As filed with the Securities and Exchange Commission on December 27, 1994
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
KU ENERGY CORPORATION
KENTUCKY UTILITIES COMPANY
(Exact name of each registrant as specified in its charter)
KENTUCKY (KU Energy) 61-1141273 (KU Energy)
KENTUCKY AND VIRGINIA (KU) 61-0247570 (KU)
(State of incorporation) (I.R.S. Employer Identification No.)
ONE QUALITY STREET, LEXINGTON, KENTUCKY 40507
(Address of principal executive offices and Zip Code)
KENTUCKY UTILITIES COMPANY
EMPLOYEE SAVINGS PLAN
(Full Title of the Plan)
MICHAEL R. WHITLEY,
President
KU Energy Corporation
Kentucky Utilities Company
One Quality Street
Lexington, Kentucky 40507
(606) 255-2100
JONES, DAY, REAVIS & POGUE
Attention: W. J. Harmon
77 West Wacker Drive
Suite 3500
Chicago, Illinois 60601
(312) 782-3939
(Names, addresses and telephone numbers of agents for service)
Pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
Be Registered Registered Per Share Price Fee
Common Stock 1,000,000shares $27 7/8 (1) $27,875,000 $ 9,612
(1) Estimated solely for purpose of calculating amount of registration fee
which, calculated pursuant to Rule 457(h)(1) and (2), is based on the
average of the high and low prices for shares of common stock of
KU Energy Corporation on the New York Stock Exchange consolidated tape
on December 21, 1994.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus constituting a part of this Registration Statement also
relates to 500,000 shares of KU Energy Corporation Common Stock, such
Common Stock having been registered for sale by the registrant in a
Registration Statement on Form S-8 (File No. 33-44234).
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Explanatory Note
On March 11, 1991, the S-4 Registration Statement, as amended (File
No. 33-38772), of KU Energy Corporation ("KU Energy") became effective under
the Securities Act of 1933, as amended (the "Act"). Such S-4 Registration
Statement was filed in connection with the offering by KU Energy of shares
of its common stock in exchange for shares of common stock of Kentucky
Utilities Company (the "Company") in connection with a proposed share
exchange and reorganization whereby all of the issued and outstanding common
stock of the Company would be owned by KU Energy. On October 2, 1987, the
S-8 Registration Statement, as amended (File No. 33-17148) of the Company
became effective under the Act. Such S-8 Registration Statement was filed
in connection with the offering by the Company of its stock and
participations in its Employee Savings Plan (the "Plan") and has
subsequently been terminated. The share exchange and reorganization
described in the KU Energy S-4 Registration Statement have taken place. The
Plan was amended as of the Effective Time of the share exchange (December 1,
1991) to provide for investment in common stock of KU Energy. The Company
remains the sponsor of the Plan. On December 2, 1991, KU Energy and the
Company filed an S-8 Registration Statement (File No. 33-44234) relating to
500,000 shares of Common Stock of KU Energy (and participations under Rule
416(c)) to be offered pursuant to the Plan. Substantially all of such
shares have been offered.
This registration statement is filed pursuant to General
Instruction E of Form S-8 to register additional securities in connection
with the offering by KU Energy and the Company of the Common Stock of KU
Energy (and participations or interests with respect to the Plan in
accordance with Rule 416(c)). Except as expressly set forth to the contrary
herein, the contents of the S-8 Registration Statement in File No. 33-44234
are incorporated herein by reference.
Item 8. Exhibits. The following section restates the Exhibits
included as part of this Registration Statement. The undertaking included
in Item 8 of File No. 33-44234 is incorporated herein by reference.
Exhibit
Number Description
4.01 Amended and Restated Articles of Incorporation of the
Company, as amended (Exhibits 4.03 and 4.04 to Form 8-K
Current Report of the Company dated December 10, 1993)
(incorporated by reference)
4.02 Amended and Restated Articles of Incorporation of KU
Energy (Exhibit 3A to Form 10-K Annual Report of KU Energy
for the year ended December 31, 1992) (incorporated by
reference)
23.01 Consent of Independent Public Accountant (filed herewith)
99.01 Kentucky Utilities Company Employee Savings Plan,
effective January 1, 1989, as amended and restated through
November 1, 1994 (filed herewith)
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99.02 Kentucky Utilities Company Master Retirement and Employee
Savings Plan Trust, as amended through Amendment No. 2
(Exhibit 28.02 to Form S-8 Registration Statement, File
No. 33-44234) (incorporated by reference)
99.03 Amendment No. 3 to Kentucky Utilities Company Master
Retirement and Employee Savings Plan Trust (filed
herewith)
99.04 Amendment No. 4 to Kentucky Utilities Company Master
Retirement and Employee Savings Plan Trust (filed
herewith)
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act
of 1933, as amended, the registrants, Kentucky Utilities Company and KU
Energy Corporation, certify that they have reasonable grounds to believe
that they each meet all the requirements for filing on Form S-8 and have
duly caused this Registration Statement or amendment thereto, as the case
may be, to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Lexington, and Commonwealth of Kentucky.
Dated: December 27, 1994
KU ENERGY CORPORATION
KENTUCKY UTILITIES COMPANY
By /s/ Michael R. Whitley
Michael R. Whitley,
President and Chief Operating Officer
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Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement or amendment thereto, as the case may
be, has been signed below by the following persons in the capacities and on
the date indicated.
Dated: December 27, 1994
Signature Title
/s/ John T. Newton Chairman, Chief Executive Officer
John T. Newton and Director (principal executive
officer), KU Energy and Company
/s/ Michael R. Whitley President, Chief Operating Officer
Michael R. Whitley and Director,
KU Energy and Company
/s/ O.M. Goodlett Senior Vice President (principal
O.M. Goodlett financial officer), KU Energy and
Company
/s/ Michael D. Robinson Controller (principal accounting
Michael D. Robinson officer), KU Energy and Company
/s/ Mira S. Ball Director, KU Energy and Company
Mira S. Ball
/s/ W.B. Bechanan Director, KU Energy and Company
W. B. Bechanan
/s/ Harry M. Hoe Director, KU Energy and Company
Harry M. Hoe
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/s/ Milton W. Hudson Director, KU Energy and Company
Milton W. Hudson
/s/ Frank V. Ramsey, Jr. Director, KU Energy and Company
Frank V. Ramsey, Jr.
/s/ Warren W. Rosenthal Director, KU Energy and Company
Warren W. Rosenthal
/s/ William L. Rouse, Jr. Director, KU Energy and Company
William L. Rouse, Jr.
/s/ Charles L. Shearer Director, KU Energy and Company
Charles L. Shearer
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The Plan. Pursuant to the requirements of the
Securities Act of 1933, the Kentucky Utilities Company Employee
Savings Plan has duly caused this Registration Statement or
amendment thereto, as the case may be, to be signed on its behalf
by the undersigned, thereunto duly authorized, in Lexington,
Kentucky.
Dated: December 27, 1994
KENTUCKY UTILITIES COMPANY EMPLOYEE
SAVINGS PLAN
By /s/ James M. Allison
James M. Allison, Committee Chairman
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EXHIBIT INDEX
Exhibit
Number Description
4.01 Amended and Restated Articles of Incorporation of
the Company, as amended (Exhibits 4.03 and 4.04 to
Form 8-K Current Report of the Company dated
December 10, 1993) (incorporated by reference)
4.02 Amended and Restated Articles of Incorporation of KU
Energy (Exhibit 3A to Form 10-K Annual Report of
KU Energy for the year ended December 31, 1992)
(incorporated by reference)
23.01 Consent of Independent Public Accountant
99.01 Kentucky Utilities Company Employee Savings Plan,
effective January 1, 1989, as amended and restated
through November 1, 1994
99.02 Kentucky Utilities Company Master Retirement and
Employee Savings Plan Trust, as amended through
Amendment No. 2 (Exhibit 28.02 to Form S-8
Registration Statement, File No. 33-44234)
(incorporated by reference)
99.03 Amendment No. 3 to Kentucky Utilities Company Master
Retirement and Employee Savings Plan Trust
99.04 Amendment No. 4 to Kentucky Utilities Company Master
Retirement and Employee Savings Plan Trust
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Exhibit 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated January 27, 1994 incorporated by reference or
included in the Kentucky Utilities Company and KU Energy
Corporation Form 10-K's for the year ended December 31, 1993 and
our report dated June 9, 1994 included in the Kentucky Utilities
Company Annual Report on Form 11-K for the year ended December
31, 1993.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
December 27, 1994
Chicago, Illinois
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Exhibit 99.01
KENTUCKY UTILITIES COMPANY
EMPLOYEE SAVINGS PLAN
_____________________________________________
(As Amended and Restated Effective As Of
January 1, 1989 and Incorporating All Amendments
Effective On or After January 1, 1989
and Prior to November 1, 1994)
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TABLE OF CONTENTS
ARTICLE TITLE PAGE
I General 1
II Definitions and Construction 1
III Eligibility and Participation 6
IV Contributions 7
V Investment Funds 16
VI Allocations to Participant's Accounts 17
VII Vesting of Accounts 22
VIII Distribution of Benefits 22
IX Loans to Participants 30
X Administration 32
XI Miscellaneous 34
XII Amendment, Termination and Action by Employers 38
XIII Successor Employer and Merger or
Consolidation of Plans 39
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KENTUCKY UTILITIES COMPANY
EMPLOYEE SAVINGS PLAN
(As Amended and Restated Effective As Of
January 1, 1989 and Incorporating All Amendments
Effective On or After January 1, 1989
and Prior to November 1, 1994)
ARTICLE I
General
In order to provide for a systematic savings program
for eligible employees and in order to supplement such savings
with employer contributions, Kentucky Utilities Company
established, effective January 1, 1988, the Kentucky Utilities
Company Employee Savings Plan. The terms and conditions of the
Plan, as amended and restated as of January 1, 1989, are
hereinafter set forth. This amendment and restatement supersedes
and replaces all prior amendments to the Plan which are effective
on or after January 1, 1989 and prior to November 1, 1994. Any
provisions of the amendment and restatement which are effective
prior to January 1, 1989 shall be deemed to amend the
corresponding provisions of the Plan as in effect before this
amendment and restatement.
ARTICLE II
Definitions and Construction
2.1 Definitions: The following words and phrases
shall have the meanings set forth below unless a different
meaning is clearly required by the context:
(a) Account: Any or all of the accounts maintained
for each Participant showing his interest in the Trust Fund
as described in (i), (t) and (x) below.
(b) Active Participant: An Employee who has in effect
while a Participant an authorization for a reduction in
Compensation as provided in Section 4.1.
(c) Affiliated Employer: Any member of a controlled
group of corporations (as defined in Section 414(b) of the
Code) of which the Corporation is a member, any member of a
group of trades or businesses which are under common control
(as defined in Section 414(c) of the Code) of which the
Corporation is a member, any member of an affiliated service
group (as defined in Section 414(m) of the Code) of which
the Corporation is a member, and any other organization
deemed to be affiliated with the Corporation under
Section 414(o) of the Code.
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(d) Board of Directors: The Board of Directors of the
Corporation.
(e) Code: The Internal Revenue Code of 1986, as
amended from time to time.
(f) Committee: The committee established pursuant to
the provisions of Section 10.2.
(g) Common Stock: Common Stock shall have the
following meaning:
(i) prior to December 1, 1991, Common Stock shall
mean common stock of the Corporation; and
(ii) on and after December 1, 1991, as the result
of the Agreement and Plan of Exchange effective
December 1, 1991, pursuant to which KU Energy
Corporation became the parent holding company of the
Corporation and the issued and outstanding shares of
Corporation common stock, including those held in
Investment Fund C, were exchanged on a share-for-share
basis for shares of common stock of KU Energy
Corporation, Common Stock shall mean common stock of KU
Energy Corporation.
(h) Compensation: The base pay, excluding overtime
pay, shift differentials, commissions, pay-in-lieu of
vacations, bonuses, performance incentive compensation and
other special payments, paid to an Employee by an Employer
for services performed, but without reduction by the amount
of any contributions made by the Employer on behalf of the
Employee to his Compensation Conversion Account pursuant to
Section 4.1 or pursuant to a salary reduction agreement
under any cafeteria plan meeting the requirements of
Section 125 of the Code.
For any Plan Year beginning on or after January 1,
1989, however, Compensation in excess of the limitation
contained in Section 401(a)(17) of the Code for such Plan
Year shall be disregarded. In determining the Compensation
of an Employee for purposes of this limitation, the rules of
Section 414(q)(6) of the Code (as modified by Section 401(a)
(17) of the Code) relating to the aggregation of
Compensation of certain family members shall apply. If, as
a result of the application of such rules, the limitation of
Section 401(a)(17) of the Code is exceeded for any Plan
Year, such limitation shall be prorated among affected
family members in proporation to each such family member's
Compensation as determined prior to the limitation of
Section 401(a)(17) of the Code.
