount, as between
or among the Investment Funds, as applicable, shall be as
directed by the Participant in accordance with the provisions of
Sections 12.3 and 12.4. In addition to the written notice
required under this Section 7.2, the Plan Administrator may
require such further documentation from the Participant, or the
applicable trustee, plan sponsor, custodian or other appropriate
person, as evidence of the transfer being from a plan qualified
under Code sections 401(a) and 401(k), and until such written
notice and documentary evidence satisfactory to the Plan
Administrator have been so provided, the Plan Administrator shall
not approve such transfer to the Plan. The Plan Administrator
shall be fully protected in relying on such written and
documentary evidence presented by or on behalf of the
Participant. Transfers made by the Participant pursuant to this
Section 7.2 shall be credited to the Participant's Rollover
Account.
ARTICLE VIII
CONTRIBUTION LIMITATIONS
8.1 (a) Any provision of the Plan to the contrary
notwithstanding, no contributions or other annual additions to a
Participant's interest in the Trust Fund will be made in any Plan
Year in excess of the lesser of $30,000 or 25% of the
Participant's compensation (within the meaning of Code section
415(c)(3)). The $30,000 amount may be adjusted by the Secretary
of the Treasury.
(b) Any provision of the Plan to the contrary
notwithstanding, in the case of a Participant who is a
participant in a defined benefit plan of the Employer, his
maximum annual additions shall not exceed the amount which will
result in a defined contribution plan fraction which when added
to the defined benefit plan fraction of such Participant will
exceed 1.0 for any Plan Year.
(c) For purposes of applying this Section 8.1, all
defined benefit plans of the Company and its Affiliates, and all
defined contribution plans of the Company and its Affiliates,
including the Plan, shall be combined or aggregated and the
maximum benefit or annual additions limitation shall be
determined on the basis of a Participant's annual additions and
benefits under all such plans.
(d) For purposes of this Section 8.1, (i) a defined
contribution plan means a plan described in Code section 414(i);
(ii) a defined benefit plan means a plan described in Code
section 414(j); however, in the case of a defined benefit plan
which provides a benefit derived from employer contributions
which is based partly on the balance of the separate account of a
participant, such plan shall be treated as a defined contribution
plan to the extent benefits are based on the separate account of
a participant and as a defined benefit plan with respect to the
remaining portion of the benefits under the plan; (iii) the de-
fined benefit plan fraction for a Participant shall be a fraction
the numerator of which is the lesser of (a) the product of 1.25
multiplied by the dollar limitation in effect for the plan, or
(b) the product of 1.4 multiplied by the amount equal to 100% of
the Participant's average compensation for his high three years
projected annual benefit under the plan, if such plan provided
the maximum benefit allowed by law; (iv) the defined contribution
plan fraction for a Participant shall be a fraction the numerator
of which is the sum of the annual additions to the Participant's
accounts under all defined contribution plans of the Company and
its Affiliates (as determined in accordance with Code section
415(h)) and the denominator of which is the sum of the lesser of
the following amounts for such Plan Year and for each prior Plan
Year: (a) the product of 1.25 multiplied by the dollar
limitation in effect for such Plan Year, or (b) the product of
1.4 multiplied by the 25% of Participant's compensation (within
the meaning of Code section 415(c)(3)); and (v) annual addition
means for any Plan Year (A) Employer contributions, (B) Employee
contributions, (C) forfeitures, if any, (D) amounts allocated to
an individual medical account, as defined in Code section
415(l)(2), which is part of a pension or annuity plan maintained
by the Employer, and (E) amounts derived from contributions which
are attributable to post-retirement medical benefits allocated to
the separate account of a key employee, as defined in Code
section 419A(d)(3), under a welfare benefit fund, as defined in
Code section 419(e), maintained by the Employer.
ARTICLE IX
ACCOUNTS; VESTING
9.1 As appropriate, the Plan Administrator shall maintain
the following individual Plan Accounts on behalf of each
Participant:
(i) After-tax Contribution Account, credited with
After-tax Contributions made pursuant to Section 3.1, and
related earnings;
(ii) Employer Matching Account, credited with Matching
Contributions made pursuant to Section 5.1, and related
earnings;
(iii) Pre-tax Contribution Account, credited with Pre-
tax Contributions made pursuant to Section 3.1, and related
earnings; and
(iv) Rollover Account, credited with rollover
contributions made pursuant to Section 7.1, amounts
transferred pursuant to Section 4.2, and related earnings.
9.2 A Participant's interest in each of his Accounts shall
be fully vested at all times.
ARTICLE X
WITHDRAWALS
10.1 A Participant may elect to withdraw, once each
calendar quarter, all or a portion of his After-tax Contributions
and related earnings credited to his After-tax Contribution
Account by providing written notice to the Plan Administrator, in
such form and manner as the Plan Administrator may prescribe.
10.2 Upon written application to the Plan Administrator, in
such form and manner as the Plan Administrator may prescribe, a
Participant who is an Employee and has attained age 59 1/2 may
make a withdrawal in cash from any or all of his Accounts.
10.3 (a) Upon written application of a Participant to the
Committee, in such form and manner as the Committee may
prescribe, the Committee shall determine whether the Participant
is entitled to make a hardship withdrawal of Pre-tax
Contributions credited to his Pre-tax Contribution Account,
subject to the provisions of this Section 10.3. A hardship
entitling a Participant to make a withdrawal will exist if the
Committee determines that the Participant has an immediate and
heavy financial need. A distribution based upon financial
hardship cannot exceed the amount required to meet the immediate
financial need created by the hardship and not reasonably
available from reserves or other resources of the Participant.
The determination of the existence of financial hardship and the
amount required to be distributed to meet the need created by the
hardship shall be made by the Committee in accordance with
uniform and nondiscriminatory standards established by the
Committee. In no event may the amount of such hardship
withdrawal exceed the amount necessary to constitute security for
repayment of any outstanding loan made pursuant to Article XIII.
(b) For purposes of this Section 10.3:
(i) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the
Participant if the distribution is on account of
(1) medical expenses described in Code section 213(d)
incurred by the Participant, his spouse, or any
dependents (as defined in Code section 152(a)) or
necessary for these persons to obtain medical care
described in Code section 213(d); (2) the purchase
(excluding mortgage payments) of a principal residence
for the Participant; (3) the payment of tuition and
related educational fees for the next 12 months of
post-secondary education for the Participant, his
spouse, or any dependents; (4) the need to prevent the
eviction of the Participant from, or the foreclosure on
the mortgage of, the Participant's principal residence;
or (5) other events or conditions as prescribed or
permitted by the Internal Revenue Service through
publication of documents of general applicability;
(ii) In addition to the events described in (b)(i)
above, the Committee may determine on a
nondiscriminatory basis other events or conditions
which establish a Participant's immediate and heavy
financial need;
(iii) A distribution will be deemed necessary to
satisfy an immediate and heavy financial need of a
Participant if (1) the distribution is not in excess of
the amount of the immediate and heavy financial need of
the Participant (such amount may include any amount
necessary to pay any Federal, state or local taxes or
penalties reasonably anticipated to result from the
distribution) and (2) the Participant has obtained all
distributions, other than hardship withdrawals, and all
nontaxable loans available under the Plan and any other
plan maintained by the Employer in which the
Participant participates; and
(iv) A Participant who receives a hardship
withdrawal in accordance with this Section shall have
all before-tax and after-tax contributions to the Plan
and all other Plans of the Employer suspended for 12
months after receipt of the hardship withdrawal; the
maximum amount of Pre-tax Contributions which a
Participant may have credited to his Pre-tax
Contribution Account in the tax year following the tax
year in which he receives a hardship withdrawal shall
be the applicable amount described in Section 3.4 for
such tax year reduced by the amount of Pre-tax
Contributions credited to his Pre-tax Contribution
Account in the tax year in which he receives the
hardship withdrawal.
10.4 As soon as administratively feasible after the date as
of which a Participant has elected to make a withdrawal in
accordance with this Article X, the Plan Administrator shall
direct the Trustee to effect such withdrawal. The withdrawal
shall be made from the Investment Funds in which the
Participant's Accounts are invested in accordance with the
provisions of Section A.3 of Appendix A.
ARTICLE XI
DISTRIBUTIONS
11.1 The entire interest of a Participant in his Pre-tax
Contribution Account, Employer Matching Account and Rollover
Account, as applicable, shall become payable upon any of the
following events:
(i) the Participant's retirement on his Early
Retirement Date, Disability Retirement Date
or on or after his Normal Retirement Date;
(ii) death;
(iii) other termination of employment with the
Employer;
(iv) the Participant's attainment of age 59 1/2;
or
(v) financial hardship, but only to the extent
provided under Section 10.3.
Distributions shall be valued as of the date of
liquidation of the applicable Investment Funds.
11.2 Upon attainment of age 59 1/2 or termination of
employment with the Employer for any reason, a Participant (or
his Beneficiary in the event of death) may elect distribution of
his Accounts by providing written notice to the Plan
Administrator, in such form and manner as the Plan Administrator
may prescribe.
If a distribution is one to which Code sections
401(a)(11) and 417 do not apply, such distribution may commence
less than 30 days after the notice required under Treasury
Regulations section 1.411(a)-11(c) is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not
to elect a distribution (and, if applicable, a particular
distribution option), and (2) the Participant, after receiving
the notice, affirmatively elects a distribution.
11.3 If at termination of employment for any reason the
value of a Participant's Accounts does not exceed $3,500, his
Accounts shall be distributed in a single sum in cash. If at
termination of employment for any reason the value of a
Participant's Accounts exceeds $3,500, the Participant (or his
Beneficiary) may elect (i) to receive a single sum distribution
of his Accounts in cash, or (ii) to receive distribution of his
Accounts in approximately equal installments over an adjustable
or fixed period if such payments do not constitute an annuity
within the meaning of ERISA section 205 and Code section 401(a);
provided that installment payments under clause (ii) above shall
be made no less frequently than annually nor more frequently than
quarterly; and provided further, that a Participant (or his
Beneficiary) who has elected a distribution pursuant to clause
(ii) above may take a single sum distribution of all or any
portion of the balance remaining in his Accounts at any time
during the installment period. Distributions under (ii) above
shall be drawn from the Investment Funds in which the
Participant's Accounts are invested in the same manner as
withdrawals (as described in Section A.3 of Appendix A);
provided, however, that the Participant's After-tax Contribution
Account shall be distributed first, followed by his Rollover
Account, his Pre-tax Contribution Account and then his Employer
Matching Account, as applicable. Notwithstanding the foregoing
provisions of Section 11.2 or this Section 11.3, if the value of
a Participant's Accounts exceeds $3,500, distribution shall not
be made prior to the Participant's attainment of age 65 without
the written consent of the Participant (or his surviving spouse).
Notwithstanding any other provisions of the Plan to the
contrary that would otherwise limit a distributee's election
under this Section, a distributee may elect, at the time and in
the manner prescribed by the Plan Administrator, to have any
portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this Section 11.3, the following
definitions apply:
"Eligible rollover distribution" is any
distribution of all or any portion of the
balance to the credit of the distributee,
except that an eligible rollover distribution
does not include: any distribution that is
one of a series of substantially equal
periodic payments (not less frequently than
annually) made for the life (or life
expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent
such distribution is required under Code
section 401(a)(9); and the portion of any
distribution that is not includible in gross
income (determined without regard to the
exclusion for net unrealized appreciation
with respect to employer securities).
"Eligible retirement plan" is an individual
retirement account described in Code section
408(a), an individual retirement annuity
described in Code section 408(b), an annuity
plan described in Code section 403(a), or a
qualified trust described in Code section
401(a), that accepts the distributee's
eligible rollover distribution. However, in
the case of an eligible rollover distribution
to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
"Distributee" includes an Employee or former
Employee. In addition, the Employee's or
former Employee's surviving spouse and the
Employee's or former Employee's spouse or
former spouse who is the alternate payee
under a qualified domestic relations order,
as defined in Code section 414(p), are
distributees with regard to the interest of
the spouse or former spouse.
"Direct rollover" is a payment by the Plan to
the eligible retirement plan specified by the
distributee.
11.4 Except as otherwise required under Sections 11.2 and
11.3, all payments due under this Article XI shall commence no
later than 60 days following the close of the Plan Year in which
the latest of the following occurs:
(a) the attainment by the Participant of age 65;
(b) the 10th anniversary of the year in which the
Participant commenced participation in the Plan;
or
(c) the termination of the Participant's employment
with the Employer.
11.5 Any other provision of the Plan to the contrary
notwithstanding, payment of a benefit under the Plan to a
Participant shall commence no later than the April 1st next
following the Plan Year in which the Participant attains age
70 1/2.
11.6 A Participant may, prior to termination of his employ-
ment with the Employer, designate a Beneficiary to whom distribu-
tion of his interest in the Trust Fund shall be paid in the event
of his death prior to the full receipt of such interest; pro-
vided, however, that in the event the Participant is married on
the date of his death, such Beneficiary shall be deemed to be the
Participant's surviving spouse. The Participant may elect to
change or revoke his designated Beneficiary at any time; pro-
vided, however, that in the event prior to such change or revoca-
tion such Beneficiary is the Participant's surviving spouse, such
election shall not be effective unless such surviving spouse
provides written consent which acknowledges the effect of such
election and is witnessed by a notary public. The affirmative
designation of any Beneficiary and any elected change or
revocation thereof by a Participant shall be made on forms
provided by the Plan Administrator and shall not in any event be
effective unless and until filed with the Plan Administrator. If
no designated or deemed Beneficiary survives the Participant, or
if an unmarried Participant fails to designate a Beneficiary
under the Plan, the amount payable upon the death of the
Participant shall be paid to his estate.
