Exhibit 4.02
TRUST AGREEMENT
Between
---------------------------------------------------------
OKLAHOMA GAS & ELECTRIC COMPANY
And
FIDELITY MANAGEMENT TRUST COMPANY
---------------------------------------------------------
OKLAHOMA GAS & ELECTRIC COMPANY RETIREMENT SAVINGS PLAN
TRUST
Dated as of November 30, 1993
TABLE OF CONTENTS
Section Page
1 Trust........................................................ 5
2 Exclusive Benefit and Reversion of Sponsor Contributions..... 5
3 Disbursements................................................ 5
(a) Directions from Administrator
(b) Limitations
4 Investment of Trust.......................................... 5
(a) Selection of Investment Options
(b) Available Investment Options
(c) Participant Direction
(d) Mutual Funds
(e) Sponsor Stock
(f) Notes
(g) Guaranteed Investment Contracts
(h) Reliance of Trustee Directions
(i) Trustee Powers
5 Recordkeeping and Administrative Services to Be Performed.... 12
(a) General
(b) Accounts
(c) Inspection and Audit
(d) Effect of Plan Amendment
(e) Returns, Reports and Information
6 Compensation and Expenses.................................... 13
7 Directions and Indemnification............................... 14
(a) Identity of Administrator and Named Fiduciary
(b) Directions from Administrator
(c) Directions from Named Fiduciary
(d) Co-Fiduciary Liability
(e) Indemnification
(f) Survival
8 Resignation or Removal of Trustee............................ 14
(a) Resignation
(b) Removal
2
TABLE OF CONTENTS
(Continued)
Section Page
9 Successor Trustee............................................ 15
(a) Appointment
(b) Acceptance
(c) Corporate Action
10 Termination.................................................. 15
11 Resignation, Removal, and Termination Notices................ 15
12 Duration..................................................... 15
13 Amendment or Modification.................................... 15
14 General...................................................... 16
(a) Performance by Trustee, its Agents or Affiliates
(b) Entire Agreement
(c) Waiver
(d) Successors and Assigns
(e) Partial Invalidity
(f) Section Headings
15 Governing Law................................................ 16
(a) Massachusetts Law Controls
(b) Trust Agreement Controls
Schedules
A. Recordkeeping and Administrative Services
B. Fee Schedule
C. Investment Options
D. Sponsor's Authorization Letter
E. Named Fiduciary's Authorization Letter
F. IRS Determination Letter or Opinion of Counsel
G. Telephone Exchange Procedures
3
TRUST AGREEMENT, dated as of the 30th day of November 1993, between
Oklahoma Gas & Electric Company, an Oklahoma corporation, having an office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Sponsor"), and FIDELITY
MANAGEMENT TRUST COMPANY, a Massachusetts trust company, having an office at ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor is the sponsor of the Oklahoma Gas & Electric
Company Retirement Savings Plan (the "Plan"); and
WHEREAS, the Sponsor has previously established a trust (the "Prior
Trust"); and
WHEREAS, the Sponsor now desires to adopt a restated trust with the
Trustee to hold and invest plan assets under the Plan, including assets held in
the Prior Trust, for the exclusive benefit of participants in the Plan and their
beneficiaries; and
WHEREAS, the Oklahoma Gas & Electric Company Employees' Financial
Programs Committee (the "Named Fiduciary") is the named fiduciary of the Plan
(within the meaning of section 402(a) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid plan
assets in trust among several investment options selected by the Named
Fiduciary; and
WHEREAS, the Sponsor wishes to have the Trustee perform certain
ministerial recordkeeping and administrative functions under the Plan; and
WHEREAS, the Oklahoma Gas & Electric Retirement Company Employees'
Financial Programs Committee (the "Administrator") is the administrator of the
Plan (within the meaning of section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to perform recordkeeping and
administrative services for the Plan if the services are purely ministerial in
nature and are provided within a framework of plan provisions, guidelines and
interpretations conveyed in writing to the Trustee by the Administrator.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements set forth below, the Sponsor and the Trustee
agree as follows:
4
Section 1. Trust. The Sponsor hereby adopts, restates, and renames the Prior
Trust, the Oklahoma Gas & Electric Company Retirement Savings Plan Trust (the
"Trust"), with the Trustee. The Trust shall consist of an initial contribution
of money or other property acceptable to the Trustee in its sole discretion,
made by the Sponsor or transferred from a previous trustee under the Plan, such
additional sums of money and Sponsor Stock (hereinafter defined) as shall from
time to time be delivered to the Trustee under the Plan, all investments made
therewith and proceeds thereof, and all earnings and profits thereon, less the
payments that are made by the Trustee as provided herein, without distinction
between principal and income. The Trustee hereby accepts the Trust on the terms
and conditions set forth in this Agreement. In accepting this Trust, the Trustee
shall be accountable for the assets received by it, subject to the terms and
conditions of this Agreement.