(i) Compensation Conversion Accounts: A Participant's
Matched Compensation Conversion Account and Supplemental
Compensation Conversion Account.
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(j) Corporation: Kentucky Utilities Company or any
successor or successors.
(k) Effective Date: January 1, 1988.
(l) Employee: Any person, on or after the Effective
Date, receiving regular stated salary or wages from and
rendering service to an Employer, but excluding, however,
(i) any person who is part of a collective bargaining unit
unless and until the certified collective bargaining agent
and the Employer agree to coverage under the Plan, (ii) any
person who is a leased employee or deemed to be an employee
of an Employer as provided in Section 414(n) or (o) of the
Code, and (iii) any person who is an independent contractor.
(m) Employer: Employer shall have the following
meaning:
(i) prior to December 1, 1991, Employer shall
mean the Corporation, Old Dominion Power Company, and
any Affiliated Employer to which the Plan has been
extended by the Board of Directors and which adopts the
Plan; and
(ii) on and after December 1, 1991, and as a
result of the Agreement and Plan of Exchange effective
December 1, 1991, and the related transactions also
effective December 1, 1991, pursuant to which the
Corporation's wholly-owned subsidiary, Old Dominion
Power Company, was merged into the Corporation and the
Corporation was the surviving corporation, the term
'Employer' shall mean the Corporation and any
Affiliated Employer to which the Plan has been extended
by the Board of Directors and which adopts the Plan.
Effective July 28, 1992 KU Energy Corporation became an
Employer under the Plan and effective March 1, 1994 KU
Capital Corporation became an Employer under the Plan.
(n) Employer Matching Contribution Account: The
account maintained for a Participant to record
contributions, if any, made by an Employer on his behalf to
the Trust Fund pursuant to Section 4.2, and adjustments
relating thereto.
(o) ERISA: The Employee Retirement Income Security
Act of 1974, as amended from time to time.
(p) Highly Compensated Employee: With respect to any
Plan Year, any employee of the Employer or Affiliated
Employer who during the preceding Plan Year:
(i) was at any time a 5% owner (as defined in
Section 416(i)(1) of the Code) of the Employer or any
Affiliated Employer;
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(ii) received compensation (as defined in
Section 414(q)(7) of the Code) from the Employer and
Affiliated Employers in excess of $75,000 (as adjusted
under the Code);
(iii) received compensation (as defined in Section
414(q)(7) of the Code) from the Employer and Affiliated
Employers in excess of $50,000 (as adjusted under the
Code) and was in the top-paid 20% of employees of the
Employer and Affiliated Employers ranked on the basis
of compensation; or
(iv) was at any time an officer who received
compensation (as defined in Section 414(q)(7) of the
Code) in excess of 50% of the amount in effect under
Section 415(b)(1)(A) of the Code for such Plan Year.
With respect to the Plan Year, the term "Highly
Compensated Employee" also means (A) any employee of the
Employer or Affiliated Employer who at any time during such
Plan Year met the requirements of paragraphs (ii), (iii), or
(iv) above and was among the 100 employees of the Employer
and Affiliated Employers who received the most compensation
for such Plan Year or (B) any employee who met the
requirements of paragraph (i) above during such Plan Year.
For purposes of paragraph (iv) above, no more than 50
employees of the Employer and Affiliated Employers (or, if
lesser, the greater of three employees or 10% of employees)
shall be considered officers, and if no officer satisfies
the compensation requirement of paragraph (iv) for a Plan
Year, the highest-paid officer shall be treated as a Highly
Compensated Employee for such Plan Year.
The identification of Highly Compensated Employees
under this Section 2.1(p) shall be made in accordance with
the provisions of Section 414(q) of the Code and the
regulations thereunder and the foregoing provisions of this
Section 2.1(p) shall be modified in accordance with
Section 414(q)(12) if the Corporation elects to have the
provisions of such section apply.
(q) Hour of Employment: An Hour of Employment shall
mean (i) each hour for which an employee is directly or
indirectly paid, or entitled to payment, by an Employer or
Affiliated Employer for the performance of duties (such
hours to be credited to the employee for the computation
period or periods in which the duties are performed); (ii)
each hour, calculated in accordance with the provisions of
Department of Labor Regulation Sec. 2530.200b-2(b) which are
incorporated herein by reference, for which an employee is
directly or indirectly paid, or entitled to payment, by an
Employer or Affiliated Employer on account of a period of
time during which no duties are performed (irrespective of
whether the employment relationship terminated) due to
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vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of
absence, provided, however, that no more than 501 Hours of
Employment shall be credited under Section 2.1(q)(ii) for
any single continuous period whether or not such period
occurs in a single computation period (such hours to be
credited to the employee for the computation period or
periods in which the period of time during which no duties
are performed occurs); and (iii) each hour for which back
pay, irrespective of mitigation of damages, has been either
awarded or agreed to by an Employer or Affiliated Employer
(such hours to be credited to the employee for the
computation period or periods to which the award or
agreement pertains rather than the computation period in
which the award, agreement or payment is made). For the
purposes of this Section 2.1(q), the term "employee" shall
include a leased employee or other person deemed to be an
employee of an Employer or Affiliated Employer as provided
in Section 414(n) or (o) of the Code.
(r) Inactive Participant: A Participant (i) who
ceases to be an Employee but remains an employee of an
Employer or Affiliated Employer or (ii) who while continuing
as an Employee has terminated his authorization for
reduction in Compensation as provided in Section 4.1.
(s) Investment Fund(s): Any or all of the funds
provided for in Section 5.1.
(t) Matched Compensation Conversion Account: The
account maintained for a Participant to record
contributions, if any, made by an Employer on his behalf to
the Trust Fund pursuant to Section 4.1 that are matched by
Employer matching contributions made pursuant to
Section 4.2, and adjustments relating thereto.
(u) Participant: An Employee participating in the
Plan in accordance with the provisions of Section 3.1, an
Inactive Participant or an Employee whose employment with
the Employer and Affiliated Employers has terminated and who
is having distribution of his Account deferred to age 65 in
accordance with Section 8.5.
(v) Plan: The Plan set forth in this instrument, as
it may, from time to time, be amended.
(w) Plan Year: The 12-month period commencing on
January 1 and ending on December 31 of each year.
(x) Supplemental Compensation Conversion Account: The
account maintained for a Participant to record
contributions, if any, made by an Employer on his behalf to
the Trust Fund pursuant to Section 4.1 that are unmatched by
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Employer matching contributions made pursuant to
Section 4.2, and adjustments relating thereto.
(y) Trust: The Trust to which contributions under the
Plan are to be made in order to establish a fund (the "Trust
Fund") to be held in trust and administered by the Trustee,
which Trust, as from time to time amended, constitutes part
of the Plan.
(z) Trustee: The Trustee or Trustees of the Trust,
and their successors and substitutes.
(aa) Valuation Date: Each June 30 and December 31 of
each Plan Year, except that after July 1, 1994, Valuation
Date shall mean the last day of each calendar quarter ending
thereafter.
2.2 Construction: The masculine gender, where
appearing in the Plan, shall be deemed to include the feminine
gender, and the singular may include the plural, unless the
context clearly indicates to the contrary. The words "hereof,"
"herein," "hereunder" and other similar compounds of the word
"here" shall mean and refer to the entire Plan, and not to any
particular provision or Section.
ARTICLE III
Eligibility and Participation
3.1 Eligibility: Each Employee shall be eligible to
participate in the Plan as of the first day of the payroll period
beginning coincident with or next following the date as of which
he has completed a 12-consecutive month period beginning with his
employment commencement date, or anniversary thereof, of not less
than 1,000 Hours of Employment, provided, however, an Employee
shall not be eligible to participate in the Plan prior to the
first day of the payroll period beginning coincident with or next
following January 1, 1988 or the date he becomes an Employee, if
later.
3.2 Participation: An Employee who is eligible to
participate in the Plan may elect to become a Participant in the
Plan as of the date he first becomes eligible to participate as
provided in Section 3.1, or as of the first day of any payroll
period thereafter, by filing prior written notice of such
election with the Employer, accompanied by (i) an authorization
for a reduction in Compensation as provided in Section 4.1 and
(ii) an election as to Investment Funds as provided in Section
5.2. Upon filing such election notice, he shall become a
Participant as of the date elected if such date is at least 30
days after filing the election notice or, if such date is less
than 30 days thereafter or a date is not specified, as of the
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first day of the first payroll period practicable beginning not
more than 30 days after filing the election notice.
3.3 Re-Employment: If an employee of an Employer or
Affiliated Employer terminates his employment after he has
completed a period of employment described in Section 3.1 and
thereafter he is hired as an Employee, he shall be eligible to
become an Active Participant on the first day of the payroll
period beginning coincident with or next following the date of
his reemployment, and he may elect to become an Active
Participant as of such date, or as of the first day of any
payroll period thereafter, as provided in Section 3.2.
ARTICLE IV
Contributions
4.1 Compensation Conversion Contributions: At the
time an Employee elects to become a Participant, he shall
authorize the Employer, subject to the provisions of this Section
4.1 and Sections 4.5, 4.7, 4.8 and 6.5, to reduce his
Compensation in an amount equal to 1% of his Compensation per
payroll period while an Active Participant or such multiple of 1%
thereof, but not to exceed 16%, as he may designate, and the
Employer shall make contributions to the Trust Fund for
allocation (i) to the Matched Compensation Conversion Account of
each of its Active Participants who so authorizes in an amount
equal to such reduction of his Compensation for a payroll period
of up to 6% and (ii) to the Supplemental Compensation Conversion
Account of each of its Active Participants who so authorizes in
an amount equal to such reduction of his Compensation for a
payroll period of over 6% (up to 16%).
A Participant may change his authorization for a
reduction in Compensation as of the first day of any payroll
period by giving the Committee at least 15 days prior written
notice. Any change may either (i) increase or decrease within
the limits prescribed in the preceding paragraph the rate of
Compensation reduction under this Section 4.1 or (ii) terminate
or revoke a prior termination of such Compensation reduction
authorization. A change in the rate or termination of a
Participant's Compensation reduction authorization shall not
entitle him to receive payment of benefits under Article VIII,
which shall be payable only as provided therein. Notwithstanding
the foregoing or the provisions of the following paragraph, in
the event a Participant receives a hardship withdrawal under
Section 8.6 or from any other cash or deferred arrangement within
the meaning of Section 401(k) of the Code which is part of a
qualified plan maintained by the Corporation or the Affiliated
Employers, then the Participant's authorization for a reduction
in Compensation under this Section 4.1 shall terminate
automatically on the date as of which such hardship withdrawal is
made and such termination shall continue in effect for a period
of 12 months thereafter. After the expiration of such 12-month
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period, the Participant may again elect to actively participate
in the Plan in accordance with the provisions of this
Section 4.1.
Any authorization or change in authorization under this
Section 4.1 shall be made (i) on a form provided or prescribed by
the Committee and (ii) in accordance with rules of the Committee
in effect from time to time.
Notwithstanding the foregoing provisions of this
Section 4.1, the maximum amount that may be contributed in the
aggregate to the Compensation Conversion Accounts on behalf of a
Participant for any Plan Year shall not exceed $7,627, as
adjusted for cost of living in accordance with Section 402(g)(5)
of the Code. In the event the Participant received a hardship
withdrawal in the immediately preceding Plan Year under Section
8.6 or from any other cash or deferred arrangement within the
meaning of Section 401(k) of the Code which is part of a
qualified plan maintained by the Corporation or the Affiliated
Employers, such maximum amount shall be reduced as provided in
clause (B)(iv) of the second sentence of Section 8.6(b). Such
maximum amount for any Plan Year shall also be reduced by the
excess, if any, of (i) the amount of any elective deferrals
(within the meaning of Treasury Reg. Sec. 1.402(g)-1(b)) contributed
by the Employer or Affiliated Employers for such Plan Year on
behalf of the Participant pursuant to a salary reduction
agreement under any other cash or deferred arrangement within the
meaning of Section 401(k) of the Code which is part of a
qualified plan maintained by the Employer or Affiliated Employer
or to any other plan, contract or arrangement of the Employer or
Affiliated Employer described in said regulation, over (ii) the
amount of any excess contributions paid to the Participant for
the Plan Year pursuant to Section 4.5 or similar provision under
any other such cash or deferred arrangement.
In the event the limitation under the preceding
paragraph is exceeded for a Plan Year, then, notwithstanding any
other provision of the Plan or law, such excess, plus any income
and minus any loss allocable thereto, shall be distributed to the
Participant not later than April 15 next following the end of
such Plan Year. A Participant, however, may only receive such a
distribution during such Plan Year if:
(i) the Participant designates in writing that
the distribution is a distribution of an amount in
excess of the limitation under Section 402(g) of the
Code for the Plan Year,
(ii) the distribution is made after the date on
which the Plan received the excess contribution, and
(iii) the Plan designates the distribution as a
distribution of amounts in excess of the limitation
under Section 401(g) of the Code for the Plan Year.