11.7 Notwithstanding the foregoing provisions of this
Article XI, a Participant entitled to a distribution under the
Plan may instruct the Plan Administrator, in such form and manner
as the Plan Administrator may prescribe, to have all or a portion
of the amount of such distribution transferred directly from the
Trust Fund to a tax-qualified plan of another employer, an
individual retirement account or an individual retirement
annuity.
ARTICLE XII
INVESTMENT OF FUNDS
12.1 The Employer each pay period will transfer over to the
Trustee, or its delegate, contributions made to the Plan to be
held in trust and invested as provided herein and in the Trust
Agreement.
12.2 The Trust Fund will be invested in the Investment
Funds set forth in Appendix A.
12.3 Matching contributions will be invested exclusively
in the Custom Stable Value Fund as described in Appendix A. Each
Participant will designate the proportion of the balance of his
Pre-tax Contribution Account and After-tax Contribution Account,
as applicable (expressed as a percentage in multiples of 1%) to
be invested in each Investment Fund. Such designation may be
changed at any time by giving advance written notice to the Plan
Administrator, or its agent, in such form and manner as the Plan
Administrator may prescribe, except that the change shall apply
only to the Participant's future contributions. If no
designation is made, the Participants' Accounts shall be invested
in accordance with the provisions in Appendix A. A Participant
may also transfer the amount equivalent, in dollars, to his
interest or any partial interest from one Investment Fund to the
other at any time.
12.4 Each Participant shall have an interest in each
Investment Fund in which he has elected to have invested all or
any part of his Pre-tax and After-tax Contributions under Section
3.1, his Matching Contributions under Section 5.1 and his
rollover contributions under Section 7.1 and transferred amounts
under Section 7.2. His interest at any time in the Investment
Funds shall be equal to the sum of such contributions and
transferred amounts, adjusted from time to time to reflect his
proportionate share of the income and losses realized by such
Investment Funds and of the net appreciation or depreciation in
the value of such Investment Funds.
12.5 As of each Valuation Date, the Plan Administrator
shall ascertain from the Trustee the value of each Investment
Fund and shall on such basis determine the value of the interests
of Participants. Each Participant will be furnished a statement
of his Accounts at least annually.
ARTICLE XIII
LOANS
13.1 The Committee, subject to approval of the Board of
Directors, may establish a loan program under the Plan. Such
program, upon implementation, shall provide that upon written
application to the Committee, in such form and manner as the
Committee may prescribe, a Participant shall be permitted to
borrow from his Accounts in accordance with criteria established
by the Committee on a uniform and nondiscriminatory basis. In
general, a Participant shall be permitted to have no more than
one loan outstanding at one time; however, the Committee may
permit a second loan based on uniform and nondiscriminatory
criteria. Any such loan(s) shall be evidenced by a promissory
note.
13.2 The minimum amount that a Participant shall be per-
mitted to borrow is $1,000. The maximum amount that a
Participant shall be permitted to borrow under this Plan is the
lesser of (i) 50% of the aggregate of such Participant's Accounts
(reduced by the balance of any amounts which remain outstanding
under a Plan loan); or (ii) $50,000, reduced by the excess, if
any, of the highest outstanding balance of any prior Plan loan(s)
during the twelve-month period ending on the day before the date
the Plan loan is made over the outstanding balance of the Plan
loan on the date the loan is made.
13.3 Each loan shall be repaid by the Participant through
equal payroll deductions, on a level amortization basis,
commencing with the date of the loan, over a period of at least
12 and not more than 60 months. Notwithstanding the preceding
sentence, the Committee may permit repayment of a loan over a
period in excess of five years when the loan is used to acquire
any dwelling unit which within a reasonable time is to be used as
a principal residence of the Participant. Interest on loans
shall be charged at a reasonable rate, as determined by the
Committee, and shall be commensurate with the prevailing interest
rate being charged for similarly secured loans by entities in the
business of lending money. Such rate will remain fixed for the
term of the loan. A Participant may prepay the entire balance of
his loan at any time without penalty.
13.4 The amount of the loan shall be drawn from the
Investment Funds in which the Participant's After-tax
Contribution Account, Rollover Account, Pre-tax Contribution
Account and Employer Matching Account are invested in the same
manner as withdrawals (as described in Section A.3 of Appendix
A). As the loan is repaid, the principal and interest shall be
restored on a pro rata basis to the Participant's Accounts from
which the loan was made and the payment will be allocated to the
Investment Funds currently being used by the Participant.
13.5 No distribution to a Participant pursuant to Articles
X or XI (other than Section 10.3) shall be made until the
outstanding balance of any loan plus interest thereon is repaid
in full. A distribution from a Participant's Pre-tax
Contribution Account by reason of financial hardship pursuant to
Section 10.3 shall not be made if such distribution would cause
the amount necessary to constitute security for repayment of any
outstanding loan pursuant to this Article XIII to be less than
50% of the accrued balance in the Accounts of such Participant.
13.6 The Committee shall require that a Participant's
accrued account balance in his After-tax Contribution Account
constitute, to the extent necessary, security for repayment of
the loan. In the event a Participant's accrued account balance
in his After-tax Contribution Account is less than the amount of
the loan, the Committee shall require that the Participant's
accrued account balance in his Rollover Account, his Pre-tax
Contribution Account and then his Employer Matching Account
constitute security for the loan. If a loan is in default, the
unpaid balance of the loan, together with interest thereon, shall
be deducted from his Accounts on a pro rata basis, to the extent
each Account constitutes security for the loan. In no event
shall such deduction occur prior to the time the Participant is
entitled to a distribution under Article XI.
13.7 All loans granted under this Article XIII shall be
granted in a uniform and nondiscriminatory manner.
ARTICLE XIV
ADMINISTRATION
14.1 The Board of Directors, or its delegate, shall appoint
the Plan Administrator and "named fiduciary," within the meaning
of ERISA section 402(a), responsible for the administration and
day-to-day operation of the Plan.
14.2 The Plan Administrator shall establish uniform rules
and procedures for the proper administration of the Plan. It
shall have the exclusive power to interpret the Plan in a uniform
and nondiscriminatory manner, and its determinations shall be
conclusive and binding upon all persons.
14.3 The Board of Directors, or its delegate, shall appoint
a Committee, responsible for implementing access to hardship
withdrawals, improvements to the Plan and establishing a funding
policy, in consultation with the Board of Directors, consistent
with the objectives of the Plan and of the corresponding trust.
Members of the Committee shall serve as such without compensation
but the proper expenses of the Committee, including the
compensation of its duly appointed agents, shall be paid by the
Company. All expenses attributable to the administration of the
Plan and the expenses of the Trustee shall be paid out of the
Trust Fund except to the extent paid by the Employer.
14.4 The Company, the Board of Directors and its delegates,
the Plan Administrator and the Committee shall have the power to
assign or delegate any of their respective responsibilities to
subcommittees, members of the Committee or other agents and may
designate one or more subcommittees or other persons to carry out
any of its responsibilities.
14.5 The Company, the Plan Administrator and the Committee
may employ such agents and such clerical and other services as it
may deem advisable in carrying out the provisions of the Plan,
and may consult with counsel, who may be counsel for the Company.
14.6 Any person who believes that he is entitled to
benefits under the Plan may file a claim for such benefits. The
Plan Administrator may require claims for benefits to be filed in
writing, on such forms and containing such information as it may
deem necessary. Adequate notice shall be provided in writing to
any person whose claim for benefits under the Plan has been
wholly or partially denied. Such notice shall set forth the
specific reason for such denial and specific reference to the
pertinent Plan provisions on which the denial is based. Such
notice shall be written in a manner calculated to be understood
by the claimant and shall afford reasonable opportunity to the
claimant whose claim for benefits has been denied for a full and
fair review by the Plan Administrator of the decision denying the
claim.
ARTICLE XV
TRUSTEE
15.1 All assets of the Plan shall be held pursuant to a
Trust Agreement between a Trustee, designated by the Board of
Directors or its delegate, and the Company. The Trust Agreement
shall provide, among other things, for a Trust Fund, to be
administered by the Trustee, to which all contributions shall be
paid, and the Trustee shall have such rights, powers and duties
as shall be set forth therein. All assets of the Trust Fund
shall be held, invested and reinvested in accordance with the
provisions of the Trust Agreement.
15.2 All Employer contributions to the Plan are expressly
conditioned upon being deductible under Code section 404(a). At
no time prior to the satisfaction of all liabilities with respect
to Participants and their Beneficiaries shall any part of the
assets of the Plan be used for or diverted to purposes other than
for the exclusive benefit of such persons; provided, however,
Employer contributions may be returned to the Employer (a) within
one year after the payment of a contribution, if made by the
Employer by reason of a mistake of fact, or (b) within one year
of the disallowance of a deduction, to the extent a deduction is
disallowed, if a contribution is conditioned upon its
deductibility under Code section 404(a).
15.3 All disbursements by the Trustee, except for the
ordinary expenses of the administration of the Trust Fund, and
settlement of duly authorized investment transactions for the
account of the Trust Fund, shall be made upon the written
instructions of the Plan Administrator.
ARTICLE XVI
TERMINATION AND AMENDMENT
16.1 The Company expects to continue the Plan indefinitely,
but the continuance of the Plan and the payment of contributions
are not assumed as contractual obligations.
16.2 The Board of Directors, by adoption of resolutions,
may terminate the Plan for any reason at any time. If the Plan
shall be terminated, the Trustee shall continue to hold, invest
and administer the Trust Fund in accordance with the provisions
of the Trust Agreement and shall make distributions therefrom in
accordance with the provisions of the Plan, as then in effect,
pursuant to instructions filed with the Trustee by the Company
upon such termination or from time to time thereafter. Upon a
complete discontinuance of contributions, or upon termination or
partial termination of the Plan, each affected Participant or
Beneficiary shall continue to have a nonforfeitable interest in
his Accounts in the Plan.
16.3 The Board of Directors, by adoption of resolutions,
may modify or amend in whole or in part any or all of the
provisions of the Plan; provided, however, that no amendment
shall reduce the vested percentage of a Participant's accrued
benefit derived from Employer contributions below the vested
percentage thereof on the date such amendment is adopted or
becomes effective, whichever is later; and provided further, that
no amendment shall decrease the accrued benefit of a Participant.
In the event that the vesting provisions are amended, a
Participant with at least 3 Years of Service shall have the right
to elect, within a specified period, to have his nonforfeitable
percentage computed under this Plan without regard to such
amendment.
ARTICLE XVII
MISCELLANEOUS
17.1 Participation in the Plan shall have no effect upon
the employment status of any Employee.
17.2 All benefits payable under the Plan shall be paid
solely from the Trust Fund, and the Employer assumes no liability
or responsibility with respect to such payments.
17.3 In the event of any merger or consolidation of the
Plan with, or transfer of any assets or liabilities of the Plan
to, any other plan, each Participant shall be entitled to receive
a benefit immediately after such merger, consolidation, or
transfer (computed as if such other plan had then terminated)
which is equal to or greater than the benefit he would have been
entitled to receive immediately before such merger, consolida-
tion, or transfer (computed as if the Plan had then terminated).
17.4 Except as otherwise provided by law or the issuance of
a "qualified domestic relations order" (within the meaning of
Code section 414(p)), no person shall have the right to assign,
alienate, transfer, hypothecate or otherwise subject to lien his
interest in or his benefit under the Plan, nor shall benefits
under the Plan be subject to the claims of any creditor. Any
other provision of the Plan to the contrary notwithstanding, if a
qualified domestic relations order requires the distribution of
all or part of an Employee's benefits under the Plan earlier than
the "earliest retirement age" (within the meaning of Section
414(p)(4)(B) of the Code), the establishment or acknowledgment of
the alternate payee's right to benefits under the Plan in accord-
ance with the terms of such qualified domestic relations order
shall be deemed to be consistent with the terms of the Plan;
provided that nothing in this provision shall allow a Participant
to receive a distribution as of a date earlier than otherwise
permitted under the terms of the Plan, nor shall the alternate
payee be allowed to receive a form of benefit payment not
otherwise permitted under the terms of the Plan.
17.5 The Plan Administrator shall be indemnified by the
Employer against costs, expenses and liabilities (other than
amounts paid in settlement to which the Employer does not
consent) reasonably incurred by him in connection with any action
to which he may be a party by reason of his service as Plan
Administrator except in relation to matters as to which he shall
be adjudged in such action to be personally guilty of negligence
or willful misconduct in the performance of his duties. The
foregoing right to indemnification shall be in addition to such
other rights as the Plan Administrator may enjoy as a matter of
law or by reason of insurance coverage of any kind, but shall not
extend to costs, expenses and/or liabilities otherwise covered by
insurance or that would be so covered by any insurance then in
force if such insurance contained a waiver of subrogation.
Rights granted hereunder shall be in addition to and not in lieu
of any rights to indemnification to which the Plan Administrator
may be entitled pursuant to the by-laws of the Employer. Service
as a Plan Administrator shall be deemed in partial fulfillment of
the Plan Administrator's function as an employee, officer and/or
director of the Employer, if he serves in that capacity as well
as in the role of Plan Administrator.
17.6 The Company, the Board of Directors, the Plan
Administrator, the Committee (including any subcommittees,
individual members and the secretary thereof), the Trustee, and
any person who is deemed to be a fiduciary under the Plan, shall
not be liable for a breach of fiduciary responsibility of another
fiduciary under the Plan except to the extent (a) it shall have
participated knowingly in, or knowingly undertaken to conceal, an
act or omission of such fiduciary, knowing such act or omission
was a breach of such fiduciary's responsibilities, (b) it shall
have, through a breach of its fiduciary responsibilities, enabled
such fiduciary to commit a breach of its fiduciary
responsibilities, or (c) it shall have knowledge of a breach of
fiduciary responsibilities by such fiduciary, unless it has made
reasonable efforts to remedy the breach.