Section 2. Exclusive Benefit and Reversion of Sponsor Contributions. Except as
provided under applicable law, no part of the Trust may be used for, or diverted
to, purposes other than the exclusive benefit of the participants in the Plan or
their beneficiaries prior to the satisfaction of all liabilities with respect to
the participants and their beneficiaries.
Section 3. Disbursements.
(a) Directions from Administrator. The Trustee shall make disbursements
in the amounts and in the manner that the Administrator directs from time to
time in writing. The Sponsor hereby directs that, pursuant to the Plan, a
participant in-service withdrawal request may be made by telephone and the
Trustee shall process such request only after the identity of the participant is
verified by use of a personal identification number ("PIN") and social security
number. The Trustee shall have no responsibility to ascertain any direction's
compliance with the terms of the Plan or of any applicable law or the
direction's effect for tax purposes or otherwise; nor shall the Trustee have any
responsibility to see to the application of any disbursement.
(b) Limitations. The Trustee shall not be required to make any
disbursement in excess of the net realizable value of the assets of the Trust at
the time of the disbursement. The Trustee shall not be required to make any
disbursement in cash unless the Administrator has provided a written direction
as to the assets to be converted to cash for the purpose of making the
disbursement.
Section 4. Investment of Trust.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the Trust and shall
not render investment advice to any person in connection with the selection of
such options.
(b) Available Investment Options. The Named Fiduciary shall direct the
Trustee as to what investment options: (i) the Trust shall be invested in during
the participant recordkeeping reconciliation period, and (ii) the investment
options in which Plan participants may invest, subject to the following
limitations. The Named Fiduciary may determine to offer as investment options
only (i) securities issued by the investment companies advised by Fidelity
Management & Research Company ("Mutual Funds"), (ii) equity securities issued by
the Sponsor or an affiliate which are publicly-traded and which are "qualifying
employer securities" within the meaning of section 407(d)(5) of ERISA ("Sponsor
Stock"), (iii) notes evidencing loans to Plan participants in accordance with
the terms of the Plan, (iv) guaranteed investment contracts chosen by the
Trustee, and (v) collective investment funds maintained by the Trustee for
qualified plans; provided that the Trustee shall be considered a fiduciary with
investment discretion only with respect to Plan assets that are invested in
guaranteed investment contracts chosen by the Trustee or in collective
5
investment funds maintained by the Trustee for qualified plans. The investment
options initially selected by the Named Fiduciary are identified on Schedules
"A" and "C" attached hereto. The Named Fiduciary may add additional investment
options or delete investment options, in either case, with the consent of the
Trustee and upon mutual amendment of this Trust Agreement and the Schedules
thereto to reflect such additions or deletions.
(c) Participant Direction. Each Plan participant shall direct the
Trustee in which investment option(s) to invest the assets in the participant's
individual accounts. Such directions may be made by Plan participants by use of
the telephone exchange system maintained for such purposes by the Trustee or its
agent, in accordance with written Telephone Exchange Procedures attached hereto
as Schedule "G". A participant shall be considered a named fiduciary of the Plan
under ERISA for purposes of using the telephone exchange system to provide
investment directions to the Trustee for the participant's individual account.
In the event that the Trustee fails to receive a proper direction, the assets
shall be invested in the securities of the fund set forth for such purpose on
Schedule "C", until the Trustee receives a proper direction.
(d) Mutual Funds. The Sponsor hereby acknowledges that it has received
from the Trustee a copy of the prospectus for each Mutual Fund selected by the
Named Fiduciary as a Plan investment option. Trust investments in Mutual Funds
shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
Mutual Funds (other than for Exchanges) shall be made on the date on which the
Trustee receives from the Sponsor in good order all information and
documentation necessary to accurately effect such purchases and sales (or in the
case of a purchase, the subsequent date on which the Trustee has received a wire
transfer of funds necessary to make such purchase). Exchanges of Mutual Funds
shall be made in accordance with the Telephone Exchange Procedures attached
hereto as Schedule "G".