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Distribution in accordance with the preceding paragraph
shall be made first from the Participant's Supplemental
Compensation Conversion Account and then from his Matched
Compensation Conversion Account only to the extent the amount to
be distributed exceeds the balance in his Supplemental
Compensation Conversion Account. Excess contributions
distributed from an Account, plus any income and minus any loss
allocable thereto, shall be distributed from the Investment Funds
in which such Account is invested at the time of distribution pro
rata in accordance with the Participant's election as to the
investment of contributions then in effect under Section 5.2;
provided, however, if such distribution is made in the Plan Year
subsequent to the Plan Year in which such excess contributions
were made or in the event there is an insufficient amount in an
Investment Fund from which to make distribution, then the
required distribution or the remaining amount thereof, as the
case may be, shall be made from the Investment Funds in which the
Account is invested at the time of distribution pro rata in
accordance with the balance of the Account in each of the
Investment Funds as of the Valuation Date next preceding the date
of distribution but adjusted for any later loan made from the
Account, except that no amount shall be distributed from the
Account invested in Investment Fund D until the balance in the
other Investment Funds has been distributed.
For purposes of the preceding paragraphs, the income or
loss allocable to the excess contributions to be distributed from
a particular Account for a Plan Year shall be determined by
multiplying the total income or loss of the Account for such Plan
Year by a fraction, the numerator of which is the excess
contributions to be distributed from such Account for such Plan
Year and the denominator of which is the balance in such Account
as of the end of such Plan Year reduced by the income allocable
to such Account for the Plan Year or increased by the loss
allocable to such Account for the Plan Year. In addition, if
distribution is made after the end of a Plan Year ending prior to
January 1, 1994, the income or loss allocable to the excess
contributions to be distributed from an Account for the Plan Year
shall be increased by an amount equal to 10% of the amount
determined under the preceding sentence multiplied by the number
of calendar months that have elapsed since the end of the Plan
Year to the date of distribution. For this purpose, a
distribution occurring on or before the fifteenth of the month
will be treated as having been made on the last day of the
preceding month and a distribution occurring after the fifteenth
day of the month will be treated as having been made on the first
day of the succeeding month.
4.2 Employer Matching Contributions: Subject to the
provisions of Sections 4.6, 4.7, 4.8 and 6.5, each Employer shall
contribute to the Trust Fund for each payroll period beginning on
or after the Effective Date matching contributions on behalf of
each of its Employees who is an Active Participant during such
payroll period in an amount equal to twenty-five percent (25%)
(fifty percent (50%) in respect of a payroll period ending on or
21
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after January 1, 1993) of the amount contributed in accordance
with Section 4.1 on behalf of the Participant to his Matched
Compensation Conversion Account for such payroll period. Such
amount shall be allocated to the Participant's Employer Matching
Contribution Account as provided in Section 6.2(c).
4.3 Remittance of Contributions: Contributions under
Sections 4.1 and 4.2 shall be paid in cash to the Trustee as soon
as practicable within 30 days after the payroll period for which
they are paid. The Trustee shall be accountable for all
contributions received from the Employers, but the Trustee shall
have no duty to see that the contributions received comply with
the provisions of the Plan, nor shall the Trustee be obligated or
have any right to enforce or collect any contribution from the
Employers or otherwise see that the funds are deposited according
to the provisions of the Plan.
4.4 Participant Contributions: Non-deductible
contributions shall not be required or permitted under the Plan
by any Participant.
4.5 Adjustments to Compensation Conversion Accounts:
Notwithstanding the provisions of Section 4.1, if the Actual
Deferral Percentage for the Eligible Employees who are Highly
Compensated Employees for any Plan Year exceeds, or in the
judgment of the Committee is likely to exceed, the greater of (a)
or (b) as follows:
(a) The Actual Deferral Percentage for the Eligible
Employees who are not Highly Compensated Employees for the
Plan Year, multiplied by 1.25, or
(b) The Actual Deferral Percentage for the Eligible
Employees who are not Highly Compensated Employees for the
Plan Year, multiplied by 2; provided, however, that the
Actual Deferral Percentage for the Eligible Employees who
are Highly Compensated Employees for the Plan Year may not
exceed the Actual Deferral Percentage for the Eligible
Employees who are not Highly Compensated Employees by more
than two percentage points;
then the amounts contributed, or to be contributed, to the
Compensation Conversion Accounts on behalf of Participants who
are Highly Compensated Employees for such Plan Year shall be
reduced at such time and in such manner as the Committee shall
determine under rules and regulations uniformly applied and
consistent with the following provisions of this Section 4.5 so
that the Actual Deferral Percentage for the Eligible Employees
who are Highly Compensated Employees for such Plan Year does not
exceed the greater of (a) or (b) above.
For purposes of determining Actual Deferral Percentages
and distribution of contributions in accordance with this
Section 4.5, the provisions of Section 414(q)(6) and applicable
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Treasury regulations relating to the aggregation of certain
family members shall apply to the extent applicable.
If during the Plan Year a Participant who is a Highly
Compensated Employee for such Plan Year also participated in any
other plan of an Employer or Affiliated Employer which includes a
cash or deferred arrangement qualifying under Section 401(k) of
the Code, his compensation, and contributions made pursuant to
the cash or deferred arrangement, under such other plan shall be
taken into account for purposes of applying the tests under (a)
or (b) above. If during the Plan Year one or more other plans
which include a cash or deferred arrangement under Section 401(k)
of the Code are considered along with this Plan as one plan for
purposes of Section 410(b) of the Code (other than the average
benefit percentage test thereunder), all such plans shall be
treated as one plan in applying the tests under (a) or (b) above.
If during the Plan Year a Participant who is not a Highly
Compensated Employee for such Plan Year had contributions made
under Section 4.1 on his behalf in excess of the maximum
limitation contained therein for the Plan Year, such excess
contributions shall not be taken into account for purposes of
applying the tests of (a) or (b) above.
In order to accomplish the foregoing or to meet the
limitations of Section 4.8, the Committee, in its discretion, may
reduce contributions previously made first from a Participant's
Supplemental Compensation Conversion Account to the extent
thereof and then from his Matched Compensation Conversion
Account, or adjust the amount of reductions in Compensation
authorized pursuant to the provisions of Section 4.1, for such
period as may be required. Any reductions in the amounts
contributed to the Compensation Conversion Accounts on behalf of
Participants who are Highly Compensated Employees for such Plan
Year shall be made in the order of the percentage of Compensation
reductions contributed by such Participants beginning with the
highest of such percentages.
The amount by which contributions previously made to a
Participant's Compensation Conversion Accounts for a Plan Year
are reduced, plus any income and minus any loss allocable
thereto, shall be paid, notwithstanding any other provision of
the Plan or law, to the Participant not later than two and one-
half months after the end of such Plan Year. Such distributions
from an Account shall be made from the Investment Funds in which
such Account is invested at the time of distribution pro rata in
accordance with the Participant's election as to the investment
of contributions then in effect under Section 5.2; provided,
however, if such distribution is made in the Plan Year subsequent
to the Plan Year in which such excess contributions were made or
in the event there is an insufficient amount in an Investment
Fund from which to make distribution, then the required
distribution or the remaining amount thereof, as the case may be,
shall be made from the Investment Funds in which the Account is
invested at the time of distribution pro rata in accordance with
the balance of the Account in each of the Investment Funds as of
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the Valuation Date next preceding the date of distribution but
adjusted for any later loan made from the Account, except that no
amount shall be distributed from the Account invested in
Investment Fund D until the balance in the other Investment Funds
has been distributed. For purposes of this paragraph, the income
or loss allocable to such contributions to be distributed from a
particular Account for a Plan Year shall be determined in the
manner provided in Section 4.1 for determining income or loss
allocable to excess contributions thereunder.
For purposes of this Section 4.5 and Section 4.8:
(A) "Actual Deferral Percentage" for a specified group
of Eligible Employees for a Plan Year shall be the average
of 100 times the result (calculated separately for each
Eligible Employee in such group and rounded to four decimal
places) obtained by dividing the amount actually contributed
to the Account of each such Eligible Employee under Section
4.1 for such Plan Year by the Eligible Employee's
compensation for the portion of such Plan Year for which
contributions to the Compensation Conversion Accounts were
made or could have been made for such Eligible Employee;
(B) "Eligible Employee" shall mean an Employee who is
eligible to participate in the Plan as provided in
Section 3.1 for all or any part of a Plan Year; and
(C) "Compensation" for a Plan Year for purposes of
Section 4.5(A) shall have the meaning determined by the
Committee in accordance with Section 414(s) of the Code and
the regulations thereunder and shall only include such
compensation for the portion of such Plan Year for which
contributions to the Eligible Employee's Compensation
Conversion Account were made or could have been made.
4.6 Adjustments to Employer Matching Contribution
Accounts: Notwithstanding the provisions of Section 4.2, if the
Average Contribution Percentage for the Eligible Employees who
are Highly Compensated Employees for any Plan Year exceeds, or in
the judgment of the Committee is likely to exceed, the greater of
(a) or (b) as follows:
(a) The Average Contribution Percentage for the
Eligible Employees who are not Highly Compensated Employees
for the Plan Year, multiplied by 1.25, or
(b) The Average Contribution Percentage for the
Eligible Employees who are not Highly Compensated Employees
for the Plan Year, multiplied by 2; provided, however, that
the Average Contribution Percentage for the Eligible
Employees who are Highly Compensated Employees for the Plan
Year may not exceed the Average Contribution Percentage for
the Eligible Employees who are not Highly Compensated
Employees by more than two percentage points;
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<PAGE>
then the amounts contributed, or to be contributed, to the
Employer Matching Contribution Accounts on behalf of Participants
who are Highly Compensated Employees for such Plan Year shall be
reduced at such time and in such manner as the Committee shall
determine under rules and regulations uniformly applied and
consistent with the following provisions of this Section 4.6 so
that the Average Contribution Percentage for the Eligible
Employees who are Highly Compensated Employees for such Plan Year
does not exceed the greater of (a) or (b) above.
For purposes of determining Average Contribution
Percentages and distribution of contributions in accordance with
this Section 4.6, the provisions of Section 414(q)(6) and
applicable Treasury regulations relating to the aggregation of
certain family members shall apply to the extent applicable.
If during the Plan Year a Participant who is a Highly
Compensated Employee for such Plan Year also participated in any
other plan of an Employer or Affiliated Employer to which
employer matching contributions or employee contributions
required to be taken into account hereunder are made, his
compensation, and such contributions made, under such other plan
shall be taken into account for purposes of applying the tests
under (a) or (b) above. If during a Plan Year one or more plans
to which employer matching contributions or employee
contributions required to be taken into account hereunder are
made are considered along with the Plan as one plan for purposes
of Section 410(b) of the Code (other than the average benefit
percentage test thereunder), all such plans shall be treated as
one plan in determining the Average Contribution Percentage of a
group of Participants in the Plan.
In order to accomplish the foregoing or to meet the
limitations of Section 4.8, the Committee, in its discretion, may
reduce contributions previously made, or adjust the amount of
contributions to be made, pursuant to the provisions of Section
4.2, for such period as may be required. Any reductions in the
amounts contributed to the Employer Matching Contribution
Accounts on behalf of Participants who are Highly Compensated
Employees for such Plan Year shall be made in the order of the
Contribution Percentage (determined in accordance with the last
paragraph of this Section 4.6) of such Participants beginning
with the highest of such percentages. The amount by which
contributions previously made to a Participant's Employer
Matching Contribution Account for a Plan Year are so reduced,
plus any income and minus any loss allocable thereto, shall be
paid, notwithstanding any other provision of the Plan or law, to
the Participant not later than two and one-half months after the
end of such Plan Year. In addition, if reductions in
contributions to a Participant's Matched Compensation Conversion
Account are made pursuant to Sections 4.1, 4.5 or 4.8, the
Committee shall reduce Employer matching contributions previously
made with respect to such contributions pursuant to the
provisions of Section 4.2 and such amount, plus any income and
minus any loss allocable thereto, shall be applied to reduce the
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amount of Employer matching contributions made pursuant to
Section 4.2.
Reductions in contributions from the Participant's
Employer Matching Contribution Account, plus any income and minus
any loss allocable thereto, shall be made from the Investment
Funds in which such Account is invested at the time of reduction
pro rata in accordance with the Participant's election as to the
investment of contributions then in effect under Section 5.2;
provided, however, if such reduction is made in the Plan Year
subsequent to the Plan Year in which such contributions were made
or in the event there is an insufficient amount in an Investment
Fund from which to make such reduction, then the required
reduction or the remaining amount thereof, as the case may be,
shall be made from the Investment Funds in which the Account is
invested at the time of reduction pro rata in accordance with the
balance of the Account in each of the Investment Funds as of the
Valuation Date next preceding the date of reduction but adjusted
for any later loan made from the Account, except that no
reduction shall be made from the Account invested in Investment
Fund D until the balance in the other Investment Funds has been
reduced to zero.