17.7 The Company, the Board of Directors, the Plan
Administrator and the Committee (including any subcommittees,
individual members and the secretary thereof) shall not be liable
for the acts or omissions of (a) any person or persons to whom
any authority, power or responsibility has been allocated
pursuant to Section 14.4 or (b) any person or persons who have
been designated to carry out any such authority, power or
responsibility pursuant to Section 14.4 except to the extent (i)
it shall have violated its fiduciary responsibilities with
respect to (A) such allocation or designation, (B) the
establishment or implementation of the allocation or designation
procedures of Section 14.4 or (C) the continuation of any such
allocation or designation, or (ii) it would otherwise be liable
under Section 17.5.
17.8 If the Plan Administrator determines that any person
to whom a payment is due hereunder is incompetent by reason of
physical or mental disability, the Plan Administrator shall have
the power to cause the payments becoming due to such person to be
made to another for the benefit of the incompetent, without
responsibility of the Plan Administrator or the Trustee to see to
the application of such payment. Payments made pursuant to such
power shall operate as a complete discharge of the Plan
Administrator, the Trustee and the Trust Fund.
17.9 The Plan shall be construed and enforced in accordance
with the laws of the State of New Jersey, except to the extent
preempted by the laws of the United States.
ARTICLE XVIII
TOP HEAVY PROVISIONS
The provisions of this Article XVIII shall become
applicable only under the circumstances described thereunder.
18.1 For purposes of this Article XVIII, the Plan shall be
"top heavy" if, as of the determination date (the last day of the
preceding Plan Year or, in the case of the first Plan Year, the
last day of such year), the present value of the cumulative
account balances for "key employees," as defined in Code section
416(i)(1), under the Plan and all other plans in the "aggregation
group," as defined in Code section 416(g)(2)(A), exceeds 60% of
the present value of the cumulative account balances under all
such plans for all Employees determined as of the applicable
"valuation date." For purposes of this Article XVIII, "valuation
date" shall mean the most recent Valuation Date within a 12-month
period ending on the determination date. The present value of
such account balances shall be computed in accordance with Code
section 416(g), and the above percentage ratio shall be
determined by a fraction, the numerator of which is the sum of
the present value of the account balances of key employees under
the Plan and all other plans in the aggregation group, and the
denominator of which is the sum of the present value of the
account balances under all such plans, including the Plan, for
all Employees. If an individual has not performed any service
for the Employer at any time during the five-year period ending
on a determination date, any accrued benefit of such individual
shall not be taken into account.
18.2 The following provisions shall be applicable to
members only for any Plan Year with respect to which the Plan is
top heavy:
(a) Notwithstanding Article V, the Employer shall make
a special contribution on behalf of each non-key employee who has
satisfied the eligibility requirements of the Plan, whether or
not a Participant in the Plan and who is in service at the end of
the Plan Year, with respect to such Plan Year in an amount which
equals the lesser of (i) 3% of his compensation (as defined in
Code section 414(s), or, to the extent required by the Code and
Treasury Regulations section 1.415-2(d)) or (ii) the highest per-
centage of compensation provided under the Plan for any key
employee for such Plan Year. Any such special Employer
contribution shall be credited to such Participant's Employer
Matching Account. Notwithstanding the foregoing provisions of
this Section 18.2(a), if a Participant in the Plan is also a
participant in any defined benefit plan of the Employer, then for
each Plan Year with respect to which the Plan is top heavy, such
Participant's accrual of a minimum benefit under such defined
benefit plan in accordance with Code section 416(c)(1) shall be
deemed to satisfy the special Employer contribution requirement
of this Section 18.2(a). Employer contributions resulting from
Pre-tax Contributions or Matching Contributions shall not be
counted towards meeting the minimum required allocations under
this Section.
(b) Notwithstanding the provisions of Section 8.1, if
during any Plan Year an Employee participates in both a defined
contribution plan and a defined benefit plan maintained by the
Company which comprise a "top heavy group," as defined in Code
section 416(g)(2)(B), the denominators of the defined benefit
plan fraction and the defined contribution plan fraction, as
described in Section 8.1(d), shall be calculated by substituting
"1.0" for "1.25" each place it appears in such Section; provided,
however, that this Section 18.2(b) shall not apply with respect
to a plan in the top heavy group if (i) such plan would satisfy
the requirements of Code section 416(h)(2)(A) and (ii) the
aggregate accrued benefits and cumulative account balances of key
employees under all plans in the top heavy group do not exceed
90% of the aggregate accrued benefits and cumulative account
balances under all such plans for all Employees.
IN WITNESS WHEREOF, and as evidence of the adoption of
this amendment and restatement of the Plan, the Company has
caused the same to be executed by its duly authorized officers
and its corporate seal to be affixed this 15th day of December,
1994.
ATLANTIC CITY ELECTRIC COMPANY
Attest: By:/s/ J. G. Salomone
Senior Vice President-
Finance & Administration
/s/ L. M. Walters
Secretary
(Corporate Seal)
<PAGE>
APPENDIX A
INVESTMENT FUNDS
This Appendix A shall be incorporated in, and be deemed
an integral part of, the Plan. Terms used in this Appendix A
shall have the same meanings as ascribed in the Plan document,
unless the context otherwise clearly requires.
A.1 The Accounts of a Participant shall be invested in
one or more of the following Investment Funds, in accordance with
the election of the Participant pursuant to Section 12.3 of the
Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Equity Index Fund - invested primarily in common stocks
included in the Standard and Poor's 500 Index with the
objective of matching the performance of the Index.
A.2 In the event a Participant does not designate
specific Investment Funds, his Accounts will be invested in the
Custom Stable Value Fund.
A.3 In the event a Participant elects to make an in-
service withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the withdrawal shall
be made from the Investment Funds of the Participant's Accounts
in the following order: Custom Stable Value Fund, Equity Income
Fund and, lastly, the Equity Index Fund.<PAGE>
TABLE OF CONTENTS
Page
Preamble . . .. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE
I DEFINITIONS. . . . . . . . . . . . . . . . . . 2
II PARTICIPATION. . . . . . . . . . . . . . . . . 6
III PARTICIPANT CONTRIBUTIONS. . . . . . . . . . . 8
IV ACTUAL DEFERRAL PERCENTAGE . . . . . . . . . . 9
V MATCHING CONTRIBUTIONS . . . . . . . . . . . . 13
VI AVERAGE CONTRIBUTION PERCENTAGE. . . . . . . . 13
VII ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS . . . 18
VIII CONTRIBUTION LIMITATIONS . . . . . . . . . . . 20
IX ACCOUNTS; VESTING. . . . . . . . . . . . . . . 23
X WITHDRAWALS. . . . . . . . . . . . . . . . . . 23
XI DISTRIBUTIONS. . . . . . . . . . . . . . . . . 26
XII INVESTMENT OF FUNDS. . . . . . . . . . . . . . 31
XIII LOANS. . . . . . . . . . . . . . . . . . . . . 33
XIV ADMINISTRATION . . . . . . . . . . . . . . . . 35
XV TRUSTEE. . . . . . . . . . . . . . . . . . . . 37
XVI TERMINATION AND AMENDMENT. . . . . . . . . . . 38
XVII MISCELLANEOUS. . . . . . . . . . . . . . . . . 39
XVIII TOP HEAVY PROVISIONS . . . . . . . . . . . . . 43
APPENDIX A
<PAGE>
. . .. . . . . . . . . . . . . . . . . . . . .
. . .. . . . . . . . . . . . . . . . . . . . .
INSTRUMENT OF AMENDMENT
TO THE
AT LANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN - A
The Atlantic Electric 401(k) Savings and Investment
Plan - A ("Plan") is amended, effective as indicated below, as
follows:
A. Effective April 1, 1995
1. Section A.1 of Appendix A of the Plan is amended to
read in its entirety as follows:
A.1 The Accounts of a Participant shall be invested
in one or more of the following Investment Funds, in
accordance with the election of the Participant pursuant to
Section 12.3 of the Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Spectrum Growth Fund - invested in a diversified group
of T. Rowe Price mutual funds that invest principally
in equity securities.
Equity Index Fund - invested primarily in common
stocks included in the Standard and Poor's 500 Index
with the objective of matching the performance of the
Index.
International Stock Fund - invested primarily in
common stocks of large, established non-U.S. companies
offering potential for long-term capital appreciation
and opportunity to achieve investment diversification.
2. Section A.3 of Appendix A of the Plan is amended to
read in its entirety as follows:
. . .A.3 . . . . . . . . . . . . . . . . . . . In the
event a Participant elects to make an in-service
withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the
withdrawal shall be made from the Investment Funds of
the Participant's Accounts in the following order:
Custom Stable Value Fund, Equity Income Fund, Spectrum
Growth Fund, Equity Index Fund and, lastly, the
International Stock Fund.
B. Effective January 1, 1996
1. Article I of the Plan is amended by adding in
alphabetical order a new definition of "Common Stock" to read as
follows:
"Common Stock" means common stock of Atlantic Energy,
Inc.
2. Article XII of the Plan is amended by adding at the
end thereof new Sections 12.6, 12.7 and 12.8 to read in their
entirety as follows:
. . .12.6 Each Participant (or in the event of his
death, his beneficiary) shall have the right to direct
the Trustee as to the manner in which full and
fractional shares of Common Stock reflecting such
Participant's proportional interest in the Atlantic
Energy Company Stock Fund are to be voted. Atlantic
Energy, Inc. shall furnish the Trustee and the
Participants (or beneficiaries) with notices and
information statements when voting rights are to be
exercised, in such time and manner as may be required
by applicable law and the certificate of incorporation
and by-laws of Atlantic Energy, Inc. Such statement
shall be substantially the same for Participants as
for holders of Common Stock in general. The
Participant (or beneficiary) may, in his discretion,
grant proxies for the exercise of his voting rights
under this Section 12.6 in accordance with the
direction of the Participant (or beneficiary). Common
Stock with respect to which the Trustee has not timely
received valid directions or proxies from a
Participant (or beneficiary) in accordance with this
Section 12.6 shall be voted by the Trustee
proportionately in the same manner as it votes Common
Stock with respect to which the Trustee has received
voting direction.
. . .12.7 A Participant (or in the event of his
death, his beneficiary) shall have the right to
instruct the Trustee in writing as to the manner in
which to respond to a tender or exchange offer in any
and all full and fractional shares of Common Stock
reflecting such Participant's proportional interest in
the Atlantic Energy Company Stock Fund. Atlantic
Energy, Inc. shall notify each Participant (or
beneficiary) and utilize its best efforts to
distribute or cause to be distributed to him in a
timely fashion such information as will be distributed
to shareholders of Atlantic Energy, Inc. in connection
with any such tender or exchange offer, together with
a form requesting confidential instruction to the
Trustee as to the manner in which to respond to the
tender or exchange offer for any or all full and
fractional shares of Common Stock reflecting the
Participant's proportional interest in the Atlantic
Energy Company Stock Fund. Upon its receipt of such
instructions, the Trustee shall tender such shares of
such Common Stock as and to the extent so instructed.
If the Trustee shall not receive instructions from a
Participant (or beneficiary) regarding any such tender
or exchange offer for Common Stock, the Trustee shall
tender or exchange only that number of the shares of
Common Stock that bears the same ratio to the total of
all such shares as the number of such shares for which
the Trustee has received valid instructions from
Participants bears to the total number of such shares
representing all Participants' interests in the
Atlantic Energy Company Stock Fund.
. . .12.8. . . . . . . . . . . . . . . . . . .
Notwithstanding the foregoing provisions of this
Article XII, the Trustees shall not be prohibited from
taking any action or not taking any action (whether or
not directed by a Plan provision to the contrary) if
in the Trustees' sole discretion any such action or
inaction relating to their duties as Trustees is
necessary in order for the Trustees to fulfill their
fiduciary responsibilities under ERISA; provided,
however, that the Trustees shall notify the Company as
soon as practicable in advance of any such proposed
action or inaction.
3. Appendix A of the Plan is amended to read in its
entirety as follows:
APPENDIX A
INVESTMENT FUNDS
This Appendix A shall be incorporated in, and be
deemed an integral part of, the Plan. Terms used in this
Appendix A shall have the same meanings as ascribed in the Plan
document, unless the context otherwise clearly requires.
A.1 .The Accounts of a Participant shall be invested
in one or more of the following Investment Funds, in accordance
with the election of the Participant pursuant to Section 12.3 of
the Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Atlantic Energy Company Stock Fund - invested in
Common Stock of Atlantic Energy, Inc. The Fund's
investment income, net of investment expenses, shall
automatically be reinvested in the Fund.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Spectrum Growth Fund - invested in a diversified group
of T. Rowe Price mutual funds that invest principally
in equity securities.
Equity Index Fund - invested primarily in common
stocks included in the Standard and Poor's 500 Index
with the objective of matching the performance of the
Index.
International Stock Fund - invested primarily in
common stocks of large, established non-U.S. companies
offering potential for long-term capital appreciation
and opportunity to achieve investment diversification.
A.2 .In the event a Participant does not designate
specific Investment Funds, his Accounts will be invested in the
Custom Stable Value Fund.