(ii) Voting. At the time of mailing of notice of each annual
or special stockholders' meeting of any Mutual Fund, the Trustee shall send a
copy of the notice and all proxy solicitation materials to each Plan participant
who has shares of the Mutual Fund credited to the participant's accounts,
together with a voting direction form for return to the Trustee or its designee.
The participant shall have the right to direct the Trustee as to the manner in
which the Trustee is to vote the shares credited to the participant's accounts
(both vested and unvested).
The Trustee shall vote the shares as directed by the participant. The Trustee
shall not vote shares for which it has received no directions from the
participant. During the participant recordkeeping reconciliation period, the
Sponsor shall have the right to direct the Trustee as to the manner in which the
Trustee is to vote the shares of the Mutual Funds in the Trust. With respect to
all rights other than the right to vote, the Trustee shall follow the directions
of the participant and if no such directions are received, the directions of the
Named Fiduciary. The Trustee shall have no duty to solicit directions from
participants or the Sponsor or the Named Fiduciary.
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be made via
the Oklahoma Gas & Electric Common Stock Fund which shall consist of shares of
Sponsor Stock and short-term liquid investments, including a commingled money
market fund ("Fidelity Employee Benefit U.S. Government Reserves Portfolio")
maintained by the Trustee, necessary to satisfy the Fund's cash needs for
transfers and payments. A cash target range shall be determined in conjunction
with the Sponsor for the cash portion of the Oklahoma Gas & Electric Common
Stock Fund. The Trustee is responsible for ensuring that the actual cash held in
the Oklahoma Gas & Electric Common Stock Fund falls within the agreed upon range
over
6
time. Each participant's proportional interest in the Oklahoma Gas & Electric
Common Stock Fund shall be measured in units of participation, rather than
shares of Sponsor Stock. Such units shall represent a proportionate interest in
all of the assets of the Oklahoma Gas & Electric Common Stock Fund, which
includes shares of Sponsor Stock, short-term investments and at times,
receivables for dividends and/or Sponsor Stock sold and payables for Sponsor
Stock purchased. A Net Asset Value ("NAV") per unit will be determined daily for
each unit outstanding of the Oklahoma Gas & Electric Common Stock Fund. The
return earned by the Oklahoma Gas & Electric Common Stock Fund will represent a
combination of the dividends paid on the shares of Sponsor Stock held by the
Oklahoma Gas & Electric Common Stock Fund, gains or losses realized on sales of
Sponsor Stock, appreciation or depreciation in the market price of those shares
owned, and interest on the short-term investments held by the Oklahoma Gas &
Electric Common Stock Fund. Dividends received by the Oklahoma Gas & Electric
Common Stock Fund are reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust may
be invested in Sponsor Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement.
(ii) Fiduciary Duty of Named Fiduciary. The Named Fiduciary
shall continually monitor the suitability under the fiduciary duty rules of
section 404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA) of
acquiring and holding Sponsor Stock. The Trustee shall not be liable for any
loss, or by reason of any breach, which arises from the directions of the Named
Fiduciary with respect to the acquisition and holding of Sponsor Stock, unless
it is clear on their face that the actions to be taken under those directions
would be prohibited by the fiduciary duty rules or would be contrary to the
terms of the Plan or this Agreement.
(iii) Execution of Purchases and Sales. (A) Purchases and
sales of Sponsor Stock (other than for exchanges) shall be made on the open
market on the date on which the Trustee receives from the Sponsor in good order
all information and documentation necessary to accurately effect such purchases
and sales (or, in the case of purchases, the subsequent date on which the
Trustee has received a wire transfer of the funds necessary to make such
purchases). Exchanges of Sponsor Stock shall be made in accordance with the
Telephone Exchange Procedures attached hereto as Schedule "G". Such general
rules shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number of
shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on such day as a result
of market conditions; or
(3) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other regulatory
body from purchasing or selling any or all of the shares required to be
purchased or sold on such day.
In the event of the occurrence of any of the circumstances described in (1),
(2), or (3) above, the Trustee shall purchase or sell such shares as soon as
possible thereafter and shall determine the price of such purchases or sales to
be the average purchase or sales price of all such shares purchased or sold,
respectively. The Trustee may follow directions from the Named Fiduciary to
deviate from the above purchase and sale procedures provided that such direction
is made in writing by the Named Fiduciary.