For purposes of the preceding paragraphs, the income or
loss allocable to contributions for a Plan Year shall be
determined in the manner provided in Section 4.1 for determining
income or loss allocable to excess contributions under
Section 4.1.
For purposes of this Section 4.6 and Section 4.8:
(A) "Average Contribution Percentage" for a specified
group of Eligible Employees for a Plan Year shall be the
average of 100 times the result (calculated separately for
each Eligible Employee in such group and rounded to four
decimal places) obtained by dividing the amount actually
contributed to the Account of each such Eligible Employee
under Section 4.2 for such Plan Year by the Eligible
Employee's compensation for the portion of such Plan Year
for which contributions to the Employer Matching
Contribution Account were made or could have been made for
such Eligible Employee;
(B) "Eligible Employee" shall mean an Employee who is
eligible to participate in the Plan as provided in
Section 3.1 for all or any part of a Plan Year; and
(C) "Compensation" for a Plan Year for purposes of
Section 4.6(A) shall have the meaning determined by the
Committee in accordance with Section 414(s) of the Code and
the regulations thereunder and shall only include such
compensation for the portion of such Plan Year for which
contributions to the Eligible Employee's Employer Matching
Contribution Account were made or could have been made.
26
<PAGE>
4.7 Aggregation of Discrimination Tests: The Actual
Deferral Percentage Test described in Section 4.5 and the Average
Contribution Percentage Test described in Section 4.6 may be
aggregated, at the election of the Corporation, and applied as
provided in Section 401(k) of the Code and the regulations
thereunder.
4.8 Multiple Use of Alternative Limitation:
Notwithstanding the foregoing provisions of this Article IV, if,
after the application of Sections 4.5 and 4.6, the sum of the
Actual Deferral Percentage and the Average Contribution
Percentage for the group of Eligible Employees who are Highly
Compensated Employees exceeds the aggregate limit (as defined
below) for a Plan Year, then the contributions made for such Plan
Year pursuant to Sections 4.1 and 4.2 for Eligible Employees who
are Highly Compensated Employees shall be reduced so that the
aggregate limit is not exceeded. Such reductions shall be made
first in contributions made pursuant to Section 4.1 (but only to
the extent such contributions are allocated to Supplemental
Compensation Conversion Accounts) and then in contributions made
pursuant to Section 4.2. Reductions in contributions shall be
made in the manner provided in Section 4.5 or Section 4.6,
whichever is applicable. The amount by which a Highly
Compensated Employee's contributions is reduced in accordance
with the foregoing shall be treated as an excess contributions
under Section 4.5 or Section 4.6, whichever the case may be. For
the purposes of this Section 4.8, the Actual Deferral Percentage
and Average Contribution Percentage of Eligible Employees who are
Highly Compensated Employees are determined after any reductions
required for such Plan Year under Sections 4.5 and 4.6.
Notwithstanding the foregoing provisions of this Section
4.8, no reduction shall be required by this Section 4.8 for a
Plan Year if either (i) the Actual Deferral Percentage of the
Eligible Employees who are Highly Compensated Employees does not
exceed 1.25 multiplied by the Actual Deferral Percentage of the
Eligible Employees who are not Highly Compensated Employees, or
(b) the Average Contribution Percentage of Eligible Employees who
are Highly Compensated Employees does not exceed 1.25 multiplied
by the Average Contribution Percentage of the Eligible Employees
who are not Highly Compensated Employees.
For purposes of this Section 4.8, the term "aggregate
limit" for a Plan Year means the sum of (a) 125% of the greater
of (i) the Actual Deferral Percentage of the Eligible Employees
who are not Highly Compensated Employees for the Plan Year or
(ii) the Average Contribution Percentage of the Eligible
Employees who are not Highly Compensated Employees for the Plan
Year, and (b) the lesser of (i) 200% of, or (ii) two percentage
points plus, the lesser of such Actual Deferral Percentage or
Average Contribution Percentage. If it would result in a larger
aggregate limit, the word "lesser" is substituted for the word
"greater" in part (a) of this paragraph, and the word "greater"
is substituted for the word "lesser" the second place it is used
in subpart (b) of this paragraph.
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ARTICLE V
Investment Funds
5.1 Description of Investment Funds: There shall be
the following Investment Funds:
(a) Investment Fund A, which shall be known as the
Protected Income Fund.
(b) Investment Fund B, which shall be known as the
Standard & Poor's 500 Equity Index Fund. Prior to
January 1, 1992, Investment Fund B was known as the Equity
Fund.
(c) Investment Fund C, which shall be known as the KU
Energy Common Stock Fund. Prior to December 1, 1991,
Investment Fund C was known as the Company Stock Fund.
(d) Investment Fund E, which shall be known as the
Balanced Fund and which shall be effective July 1, 1994.
(e) Investment Fund F, which shall be known as the
Aggressive Growth Fund and which shall be effective July 1,
1994.
Amounts loaned to a Participant as provided in
Article IX shall be recorded in and considered an investment by
such Participant in a fund designated as Investment Fund D.
5.2 Participant's Election of Investment Fund: Each
Participant shall file a written election with the Committee
directing that contributions to his Employer Matching
Contribution Account and to his Compensation Conversion Accounts
be invested in specified multiples of 10% in any of Investment
Funds A, B, C, E or F. Contributions shall be invested in
accordance with such election until such election is changed as
hereinafter provided.
An election under this Section 5.2 may be changed by an
Active Participant or Inactive Participant only as of January 1
or July 1 (or, effective on and after July 1, 1994, changed by
any Participant as of any January 1, April 1, July 1 or October
1) by giving the Committee at least 30 days prior written notice
(or by giving prior written notice within such shorter notice
period as may be specified by the Committee). Any change shall
direct either or both of (i) that the balance in such
Participant's Employer Matching Contribution Account, Matched
Compensation Conversion Account and Supplemental Compensation
Conversion Account invested in Investment Fund A, B, C, E or F,
as of the effective date of such change, be transferred in
multiples of 10% to one of the remaining Investment Funds or (ii)
that subsequent contributions to the Participant's Employer
Matching Contribution Account, Matched Compensation Conversion
28
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Account and Supplemental Compensation Conversion Account be
invested in multiples of 10% in any of Investment Funds A, B, C,
E or F. For purposes of subparagraph (i), transfers from
Investment Fund C to the extent invested in shares of Common
Stock shall be made based on 10% multiples of the number of
shares held in the Participant's Account as of the effective date
of the change.
Any election or change in election under this Section
5.2 shall be made (i) on a form provided or prescribed by the
Committee and (ii) in accordance with rules of the Committee in
effect from time to time.
ARTICLE VI
Allocations to Participant's Accounts
6.1 Individual Accounts: A separate Account shall be
maintained for each Participant to show his interest in the
Investment Funds. Each of the Investment Funds may, however, be
invested as a single fund, without segregation of Trust Fund
investments to the individual Accounts of Participants. Each
Account will consist of an "Employer Matching Contribution
Account," a "Matched Compensation Conversion Account" and a
"Supplemental Compensation Conversion Account."
6.2 Accounting Procedures for Accounts: Each
Participant's Account in each of the Investment Funds shall be
adjusted as of each Valuation Date as follows and in the
following order:
(a) As of each Valuation Date, the amount of any
distributions or withdrawals from the Account during the
period since the next preceding Valuation Date shall be
subtracted from the Account and Investment Fund(s) from
which paid.
(b) As of each Valuation Date, the amount paid in
respect of the Account from the Trust Fund during the period
since the next preceding Valuation Date on account of loans
in accordance with Article IX shall next be subtracted from
the Investment Fund(s) from which paid and added to the
Investment Fund D.
(c) As of each Valuation Date, the amounts of (i)
Employer matching contributions made on behalf of each
Participant under Section 4.2 and paid to the Trust Fund
during the period since the next preceding Valuation Date
shall be added to the Employer Matching Contribution Account
of such Participant and Investment Fund(s) to which
allocated and (ii) contributions made on behalf of the
Participant under Section 4.1 and paid to the Trust Fund
during the period since the next preceding Valuation Date
shall be added to the Matched Compensation Conversion
29
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Account and the Supplemental Compensation Conversion Account
of such Participant as provided in Section 4.1 and the
Investment Fund(s) to which allocated.
(d) As of each Valuation Date, the amount of any
interest and loan repayments paid in respect of the Account
to the Trust Fund during the period since the next preceding
Valuation Date by the Participant in accordance with Article
IX shall next be added, along with earnings allocable
thereto, to the Investment Fund(s) in accordance with the
Participant's election as to the investment of contributions
in effect under Section 5.2 on the current Valuation Date
and subtracted from Investment Fund D. For purposes of this
paragraph, the earnings allocable to the Participant's
interest and loan repayments paid in respect of an Account
to the Trust Fund during the period since the next preceding
Valuation Date shall be determined by multiplying the total
earnings of Investment Fund D on interest and loan
repayments of all Participants for such period by a
fraction, the numerator of which is the amount of the
interest and loan repayments paid to the Trust Fund in
respect of the Account by the Participant during such period
and the denominator of which the total amount of interest
and loan repayments paid to the Trust Fund by all
Participants for such period.
(e) As of each Valuation Date, if the total net value
of the assets of Investment Funds A, B, E or F as of such
Valuation Date as determined under Section 6.3 exceeds, or
is less than, the total credits to the Accounts of all
Participants in such Investment Fund as of the next
preceding Valuation Date (as adjusted pursuant to Sections
6.2(a) and 6.2(b) as of the current Valuation Date), the
excess or deficiency, as the case may be, shall be added to
or subtracted from the Accounts of each such Participant in
such Investment Fund in the ratio that the balance in each
such Account in such Investment Fund as of the next
preceding Valuation Date (as adjusted pursuant to Sections
6.2(a) and 6.2(b) and by 50% of the amounts added to such
Account in such Investment Fund as of the current Valuation
Date pursuant to Sections 6.2(c)) bears to the total amount
of all such Account balances in such Investment Fund as of
the next preceding Valuation Date as so adjusted.
(f) As of each Valuation Date, in respect of
Participants' Accounts invested in Investment Fund C: (i)
dividends paid during the period since the next preceding
Valuation Date on the number of shares of Common Stock held
in Participants' Accounts in Investment Fund C as of the
next preceding Valuation Date (as adjusted pursuant to
Section 6.2(a) and 6.2(b) as of the current Valuation Date),
less all expenses to be paid from such dividends, shall be
added to the Accounts of each Participant in such Investment
Fund in the ratio that the number of shares of Common Stock
held in each Participant's Account in Investment Fund C as
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of the next preceding Valuation Date (as adjusted pursuant
to Sections 6.2(a) and 6.2(b) as of the current Valuation
Date) bears to the total number of shares of Common Stock
held in all Participant's Accounts in such Investment Fund
as of the next preceding Valuation Date as so adjusted; (ii)
any remaining dividends and other earnings of Investment
Fund C (other than gains, losses and unrealized appreciation
and depreciation on Common Stock held in Investment Fund C)
during the period since the next preceding Valuation Date,
less all expenses to be paid from such amounts, shall be
added to the Accounts of each Participant in Investment Fund
C in the ratio that the non-Common Stock balance held in
each Participant's Account in Investment Fund C as of the
next preceding Valuation Date (as adjusted pursuant to
Sections 6.2(a) and 6.2(b) as of the current Valuation Date
and by 50% of the amounts added to such Account in such
Investment Fund as of the current Valuation Date pursuant to
Section 6.2(c)) bears to the total non-Common Stock balance
in all Participants' Accounts in such Investment Fund as of
the next preceding Valuation Date as so adjusted; and (iii)
the shares of Common Stock acquired with cash in respect of
Investment Fund C during the period since the next preceding
Valuation Date shall be added to each Participant's Account
in Investment Fund C in the ratio that the non-Common Stock
balance held in each Participant's Account in Investment
Fund C as of the next preceding Valuation Date (as adjusted
pursuant to Sections 6.2(a), 6.2(b), 6.2(c) and 6.2(f)(i)
and (ii) as of the current Valuation Date) bears to the
total non-Common Stock balance of all Participant's Accounts
in Investment Fund C as of the next preceding Valuation Date
as so adjusted and the cost of shares so added shall be
subtracted from the non-Common Stock portion of the
Participant's Account held in Investment Fund C.
(g) As of each Valuation Date, the amount of transfers
in respect of each Account to be made as of the following
day to or from each of Investment Funds A, B, C, E or F
pursuant to a change in investment election shall be
subtracted from or added to, as the case may be, the
applicable Account and Investment Fund.