A.3 .In the event a Participant elects to make an in-
service withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the withdrawal shall
be made from the Investment Funds of the Participant's Accounts
in the following order: Custom Stable Value Fund, Atlantic
Energy Company Stock Fund, Equity Income Fund, Spectrum Growth
Fund, Equity Index Fund and, lastly, the International Stock
Fund.
IN WITNESS WHEREOF, ATLANTIC ENERGY, INC. has caused
this Instrument of Amendment, effective as set forth above, to be
duly executed this 9th day of September, 1996.
. . .. . . . . . . . . . . . . . . . . . . . .
ATLANTIC ENERGY, INC.
. . .. . . . . . . . . . . . . . . . . . . . .
By: /s/ M. J. Barron
. . .. . . . . . . . . . . . . . . . . . . . .
Chief Financial Officer
Exhibit 4 (v)
ATLANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN-B
As Amended and Restated Effective as of January 1, 1994
<PAGE>
ATLANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN-B
As Amended and Restated Effective January 1, 1994
Preamble
This Plan was originally established effective June 1,
1980 by the Board of Directors of Atlantic City Electric Company
for the exclusive benefit of Eligible Employees and their
Beneficiaries in order to provide additional retirement security
through a deferred savings and investment program. The Plan
incorporates a cash or deferred arrangement under section 401(k)
of the Internal Revenue Code of 1986, as amended, and Plan
provisions are to be interpreted accordingly. The Plan, as
amended and restated effective January 1, 1994, contains those
modifications required to comply with the provisions of the Tax
Reform Act of 1986, as amended. Except as otherwise expressly
provided, the provisions of the Plan, as set forth in this
document and as may be amended from time to time, establish the
rights and obligations with respect to Participants on and after
January 1, 1994 and transactions under the Plan on and after that
date. Rights and obligations under the Plan with respect to any
Employee who terminated employment with the Employer for any
reason prior to January 1, 1994 shall be determined in accordance
with the provisions of the Plan as in effect on the date of
termination.
<PAGE>
ARTICLE I
DEFINITIONS
The following words and phrases shall have the meanings
provided below, except as otherwise required by the context. As
used in the Plan, the masculine pronoun shall be deemed to
include the feminine, and the singular number shall be deemed to
include the plural, unless a different meaning is clearly
indicated by the context.
"Accounts" means a Participant's accounts maintained
for recordkeeping purposes under the Plan, including a Pre-
tax Contribution Account, After-tax Contribution Account,
Employer Matching Account and Rollover Account, as
applicable.
"Affiliate" means the Company and any corporation which
is a member of a controlled group of corporations (as
defined in Code section 414(b)) which includes the Company,
any trade or business (whether or not incorporated) which is
under common control (within the meaning of Code section
414(c)) with the Company, any organization which is part of
an affiliated service group as defined in Code section
414(m), or any entity required to be aggregated with the
Company in accordance with Code section 414(o) and the
regulations thereunder. For purposes of determining whether
a person is an Employee and the period of employment of such
person, each such other company shall be included as an
Affiliate only for such period or periods during which such
other company is a member of the controlled group, under
common control, an affiliated service group or otherwise
required to be so aggregated.
"After-tax Contributions" means a Participant's after-
tax contributions to the Plan pursuant to Section 3.1.
After-tax contributions shall be made by payroll deduction
or by single sum payments in accordance with procedures
established by the Committee.
"After-tax Contribution Account" means the separate
account maintained for a Participant to which the
Participant's After-tax Contributions and related earnings
are credited under Section 9.1.
"Beneficiary" means the person designated by the
Participant in accordance with the provisions of Section
11.6 to receive any benefits payable under the Plan after
the death of the Participant.
"Board of Directors" means the Board of Directors of
Atlantic Energy, Inc.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Committee" means the Benefits/Trusts Investment
Committee appointed by the Board of Directors, or its
delegate, pursuant to Section 14.3.
"Company" means Atlantic City Electric Company, or any
successor corporation.
"Compensation" means the basic annual wages and salary
(not in excess of the statutory dollar limitation under Code
section 401(a)(17), as may be adjusted by the Secretary of
the Treasury) paid to an Employee in cash or stock of the
Company for services rendered to the Employer (other than
overtime, bonuses, and all other forms of extra
compensation), unreduced by the Employee's Pre-tax
Contributions or contributions to a plan of the Employer
qualifying under Code section 125, but excluding Employer
contributions to any other plan of deferred compensation or
contributions to other employee benefit plans of the
Employer, the value of any fringe benefits provided by the
Employer, amounts paid in reimbursement of, or in lieu of,
expenses incurred by the Participant in the performance of
his duties, or the value of non-money awards or gifts made
by the Employer. For purposes of applying the dollar
limitation on Compensation, the rules of Code section
414(q)(6) shall apply, except that in applying such rules,
the term "family" shall include only the spouse of the
Employee and lineal descendants of the Employee who have not
attained age 19 before the close of the year. The dollar
limitation, as adjusted, will be allocated among the members
of the family unit in proportion to each such member's
Compensation.
"Disability Retirement Date" means the date of a
Participant's retirement under the disability retirement
provisions of any qualified defined benefit pension plan
sponsored by the Employer or an Affiliate.
"Early Retirement Date" means the date of a
Participant's retirement under the early retirement
provisions of any qualified defined benefit pension plan
sponsored by the Employer or an Affiliate.
"Effective Date" means January 1, 1994, the date of the
amendment and restatement of the Plan.
"Eligible Employee" means each Employee eligible to
participate in the Plan in accordance with Section 2.1.
"Employee" means any employee (other than a leased
employee) of the Employer covered by a collective bargaining
agreement with the Employer, unless such collective
bargaining agreement expressly precludes coverage under the
Plan.
"Employer" means the Company and any Affiliate which
participates in the Plan with the approval of the Board of
Directors.
"Employer Matching Account" means the separate account
maintained for each Participant to which Matching
Contributions and related earnings are credited under
Section 9.1.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Highly Compensated Employee" means an Employee within
the meaning of Code section 414(q).
"Hour of Service" means (1) each hour for which an
Employee is directly or indirectly compensated or entitled
to compensation by the Employer for the performance of
duties during the applicable computation period; (2) each
hour for which an Employee is directly or indirectly
compensated or entitled to compensation by the Employer on
account of a period of time during which no duties are
performed (such as vacation, holidays, sickness, disability,
layoff, jury duty, military duty or leave of absence) during
the applicable computation period; (3) each hour for which
back pay is awarded or agreed to by the Employer without
regard to mitigation. The same Hours of Service shall not
be credited both under (1) or (2), as the case may be, and
(3).
Notwithstanding (2) above, (i) no more than 501 Hours
of Service will be credited to an Employee on account of any
single continuous period during which the Employee performs
no duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on
account of a period during which no duties are performed is
not required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation,
or unemployment compensation or disability insurance laws;
and (iii) Hours of Service are not required to be credited
for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the
Employee.
"Investment Funds" means each of the Investment Funds
provided for in Section 12.2 and set forth in Appendix A.
"Matching Contributions" means the contributions made
to the Plan by the Employer under Section 5.1.
"Normal Retirement Age" means age 65, except that if
the Participant is covered by any qualified defined benefit
pension plan sponsored by the Employer or by any Affiliate,
and if the normal retirement age established thereunder
shall be lower than age 65, such lower normal retirement age
shall also be deemed to be the Participant's Normal
Retirement Age under the Plan.
"Participant" means an Employee participating in the
Plan in accordance with Article II.
"Plan" means the Atlantic Electric 401(k) Savings and
Investment Plan-B, as amended and restated in this document
(including any Appendices) and as may be amended from time
to time.
"Plan A" means the Atlantic Electric 401(k) Savings and
Investment Plan-A (including any Appendices) as may be
amended from time to time.
"Plan Administrator" means the person or persons
appointed by the Board of Directors pursuant to Section 14.1
and shall include agents and delegates of the Plan
Administrator whenever applicable.
"Plan Year" means the calendar year.
"Pre-tax Contributions" means a Participant's before-
tax contributions to the Plan pursuant to Section 3.1. Pre-
tax contributions shall be made by payroll reduction.
"Pre-tax Contribution Account" means the separate
account maintained for each Participant to which a
Participant's Pre-tax Contributions and related earnings are
credited under Section 9.1.
"Rollover Account" means the separate account
maintained for a Participant to which a Participant's
rollover contributions or direct transfer amounts, or both,
and related earnings are credited under Section 9.1.
"Service" means a Participant's period of employment
with the Company or any Affiliate.
"Trust Agreement" means the agreement between the
Trustee and the Company pursuant to which the Trust Fund is
established and maintained, as provided in Article XV.
"Trust Fund" means the trust under the Plan established
pursuant to the Trust Agreement, as provided for in Article
XV.
"Trustee" means the trustee under the Trust Agreement.
"Valuation Date" means the last day of the Plan Year
and each other interim date during the Plan Year as of which
a valuation of the Trust Fund is made.
ARTICLE II
PARTICIPATION
2.1 Each Employee on the Effective Date who was a
Participant in the Plan immediately prior to the Effective Date
shall continue as a Participant as of the Effective Date.
Subject to Section 2.4, each other Employee shall become an
Eligible Employee upon his completion of one Hour of Service;
provided that an Employee who is not a regular, full-time
Employee shall become an Eligible Employee upon completion of
1,000 Hours of Service during the twelve consecutive-month period
commencing on the date he first performs an Hour of Service or,
if such Employee does not complete 1,000 Hours of Service during
such 12-month period, during a subsequent Plan Year.
2.2 Participation in the Plan is purely voluntary.
Eligible Employees will be provided with a written application
for membership and an explanation of the Plan. Each Eligible
Employee on or after the Effective Date shall become a
Participant as soon as administratively feasible after his
completed application, in such form and manner as the Plan
Administrator may prescribe, is received by the Plan
Administrator. Once an Employee becomes an Eligible Employee, he
will continue to be an Eligible Employee until he ceases to be an
Employee.
2.3 A Participant shall continue as such until his Accounts
are completely distributed under the Plan or transferred to
Plan A pursuant to Section 2.4. Any interest in the Investment
Funds of a Participant who retires or otherwise terminates
employment with the Employer shall be allowed to remain in the
Trust Fund, subject to Article XI.
2.4 The Accounts of a Participant who becomes represented
by a collective bargaining agreement with the Employer shall be
transferred to Plan B as soon as administratively feasible. If a
participant in Plan B becomes an Eligible Employee, his accounts
under Plan B shall be transferred to corresponding Accounts under
this Plan and he shall become a Participant in the Plan as of the
date of such transfer and shall be eligible to make contributions
to the Plan in accordance with Article III as soon as
administratively feasible following receipt by the Plan
Administrator of his completed application for membership in
accordance with Section 2.2.
2.5 If an Eligible Employee terminates employment with the
Employer and is reemployed by the Employer, he shall be an
Eligible Employee as of his date of reemployment, and shall
participate in the Plan as soon as administratively feasible
after applying for membership in accordance with Section 2.2.
ARTICLE III
PARTICIPANT CONTRIBUTIONS
3.1 Subject to Section 3.4 and Articles IV, VI, and VIII, a
Participant may elect to make (i) Pre-tax Contributions in an
amount ranging from 1% to 10% (in whole percentages) of his
Compensation for the Plan Year; (ii) After-tax Contributions in
an amount ranging from 1% to 10% (in whole percentages) of his
Compensation for the Plan Year; or (iii) a combination of Pre-tax
Contributions and After-tax Contributions (in whole percentages),
not to exceed, in the aggregate, 20% of his Compensation for the
Plan Year.
3.2 The Employer shall contribute, or have contributed, to
the Plan the amount of a Participant's Pre-tax Contributions and
After-tax Contributions elected pursuant to Section 3.1. All
Pre-tax Contributions, together with any related earnings, shall
be credited to the Participant's Pre-tax Contribution Account.
All After-tax Contributions, together with any related earnings,
shall be credited to the Participant's After-tax Contribution
Account.
3.3 A Participant may discontinue or change the rate of his
Pre-tax Contributions or After-tax Contributions, or both, as of
any payroll period by providing written notice to the Plan
Administrator, in such form and manner as the Plan Administrator
may prescribe.
3.4 Notwithstanding the provisions of Article IV, the
maximum amount of Pre-tax Contributions credited to the Pre-tax
Contribution Account on behalf of a Participant in any calendar
year may not exceed $9,240 (as may be adjusted by the Secretary
of the Treasury), and any Pre-tax Contributions made to the Pre-
tax Contribution Account in excess of such amount, plus any
related earnings on such excess amount, shall be distributed to
the Participant no later than April 15 following the close of the
calendar year in which such excess Pre-tax Contributions are
made.
ARTICLE IV
ACTUAL DEFERRAL PERCENTAGE
4.1 (a) If the actual deferral percentage (as defined in
paragraph (c) below) of Compensation for Participants who are
Highly Compensated Employees is more than the amount permitted
under the deferral limitations set forth in paragraph (b) below,
there shall be a reduction in the portion of the Pre-tax
Contributions credited to the Pre-tax Contribution Accounts of
those Participants who are Highly Compensated Employees and who
elected to contribute at the highest Pre-tax Contribution
percentage rate, such that the deferral limitations are
satisfied. The Employer shall distribute to such Participants
any excess Pre-tax Contributions, and any related earnings, no
later than 2 1/2 months following the Plan Year in which such
excess Pre-tax Contributions are made. Excess Pre-tax
Contributions shall be treated as annual additions for purposes
of Section 8.1. In addition, if the Employer determines that
Pre-tax Contributions would be in excess of the deferral
limitations set forth in paragraph (b) below, the Employer may in
its sole discretion suspend, in whole or in part, Pre-tax
Contributions to the Plan made on behalf of Participants who are
Highly Compensated Employees (in which case the amounts which
would ordinarily be deferred in a payroll period shall be paid
directly to such Participants).