7
(B) Use of an Affiliated Broker. The Sponsor hereby authorizes
the Trustee to use Fidelity Brokerage Services, Inc. ("FBSI") to provide
brokerage services in connection with any purchase or sale of Sponsor Stock in
accordance with directions from Plan participants. FBSI shall execute such
directions directly or through its affiliate, National Financial Services
Company ("NFSC"). The provision of brokerage services shall be subject to the
following:
(i) As consideration for such brokerage services,
the Sponsor agrees that FBSI shall be entitled to remuneration under this
authorization provision in the amount of three and one-half cents ($.035)
commission on each share of Sponsor Stock. Any change in such remuneration
may be made only by a signed agreement between Sponsor and Trustee.
(ii) Following the procedures set forth in Department
of Labor Prohibited Transaction Class Exemption 86-128, the Trustee will
brokerage placement practices; (2) a copy of PTCE 86-128; and (3) a form
by which the Sponsor may terminate this authorization to use a broker
affiliated with the Trustee. The Trustee will provide the Sponsor with this
termination form annually, as well as an annual report which
summarizes all securities transaction-related charges incurred by the Plan,
and the Plan's annualized turnover rate.
(iii) Any successor organization of FBSI,
through reorganization, consolidation, merger or similar transactions, shall,
upon consummation of such transaction, become the successor broker in
accordance with the terms of this authorization provision.
(iv) The Trustee and FBSI shall continue to rely
on this authorization provision until notified to the contrary. The Sponsor
reserves the right to terminate this authorization upon thirty (30)days written
notice to FBSI (or its successor) and the Trustee, in accordance with Section 11
of this Agreement.
(v) Securities Law Reports. The Named Fiduciary
shall be responsible for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Sponsor Stock,
including, without limitation, any reports required under section 13 or 16
of the Securities Exchange Act of 1934, and shall immediately notify the
Trustee in writing of any requirement to stop purchases or sales of Sponsor
Stock pending the filing of any report. The Trustee shall provide to
the Named Fiduciary such information on the Trust's ownership of Sponsor Stock
as the Named Fiduciary may reasonably request in order to comply with Federal
or state securities laws.
(vi) Voting and Tender Offers. Notwithstanding any
other provision of this Agreement the provisions of this Section shall govern
the voting and tendering of Sponsor Stock. The Sponsor, after consultation
with the Trustee, shall provide and pay for all printing, mailing, tabulation
and other costs associated with the voting and tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock
prepares for an annual or special stockholders' meeting, the Sponsor shall
notify the Trustee 30 days in advance of the intended record and meeting dates.
The Sponsor shall cause a copy of all proxy solicitation materials to be sent
to the Trustee. Based on these materials the Trustee shall prepare a voting
instruction form. At the time of mailing of notice of each annual or special
stockholders' meeting of the issuer of the Sponsor Stock, the Sponsor shall
cause a copy of the notice and all proxy solicitation materials to be sent to
each Plan
8
participant with an interest in Sponsor Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional interest in the
number of full and fractional shares of Sponsor Stock credited to the
participant's accounts held in the Oklahoma Gas & Electric Common Stock Fund.
The Sponsor shall provide the Trustee with a copy of any materials provided
to the participants and shall certify to the Trustee that the materials have
been mailed or otherwise sent to participants.
(2) Each participant with an interest in
the Oklahoma Gas & Electric Common Stock Fund shall have the right, acting in
the capacity of a named fiduciary within the meaning of section 402 of ERISA,
to direct the Trustee as to the manner in which the Trustee is to vote
(including not to vote) that number of shares of Sponsor Stock reflecting such
participant's proportional interest in the Oklahoma Gas & Electric Common
Stock Fund (both vested and unvested). Directions from a participant to the
Trustee concerning the voting of Sponsor Stock shall be communicated in writing,
or by mailgram or similar means. These directions shall be held in confidence
by the Trustee and shall not be divulged to the Sponsor, or any officer or
employee thereof, or any other person. Upon its receipt of the directions,
the Trustee shall vote the shares of Sponsor Stock reflecting the participant's
proportional interest in the Oklahoma Gas & Electric Common Stock Fund as
directed by the participant. The Trustee shall not vote shares of Sponsor
Stock reflecting a participant's proportional interest in the Oklahoma Gas
& Electric Common Stock Fund for which it has received no direction from the
participant.