6.3 Determination of Value: Each Investment Fund of
the Trust Fund shall be valued by the Trustee as of each
Valuation Date on the basis of fair market value and including
all accrued and unpaid income. In determining value for purposes
of Section 6.2(e), however, all contributions paid to the Trust
Fund during the period since the next preceding Valuation Date
shall not be taken into account and such valuation shall be made
before any transfers are made to or from Investment Funds A, B, E
and F to reflect adjustments to Participants' Accounts under
Sections 6.2(d) and 6.2(g) to be made as of the current Valuation
Date. In the event that any withdrawal by a Participant under
Section 8.6, loan to a Participant in accordance with Article IX,
transfer pursuant to a change in investment election, or
distribution or reduction in contributions in accordance with
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Article IV requires the sale of Common Stock held in the
Participant's Account in Investment Fund C, the amount available
for withdrawal, loan, transfer, distribution or reduction that is
attributable to the Common Stock required to be sold shall be
based on the average of the net amount received by the Trust Fund
during the 15 trading days prior to the date the withdrawal,
loan, transfer, distribution or reduction is made on the sale of
such stock.
6.4 Adjustments Conclusive: Every adjustment under
this Article VI shall be deemed to have been made on the
applicable date, regardless of the dates of actual entries or the
receipt by the Trustee of contributions. The determination of
the net value of the assets of the Trust Fund and of the debits
or credits to the Accounts of the respective Participants and
their Beneficiaries, as provided, shall be conclusive and binding
upon all parties.
6.5 Limitation on Allocations: Notwithstanding
anything to the contrary contained in the Plan, in no case shall
the amount of the "annual addition," as defined in Section
415(c)(2) of the Code, consisting of Employer contributions under
Sections 4.1 and 4.2 which are allocated to a Participant's
Account for any Plan Year, combined with the annual additions
that are allocated to his accounts for such Plan Year under all
other defined contribution plans maintained by any Employer or
Affiliated Employer, together with amounts treated as an annual
addition for such Plan Year under Sections 415(l)(1) and
419A(d)(2) of the Code, exceed the lesser of (i) $30,000, the
amount specified in Section 415(c)(1)(A) of the Code, or, if
greater, one-fourth of the defined benefit dollar limitation in
effect under Section 415(b)(1)(A) of the Code for the Plan Year
(the "Dollar Limitation") and (ii) 25 percent of the
Participant's compensation as reported on his Forms W-2 from the
Employers and Affiliated Employers for such Plan Year.
Notwithstanding the foregoing provisions of this
Section 6.5, the otherwise permissible "annual addition" for any
Participant under this Plan may be reduced to the extent
necessary, as determined by the Committee, to prevent
disqualification of the Plan under Section 415 of the Code, which
imposes the following additional limitations on the benefits
payable to Participants who also may be participating in another
tax-qualified pension, profit sharing, thrift, savings or stock
bonus plan or in a welfare plan maintained by an Employer or
Affiliated Employer: If the Participant is also covered under a
qualified defined benefit plan of an Employer or Affiliated
Employer, the sum of a Participant's "defined benefit plan
fraction" and his "defined contribution plan fraction" may not
exceed 1.0. The "defined benefit plan fraction" shall be a
fraction (not in excess of 1) the numerator of which is the
projected annual benefit of the Participant under all defined
benefit plans required to be taken into account, determined as of
the end of the Plan Year, and the denominator of which is the
lesser of (A) the product of 1.25 multiplied by the dollar
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limitation in effect under Section 415(b)(1)(A) of the Code for
such Plan Year (or, if greater, by the Participant's current
accrued benefit under such defined benefit plans as of December
31, 1986) and (B) the product of 1.4 multiplied by the amount
that may be taken into account under Section 415(b)(1)(B) of the
Code with respect to the Participant for such Plan Year. The
"defined contribution plan fraction" shall be a fraction (not in
excess of 1) the numerator of which is the sum of the "annual
additions" as determined under Sections 415(c)(2), 415(l)(1) and
419A(d)(2) of the Code (except that employee contributions made
for any Plan Year prior to 1987 that were not treated as an
annual addition for such year shall not be treated as an annual
addition hereunder for any year after 1986) to the Participant's
account under all plans required to be taken into account, as of
the end of the Plan Year, and the denominator of which is the sum
of the "applicable maximum amount" of annual additions that could
have been made under Section 415(c) of the Code for the Plan Year
and for each prior calendar year of such Participant's employment
with the Employers and Affiliated Employers. The "applicable
maximum amount" of annual addition for any year shall be equal to
the lesser of 1.25 multiplied by the Dollar Limitation in effect
for such year, and 1.4 multiplied by the amount that may be taken
into account under Section 415(c)(1)(B) of the Code with respect
to the Participant for such year. The numerator of the "defined
contribution plan fraction" shall be adjusted, where applicable,
as prescribed by the Internal Revenue Service.
Any contribution, plus or minus any earnings, gains, or
losses attributable thereto, which may not be allocated by reason
of this Section 6.5 shall, subject to the limitations of this
Section, be (i) reallocated to the Accounts of other Participants
entitled to share in Employer matching contributions for such
Plan Year where Employer matching contributions under Section 4.2
are involved in proportion to the ratio which the Compensation of
each of such other Participants for the Plan Year bears to the
aggregate Compensation of all of such other Participants for the
Plan Year, and (ii) paid to the Participant where any
contributions under Section 4.1 are involved.
In the event the Plan is determined to be a "top-heavy
plan" within the meaning of Section 416(g) of the Code with
respect to any Plan Year, then, unless the requirements of
Section 416(h)(2) of the Code are met with respect to the Plan,
the number "1.0" shall be substituted for the number "1.25"
wherever it appears in this Section 6.5.
6.6 Statement of Account: As soon as practicable
after the end of each Plan Year, a statement will be furnished to
each Participant showing the status of his Account at the
beginning and end of such Plan Year, any changes in such Account
during such Plan Year, and such other information as the
Committee may determine.
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ARTICLE VII
Vesting of Accounts
7.1 Vesting of Accounts: A Participant's Account
shall at all times be fully vested in such Participant and a
Participant's right to receive distributions from his Account
shall at all times be nonforfeitable.
ARTICLE VIII
Distribution of Benefits
8.1 Settlement Date: A Participant shall be entitled
to distribution of his Account following his Settlement Date.
The Settlement Date of a Participant shall be whichever of the
following dates is applicable:
(a) Normal Retirement Date: The Participant's sixty-
fifth (65th) birthday.
(b) Late Retirement Date: The actual retirement date
of a Participant who remains in active service of the
Employers and Affiliated Employers after his normal
retirement date.
(c) Early Retirement Date: The date before a
Participant's normal retirement date on which he retires
from the active service of the Employers and Affiliated
Employers under a qualified defined benefit plan of the
Employer or Affiliated Employer.
(d) Date of Death: The date of a Participant's death
prior to his actual retirement date.
(e) Date of Disability: The date before a
Participant's normal or early retirement date on which the
Employer determines that he is totally and permanently
disabled. A Participant shall be deemed totally and
permanently disabled if he is receiving disability benefits
under the long term disability plan of his Employer or would
be entitled to receive such benefits if he were a
participant in such plan.
(f) Date of Termination of Employment: The date on
which, before his normal or early retirement date, a
Participant terminates his employment with the Employers and
Affiliated Employers for any reason other than his death or
disability. Leaves of absence and layoffs granted by the
Employer or Affiliated Employer in accordance with practices
uniformly applied will not be considered as terminations of
employment during the term of such leave or layoff. While a
Participant is on a leave of absence or layoff, his
participation in the Plan shall continue on the same basis
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as if he were not absent on leave or layoff. In the event
an arbitration proceeding is instituted under a collective
bargaining agreement in respect of the termination of a
Participant's employment, such Participant will not be
considered to have terminated his employment for purposes of
this Plan unless and until a final decision upholding the
termination is rendered in such proceeding or the grievance
is dropped on behalf of the Participant.
8.2 Amount to be Distributed: The full amount in a
Participant's Account, as of the Valuation Date coincident with
or next preceding his Settlement Date, plus all contributions
made to his Account under Sections 4.1 and 4.2 since such
Valuation Date and all interest on loans paid to his Account
since such Valuation Date, and less any distributions or
withdrawals from the Account since such Valuation Date and the
unpaid portion of all loans made to the Participant pursuant to
Article IX including interest accrued thereon, shall be
distributed to the Participant or, in the event of his death, to
his Beneficiary, provided, however, that in lieu of such amount a
Participant may elect, prior to his Settlement Date, to have the
full amount in his Account as of the Valuation Date coincident
with or next following his Settlement Date less the unpaid
portion of all loans made to the Participant pursuant to Article
IX including interest accrued thereon, distributed to him or, in
the event of his death, to his Beneficiary.
8.3 Form of Distribution: A distribution under this
Article VIII shall be made in cash, except that the Participant
or Beneficiary may request that all of the Participant's Account
invested in Common Stock in Investment Fund C be distributed in
whole shares of Common Stock with any fractional share being paid
in cash. Requests for distribution in the form of Common Stock
shall be made at such time and in such manner as the Committee
shall determine under rules and regulations which are uniformly
applied. The amount of any cash distribution made shall be based
on the average of the net amount received by the Trust Fund on
the sale, during the 15 trading days prior to payment, of Common
Stock required to be sold in order to make cash distributions.
8.4 Method of Distribution: Distribution to a
Participant or his Beneficiary shall be made in a lump sum.
8.5 Time of Distribution: Distribution of the
Participant's Account to which he is entitled under Section 8.2
shall be made within sixty (60) days after the Participant's
Settlement Date occurs, except that if in accordance with Section
8.2 the Participant elects to have the amount to be distributed
determined as of the Valuation Date coincident with or next
following his Settlement Date, distribution shall be made within
sixty (60) days after such Valuation Date.
Notwithstanding the foregoing provisions of this
Section 8.5, if the value of the Participant's Account exceeds
$3,500 (or at the time of any prior withdrawal under Section 8.6
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exceeded $3,500) and he has not attained age 65, distribution to
the Participant shall be deferred until he attains age 65 and
shall be made as provided in Section 8.4, not later than sixty
(60) days following the Valuation Date coincident with or next
following the date on which he attains age 65 unless the
Participant consents in writing to earlier distribution as
hereinafter provided. A Participant who does not wish to have
distribution deferred may elect to have his Account distributed
after his Settlement Date as provided in the first paragraph of
this Section 8.5. If a Participant has not repaid all loans made
to him under the Plan at the time of his termination, he shall be
deemed to have elected to have that portion of his Account equal
to the unpaid portion of said loans, including accrued interest,
distributed after his Settlement Date as provided in the first
paragraph of this Section 8.5 unless with respect to any loan
made after October 18, 1989, he is not in default on such loan at
the time of termination. If a loan is made to a Participant
after October 18, 1989 and the Participant is not in default on
the loan at the time of his termination or if a Participant
receives a loan after his termination of employment, the unpaid
portion of such loan, including accrued interest, shall be
deducted from the balance of his Account to which he is entitled
and considered a distribution from his Account on the first to
occur of (i) the Participant's default on repayment on the loan
and (ii) the date payment of his Account is made under this
Section 8.5.
If distribution of a Participant's Account is deferred
under the preceding paragraph, the Participant may elect at any
time to have distribution made prior to his attaining age 65 and
in such case distribution shall be made not later than sixty (60)
days following the Valuation Date coincident with or next
following the date he files his election with the Committee. If
distribution of a Participant's Account is deferred and the
Participant dies prior to distribution, distribution of his
Account shall be made to his Beneficiary not later than sixty
(60) days following the Valuation Date coincident with or next
following the date of the Participant's death.
If consent to distribution is required under the
preceding two paragraphs or a withdrawal is to be made under
Section 8.6, the Committee shall no less than 30 days and no more
than 90 days prior to the date distribution or withdrawal is to
be made provide the Participant with written notice of his right
to defer payment to age 65. Such distribution or withdrawal,
however, may be made less than 30 days after the provision of the
written notice, if the notice informs the Participant of his
right of at least 30 days after receiving the notice to consider
the decision of whether or not to elect distribution or
withdrawal and the Participant, after receiving the notice,
affirmatively elects distribution or withdrawal.
If the amount of the payment to be made on or before a
particular date cannot be ascertained by such date, a payment
retroactive to such date shall be made no later than 60 days
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after the earliest date on which the amount of such payment can
be ascertained.
If a Participant's payment is deferred pursuant to the
second paragraph of this Section 8.5, the unpaid amounts not
considered an investment from time to time in Investment Fund D
shall be invested prior to distribution in any of Investment
Funds A or B in accordance with the election of the Participant,
as provided in Section 5.2 of the Plan, within 15 days after his
termination of employment and such election, which shall be
effective as of the Valuation Date coincident with or next
following the date it is filed with the Committee, shall be
irrevocable, provided, however, that if the Participant fails to
make such an election he shall be deemed to have irrevocably
elected to have his Account not considered an investment in
Investment Fund D invested in Investment Fund A. Effective on
and after July 1, 1994, however, if a Participant's payment is
deferred pursuant to the second paragraph of this Section 8.5,
the unpaid amounts not considered an investment from time to time
in Investment Fund D shall be invested prior to distribution in
accordance with the election of the Participant as provided in
Section 5.2 of the Plan; except that, if a Participant's Account
has been invested in Investment Fund A or B prior to July 1, 1994
in accordance with the preceding sentence, the Participant's
Account will remain so invested until the Participant makes a
change in investment election in accordance with the terms of the
Plan.