(b) The actual deferral percentage for any Plan Year
beginning on or after the Effective Date of all Eligible
Employees who are Highly Compensated Employees shall not exceed,
alternatively: (A) 125% of the actual deferral percentage for
all Eligible Employees who are not Highly Compensated Employees;
or (B) 200% of the actual deferral percentage for Eligible
Employees who are not Highly Compensated Employees, provided that
the actual deferral percentage for all Eligible Employees who are
Highly Compensated Employees does not exceed the actual deferral
percentage for all other Eligible Employees by more than 2%, or
such other amount that the Secretary of the Treasury shall
prescribe.
(c) For purposes of this Section 4.1, the actual
deferral percentage for a specified group of Participants for a
Plan Year shall be the average of the ratios, calculated
separately for each Eligible Employee in such group, of (i) the
amount of Pre-tax Contributions to the Pre-tax Contribution
Account and Matching Contributions to the Employer Matching
Account (to the extent taken into account for purposes of the
actual deferral percentage test) made on behalf of each Eligible
Employee for such Plan Year to (ii) the Eligible Employee's
Compensation for such Plan Year. However, for purposes of
determining the actual deferral percentage for a Plan Year of one
of the ten most highly-paid Highly Compensated Employees, the
Pre-tax Contributions (and Matching Contributions, if treated as
Pre-tax Contributions for purposes of the actual deferral
percentage test) and Compensation of such Highly Compensated
Employee shall include the Pre-tax Contributions (and Matching
Contributions, if treated as Pre-tax Contributions for purposes
of the actual deferral percentage test) and Compensation for the
Plan Year of "family members" (as defined in Code section
414(q)(6)). "Family members," with respect to such Highly
Compensated Employees, shall be disregarded as separate employees
in determining the actual deferral percentage both for Eligible
Employees who are not Highly Compensated Employees and for
Eligible Employees who are Highly Compensated Employees. In
addition, for purposes of determining the actual deferral
percentage test, Pre-tax Contributions and Matching Contributions
must be made before the last day of the 12-month period
immediately following the Plan Year to which contributions
relate.
(d) The Employer may, to the extent permitted under
Treasury Regulations section 1.401(k)-1(f)(3), recharacterize as
After-tax Contributions for such Plan Year all or a portion of
the Pre-tax Contributions for Participants who are Highly
Compensated Employees to the extent necessary to comply with the
limitations set forth in paragraph (b) above. The amount of
excess Pre-tax Contributions to be recharacterized or distributed
with respect to a Participant for the Plan Year shall be reduced
by any excess deferrals previously distributed to such
Participant under Section 3.4 for the Participant's taxable year
ending with or within such Plan Year.
(e) The actual deferral percentage for any Participant
who is a Highly Compensated Employee in the Plan Year who is
eligible to have Pre-tax Contributions made on his behalf under
two or more arrangements described in Code section 401(k) that
are maintained by the Employer shall be determined as if such
Pre-tax Contributions were made under a single arrangement.
(f) If a reduction in the amount of Pre-tax
Contributions on behalf of a Participant is required because of
the application of paragraph (a) above, the reduction shall be
treated as taxable earnings to the Participant for the pay period
in which the reduction occurs, and the Employer shall withhold
any taxes required by law on such taxable earnings.
(g) If a distribution of excess Pre-tax Contributions
(and related earnings) is required because of the application of
paragraph (a) above, the Employer shall withhold any taxes
required by law on such distribution.
(h) In the event the Employer is required to reduce
the Pre-tax Contributions made on behalf of a Participant as a
result of the application of the provisions of paragraph (a)
above, the Matching Contributions under Section 5.1 made on
behalf of the Participant for the remainder of the Plan Year
shall be applied to the reduced amount of Pre-tax Contributions.
ARTICLE V
MATCHING CONTRIBUTIONS
5.1 Subject to the provisions of Articles VI and VII, the
Employer shall contribute to the Plan on behalf of each
Participant an amount equal to the lesser of (i) 50% of the first
6% of such Participant's Pre-tax Contributions made pursuant to
Section 3.1, or (ii) 3% of such Participant's Compensation.
Matching Contributions and related earnings shall be credited to
the Participant's Employer Matching Account.
ARTICLE VI
AVERAGE CONTRIBUTION PERCENTAGE
6.1 (a) If the contribution percentage (as defined in
paragraph (c) below) of Compensation for Participants who are
Highly Compensated Employees is more than the amount permitted
under the special limitations set forth in paragraph (b) below,
there shall be a reduction in the After-tax Contributions
credited to the After-tax Contribution Accounts and the Matching
Contributions credited to the Employer Matching Accounts of those
Participants who are Highly Compensated Employees on the basis of
the respective portions of such amounts attributable to each such
Participant so that such special limitations are satisfied. Any
excess After-tax Contributions or Matching Contributions made to
the Plan, plus any related earnings, shall be distributed to such
Participants no later than 2 1/2 months following the Plan Year
in which such excess After-tax Contributions or Matching
Contributions are made. Excess After-tax Contributions shall be
treated as annual additions for purpose of Section 8.1. In
addition, if the Employer determines that After-tax Contributions
or Matching Contributions would be in excess of the special
limitations set forth in paragraph (b) below, the Employer may,
in its sole discretion, suspend, in whole or in part, After-tax
Contributions or Pre-tax Contributions to the Plan made on behalf
of Participants who are Highly Compensated Employees and,
therefore, related Matching Contributions with respect to such
Participants (in which case the Pre-tax Contributions that would
ordinarily be contributed to the Plan on such Participants'
behalf in a payroll period shall be paid directly to such
Participants).
(b) The contribution percentage for any Plan Year of
all Eligible Employees who are Highly Compensated Employees shall
not exceed, alternatively: (A) 125% of the contribution
percentage for all Eligible Employees who are not Highly
Compensated Employees, or (B) 200% of the contribution percentage
for Eligible Employees who are not Highly Compensated Employees,
provided that the contribution percentage for Eligible Employees
who are Highly Compensated Employees does not exceed the
contribution percentage for all other Eligible Employees by more
than 2%, or such other amount that the Secretary of the Treasury
shall prescribe.
(c) For purposes of this Section 6.1, the average
contribution percentage for a specified group of Participants for
a Plan Year shall be the average of the ratios, calculated
separately for each Eligible Employee in such group of (i) the
amount of After-tax Contributions to the After-tax Contribution
Account and the amount of Matching Contributions to the Employer
Matching Account (to the extent not taken into account for
purposes of the actual deferral percentage test) made on behalf
of each Eligible Employee for such Plan Year to (ii) the Eligible
Employee's Compensation for such Plan Year. However, for
purposes of determining the average contribution percentage for a
Plan Year of one of the ten most highly-paid Highly Compensated
Employees, the Matching Contributions (to the extent not taken
into account for purposes of the actual deferral percentage test)
and Compensation of such Highly Compensated Employee shall
include the Matching Contributions (to the extent not taken into
account for purposes of the actual deferral percentage test) and
Compensation for the Plan Year of "family members" (as defined in
Code section 414(q)(6)). "Family members," with respect to such
Highly Compensated Employees, shall be disregarded as separate
employees in determining the average contribution percentage both
for Eligible Employees who are not Highly Compensated Employees
and for Eligible Employees who are Highly Compensated Employees.
In addition, for purposes of determining the contribution
percentage test, Matching Contributions will be considered made
for a Plan Year if made before the last day of 12-month period
immediately following the Plan Year to which contributions
relate.
(d) The average contribution percentage for any
Participant who is a Highly Compensated Employee in the Plan Year
who is eligible to make After-tax Contributions under two or more
arrangements described in Code section 401(m) that are maintained
by the Employer shall be determined as if such After-tax
Contributions were made under a single arrangement.
(e) If a reduction in the amount of After-tax
Contributions or Pre-tax Contributions on behalf of a Participant
is required because of the application of paragraph (a) above,
the reduction shall be treated as taxable earnings to the
Participant for the pay period in which the reduction occurs, and
the Employer shall withhold any taxes required by law on such
taxable earnings.
(f) If a distribution of excess Matching Contributions
(and related earnings) is required because of the application of
(a) above, the Employer shall withhold any taxes required by law
on such distribution.
(g) In the event the Employer is required to reduce
the Pre-tax Contributions made on behalf of a Participant as a
result of the application of the provisions of paragraph (a)
above, the Matching Contributions under Section 5.1 made on
behalf of the Participant for the remainder of the Plan Year
shall be applied to the reduced amount of Pre-tax Contributions.
6.2 If both the actual deferral percentage and the average
contribution percentage of the Highly Compensated Employees
exceeds 1.25 multiplied by the actual deferral percentage and
average contribution percentage of the non-Highly Compensated
Employees, multiple use will occur. In the event of multiple
use, if one or more Highly Compensated Employees participate in a
plan(s) subject to both the actual deferral percentage and
average contribution percentage tests and the sum of the two
percentages of those Highly Compensated Employees subject to
either or both tests exceeds the "aggregate limit," then the
average contribution percentage of those Highly Compensated
Employees who also participate in a salary deferral arrangement
will be reduced (beginning with the Highly Compensated Employee
whose average contribution percentage is the highest) so that the
limit is not exceeded. For the purposes of this Section,
"aggregate limit" shall mean the sum of (i) 125% of the greater
of the actual deferral percentage or the average contribution
percentage for non-Highly Compensated Employees for the Plan Year
and (ii) the lesser of 200% of, or two plus, the smaller of such
actual deferral percentage or average contribution percentage.
ARTICLE VII
ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS
7.1 Subject to the provisions of the Plan and to rules of
uniform application to be promulgated by the Plan Administrator,
and in addition to any contributions to the Plan made in
accordance with Article III, a Participant may make a
contribution to the Plan, in cash, of any amount received from a
qualified plan meeting the requirements of Code sections 401(a)
and 401(k) (i) which is attributable to pre-tax contributions,
and related earnings, or employer matching contributions, and
related earnings, or earnings on after-tax contributions, and
(ii) which qualifies as a "rollover amount", "rollover
contribution" or "eligible rollover distribution" under Code
section 401(a)(31), 402(c), 403(a)(4) or 408(d)(3). A
Participant who wishes to make such a contribution shall timely
file with the Plan Administrator, in such form and manner as the
Plan Administrator may prescribe, a written notice requesting
approval for such contribution, affirming that his contribution
qualifies as a rollover amount, rollover contribution or eligible
rollover distribution. Investment of such contribution, as
between or among the Investment Funds, as applicable, shall be as
directed by the Participant in accordance with the provisions of
Sections 12.3 and 12.4. The Plan Administrator shall direct the
Trustee as to the manner in which the contribution is to be
invested. In addition to the written notice required under this
Section 7.1, the Plan Administrator may require such further
documentation from the Participant, or the applicable trustee,
plan sponsor, custodian or other appropriate person, as evidence
of the contribution constituting a rollover amount, rollover
contribution or eligible rollover distribution, and until such
written notice and documentary evidence satisfactory to the Plan
Administrator have been so provided, the Plan Administrator shall
not approve such contribution to the Plan. The Plan
Administrator shall be fully protected in relying on such written
and documentary evidence presented by or on behalf of the
Participant. Contributions made by the Participant pursuant to
this Section 7.1 shall be credited to the Participant's Rollover
Account.
7.2 Subject to Section 2.4, other applicable provisions of
the Plan and to rules of uniform application to be promulgated by
the Plan Administrator, and in addition to contributions to the
Plan in accordance with Article III and Section 7.1, a
Participant may have transferred directly to the Plan on his
behalf his accrued benefit in another employee benefit plan
qualified under Code sections 401(a) and 401(k), provided such
plan is not required to provide automatic survivor benefits (such
as a defined benefit plan or money purchase plan or the
transferee plan of any such plan). A Participant who wishes to
have such amount transferred shall timely file with the Plan
Administrator a written notice, in such form and manner as the
Plan Administrator may prescribe, requesting approval for such
transfer, affirming that the transfer is from a tax-qualified
plan. Such transfer shall be effected directly from the
transferor plan without distribution to the Participant, as soon
as practicable after receipt of such notice by the Plan
Administrator. Investment of such transferred amount, as between
or among the Investment Funds, as applicable, shall be as
directed by the Participant in accordance with the provisions of
Sections 12.3 and 12.4. In addition to the written notice
required under this Section 7.2, the Plan Administrator may
require such further documentation from the Participant, or the
applicable trustee, plan sponsor, custodian or other appropriate
person, as evidence of the transfer being from a plan qualified
under Code sections 401(a) and 401(k), and until such written
notice and documentary evidence satisfactory to the Plan
Administrator have been so provided, the Plan Administrator shall
not approve such transfer to the Plan. The Plan Administrator
shall be fully protected in relying on such written and
documentary evidence presented by or on behalf of the
Participant. Transfers made by the Participant pursuant to this
Section 7.2 shall be credited to the Participant's Rollover
Account.
ARTICLE VIII
CONTRIBUTION LIMITATIONS
8.1 (a) Any provision of the Plan to the contrary
notwithstanding, no contributions or other annual additions to a
Participant's interest in the Trust Fund will be made in any Plan
Year in excess of the lesser of $30,000 or 25% of the
Participant's compensation (within the meaning of Code section
415(c)(3)). The $30,000 amount may be adjusted by the Secretary
of the Treasury.