(3) The Trustee shall vote that number
of shares of Sponsor Stock not credited to participants' accounts which is
determined by multiplying the total number of shares not credited to
participants' accounts by a fraction of which the numerator is the number of
shares of Sponsor Stock reflecting such participants' proportional interest
in the Oklahoma Gas & Electric Common Stock Fund credited to participants'
accounts for which the Trustee received voting directions from participants
and of which the denominator is the total number of shares of Sponsor Stock
reflected in the proportional interests of all participants under the Plan.
The Trustee shall vote those shares of Sponsor Stock not credited to
participants' accounts which are to be voted by the Trustee pursuant to the
foregoing formula in the same proportion on each issue as it votes those shares
reflecting participants' proportional interest in the Oklahoma Gas & Electric
Common Stock Fund for which it received voting directions from participants.
The Trustee shall not vote the remaining shares of Sponsor Stock not credited
to participants' accounts.
(B) Tender Offers.
(1) Upon commencement of a tender offer for
any securities held in the Trust that are Sponsor Stock, the Sponsor shall
notify each Plan participant with an interest in such Sponsor Stock of the
tender offer and utilize its best efforts to timely distribute or cause to be
distributed to the participant the same information that is distributed to
shareholders of the issuer of Sponsor Stock in connection with the tender offer,
and, after consulting with the Trustee, shall provide and pay for a means by
which the participant may direct the Trustee whether or not to tender the
Sponsor Stock reflecting such participant's proportional interest in the
Oklahoma Gas & Electric Common Stock Fund (both vested and unvested). The
Sponsor shall provide the Trustee with a copy of any material provided to the
participants and shall certify to the Trustee that the materials have been
mailed or otherwise sent to participants.
(2) Each participant shall have the right
to direct the Trustee to tender or not to tender some or all of the shares of
Sponsor Stock reflecting such participant's proportional interest in the
Oklahoma Gas & Electric Common Stock Fund (both vested and unvested). Directions
from a participant to the Trustee concerning the tender of Sponsor Stock shall
be communicated in writing, or by mailgram or such similar means as is agreed
upon by the Trustee and the Sponsor under the preceding
9
paragraph. These directions shall be held in confidence by the Trustee and shall
not be divulged to the Sponsor, or any officer or employee thereof, or any other
person except to the extent that the consequences of such directions are
reflected in reports regularly communicated to any such persons in the ordinary
course of the performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Sponsor Stock as directed by the participant. The
Trustee shall not tender shares of Sponsor Stock reflecting a participant's
proportional interest in the Oklahoma Gas & Electric Common Stock Fund for which
it has received no direction from the participant.
(3) The Trustee shall tender that number
determined by multiplying the total number of shares of Sponsor Stock not
credited to participants' accounts by a fraction of which the numerator is the
number of shares of Sponsor Stock reflecting participants' proportional
interests in the Oklahoma Gas & Electric Common Stock Fund for which the Trustee
has received directions from participants to tender (which directions have not
been withdrawn as of the date of this determination) and of which the
denominator is the total number of shares of Sponsor Stock reflected in the
proportional interests of all participants under the Plan.
(4) A participant who has directed the
Trustee to tender some or all of the shares of Sponsor Stock reflecting the
participant's proportional interest in the Oklahoma Gas & Electric Common Stock
Fund may, at any time prior to the tender offer withdrawal date, direct the
Trustee to withdraw some or all of the tendered shares reflecting the
participant's proportional interest, and the Trustee shall withdraw the
directed number of shares from the tender offer prior to the tender offer
withdrawal deadline. Prior to the withdrawal deadline, if any shares of
Sponsor Stock not credited to participants' accounts have been tendered, the
Trustee shall redetermine the number of shares of Sponsor Stock that would
be tendered under Section 4(e)(vi)(B)(3) if the date of the foregoing
withdrawal were the date of determination, and withdraw from the tender offer
the number of shares of Sponsor Stock not credited to participants' accounts
necessary to reduce the amount of tendered Sponsor Stock not credited to
participants' accounts to the amount so redetermined. A participant shall not
be limited as to the number of directions to tender or withdraw that the
participant may give to the Trustee.