Notwithstanding any other provision of the Plan to the
contrary, a Participant's Account shall be paid to him not later
than the April 1 next following the last day of the Plan Year in
which the Participant attains age 70-1/2.
8.6 Hardship Withdrawals: A Participant shall have
the right to withdraw amounts from his Compensation Conversion
Account(s) on account of his financial hardship in accordance
with the following:
(a) The Participant shall file a written request with
the Committee at least 30 days prior to the date as of which
the withdrawal is to be made setting forth the amount he
wishes to withdraw, the Investment Fund(s) from which it is
to be withdrawn and data establishing his financial
hardship.
(b) A hardship withdrawal under this Section 8.6 shall
be permitted only if the withdrawal both (i) is made on
account of an immediate and heavy financial need of the
Participant and (ii) is necessary to satisfy such financial
need. For purposes of this Section 8.6:
(A) a withdrawal will be considered to be
made on account of an immediate and heavy
financial need of the Participant only if it is on
account of (i) medical expenses, as described in
Section 213(d) of the Code, incurred by the
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Participant, the Participant's spouse or any
dependent of the Participant (as defined in
Section 152 of the Code), (ii) the purchase
(excluding mortgage payments) of a principal
residence for the Participant, (iii) payment of
tuition for the next semester or quarter of post-
secondary education for the Participant, his
spouse, children or dependents, or (iv) the need
to prevent the eviction of the Participant from
his principal residence or foreclosure on the
mortgage of the Participant's principal residence;
and
(B) a withdrawal will be considered to be
necessary to satisfy an immediate and heavy
financial need of the Participant only if (i) the
withdrawal is not in excess of the amount of the
immediate and heavy financial need of the
Participant, (ii) the Participant has obtained all
distributions, other than hardship distributions,
and all nontaxable (at the time of the loan) loans
currently available to him under the Plan and all
other qualified plans maintained by the
Corporation or the Affiliated Employers, (iii) the
Participant is precluded from making or having
made on his behalf any contributions under Section
4.1 or elective contributions under other
qualified or nonqualified plans of deferred
compensation maintained by the Corporation or the
Affiliated Employers, or any elective after-tax
employee contributions under any such plan of the
Corporation or the Affiliated Employers, for a
period of at least 12 months after receipt of the
withdrawal, and (iv) the maximum amount within the
meaning of Section 402(g) of the Code that may be
contributed as elective contributions to the
Participant's Compensation Conversion Account and
to any other qualified or nonqualified plan of
deferred compensation maintained by the
Corporation or the Affiliated Employers is reduced
for the Plan Year next following the Plan Year in
which the hardship withdrawal is received by the
amount of such contributions made by or on behalf
of the Participant for the Plan Year in which the
withdrawal is received.
The determination of the existence of financial hardship
hereunder and of the amount required to be distributed to
meet the need created by the hardship will be made by the
Committee and its decisions shall be applied in a
nondiscriminatory manner.
(c) No withdrawal under this Section 8.6 may exceed an
amount equal to the lesser of (i) the balance in the
Participant's Compensation Conversion Accounts as of the
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Valuation Date coincident with or next preceding the date
his withdrawal request is filed with the Committee, less all
unpaid loans as of the date of withdrawal made to the
Participant pursuant to Article IX, including interest
accrued thereon, that are made from such Accounts, and less
all distributions and withdrawals made from such Accounts
since such Valuation Date, and (ii) the aggregate amount of
contributions made to such Accounts under Section 4.1 and
not previously withdrawn less all unpaid loans made to the
Participant pursuant to Article IX that are made from such
Accounts.
(d) Only one withdrawal under this Section 8.6 may be
made by a Participant during each Plan Year. The minimum
withdrawal that will be allowed is $500.
(e) Payment of any withdrawals will be made in cash in
a lump sum to the Participant as soon as practicable
following the date the request is approved by the Committee.
8.7 Beneficiary: As used in the Plan, the term
"Beneficiary" means:
(a) The last person or persons designated as
beneficiary by the Participant in a written notice on a form
prescribed by the Committee, provided, however, that if the
Participant is married at the time of his death and the
person so designated is not his surviving spouse, such
designation will not be effective under the Plan unless the
requirements of the last paragraph of this Section 8.7 have
been met in respect of such designation;
(b) If there is no beneficiary designation in
accordance with Section 8.7(a) that is effective under the
Plan or if the person designated pursuant to an effective
designation shall not survive the Participant, such
Participant's spouse; or
(c) If no such designated beneficiary and no such
spouse is living upon the death of a Participant, or if all
such persons die prior to the full distribution of such
Participant's Account, then the legal representative of the
last survivor of the Participant and such persons, or, if
the Committee shall not receive notice of the appointment of
any such legal representative within one (1) year after such
death, the heirs-at-law of such survivor (in the proportions
in which they would inherit his intestate personal property)
shall be the beneficiary to whom the then remaining balance
of such Account shall be distributed.
Any Beneficiary designation may be changed from time to
time by like notice similarly delivered. No notice given under
this Section shall be effective unless and until the Committee
actually receives such notice and enters it in its records.
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No beneficiary designation under Section 8.7(a) which
designates a beneficiary who is not the Participant's surviving
spouse shall be effective under the Plan unless the Participant's
surviving spouse consents to such designation, such consent
acknowledges the effect of such designation and the surviving
spouse's signature on such consent is witnessed by a notary
public. Notwithstanding the foregoing sentence, such consent of
the surviving spouse shall not be required if the Participant
establishes to the satisfaction of the Committee that (i) the
surviving spouse cannot be located, (ii) the Participant is
legally separated or the Participant has been abandoned (and the
Participant has a court order to such effect) unless a qualified
domestic relations order provides otherwise, or (iii) the spouse
is legally incompetent and the spouse's legal guardian gives such
consent.
8.8 Facility of Payment: Whenever and as often as any
Participant or his Beneficiary entitled to payments hereunder
shall be under a legal disability or, in the sole judgment of the
Committee, shall otherwise be unable to apply such payments to
his own best interest and advantage, the Committee in the
exercise of its discretion may direct all or any portion of such
payments to be made in any one or more of the following ways:
(i) directly to him; (ii) to his legal guardian or conservator;
or (iii) to his spouse or to any other person, to be expended for
his benefit. The decision of the Committee shall in each case be
final and binding upon all persons in interest.
8.9 Direct Rollovers: If a Participant (which for
purposes of this Section 8.9 shall include a spouse or former
spouse who is an alternate payee under a qualified domestic
relations order as defined in Section 414(p) of the Code) or a
Beneficiary who is the Participant's surviving spouse is to
receive a distribution or a withdrawal under this Article VIII or
Section 12.3, he may elect to have all of the amounts, or any
portion thereof equal to $500 or more, that would otherwise be
paid to him, including the unpaid balance of any loan that would
be considered a distribution, paid directly by the Trustee to an
"eligible retirement plan" (as defined below) that will accept
such rollover. Such election shall apply, however, only to the
extent a distribution is not a minimum distribution required
under Code Section 401(a)(9).
Upon the election of a Participant or Beneficiary under
this Section 8.9, the amount of the distribution or withdrawal
with respect to which the election was made shall be paid
directly, by such means as the Committee shall determine, to the
specified eligible retirement plan at the time it would otherwise
have been paid to the Participant or Beneficiary. The portion,
if any, of the distribution or withdrawal that may not be
directly rolled over or which the Participant or Beneficiary has
elected not to be rolled over shall be made to the Participant or
Beneficiary as otherwise provided in the Plan.
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Not earlier than 90 days or later than 30 days before a
distribution or withdrawal would otherwise be made (or at such
other time as is prescribed by government regulation, ruling or
announcement), the Committee will deliver or cause to be
delivered to the Participant or Beneficiary notice of his right
to make an election under this Section 8.9. Any election must be
made within such period and shall be subject to such terms and
conditions as the Committee shall prescribe, including any such
terms, conditions or limitations required or permitted by
government regulations, rulings and announcements. An election
shall be accompanied by such documentation, information and
verifications as the Committee shall require regarding the
eligible retirement plan to which the direct rollover is to be
made and to enable the Trustee to properly make the direct
rollover.
For purposes of this Section 8.9, "eligible retirement
plan" shall mean:
(i) an individual retirement account described in Code
Section 408(a);
(ii) an individual retirement annuity described in Code
Section 408(b) (other than an endowment contract);
(iii) with respect to a Participant, a defined
contribution plan qualified under Code Section 401(a);
or
(iv) with respect to a Participant, an annuity plan
described in Code Section 403(a).
ARTICLE IX
Loans to Participants
9.1 Application for Loans: Upon the written
application of a Participant, the Committee, in accordance with a
uniform and non-discriminatory policy, may direct the Trustee to
make a loan to such Participant upon such terms as the Committee
shall specify subject to the provisions of this Article IX. In
making loans, the Committee may consider only those factors which
would be considered in a normal commercial setting by an entity
in the business of making similar types of loans. Any loan
approved by the Committee will be disbursed on such date as the
Committee shall direct. The application shall specify the
Investment Fund(s), other than the Investment Fund D, against
which the loan is to be charged.
9.2 Limitations on Loans: No loan to any Participant
made on or after October 19, 1989, when added to the outstanding
balance of all other loans from all qualified plans of the
Employers and Affiliated Employers made to the Participant, shall
exceed the lesser of (a) $50,000, reduced by the excess, if any,
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of the highest outstanding balance of all loans from such plans
to the Participant during the one-year period ending on the day
before the date on which the loan is made over the outstanding
balance of loans from such plans to the Participant on the date
the loan is made or (b) 50% of the sum of the balance in his
Account and the vested balances in all other qualified plans of
the Employers and Affiliated Employers, as of the most recent
Valuation Date for which a valuation is available, as adjusted
for any distributions, withdrawals or contributions made after
such Valuation Date. In no event, however, shall any loan under
the Plan to the Participant exceed 50% of the balance in his
Account as of the most recent Valuation Date for which a
valuation is available, as adjusted under the preceding sentence.
The Committee shall not approve a loan of less than $1,000 nor
shall the Committee approve more than one loan to any Participant
in any Plan Year. No more than one unpaid loan shall be
outstanding to any Participant at any time.
9.3 Interest on Loans: The Committee will establish
the interest rate to apply for the term of all loans. The
interest rate for any loan shall be commensurate with the
interest rate charged by persons in the business of lending money
for loans which would be made under similar circumstances, as
determined by the Committee. For a loan made prior to
October 19, 1989, the interest rate will be equal to the prime
rate being charged by the Trustee on the last business day of the
calendar month next preceding the date the Committee approves the
loan.
9.4 Repayment of Loans: Any loan to a Participant
shall be repaid by the Participant in such manner as the
Committee shall determine, subject to the limitations of this
Section 9.4. The Committee shall require that the loan and
interest thereon be repaid in equal monthly installments, payable
on the first day of each month (commencing as soon as practicable
following the date the loan is disbursed), over a period which
shall not exceed five years from the date of the loan. Each
monthly installment, which in no event shall be less than $25,
may be paid by payroll deductions by the Employer from the
compensation of the Participant. Payroll deductions for a
monthly installment shall be made from the second regular
paycheck of the month next preceding the month in which the
installment is payable. The Employer shall deposit with the
Trustee the sums so deducted or paid with respect to a loan. Any
loan under the Plan may be prepaid without penalty on the first
day of any month. Partial prepayments shall not be permitted.
Amounts received by the Trust Fund as a repayment of a loan to a
Participant or as payment of interest on a loan to a Participant
shall be added to Investment Fund D and held in such Investment
Fund until allocated to the other Investment Funds as of the next
following Valuation Date as provided in Section 6.2(d). Such
amounts will be invested in short-term investments by the
Trustee.
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9.5 Security for Loans: Each loan to a Participant
shall be evidenced by a note, payable to the order of the
Trustee, for the amount of the loan including interest thereon.
Each loan shall be secured by a pledge of the borrower's Account
considered an investment in Investment Fund D, which pledge shall
give the Trustee a security interest in all of the Participant's
then existing and thereafter acquired rights in his Account
considered an investment in Investment Fund D. By accepting the
loan the Participant automatically assigns, as security for the
loan, such rights in his Account. In the event the Participant's
employment with the Employer and Affiliated Employers, is
terminated for any reason prior to the repayment of the loan, the
unpaid balance plus accrued interest thereon shall be deducted
from the amount of his Account balance to which he is entitled as
provided in Section 8.2. If, however, a Participant to whom a
loan is made after October 18, 1989 is having distribution of his
Account deferred to age 65 and he is not in default on repayment
on the loan at the time of his termination of employment or if a
Participant receives a loan after his termination of employment,
any unpaid balance on such loan plus accrued interest shall be
deducted from the balance of his Account to which he is entitled
and considered a distribution from his Account on the first to
occur of (i) the default on repayment of the loan and (ii) the
date payment of his Account is made under Section 8.5.