(b) Any provision of the Plan to the contrary
notwithstanding, in the case of a Participant who is a
participant in a defined benefit plan of the Employer, his
maximum annual additions shall not exceed the amount which will
result in a defined contribution plan fraction which when added
to the defined benefit plan fraction of such Participant will
exceed 1.0 for any Plan Year.
(c) For purposes of applying this Section 8.1, all
defined benefit plans of the Company and its Affiliates, and all
defined contribution plans of the Company and its Affiliates,
including the Plan, shall be combined or aggregated and the
maximum benefit or annual additions limitation shall be
determined on the basis of a Participant's annual additions and
benefits under all such plans.
(d) For purposes of this Section 8.1, (i) a defined
contribution plan means a plan described in Code section 414(i);
(ii) a defined benefit plan means a plan described in Code
section 414(j); however, in the case of a defined benefit plan
which provides a benefit derived from employer contributions
which is based partly on the balance of the separate account of a
participant, such plan shall be treated as a defined contribution
plan to the extent benefits are based on the separate account of
a participant and as a defined benefit plan with respect to the
remaining portion of the benefits under the plan; (iii) the de-
fined benefit plan fraction for a Participant shall be a fraction
the numerator of which is the lesser of (a) the product of 1.25
multiplied by the dollar limitation in effect for the plan, or
(b) the product of 1.4 multiplied by the amount equal to 100% of
the Participant's average compensation for his high three years
projected annual benefit under the plan, if such plan provided
the maximum benefit allowed by law; (iv) the defined contribution
plan fraction for a Participant shall be a fraction the numerator
of which is the sum of the annual additions to the Participant's
accounts under all defined contribution plans of the Company and
its Affiliates (as determined in accordance with Code section
415(h)) and the denominator of which is the sum of the lesser of
the following amounts for such Plan Year and for each prior Plan
Year: (a) the product of 1.25 multiplied by the dollar
limitation in effect for such Plan Year, or (b) the product of
1.4 multiplied by the 25% of Participant's compensation (within
the meaning of Code section 415(c)(3)); and (v) annual addition
means for any Plan Year (A) Employer contributions, (B) Employee
contributions, (C) forfeitures, if any, (D) amounts allocated to
an individual medical account, as defined in Code section
415(l)(2), which is part of a pension or annuity plan maintained
by the Employer, and (E) amounts derived from contributions which
are attributable to post-retirement medical benefits allocated to
the separate account of a key employee, as defined in Code
section 419A(d)(3), under a welfare benefit fund, as defined in
Code section 419(e), maintained by the Employer.
ARTICLE IX
ACCOUNTS; VESTING
9.1 As appropriate, the Plan Administrator shall maintain
the following individual Plan Accounts on behalf of each
Participant:
(i) After-tax Contribution Account, credited with
After-tax Contributions made pursuant to Section 3.1, and
related earnings;
(ii) Employer Matching Account, credited with Matching
Contributions made pursuant to Section 5.1, and related
earnings;
(iii) Pre-tax Contribution Account, credited with Pre-
tax Contributions made pursuant to Section 3.1, and related
earnings; and
(iv) Rollover Account, credited with rollover
contributions made pursuant to Section 7.1, amounts
transferred pursuant to Section 4.2, and related earnings.
9.2 A Participant's interest in each of his Accounts shall
be fully vested at all times.
ARTICLE X
WITHDRAWALS
10.1 A Participant may elect to withdraw, once each
calendar quarter, all or a portion of his After-tax Contributions
and related earnings credited to his After-tax Contribution
Account by providing written notice to the Plan Administrator, in
such form and manner as the Plan Administrator may prescribe.
10.2 Upon written application to the Plan Administrator, in
such form and manner as the Plan Administrator may prescribe, a
Participant who is an Employee and has attained age 59 1/2 may
make a withdrawal in cash from any or all of his Accounts.
10.3 (a) Upon written application of a Participant to the
Committee, in such form and manner as the Committee may
prescribe, the Committee shall determine whether the Participant
is entitled to make a hardship withdrawal of Pre-tax
Contributions credited to his Pre-tax Contribution Account,
subject to the provisions of this Section 10.3. A hardship
entitling a Participant to make a withdrawal will exist if the
Committee determines that the Participant has an immediate and
heavy financial need. A distribution based upon financial
hardship cannot exceed the amount required to meet the immediate
financial need created by the hardship and not reasonably
available from reserves or other resources of the Participant.
The determination of the existence of financial hardship and the
amount required to be distributed to meet the need created by the
hardship shall be made by the Committee in accordance with
uniform and nondiscriminatory standards established by the
Committee. In no event may the amount of such hardship
withdrawal exceed the amount necessary to constitute security for
repayment of any outstanding loan made pursuant to Article XIII.
(b) For purposes of this Section 10.3:
(i) A distribution will be deemed to be made on
account of an immediate and heavy financial need of the
Participant if the distribution is on account of
(1) medical expenses described in Code section 213(d)
incurred by the Participant, his spouse, or any
dependents (as defined in Code section 152(a)) or
necessary for these persons to obtain medical care
described in Code section 213(d); (2) the purchase
(excluding mortgage payments) of a principal residence
for the Participant; (3) the payment of tuition and
related educational fees for the next 12 months of
post-secondary education for the Participant, his
spouse, or any dependents; (4) the need to prevent the
eviction of the Participant from, or the foreclosure on
the mortgage of, the Participant's principal residence;
or (5) other events or conditions as prescribed or
permitted by the Internal Revenue Service through
publication of documents of general applicability;
(ii) In addition to the events described in (b)(i)
above, the Committee may determine on a
nondiscriminatory basis other events or conditions
which establish a Participant's immediate and heavy
financial need;
(iii) A distribution will be deemed necessary to
satisfy an immediate and heavy financial need of a
Participant if (1) the distribution is not in excess of
the amount of the immediate and heavy financial need of
the Participant (such amount may include any amount
necessary to pay any Federal, state or local taxes or
penalties reasonably anticipated to result from the
distribution) and (2) the Participant has obtained all
distributions, other than hardship withdrawals, and all
nontaxable loans available under the Plan and any other
plan maintained by the Employer in which the
Participant participates; and
(iv) A Participant who receives a hardship
withdrawal in accordance with this Section shall have
all before-tax and after-tax contributions to the Plan
and all other Plans of the Employer suspended for 12
months after receipt of the hardship withdrawal; the
maximum amount of Pre-tax Contributions which a
Participant may have credited to his Pre-tax
Contribution Account in the tax year following the tax
year in which he receives a hardship withdrawal shall
be the applicable amount described in Section 3.4 for
such tax year reduced by the amount of Pre-tax
Contributions credited to his Pre-tax Contribution
Account in the tax year in which he receives the
hardship withdrawal.
10.4 As soon as administratively feasible after the date as
of which a Participant has elected to make a withdrawal in
accordance with this Article X, the Plan Administrator shall
direct the Trustee to effect such withdrawal. The withdrawal
shall be made from the Investment Funds in which the
Participant's Accounts are invested in accordance with the
provisions of Section A.3 of Appendix A.
ARTICLE XI
DISTRIBUTIONS
11.1 The entire interest of a Participant in his Pre-tax
Contribution Account, Employer Matching Account and Rollover
Account, as applicable, shall become payable upon any of the
following events:
(i) the Participant's retirement on his Early
Retirement Date, Disability Retirement Date
or on or after his Normal Retirement Date;
(ii) death;
(iii) other termination of employment with the
Employer;
(iv) the Participant's attainment of age 59 1/2;
or
(v) financial hardship, but only to the extent
provided under Section 10.3.
Distributions shall be valued as of the date of
liquidation of the applicable Investment Funds.
11.2 Upon attainment of age 59 1/2 or termination of
employment with the Employer for any reason, a Participant (or
his Beneficiary in the event of death) may elect distribution of
his Accounts by providing written notice to the Plan
Administrator, in such form and manner as the Plan Administrator
may prescribe.
If a distribution is one to which Code sections
401(a)(11) and 417 do not apply, such distribution may commence
less than 30 days after the notice required under Treasury
Regulations section 1.411(a)-11(c) is given, provided that:
(1) the Plan Administrator clearly informs the Participant that
the Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not
to elect a distribution (and, if applicable, a particular
distribution option), and (2) the Participant, after receiving
the notice, affirmatively elects a distribution.
11.3 If at termination of employment for any reason the
value of a Participant's Accounts does not exceed $3,500, his
Accounts shall be distributed in a single sum in cash. If at
termination of employment for any reason the value of a
Participant's Accounts exceeds $3,500, the Participant (or his
Beneficiary) may elect (i) to receive a single sum distribution
of his Accounts in cash, or (ii) to receive distribution of his
Accounts in approximately equal installments over an adjustable
or fixed period if such payments do not constitute an annuity
within the meaning of ERISA section 205 and Code section 401(a);
provided that installment payments under clause (ii) above shall
be made no less frequently than annually nor more frequently than
quarterly; and provided further, that a Participant (or his
Beneficiary) who has elected a distribution pursuant to clause
(ii) above may take a single sum distribution of all or any
portion of the balance remaining in his Accounts at any time
during the installment period. Distributions under (ii) above
shall be drawn from the Investment Funds in which the
Participant's Accounts are invested in the same manner as
withdrawals (as described in Section A.3 of Appendix A);
provided, however, that the Participant's After-tax Contribution
Account shall be distributed first, followed by his Rollover
Account, his Pre-tax Contribution Account and then his Employer
Matching Account, as applicable. Notwithstanding the foregoing
provisions of Section 11.2 or this Section 11.3, if the value of
a Participant's Accounts exceeds $3,500, distribution shall not
be made prior to the Participant's attainment of age 65 without
the written consent of the Participant (or his surviving spouse).
Notwithstanding any other provisions of the Plan to the
contrary that would otherwise limit a distributee's election
under this Section, a distributee may elect, at the time and in
the manner prescribed by the Plan Administrator, to have any
portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this Section 11.3, the following
definitions apply:
"Eligible rollover distribution" is any
distribution of all or any portion of the
balance to the credit of the distributee,
except that an eligible rollover distribution
does not include: any distribution that is
one of a series of substantially equal
periodic payments (not less frequently than
annually) made for the life (or life
expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent
such distribution is required under Code
section 401(a)(9); and the portion of any
distribution that is not includible in gross
income (determined without regard to the
exclusion for net unrealized appreciation
with respect to employer securities).
"Eligible retirement plan" is an individual
retirement account described in Code section
408(a), an individual retirement annuity
described in Code section 408(b), an annuity
plan described in Code section 403(a), or a
qualified trust described in Code section
401(a), that accepts the distributee's
eligible rollover distribution. However, in
the case of an eligible rollover distribution
to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
"Distributee" includes an Employee or former
Employee. In addition, the Employee's or
former Employee's surviving spouse and the
Employee's or former Employee's spouse or
former spouse who is the alternate payee
under a qualified domestic relations order,
as defined in Code section 414(p), are
distributees with regard to the interest of
the spouse or former spouse.
"Direct rollover" is a payment by the Plan to
the eligible retirement plan specified by the
distributee.
11.4 Except as otherwise required under Sections 11.2 and
11.3, all payments due under this Article XI shall commence no
later than 60 days following the close of the Plan Year in which
the latest of the following occurs:
(a) the attainment by the Participant of age 65;
(b) the 10th anniversary of the year in which the
Participant commenced participation in the Plan;
or
(c) the termination of the Participant's employment
with the Employer.
11.5 Any other provision of the Plan to the contrary
notwithstanding, payment of a benefit under the Plan to a
Participant shall commence no later than the April 1st next
following the Plan Year in which the Participant attains age
70 1/2.
11.6 A Participant may, prior to termination of his employ-
ment with the Employer, designate a Beneficiary to whom distribu-
tion of his interest in the Trust Fund shall be paid in the event
of his death prior to the full receipt of such interest; pro-
vided, however, that in the event the Participant is married on
the date of his death, such Beneficiary shall be deemed to be the
Participant's surviving spouse. The Participant may elect to
change or revoke his designated Beneficiary at any time; pro-
vided, however, that in the event prior to such change or revoca-
tion such Beneficiary is the Participant's surviving spouse, such
election shall not be effective unless such surviving spouse
provides written consent which acknowledges the effect of such
election and is witnessed by a notary public. The affirmative
designation of any Beneficiary and any elected change or
revocation thereof by a Participant shall be made on forms
provided by the Plan Administrator and shall not in any event be
effective unless and until filed with the Plan Administrator. If
no designated or deemed Beneficiary survives the Participant, or
if an unmarried Participant fails to designate a Beneficiary
under the Plan, the amount payable upon the death of the
Participant shall be paid to his estate.
11.7 Notwithstanding the foregoing provisions of this
Article XI, a Participant entitled to a distribution under the
Plan may instruct the Plan Administrator, in such form and manner
as the Plan Administrator may prescribe, to have all or a portion
of the amount of such distribution transferred directly from the
Trust Fund to a tax-qualified plan of another employer, an
individual retirement account or an individual retirement
annuity.
ARTICLE XII
INVESTMENT OF FUNDS
12.1 The Employer each pay period will transfer over to the
Trustee, or its delegate, contributions made to the Plan to be
held in trust and invested as provided herein and in the Trust
Agreement.
12.2 The Trust Fund will be invested in the Investment
Funds set forth in Appendix A.
12.3 Matching contributions will be invested exclusively
in the Custom Stable Value Fund as described in Appendix A. Each
Participant will designate the proportion of the balance of his
Pre-tax Contribution Account and After-tax Contribution Account,
as applicable (expressed as a percentage in multiples of 1%) to
be invested in each Investment Fund. Such designation may be
changed at any time by giving advance written notice to the Plan
Administrator, or its agent, in such form and manner as the Plan
Administrator may prescribe, except that the change shall apply
only to the Participant's future contributions. If no
designation is made, the Participants' Accounts shall be invested
in accordance with the provisions in Appendix A. A Participant
may also transfer the amount equivalent, in dollars, to his
interest or any partial interest from one Investment Fund to the
other at any time.