(5) A direction by a participant to the
Trustee to tender shares of Sponsor Stock reflecting the participant's
proportional interest in the Oklahoma Gas & Electric Common Stock Fund shall
not be considered a written election under the Plan by the participant to
withdraw, or have distributed, any or all of his withdrawable shares. The
Trustee shall credit to each proportional interest of the participant from
which the tendered shares were taken the proceeds received by the Trustee in
exchange for the shares of Sponsor Stock tendered from that interest. Pending
receipt of directions (through the Administrator) from the participant or the
Named Fiduciary, as provided in the Plan, as to the remaining investment
options in which the proceeds should be invested, the Trustee shall invest the
proceeds in the Mutual Fund described in Schedule "C".
(vi) Shares Credited. For all purposes of this
Section, the number of shares of Sponsor Stock deemed "credited" or "reflected"
to a participant's proportional interest shall be determined as of the last
preceding valuation date. The trade date is the date the transaction is valued.
(vii) General. With respect to all rights other
than the right to vote, the right to tender, and the right to withdraw
shares previously tendered, in the case of Sponsor Stock credited to a
participant's proportional interest in the Oklahoma Gas & Electric Common Stock
Fund, the Trustee shall follow the directions of the participant and if no such
directions are received, the directions of the Named Fiduciary. The Trustee
shall have no duty to solicit directions from participants. With respect to
all rights
10
other than the right to vote and the right to tender, in the case of Sponsor
Stock not credited to participants' accounts, the Trustee shall follow the
directions of the Named Fiduciary.
(viii) Conversion All provisions in this Section
4(e) shall also apply to any securities received as a result of a conversion
of Sponsor Stock.
(f) Notes. The Administrator shall act as the Trustee's agent
for participant loan notes and as such shall (i) collect and remit all principal
and interest payments to the Trustee and (ii) keep the proceeds of such loans
separate from the other assets of the Administrator and clearly identify such
assets as Plan assets. To originate a participant loan, the Plan participant
shall direct the Trustee as to the term and amount of the loan to be made from
the participant's individual account. Such directions shall be made by Plan
participants by use of the telephone exchange system maintained for such purpose
by the Trustee or its agent. The Trustee shall determine, based on the current
value of the participant's account on the date of the request and any guidelines
provided by the Sponsor, the amount available for the loan. Based on the monthly
interest rate supplied by the Sponsor in accordance with the terms of the Plan,
the Trustee shall advise the participant of such interest rate, as well as the
installment payment amounts. The Trustee shall distribute the loan note with the
proceed check to the participant and obtain spousal consent if applicable. The
Trustee also shall distribute truth-in-lending disclosure to the participant. To
facilitate recordkeeping, the Trustee may destroy the original of any promissory
note made in connection with a loan to a participant under the Plan, provided
that the Trustee first creates a duplicate by a photographic or optical scanning
or other process yielding a reasonable facsimile of the promissory note and the
Plan participant's signature thereon, which duplicate may be reduced or enlarged
in size from the actual size of the original promissory note. In any proceeding
to enforce payment of such promissory note, such a duplicate shall be treated as
the original for all purposes, and the Plan participant shall waive any defense
he might otherwise have to enforcement of the promissory note by reason of the
Trustee's failure to produce the original promissory note.
(g) Guaranteed Investment Contracts. Trust investments in
guaranteed investment contracts ("GICs") shall be subject to the following
limitations:
(i) Commingled Pool Investments. To the extent that
the Named Fiduciary selects as an investment option the Fidelity Managed Income
Portfolio of the Fidelity Group Trust for Employee Benefit Plans (the "Group
Trust"), the Sponsor hereby (A) agrees to the terms of the Group Trust and
adopts said terms as a part of this Agreement and (B) acknowledges that it has
received from the Trustee a copy of the Group Trust, the Declaration of Separate
Fund for the Fidelity Managed Income Portfolio of the Group Trust, and the
Circular for the Fidelity Managed Income Portfolio.
(h) Reliance of Trustee on Directions.
(i) The Trustee shall not be liable for any loss, or
by reason of any breach, which arises from any participant's exercise or
non-exercise of rights under this Section 4 over the assets in the participant's
accounts, except arising from the Trustee's negligence or bad faith.