ARTICLE X
Administration
10.1 Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration: In general, the Corporation,
which shall be the "administrator" and a "named fiduciary" under
the Plan for purposes of ERISA, shall have the sole authority to
appoint and remove the Trustee, members of the Committee and any
investment manager that may be provided for under the Trust and
to delegate fiduciary responsibilities in addition to any
delegation provided herein, and to amend or terminate, in whole
or in part, the Plan or the Trust. The Committee, the members of
which shall be "named fiduciaries" under ERISA, shall have the
general responsibility for the administration of the Plan and
shall have the power to delegate fiduciary responsibilities in
addition to any delegation provided herein.
10.2 Appointment of Committee: The Plan shall be
administered by a Committee consisting of at least three persons
and not more than seven persons who shall be appointed by and
serve at the pleasure of the Board of Directors. No member of
the Committee who is an employee of an Employer shall receive
compensation with respect to his services as a member of the
Committee. The Corporation shall notify the Trustee of the
members of the Committee and any changes in membership that may
take place from time to time.
10.3 Claims Procedure: The Committee shall make all
determinations as to the right of any person to a benefit. Any
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denial by the Committee of a claim for benefits under the Plan by
a Participant or Beneficiary shall be stated in writing by the
Committee and delivered or mailed to the Participant or
Beneficiary. Such notice shall set forth the specific reasons
for the denial, written in a manner calculated to be understood
by the Participant. In addition, the Committee shall afford a
reasonable opportunity to any Participant or Beneficiary whose
claim for benefits has been denied for a full and fair review of
the decision denying the claim. To the extent that any portion
of the benefits of a Participant or Beneficiary under the Plan
are not in dispute, payment of the undisputed portion shall be
made without regard to any disputed benefits in accordance with
the terms of the Plan. The Committee's decision on review shall,
to the extent permitted by law, be final and binding on all
persons.
10.4 Other Committee Powers and Duties: The Committee
shall have such duties and powers as may be necessary to
discharge its duties hereunder, including, but not by way of
limitation, the following:
(a) to have the full and exclusive power to (i)
construe and interpret the Plan, construe any ambiguous
provision of the Plan, correct any defect, supply any
omission or reconcile any inconsistency in such manner and
to such extent as the Committee in its sole and absolute
discretion may determine, and (ii) decide all questions of
eligibility and determine the amount, manner and time of
payment of any benefits hereunder;
(b) to prescribe procedures to be followed by
Participants or Beneficiaries in filing applications for
benefits;
(c) to prepare and distribute, in such manner as the
Committee determines to be appropriate, information
explaining the Plan;
(d) to receive from the Employers and from
Participants such information as shall be necessary for the
proper administration of the Plan;
(e) to furnish the Employers, upon request, such
annual reports with respect to the administration of the
Plan as are reasonable and appropriate;
(f) to receive, review and keep on file reports from
the Trustee of the financial condition, and of the receipts
and disbursements, of the Trust Fund; and
(g) to appoint or employ individuals to assist in the
administration of the Plan.
The Committee shall have no power to add to, subtract from or
modify any of the terms of the Plan, or to change or add to any
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benefits provided by the Plan, or to waive or fail to apply any
requirements of eligibility for a benefit under the Plan.
10.5 Rules and Decisions: The Committee may adopt
such rules as it deems necessary, desirable or appropriate. All
rules and decisions of the Committee shall be uniformly and
consistently applied to all Participants in similar
circumstances. When making a determination or calculation, the
Committee shall be entitled to rely upon information furnished by
a Participant or Beneficiary, the Employers, the legal counsel
for the Employers or the Trustee.
10.6 Committee Procedures: The Committee may act at a
meeting or in writing without a meeting. The Committee shall
elect one of its members as chairman, appoint a secretary, who
may or may not be a Committee member, and advise the Trustee of
such actions in writing. The secretary shall keep a record of
all meetings and forward all necessary communications to the
Employers or the Trustee. The Committee may adopt such bylaws
and regulations as it deems desirable for the conduct of its
affairs. All decisions of the Committee shall be made by the
vote of the majority including actions in writing taken without a
meeting.
10.7 Authorization of Benefit Payments: The Committee
shall issue directions to the Trustee concerning all benefits
that are to be paid from the Trust Fund pursuant to the
provisions of the Plan and shall warrant that all such directions
are in accordance with the Plan.
10.8 Applications and Forms: Any action permitted or
required to be taken by a Participant or Beneficiary shall be on
such form or forms as the Committee may require. The Committee
may require a Participant or Beneficiary to complete and file
with the Committee all other forms prescribed by the Committee,
and to furnish all pertinent information requested by the
Committee. The Committee may rely upon all such information so
furnished to it.
10.9 Administration Expenses: All expenses, including
Trustee's fees, and all other costs and expenses, including those
of the Committee, incurred in operating and administering the
Plan may be paid in whole or in part by the Corporation and any
expenses not paid by it shall be paid by the Trustee out of
principal or income of the Trust Fund.
10.10 Voting of Common Stock Held by Trustee: The
Committee will deliver or cause to be delivered to each
Participant in Investment Fund C, or in the event of his death to
his Beneficiary, at least 30 days prior to each meeting of
shareowners, all reports, financial statements, proxies and proxy
soliciting material which are delivered to owners of Common Stock
in connection with such meeting. Such Participant or Beneficiary
shall have the right to direct the Trustee as to the exercise of
all voting rights with respect to his interest, determined as of
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the Valuation Date on or next preceding the record date for
determining shareowners entitled to vote at such meeting, in
Common Stock held in Investment Fund C. Such voting rights shall
be exercised by the Trustee only to the extent as directed by
such Participant or Beneficiary. Voting rights with respect to
Common Stock held in Investment Fund C that is not allocated to
the Accounts of Participants as of such Valuation Date shall be
exercised by the Trustee in the same proportion as it exercises
voting rights as directed by Participants and Beneficiaries.
ARTICLE XI
Miscellaneous
11.1 No Guarantee of Employment: Nothing contained in
the Plan shall be construed as a contract of the employment
between an Employer and any Employee, or as a right of any
Employee to be continued in the employment of an Employer, or as
a limitation of the right of an Employer to discharge any of its
Employees, with or without cause.
11.2 Rights to Trust Assets: No Participant shall
have at any time any right to, or interest in, any assets of the
Trust Fund, except as provided from time to time under the Plan,
and then only to the extent of the benefits payable under the
Plan to such Participant out of the assets of the Trust Fund.
All payments of benefits as provided for in the Plan shall be
made solely out of the assets of the Trust Fund.
11.3 Nonalienation of Benefits: Except as provided in
Section 9.5 or in respect of the creation, assignment or
recognition of a right to any benefit under the Plan pursuant to
the provisions of a "qualified domestic relations order" as
defined in Section 414(p)(1)(A) of the Code, benefits payable
under the Plan shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy of any kind,
either voluntary or involuntary, including any such liability
which is for alimony or other payments for the support of a
spouse or former spouse, or for any other relative of the
Participant, prior to actually being received by the person
entitled to the benefit under the terms of the Plan; and any such
attempt to anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to benefits
payable hereunder, shall be void. Except as provided above, the
Trust Fund shall not in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements or torts of any
person entitled to benefits hereunder.
11.4 Notice of Address: Each Participant or
Beneficiary shall file with the Committee a written notice giving
his post office address and each change of post office address.
Any communication, statement, or notice addressed and mailed,
postage prepaid, to such person at his latest post office address
as so filed shall constitute an effective notice upon such person
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for all purposes of the Plan, and neither the Trustee, the
Employers nor the Committee shall be obliged to search for or
ascertain the whereabouts of any such person. If any such person
is notified that he is entitled to payment under the Plan, and
also is notified of the provisions of this Section, and such
person fails to claim his benefits or make his whereabouts known,
or cannot be located after reasonably diligent inquiry, within
one (1) year thereafter, the remaining interest of such person
shall be distributed to any one or more of the spouse or next of
kin of the Participant or Beneficiary involved, or shall be
otherwise applied at such time and to such extent as shall be
permitted under any applicable federal government publication,
ruling or regulation.
11.5 Applicable Law: All questions arising in respect
of the Plan, including those pertaining to its validity,
interpretation and administration, shall be governed, controlled
and determined in accordance with the laws of the Commonwealth of
Kentucky insofar as such laws are not preempted by the laws of
the United States.
11.6 Profit Sharing Plan: It is intended that the
Plan be a qualified profit sharing plan under Section 401(a) of
the Code.
11.7 Top-Heavy Provisions: The following provisions
shall become effective in any Plan Year in which the Plan is
determined to be a "top-heavy plan."
(a) The Plan will be considered a "top-heavy plan" for
a Plan Year if as of the last day of the next preceding Plan
Year (or, in the case of the Plan Year beginning January 1,
1988, the last day of such Plan Year) (i) the aggregate
value of the Accounts of Participants, including former
Participants, who are "key employees" within the meaning of
Section 416(i)(1) of the Code exceeds 60% of the aggregate
value of the Accounts of all Participants, including former
Participants, or (ii) the Plan is part of a required
aggregation group and the required aggregation group is top-
heavy. However, and notwithstanding the above, the Plan
shall not be considered a "top-heavy plan" for any Plan Year
in which the Plan is a part of a required or permissive
aggregation group which is not top-heavy. For purposes of
this subsection, the value of a Participant's or former
Participant's Account shall be adjusted as provided in
Sections 416(g)(3) and (4) of the Code. A "required
aggregation group" shall mean each qualified plan of an
Employer or Affiliated Employer in which a "key employee"
participates and any other qualified plan of an Employer or
Affiliated Employer which enables any such plan to meet the
requirements of Section 401(a)(4) or 410 of the Code. A
"permissive aggregation group" shall mean any required
aggregation group plus any other qualified plan or plans of
an Employer or Affiliated Employer which, when considered
with the required aggregation group, would continue to
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satisfy the requirements of Sections 401(a)(4) and 410 of
the Code. A Participant's or former Participant's
compensation as reported on his Forms W-2 from the Employers
for a Plan Year shall be used, where applicable, in
determining whether he is a "key employee."
(b) Notwithstanding the provisions of Article IV to
the contrary, if for any Plan Year the Plan is a "top-heavy
plan," an Employer shall contribute to the Trust Fund for
each of its Employees who is an Eligible Employee (as
defined below) on the last day of the Plan Year and who is
not a "key employee," an amount equal to the excess, if any,
of (i) over (ii), where (i) is the lesser of (A) three
percent of such Eligible Employee's compensation (as
reported on his Form W-2 from the Employer and Affiliated
Employers but not in excess of the compensation limitation
described in Section 401(a)(17) of the Code) for the Plan
Year and (B) to the extent permitted under Section
416(c)(2)(B) of the Code, the percentage of such Eligible
Employee's compensation (as reported on his Form W-2 from
the Employer and Affiliated Employers but not in excess of
the compensation limitation described in Section 401(a)(17)
of the Code) for the Plan Year equal to the percentage of
compensation (not in excess of the compensation limitation
described in Section 401(a)(17) of the Code) of employer
contributions (including contributions made pursuant to a
salary reduction agreement) and forfeitures allocated for
the Plan Year under the Plan and each other qualified
defined contribution plan maintained by the Employers or
Affiliated Employers for the "key employee" for whom such
percentage is the highest for such Plan Year, and (ii) is
the sum of employer contributions (excluding contributions
made pursuant to a salary reduction agreement) and
forfeitures allocated to such Eligible Employee under the
Plan and all other qualified defined contribution plans
maintained by an Employer or Affiliated Employers for the
Plan Year. However, and notwithstanding the above, the
provisions of this subsection (b) shall not apply for any
Plan Year with respect to an Eligible Employee who has
accrued the defined benefit minimum provided under Section
416 of the Code under a qualified defined benefit plan
maintained by the Employers or a Affiliated Employer. Any
amount contributed in accordance with this subsection (b)
with respect to an Eligible Employee for a Plan Year shall
be deemed to be a contribution made under Section 4.2 and
shall be allocated to the Eligible Employee's Account. Any
Eligible Employee for whom such a contribution is made who
is not already a Participant shall, notwithstanding the
provisions of Section 3.1, become a Participant in the Plan
as of the last day of the Plan Year for which the
contribution is made.
(c) For purposes of this Section 11.7, "Eligible
Employee" shall mean any Employee who is eligible to
participate in the Plan as provided in Section 3.1 other
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than an Employee who is included in a unit of employees
covered by a collective bargaining agreement between
employee representatives and one or more Employers if there
is evidence that retirement benefits have been the subject
of good faith bargaining between such employee
representatives and such Employer or Employers.