12.4 Each Participant shall have an interest in each
Investment Fund in which he has elected to have invested all or
any part of his Pre-tax and After-tax Contributions under Section
3.1, his Matching Contributions under Section 5.1 and his
rollover contributions under Section 7.1 and transferred amounts
under Section 7.2. His interest at any time in the Investment
Funds shall be equal to the sum of such contributions and
transferred amounts, adjusted from time to time to reflect his
proportionate share of the income and losses realized by such
Investment Funds and of the net appreciation or depreciation in
the value of such Investment Funds.
12.5 As of each Valuation Date, the Plan Administrator
shall ascertain from the Trustee the value of each Investment
Fund and shall on such basis determine the value of the interests
of Participants. Each Participant will be furnished a statement
of his Accounts at least annually.
ARTICLE XIII
LOANS
13.1 The Committee, subject to approval of the Board of
Directors, may establish a loan program under the Plan. Such
program, upon implementation, shall provide that upon written
application to the Committee, in such form and manner as the
Committee may prescribe, a Participant shall be permitted to
borrow from his Accounts in accordance with criteria established
by the Committee on a uniform and nondiscriminatory basis. In
general, a Participant shall be permitted to have no more than
one loan outstanding at one time; however, the Committee may
permit a second loan based on uniform and nondiscriminatory
criteria. Any such loan(s) shall be evidenced by a promissory
note.
13.2 The minimum amount that a Participant shall be per-
mitted to borrow is $1,000. The maximum amount that a
Participant shall be permitted to borrow under this Plan is the
lesser of (i) 50% of the aggregate of such Participant's Accounts
(reduced by the balance of any amounts which remain outstanding
under a Plan loan); or (ii) $50,000, reduced by the excess, if
any, of the highest outstanding balance of any prior Plan loan(s)
during the twelve-month period ending on the day before the date
the Plan loan is made over the outstanding balance of the Plan
loan on the date the loan is made.
13.3 Each loan shall be repaid by the Participant through
equal payroll deductions, on a level amortization basis,
commencing with the date of the loan, over a period of at least
12 and not more than 60 months. Notwithstanding the preceding
sentence, the Committee may permit repayment of a loan over a
period in excess of five years when the loan is used to acquire
any dwelling unit which within a reasonable time is to be used as
a principal residence of the Participant. Interest on loans
shall be charged at a reasonable rate, as determined by the
Committee, and shall be commensurate with the prevailing interest
rate being charged for similarly secured loans by entities in the
business of lending money. Such rate will remain fixed for the
term of the loan. A Participant may prepay the entire balance of
his loan at any time without penalty.
13.4 The amount of the loan shall be drawn from the
Investment Funds in which the Participant's After-tax
Contribution Account, Rollover Account, Pre-tax Contribution
Account and Employer Matching Account are invested in the same
manner as withdrawals (as described in Section A.3 of Appendix
A). As the loan is repaid, the principal and interest shall be
restored on a pro rata basis to the Participant's Accounts from
which the loan was made and the payment will be allocated to the
Investment Funds currently being used by the Participant.
13.5 No distribution to a Participant pursuant to Articles
X or XI (other than Section 10.3) shall be made until the
outstanding balance of any loan plus interest thereon is repaid
in full. A distribution from a Participant's Pre-tax
Contribution Account by reason of financial hardship pursuant to
Section 10.3 shall not be made if such distribution would cause
the amount necessary to constitute security for repayment of any
outstanding loan pursuant to this Article XIII to be less than
50% of the accrued balance in the Accounts of such Participant.
13.6 The Committee shall require that a Participant's
accrued account balance in his After-tax Contribution Account
constitute, to the extent necessary, security for repayment of
the loan. In the event a Participant's accrued account balance
in his After-tax Contribution Account is less than the amount of
the loan, the Committee shall require that the Participant's
accrued account balance in his Rollover Account, his Pre-tax
Contribution Account and then his Employer Matching Account
constitute security for the loan. If a loan is in default, the
unpaid balance of the loan, together with interest thereon, shall
be deducted from his Accounts on a pro rata basis, to the extent
each Account constitutes security for the loan. In no event
shall such deduction occur prior to the time the Participant is
entitled to a distribution under Article XI.
13.7 All loans granted under this Article XIII shall be
granted in a uniform and nondiscriminatory manner.
ARTICLE XIV
ADMINISTRATION
14.1 The Board of Directors, or its delegate, shall appoint
the Plan Administrator and "named fiduciary," within the meaning
of ERISA section 402(a), responsible for the administration and
day-to-day operation of the Plan.
14.2 The Plan Administrator shall establish uniform rules
and procedures for the proper administration of the Plan. It
shall have the exclusive power to interpret the Plan in a uniform
and nondiscriminatory manner, and its determinations shall be
conclusive and binding upon all persons.
14.3 The Board of Directors, or its delegate, shall appoint
a Committee, responsible for implementing access to hardship
withdrawals, improvements to the Plan and establishing a funding
policy, in consultation with the Board of Directors, consistent
with the objectives of the Plan and of the corresponding trust.
Members of the Committee shall serve as such without compensation
but the proper expenses of the Committee, including the
compensation of its duly appointed agents, shall be paid by the
Company. All expenses attributable to the administration of the
Plan and the expenses of the Trustee shall be paid out of the
Trust Fund except to the extent paid by the Employer.
14.4 The Company, the Board of Directors and its delegates,
the Plan Administrator and the Committee shall have the power to
assign or delegate any of their respective responsibilities to
subcommittees, members of the Committee or other agents and may
designate one or more subcommittees or other persons to carry out
any of its responsibilities.
14.5 The Company, the Plan Administrator and the Committee
may employ such agents and such clerical and other services as it
may deem advisable in carrying out the provisions of the Plan,
and may consult with counsel, who may be counsel for the Company.
14.6 Any person who believes that he is entitled to
benefits under the Plan may file a claim for such benefits. The
Plan Administrator may require claims for benefits to be filed in
writing, on such forms and containing such information as it may
deem necessary. Adequate notice shall be provided in writing to
any person whose claim for benefits under the Plan has been
wholly or partially denied. Such notice shall set forth the
specific reason for such denial and specific reference to the
pertinent Plan provisions on which the denial is based. Such
notice shall be written in a manner calculated to be understood
by the claimant and shall afford reasonable opportunity to the
claimant whose claim for benefits has been denied for a full and
fair review by the Plan Administrator of the decision denying the
claim.
ARTICLE XV
TRUSTEE
15.1 All assets of the Plan shall be held pursuant to a
Trust Agreement between a Trustee, designated by the Board of
Directors or its delegate, and the Company. The Trust Agreement
shall provide, among other things, for a Trust Fund, to be
administered by the Trustee, to which all contributions shall be
paid, and the Trustee shall have such rights, powers and duties
as shall be set forth therein. All assets of the Trust Fund
shall be held, invested and reinvested in accordance with the
provisions of the Trust Agreement.
15.2 All Employer contributions to the Plan are expressly
conditioned upon being deductible under Code section 404(a). At
no time prior to the satisfaction of all liabilities with respect
to Participants and their Beneficiaries shall any part of the
assets of the Plan be used for or diverted to purposes other than
for the exclusive benefit of such persons; provided, however,
Employer contributions may be returned to the Employer (a) within
one year after the payment of a contribution, if made by the
Employer by reason of a mistake of fact, or (b) within one year
of the disallowance of a deduction, to the extent a deduction is
disallowed, if a contribution is conditioned upon its
deductibility under Code section 404(a).
15.3 All disbursements by the Trustee, except for the
ordinary expenses of the administration of the Trust Fund, and
settlement of duly authorized investment transactions for the
account of the Trust Fund, shall be made upon the written
instructions of the Plan Administrator.
ARTICLE XVI
TERMINATION AND AMENDMENT
16.1 The Company expects to continue the Plan indefinitely,
but the continuance of the Plan and the payment of contributions
are not assumed as contractual obligations.
16.2 The Board of Directors, by adoption of resolutions,
may terminate the Plan for any reason at any time. If the Plan
shall be terminated, the Trustee shall continue to hold, invest
and administer the Trust Fund in accordance with the provisions
of the Trust Agreement and shall make distributions therefrom in
accordance with the provisions of the Plan, as then in effect,
pursuant to instructions filed with the Trustee by the Company
upon such termination or from time to time thereafter. Upon a
complete discontinuance of contributions, or upon termination or
partial termination of the Plan, each affected Participant or
Beneficiary shall continue to have a nonforfeitable interest in
his Accounts in the Plan.
16.3 The Board of Directors, by adoption of resolutions,
may modify or amend in whole or in part any or all of the
provisions of the Plan; provided, however, that no amendment
shall reduce the vested percentage of a Participant's accrued
benefit derived from Employer contributions below the vested
percentage thereof on the date such amendment is adopted or
becomes effective, whichever is later; and provided further, that
no amendment shall decrease the accrued benefit of a Participant.
In the event that the vesting provisions are amended, a
Participant with at least 3 Years of Service shall have the right
to elect, within a specified period, to have his nonforfeitable
percentage computed under this Plan without regard to such
amendment.
ARTICLE XVII
MISCELLANEOUS
17.1 Participation in the Plan shall have no effect upon
the employment status of any Employee.
17.2 All benefits payable under the Plan shall be paid
solely from the Trust Fund, and the Employer assumes no liability
or responsibility with respect to such payments.
17.3 In the event of any merger or consolidation of the
Plan with, or transfer of any assets or liabilities of the Plan
to, any other plan, each Participant shall be entitled to receive
a benefit immediately after such merger, consolidation, or
transfer (computed as if such other plan had then terminated)
which is equal to or greater than the benefit he would have been
entitled to receive immediately before such merger, consolida-
tion, or transfer (computed as if the Plan had then terminated).
17.4 Except as otherwise provided by law or the issuance of
a "qualified domestic relations order" (within the meaning of
Code section 414(p)), no person shall have the right to assign,
alienate, transfer, hypothecate or otherwise subject to lien his
interest in or his benefit under the Plan, nor shall benefits
under the Plan be subject to the claims of any creditor. Any
other provision of the Plan to the contrary notwithstanding, if a
qualified domestic relations order requires the distribution of
all or part of an Employee's benefits under the Plan earlier than
the "earliest retirement age" (within the meaning of Section
414(p)(4)(B) of the Code), the establishment or acknowledgment of
the alternate payee's right to benefits under the Plan in accord-
ance with the terms of such qualified domestic relations order
shall be deemed to be consistent with the terms of the Plan;
provided that nothing in this provision shall allow a Participant
to receive a distribution as of a date earlier than otherwise
permitted under the terms of the Plan, nor shall the alternate
payee be allowed to receive a form of benefit payment not
otherwise permitted under the terms of the Plan.
17.5 The Plan Administrator shall be indemnified by the
Employer against costs, expenses and liabilities (other than
amounts paid in settlement to which the Employer does not
consent) reasonably incurred by him in connection with any action
to which he may be a party by reason of his service as Plan
Administrator except in relation to matters as to which he shall
be adjudged in such action to be personally guilty of negligence
or willful misconduct in the performance of his duties. The
foregoing right to indemnification shall be in addition to such
other rights as the Plan Administrator may enjoy as a matter of
law or by reason of insurance coverage of any kind, but shall not
extend to costs, expenses and/or liabilities otherwise covered by
insurance or that would be so covered by any insurance then in
force if such insurance contained a waiver of subrogation.
Rights granted hereunder shall be in addition to and not in lieu
of any rights to indemnification to which the Plan Administrator
may be entitled pursuant to the by-laws of the Employer. Service
as a Plan Administrator shall be deemed in partial fulfillment of
the Plan Administrator's function as an employee, officer and/or
director of the Employer, if he serves in that capacity as well
as in the role of Plan Administrator.
17.6 The Company, the Board of Directors, the Plan
Administrator, the Committee (including any subcommittees,
individual members and the secretary thereof), the Trustee, and
any person who is deemed to be a fiduciary under the Plan, shall
not be liable for a breach of fiduciary responsibility of another
fiduciary under the Plan except to the extent (a) it shall have
participated knowingly in, or knowingly undertaken to conceal, an
act or omission of such fiduciary, knowing such act or omission
was a breach of such fiduciary's responsibilities, (b) it shall
have, through a breach of its fiduciary responsibilities, enabled
such fiduciary to commit a breach of its fiduciary
responsibilities, or (c) it shall have knowledge of a breach of
fiduciary responsibilities by such fiduciary, unless it has made
reasonable efforts to remedy the breach.
17.7 The Company, the Board of Directors, the Plan
Administrator and the Committee (including any subcommittees,
individual members and the secretary thereof) shall not be liable
for the acts or omissions of (a) any person or persons to whom
any authority, power or responsibility has been allocated
pursuant to Section 14.4 or (b) any person or persons who have
been designated to carry out any such authority, power or
responsibility pursuant to Section 14.4 except to the extent (i)
it shall have violated its fiduciary responsibilities with
respect to (A) such allocation or designation, (B) the
establishment or implementation of the allocation or designation
procedures of Section 14.4 or (C) the continuation of any such
allocation or designation, or (ii) it would otherwise be liable
under Section 17.5.