(ii) The Trustee shall not be liable for any loss, or
by reason of any breach, which arises from the Named Fiduciary's exercise or
non-exercise of rights under this Section 4, unless it was clear on their face
that the actions to be taken under the Named Fiduciary's directions were
prohibited by the fiduciary duty rules of section 404(a) of ERISA or were
contrary to the terms of the Plan or this Agreement.
11
(i) Trustee Powers. The Trustee shall have the following
powers and authority:
(i) Subject to paragraphs (b), (c), (d) and (e) of
this Section 4, to sell, exchange, convey, transfer, or otherwise dispose of any
property held in the Trust, by private contract or at public auction. No person
dealing with the Trustee shall be bound to see to the application of the
purchase money or other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b) and (c) of this
Section 4, to invest in guaranteed investment contracts and short term
investments (including interest bearing accounts with the Trustee or money
market mutual funds advised by affiliates of the Trustee) and in collective
investment funds maintained by the Trustee for qualified plans, in which case
the provisions of each collective investment fund in which the Trust is invested
shall be deemed adopted by the Sponsor and the provisions thereof incorporated
as a part of this Trust as long as the fund remains exempt from taxation under
Sections 401(a) and 501(a) of the Internal Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held
as part of the Trust to be registered in the Trustee's own name, in the name of
one or more of its nominees, or in the Trustee's account with the Depository
Trust Company of New York and to hold any investments in bearer form, but the
books and records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iv) To keep that portion of the Trust in cash
or cash balances as the Named Fiduciary or Administrator may, from time to time,
deem to be in the best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any
and all documents of transfer or conveyance and to carry out the powers herein
granted.
(vi) With prior approval from the Sponsor, (i) to
settle, compromise, or submit to arbitration any claims, debts, or damages due
to or arising from the Trust; (ii) to commence or defend suits or legal or
administrative proceedings; to represent the Trust in all suits and legal and
administrative hearings; and (iii) to pay all reasonable expenses arising from
any such action, from the Trust if not paid by the Sponsor.
(vii) To employ legal, accounting, clerical, and
other assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from the
Trust if not paid by the Sponsor.
(viii) To do all other acts although not specifically
mentioned herein, as the Trustee may deem necessary to carry out any of the
foregoing powers and the purposes of the Trust.
Section 5. Recordkeeping and Administrative Services to Be Performed.
(a) General. The Trustee shall perform those recordkeeping and
administrative functions described in Schedule "A" attached hereto. These
recordkeeping and administrative functions shall be performed within the
framework of the Administrator's written directions regarding the Plan's
provisions, guidelines and interpretations.
(b) Accounts. The Trustee shall keep accurate accounts of all
investments, receipts, disbursements, and other transactions hereunder, and
shall report the value of the assets held in the Trust as
12
of the last day of each fiscal quarter of the Plan and, if not on the last day
of a fiscal quarter, the date on which the Trustee resigns or is removed as
provided in Section 8 of this Agreement or is terminated as provided in Section
10 (the "Reporting Date"). Within thirty (30) days following each Reporting Date
or within sixty (60) days in the case of a Reporting Date caused by the
resignation or removal of the Trustee, or the termination of this Agreement, the
Trustee shall file with the Administrator a written account setting forth all
investments, receipts, disbursements, and other transactions effected by the
Trustee between the Reporting Date and the prior Reporting Date, and setting
forth the value of the Trust as of the Reporting Date. Except as otherwise
required under ERISA, upon the expiration of six (6) months from the date of
filing such account with the Administrator, the Trustee shall have no liability
or further accountability to anyone with respect to the propriety of its acts or
transactions shown in such account, except with respect to such acts or
transactions as to which the Sponsor shall within such six (6) month period file
with the Trustee written objections.
(c) Inspection and Audit. All records generated by the Trustee in
accordance with paragraphs (a) and (b) shall be open to inspection and audit,
during the Trustee's regular business hours prior to the termination of this
Agreement, by the Administrator or any person designated by the Administrator.
Upon the resignation or removal of the Trustee or the termination of this
Agreement, the Trustee shall provide to the Administrator, at no expense to the
Sponsor, in the format regularly provided to the Administrator, a statement of
each participant's accounts as of the resignation, removal, or termination, and
the Trustee shall provide to the Administrator or the Plan's new recordkeeper
such further records as are reasonable, at the Sponsor's expense.