11.8 Return of Contributions: Notwithstanding any
provision of the Plan to the contrary, contributions made by an
Employer shall be returned to the Employer in the following
circumstances:
(a) Each contribution of the Employers under the Plan
is expressly conditioned upon the current deductibility of
the contribution under Section 404 of the Code. If all or
part of an Employer's contribution is disallowed as a
deduction under Section 404 of the Code, such disallowed
amount (reduced by any losses attributable thereto) shall be
returned to the Employer with respect to which the deduction
was disallowed within one year after disallowance.
(b) If a contribution is made by an Employer by reason
of a mistake of fact, then so much of the contribution as
was made as a result of the mistake (reduced by any losses
attributable thereto) shall be returned to the Employer
within one year after the mistaken contribution was made.
ARTICLE XII
Amendment, Termination and Action by Employers
12.1 Amendment and Termination: The Corporation may
amend, discontinue contributions under or terminate, and each
Employer as to itself may discontinue contributions or terminate,
the Plan in whole or in part, at any time or from time to time.
Notwithstanding the foregoing, no amendment or termination of the
Plan shall cause any part of the Trust Fund to be used for, or
diverted to, any purpose other than the exclusive benefit of
Participants or their Beneficiaries or shall operate
retroactively so as to affect adversely the right of any
Participant or Beneficiary of the Plan prior to such action;
provided, however, that the Corporation may make any amendment it
determines necessary or desirable, with or without retroactive
effect, to comply with ERISA or the Code.
12.2 Action by Employers: Any action by an Employer
under the Plan may be by resolution of its Board of Directors, or
by any person or persons duly authorized by resolution of said
Board to take such action.
12.3 Effect of Termination: Upon the bankruptcy,
insolvency, merger, consolidation, or dissolution of an Employer,
without provision being made by its successor, if any, for the
continuation of the Plan, or upon the termination, partial
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termination or discontinuance of the Plan or of the payment of
contributions thereunder, by an Employer, the Accounts of the
Participants who are Employees of such Employer and who are
affected by such termination, partial termination or
discontinuance shall continue to be fully vested and held in the
Trust Fund in accordance with the provisions of the Plan and
Trust, except that the Committee may direct that the assets of
the Trust Fund allocable to each such Participant and his
Beneficiary shall be distributed to such Participant or
Beneficiary; in which event the Trust shall thereupon terminate
as to such Employer when all Accounts have been distributed;
provided, however, that no such distribution shall be made to any
Participant until he attains age 59-1/2 except in the case of
termination of employment or as otherwise provided in Article
VIII or upon termination of the Plan without the establishment or
maintenance by the Employer, within 12 months after distribution,
of another qualified defined contribution plan (other than an
employee stock ownership plan as defined in Section 4975(e)(7) of
the Code).
ARTICLE XIII
Successor Employer and Merger or Consolidation of Plans
13.1 Successor Employer: In the event of the
dissolution, merger, consolidation or reorganization of an
Employer, provision may be made by which the Plan and Trust will
be continued by the successor; and, in that event, such successor
(subject to the consent of the Corporation) shall be substituted
for the Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by
the successor and the successor shall have all of the powers,
duties and responsibilities of an Employer under the Plan.
13.2 Plan Assets: In the event of any merger or
consolidation of the Plan with, or transfer in whole or in part
of the assets and liabilities of the Trust Fund to another trust
fund held under any other plan of deferred compensation
maintained or to be established for the benefit of all or some of
the Participants of the Plan, the assets of the Trust Fund
applicable to such Participants shall be transferred to the other
trust fund only if:
(a) Each Participant would (if either the Plan or the
other plan then terminated) receive a benefit immediately
after the merger, consolidation or transfer which is equal
to or greater than the benefit he would have been entitled
to receive immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
(b) Resolutions of the Board of Directors of the
Corporation under this Plan, and of any new successor
employer of the affected Participants, shall authorize such
transfer of assets; and, in the case of the new or successor
employer of the affected Participants, its resolutions shall
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include an assumption of liabilities with respect to such
Participants' inclusion in the new employer's plan; and
(c) Such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
IN WITNESS WHEREOF, Kentucky Utilities Company has
caused this instrument to be executed in its name by its
President and its Corporate Seal to be hereunto affixed, attested
by its Secretary, on this 12th day of December, 1994.
KENTUCKY UTILITIES COMPANY
By /s/ James M. Allison
James M. Allison
Senior Vice President
[Corporate Seal]
ATTEST:
/s/ George S. Brooks II
George S. Brooks II
Secretary
51
Exhibit 99.03
AMENDMENT NO. 3 TO
KENTUCKY UTILITIES COMPANY
MASTER RETIREMENT AND EMPLOYEE SAVINGS PLAN TRUST
The Kentucky Utilities Company Master Retirement and
Employee Savings Plan Trust, as heretofore amended (the "Trust"),
by and between Kentucky Utilities Company and First Kentucky
Trust Company (now known as National City Bank, Kentucky), as
trustee, is hereby amended, effective as of January 1, 1993, in
the following respects:
1. By deleting the second sentence of Section 1.02 of
the Trust and inserting in lieu thereof the following:
"Such payments may be made directly to such person or
persons, natural or otherwise (including, but not
limited to, an insurance company or health maintenance
organization as premium payments for health benefits
provided under the Retirement Plan), or to any paying
agent designated by the Corporation including pursuant
to Section 1.04, at such time and in such amounts as
the Committee or Corporation directs, and the
Corporation warrants that no direction will be issued
to the Trustee other than in accordance with the terms
of the applicable Plan or this Agreement."
2. By adding a new Section 1.04 after Section 1.03 of
the Trust as follows:
"1.04 The Corporation may, after written notice to
the Trustee, delegate to a committee established by the
President of the Corporation (which may be referred to
as the "Medical Account Committee" or, where
appropriate for purposes of Articles III and IV, a
"Committee") the responsibility to make Health Benefit
payments from the assets of the Trust Fund allocated to
the Medical Account as provided in Section 3.05, as
directed in writing by the Corporation, through a
banking account held in the name of this Trust in a
federally insured banking institution (including in the
Trustee) which is used exclusively for that purpose and
to which the Trustee shall make such deposits from the
assets of the Trust Fund allocated to the Medical
Account as the Medical Account Committee may from time
to time direct. The Trustee shall have no
responsibility to account for funds retained therein or
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disbursed therefrom by the Medical Account Committee.
The Medical Account Committee may act at a meeting or
in writing without a meeting. The Medical Account
Committee shall appoint a Secretary, who may or may not
be a Medical Account Committee member. The Medical
Account Committee may adopt such by-laws and
regulations as it deems desirable for the conduct of
its affairs. All decisions of the Medical Account
Committee shall be made by the vote of the majority,
including actions in writing taken without a meeting."
3. By adding a new Section 3.05 to the Trust after
Section 3.04 as follows:
"3.05. As part of its accounts under Section
3.03, the Trustee shall create and maintain for
recordkeeping purposes a separate account (the "Medical
Account") with respect to the Retirement Plan to
reflect the portion of the Trust Fund allocable to the
funding of the payment of benefits for sickness,
accident, hospitalization and medical expenses (the
"Health Benefits") provided for in the Retirement Plan.
At the time any contribution is made to the Trust Fund,
the Corporation shall designate that portion of the
contribution, if any, which is to be allocated to the
Medical Account and at the time any payment is to be
made from the Trust Fund, the Corporation or, where
applicable, the Medical Account Committee, shall
designate that portion, if any, of the payment to be
charged to the Medical Account. Assets allocated to
the Medical Account need not be invested separately
from assets of the Trust Fund attributable to the
Retirement Plan held by the Trustee for other purposes
(the "retirement account") but if on the direction of
the Corporation the assets are not invested separately,
earnings and losses on such assets shall be allocated
to the Medical Account and retirement account in a
reasonable manner."
4. By deleting the third paragraph of Section 5.01 of
the Trust and inserting in lieu thereof the following:
"Except as otherwise provided in Section 5.11 or
permitted under a Plan and under ERISA, no part of the
equitable share of a Plan in the Trust Fund shall be
diverted to any purpose other than the exclusive
benefit of the Participants and Beneficiaries under
such Plan and for defraying reasonable expenses of
administration of such Plan."
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5. By adding a new Section 5.11 to the Trust after
Section 5.10 as follows:
"5.11. At no time prior to the satisfaction of
all liabilities under the Retirement Plan to provide
Health Benefits for eligible participants and their
dependents shall any part of the corpus or income of
the Trust Fund allocated to the Medical Account be used
for, or diverted to, any purpose other than providing
such benefits and paying any necessary or appropriate
expenses attributable to the administration of the
Medical Account. Notwithstanding the provisions of
Section 401(a)(2) of the Code and any other provision
of this Agreement, upon the satisfaction of all
liabilities to provide Health Benefits under the
Retirement Plan, any amounts remaining in the Medical
Account shall be returned to the Employers."
IN WITNESS WHEREOF, the parties have caused this
instrument to be executed by their duly authorized officers as of
January 1, 1993.
KENTUCKY UTILITIES COMPANY
By /s/ John T. Newton
John T. Newton
NATIONAL CITY BANK, KENTUCKY
By /s/Judith E. Meany
Judith E. Meany
54
Exhibit 99.04
AMENDMENT NO. 4 TO
KENTUCKY UTILITIES COMPANY
MASTER RETIREMENT AND EMPLOYEE SAVINGS PLAN TRUST
The Kentucky Utilities Company Master Retirement and
Employee Savings Plan Trust, as heretofore amended (the "Trust"),
by and between Kentucky Utilities Company and First Kentucky
Trust Company (now known as National City Bank, Kentucky), as
trustee, is hereby amended, effective as of July 1, 1994, in the
following respect:
1. By deleting Section 2.01 of the Trust and
inserting in lieu thereof the following:
"2.01 The portion of the Trust Fund
attributable to the Savings Plan shall be invested in
six separate investment funds which shall be referred
to as Investment Funds A, B, C, D, E and F. Such
investment funds shall be managed and invested in
accordance with the following general purposes:
(a) Investment Fund A shall be known as the
Protected Income Fund and shall be invested
primarily in short-term obligations issued or
guaranteed by the U.S. Government or its agencies
or instrumentalities, or other fixed income
investments that meet the investment goal of this
Fund, which is to achieve a fair market rate of
return on investments with minimal credit risk.
(b) Investment Fund B shall be known as the
Standard & Poor's 500 Equity Index Fund (the
"Equity Fund") and shall be invested primarily as
a Standard & Poor's 500 equity index fund.
(c) Investment Fund C shall be known as the
KU Energy Common Stock Fund and shall be invested
primarily in common stock of KU Energy Corporation
("Common Stock").
(d) Investment Fund D shall be known as the
Participant Loan Fund and shall be composed of
loans made to Participants.
(e) Investment Fund E shall be known as the
Balanced Fund and shall be invested primarily in a
mix of government and corporate bonds (for current
income) and common stocks (for long-term growth)
that meet the goal of this Fund, which is to
provide current income with reasonable risk.
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(f) Investment Fund F shall be known as the
Aggressive Growth Fund and shall be invested
primarily in stocks of small and medium-sized
companies that are expected to grow significantly;
the goal of this Fund is to provide long-term
growth of capital.
The portion of the Trust Fund attributable to
the Retirement Plan shall be invested in its own
separate investment fund except to the extent it is
invested in whole or in part in Investment Funds A, B,
E or F.
The Protected Income Fund, the Equity Fund,
the Balanced Fund and the Aggressive Growth Fund may be
invested through common, collective or pooled
investment funds, mutual funds or insurance company
annuity contracts to the extent such funds or contracts
meet the investment criteria set forth in this Section
2.01.
Each investment fund may also invest any cash
balances held from time to time in short term cash
equivalents having ready marketability, including, but
not limited to, U.S. Treasury Bills, commercial paper,
certificates of deposit of the Trustee or others,
bankers acceptances, short term collective investment
funds established by the Trustee or others, or money
market mutual funds.
The Corporation may direct the Trustee to
establish additional investment funds.
Transfers between the investment funds may
only be made at such time or times as the Committee
shall direct."
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IN WITNESS WHEREOF, the parties have caused this
instrument to be executed by their duly authorized officers and
respective corporate seals to be hereunto affixed.
KENTUCKY UTILITIES COMPANY
Dated: April 27, 1994 By: /s/ John T. Newton
John T. Newton
Title: Chairman, President and CEO
(CORPORATE SEAL)
ATTEST:
/s/ George S. Brooks II
George S. Brooks II
Secretary
NATIONAL CITY BANK, KENTUCKY
As Trustee of the Trust
Dated: April 29, 1994 By: /s/ Judith E. Meany
Judith E. Meany
Title: Vice President
(CORPORATE SEAL)
ATTEST:
/s/ Cordell G. Lawrence
Cordell G. Lawrence
Ass't Secretary
57