17.8 If the Plan Administrator determines that any person
to whom a payment is due hereunder is incompetent by reason of
physical or mental disability, the Plan Administrator shall have
the power to cause the payments becoming due to such person to be
made to another for the benefit of the incompetent, without
responsibility of the Plan Administrator or the Trustee to see to
the application of such payment. Payments made pursuant to such
power shall operate as a complete discharge of the Plan
Administrator, the Trustee and the Trust Fund.
17.9 The Plan shall be construed and enforced in accordance
with the laws of the State of New Jersey, except to the extent
preempted by the laws of the United States.
ARTICLE XVIII
TOP HEAVY PROVISIONS
The provisions of this Article XVIII shall become
applicable only under the circumstances described thereunder.
18.1 For purposes of this Article XVIII, the Plan shall be
"top heavy" if, as of the determination date (the last day of the
preceding Plan Year or, in the case of the first Plan Year, the
last day of such year), the present value of the cumulative
account balances for "key employees," as defined in Code section
416(i)(1), under the Plan and all other plans in the "aggregation
group," as defined in Code section 416(g)(2)(A), exceeds 60% of
the present value of the cumulative account balances under all
such plans for all Employees determined as of the applicable
"valuation date." For purposes of this Article XVIII, "valuation
date" shall mean the most recent Valuation Date within a 12-month
period ending on the determination date. The present value of
such account balances shall be computed in accordance with Code
section 416(g), and the above percentage ratio shall be
determined by a fraction, the numerator of which is the sum of
the present value of the account balances of key employees under
the Plan and all other plans in the aggregation group, and the
denominator of which is the sum of the present value of the
account balances under all such plans, including the Plan, for
all Employees. If an individual has not performed any service
for the Employer at any time during the five-year period ending
on a determination date, any accrued benefit of such individual
shall not be taken into account.
18.2 The following provisions shall be applicable to
members only for any Plan Year with respect to which the Plan is
top heavy:
(a) Notwithstanding Article V, the Employer shall make
a special contribution on behalf of each non-key employee who has
satisfied the eligibility requirements of the Plan, whether or
not a Participant in the Plan and who is in service at the end of
the Plan Year, with respect to such Plan Year in an amount which
equals the lesser of (i) 3% of his compensation (as defined in
Code section 414(s), or, to the extent required by the Code and
Treasury Regulations section 1.415-2(d)) or (ii) the highest per-
centage of compensation provided under the Plan for any key
employee for such Plan Year. Any such special Employer
contribution shall be credited to such Participant's Employer
Matching Account. Notwithstanding the foregoing provisions of
this Section 18.2(a), if a Participant in the Plan is also a
participant in any defined benefit plan of the Employer, then for
each Plan Year with respect to which the Plan is top heavy, such
Participant's accrual of a minimum benefit under such defined
benefit plan in accordance with Code section 416(c)(1) shall be
deemed to satisfy the special Employer contribution requirement
of this Section 18.2(a). Employer contributions resulting from
Pre-tax Contributions or Matching Contributions shall not be
counted towards meeting the minimum required allocations under
this Section.
(b) Notwithstanding the provisions of Section 8.1, if
during any Plan Year an Employee participates in both a defined
contribution plan and a defined benefit plan maintained by the
Company which comprise a "top heavy group," as defined in Code
section 416(g)(2)(B), the denominators of the defined benefit
plan fraction and the defined contribution plan fraction, as
described in Section 8.1(d), shall be calculated by substituting
"1.0" for "1.25" each place it appears in such Section; provided,
however, that this Section 18.2(b) shall not apply with respect
to a plan in the top heavy group if (i) such plan would satisfy
the requirements of Code section 416(h)(2)(A) and (ii) the
aggregate accrued benefits and cumulative account balances of key
employees under all plans in the top heavy group do not exceed
90% of the aggregate accrued benefits and cumulative account
balances under all such plans for all Employees.
IN WITNESS WHEREOF, and as evidence of the adoption of
this amendment and restatement of the Plan, the Company has
caused the same to be executed by its duly authorized officer and
its corporate seal to be affixed this 15th day of December, 1994.
ATLANTIC CITY ELECTRIC COMPANY
Attest: By: /s/ J. G. Salomone
Senior Vice President-
Finance & Administration
/s/ L. M. Walters
Secretary
<PAGE>
APPENDIX A
INVESTMENT FUNDS
This Appendix A shall be incorporated in, and be deemed
an integral part of, the Plan. Terms used in this Appendix A
shall have the same meanings as ascribed in the Plan document,
unless the context otherwise clearly requires.
A.1 The Accounts of a Participant shall be invested in
one or more of the following Investment Funds, in accordance with
the election of the Participant pursuant to Section 12.3 of the
Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Equity Index Fund - invested primarily in common stocks
included in the Standard and Poor's 500 Index with the
objective of matching the performance of the Index.
A.2 In the event a Participant does not designate
specific Investment Funds, his Accounts will be invested in the
Custom Stable Value Fund.
A.3 In the event a Participant elects to make an in-
service withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the withdrawal shall
be made from the Investment Funds of the Participant's Accounts
in the following order: Custom Stable Value Fund, Equity Income
Fund and, lastly, the Equity Index Fund.<PAGE>
TABLE OF CONTENTS
Page
Preamble . . .. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE
I DEFINITIONS. . . . . . . . . . . . . . . . . . 2
II PARTICIPATION. . . . . . . . . . . . . . . . . 6
III PARTICIPANT CONTRIBUTIONS. . . . . . . . . . . 8
IV ACTUAL DEFERRAL PERCENTAGE . . . . . . . . . . 9
V MATCHING CONTRIBUTIONS . . . . . . . . . . . . 13
VI AVERAGE CONTRIBUTION PERCENTAGE. . . . . . . . 13
VII ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS . . . 18
VIII CONTRIBUTION LIMITATIONS . . . . . . . . . . . 20
IX ACCOUNTS; VESTING. . . . . . . . . . . . . . . 23
X WITHDRAWALS. . . . . . . . . . . . . . . . . . 23
XI DISTRIBUTIONS. . . . . . . . . . . . . . . . . 26
XII INVESTMENT OF FUNDS. . . . . . . . . . . . . . 31
XIII LOANS. . . . . . . . . . . . . . . . . . . . . 33
XIV ADMINISTRATION . . . . . . . . . . . . . . . . 35
XV TRUSTEE. . . . . . . . . . . . . . . . . . . . 37
XVI TERMINATION AND AMENDMENT. . . . . . . . . . . 38
XVII MISCELLANEOUS. . . . . . . . . . . . . . . . . 39
XVIII TOP HEAVY PROVISIONS . . . . . . . . . . . . . 43
APPENDIX A<PAGE>
. . .. . . . . . . . . . . . . . . . . . . . .
. . .. . . . . . . . . . . . . . . . . . . . .
INSTRUMENT OF AMENDMENT
TO THE
ATLANTIC ELECTRIC 401(K) SAVINGS AND INVESTMENT PLAN - B
The Atlantic Electric 401(k) Savings and Investment
Plan - B ("Plan") is amended, effective as indicated below, as
follows:
A. Effective April 1, 1995
1. Section A.1 of Appendix A of the Plan is amended to
read in its entirety as follows:
A.1 The Accounts of a Participant shall be invested
in one or more of the following Investment Funds, in
accordance with the election of the Participant pursuant to
Section 12.3 of the Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Spectrum Growth Fund - invested in a diversified group
of T. Rowe Price mutual funds that invest principally
in equity securities.
Equity Index Fund - invested primarily in common
stocks included in the Standard and Poor's 500 Index
with the objective of matching the performance of the
Index.
International Stock Fund - invested primarily in
common stocks of large, established non-U.S. companies
offering potential for long-term capital appreciation
and opportunity to achieve investment diversification.
2. Section A.3 of Appendix A of the Plan is amended to
read in its entirety as follows:
. . .A.3 . . . . . . . . . . . . . . . . . . . In the
event a Participant elects to make an in-service
withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the
withdrawal shall be made from the Investment Funds of
the Participant's Accounts in the following order:
Custom Stable Value Fund, Equity Income Fund, Spectrum
Growth Fund, Equity Index Fund and, lastly, the
International Stock Fund.
B. Effective January 1, 1996
1. Article I of the Plan is amended by adding in
alphabetical order a new definition of "Common Stock" to read as
follows:
"Common Stock" means common stock of Atlantic Energy,
Inc.
2. Article XII of the Plan is amended by adding at the
end thereof new Sections 12.6, 12.7 and 12.8 to read in their
entirety as follows:
. . .12.6 Each Participant (or in the event of his
death, his beneficiary) shall have the right to direct
the Trustee as to the manner in which full and
fractional shares of Common Stock reflecting such
Participant's proportional interest in the Atlantic
Energy Company Stock Fund are to be voted. Atlantic
Energy, Inc. shall furnish the Trustee and the
Participants (or beneficiaries) with notices and
information statements when voting rights are to be
exercised, in such time and manner as may be required
by applicable law and the certificate of incorporation
and by-laws of Atlantic Energy, Inc. Such statement
shall be substantially the same for Participants as
for holders of Common Stock in general. The
Participant (or beneficiary) may, in his discretion,
grant proxies for the exercise of his voting rights
under this Section 12.6 in accordance with the
direction of the Participant (or beneficiary). Common
Stock with respect to which the Trustee has not timely
received valid directions or proxies from a
Participant (or beneficiary) in accordance with this
Section 12.6 shall be voted by the Trustee
proportionately in the same manner as it votes Common
Stock with respect to which the Trustee has received
voting direction.
. . .12.7 A Participant (or in the event of his
death, his beneficiary) shall have the right to
instruct the Trustee in writing as to the manner in
which to respond to a tender or exchange offer in any
and all full and fractional shares of Common Stock
reflecting such Participant's proportional interest in
the Atlantic Energy Company Stock Fund. Atlantic
Energy, Inc. shall notify each Participant (or
beneficiary) and utilize its best efforts to
distribute or cause to be distributed to him in a
timely fashion such information as will be distributed
to shareholders of Atlantic Energy, Inc. in connection
with any such tender or exchange offer, together with
a form requesting confidential instruction to the
Trustee as to the manner in which to respond to the
tender or exchange offer for any or all full and
fractional shares of Common Stock reflecting the
Participant's proportional interest in the Atlantic
Energy Company Stock Fund. Upon its receipt of such
instructions, the Trustee shall tender such shares of
such Common Stock as and to the extent so instructed.
If the Trustee shall not receive instructions from a
Participant (or beneficiary) regarding any such tender
or exchange offer for Common Stock, the Trustee shall
tender or exchange only that number of the shares of
Common Stock that bears the same ratio to the total of
all such shares as the number of such shares for which
the Trustee has received valid instructions from
Participants bears to the total number of such shares
representing all Participants' interests in the
Atlantic Energy Company Stock Fund.
. . .12.8. . . . . . . . . . . . . . . . . . .
Notwithstanding the foregoing provisions of this
Article XII, the Trustees shall not be prohibited from
taking any action or not taking any action (whether or
not directed by a Plan provision to the contrary) if
in the Trustees' sole discretion any such action or
inaction relating to their duties as Trustees is
necessary in order for the Trustees to fulfill their
fiduciary responsibilities under ERISA; provided,
however, that the Trustees shall notify the Company as
soon as practicable in advance of any such proposed
action or inaction.
3. Appendix A of the Plan is amended to read in its
entirety as follows:
APPENDIX A
INVESTMENT FUNDS
This Appendix A shall be incorporated in, and be
deemed an integral part of, the Plan. Terms used in this
Appendix A shall have the same meanings as ascribed in the Plan
document, unless the context otherwise clearly requires.
A.1 .The Accounts of a Participant shall be invested
in one or more of the following Investment Funds, in accordance
with the election of the Participant pursuant to Section 12.3 of
the Plan:
Custom Stable Value Fund - invested primarily with
banks, insurance companies and other financial
institutions under contracts designed to preserve
principal with the objective of achieving competitive
investment returns while maintaining principal
stability.
Atlantic Energy Company Stock Fund - invested in
Common Stock of Atlantic Energy, Inc. The Fund's
investment income, net of investment expenses, shall
automatically be reinvested in the Fund.
Equity Income Fund - invested primarily in dividend-
paying stocks of established companies, bonds and cash
reserves with the objective of providing income and
capital appreciation with a measure of principal
stability.
Spectrum Growth Fund - invested in a diversified group
of T. Rowe Price mutual funds that invest principally
in equity securities.
Equity Index Fund - invested primarily in common
stocks included in the Standard and Poor's 500 Index
with the objective of matching the performance of the
Index.
International Stock Fund - invested primarily in
common stocks of large, established non-U.S. companies
offering potential for long-term capital appreciation
and opportunity to achieve investment diversification.
A.2 .In the event a Participant does not designate
specific Investment Funds, his Accounts will be invested in the
Custom Stable Value Fund.
A.3 .In the event a Participant elects to make an in-
service withdrawal and does not designate the Investment Funds
from which such withdrawal should be made, the withdrawal shall
be made from the Investment Funds of the Participant's Accounts
in the following order: Custom Stable Value Fund, Atlantic
Energy Company Stock Fund, Equity Income Fund, Spectrum Growth
Fund, Equity Index Fund and, lastly, the International Stock
Fund.
IN WITNESS WHEREOF, ATLANTIC ENERGY, INC. has caused
this Instrument of Amendment, effective as set forth above, to be
duly executed this 9th day of September, 1996.
. . .. . . . . . . . . . . . . . . . . . . . .
ATLANTIC ENERGY, INC.
. . .. . . . . . . . . . . . . . . . . . . . .
By: /s/ M. J. Barron
. . .. . . . . . . . . . . . . . . . . . . . .
Chief Financial Officer