(d) Effect of Plan Amendment. A confirmation of the current qualified
status of the Plan is attached hereto as Schedule "F". The Trustee's provision
of the recordkeeping and administrative services set forth in this Section 5
shall be conditioned on the Sponsor delivering to the Trustee a copy of any
amendment to the Plan as soon as administratively feasible following the
amendment's adoption, with, if requested, an IRS determination letter or an
opinion of counsel substantially in the form of Schedule "F" covering such
amendment, and on the Administrator providing the Trustee on a timely basis with
all the information the Administrator reasonably deems necessary for the Trustee
to perform the recordkeeping and administrative services and such other
information as the Trustee may reasonably request.
(e) Returns, Reports and Information. The Administrator shall be
responsible for the preparation and filing of all returns, reports, and
information required of the Trust or Plan by law. The Trustee shall provide the
Administrator with such information as the Administrator may reasonably request
to make these filings. The Administrator shall also be responsible for making
any disclosures to Participants required by law, except such disclosures as may
be required under federal or state truth-in-lending laws with regard to
Participant loans.
Section 6. Compensation and Expenses. Within thirty (30) days of receipt of the
Trustee's ▇▇▇▇, which shall be computed and billed in accordance with Schedule
"B" attached hereto and made a part hereof, as amended from time to time, the
Sponsor shall send to the Trustee a payment in such amount or the Sponsor may
direct the Trustee to deduct such amount from participants' accounts. If there
is a dispute regarding the ▇▇▇▇ submitted by the Trustee, the Sponsor shall give
the Trustee reasonably prompt notice, the payment shall be suspended during the
dispute and both parties will use their best efforts to resolve the dispute
quickly. All expenses of the Trustee relating directly to the acquisition and
disposition of investments constituting part of the Trust, and all taxes of any
kind whatsoever that may be levied or assessed under existing or future laws
upon or in respect of the Trust or the income thereof, shall be a charge against
and paid from the appropriate Plan participants' accounts.
13
Section 7. Directions and Indemnification.
(a) Identity of Administrator and Named Fiduciary. The Trustee shall be
fully protected in relying on the fact that the Named Fiduciary and the
Administrator under the Plan are the individuals or persons named as such above
or such other individuals or persons as the Sponsor may notify the Trustee in
writing.
(b) Directions from Administrator. Whenever the Administrator provides
a direction to the Trustee, the Trustee shall not be liable for any loss, or by
reason of any breach, arising from the direction if the direction is contained
in a writing (or is oral and immediately confirmed in a writing) signed by any
individual whose name and signature have been submitted (and not withdrawn) in
writing to the Trustee by the Administrator in the form attached hereto as
Schedule "D", provided the Trustee reasonably believes the signature of the
individual to be genuine. Such direction may also be made via EDT in accordance
with procedures agreed to by the Administrator and the Trustee; provided,
however, that the Trustee shall be fully protected in relying on such direction
as if it were a direction made in writing by the Administrator. The Trustee
shall have no responsibility to ascertain any direction's (i) accuracy, (ii)
compliance with the terms of the Plan or any applicable law, or (iii) effect for
tax purposes or otherwise, unless it is clear on the direction's face that the
actions to be taken under the direction would be prohibited by the fiduciary
duty rules of section 404(a) of ERISA or would be contrary to the terms of the
Plan or this Agreement.
(c) Directions from Named Fiduciary. Whenever the Named Fiduciary or
Sponsor provides a direction to the Trustee, the Trustee shall not be liable for
any loss, or by reason of any breach, arising from the direction (i) if the
direction is contained in a writing (or is oral and immediately confirmed in a
writing) signed by any individual whose name and signature have been submitted
(and not withdrawn) in writing to the Trustee by the Named Fiduciary in the form
attached hereto as Schedule "E" and (ii) if the Trustee reasonably believes the
signature of the individual to be genuine, unless it is clear on the direction's
face that the actions to be taken under the direction would be prohibited by the
fiduciary duty rules of section 404(a) of ERISA or would be contrary to the
terms of the Plan or this Agreement.
(d) Co-Fiduciary Liability. In any other case, the Trustee shall not be
liable for any loss, or by reason of any breach, arising from any act or
omission of another fiduciary under the Plan except as provided in section
405(a) of ERISA.
(e) Indemnification. The Sponsor shall indemnify the Trustee against,
and hold the Trustee harmless from, any and all loss, damage, penalty,
liability, cost, and expense, including without limitation, reasonable
attorneys' fees and disbursements, that may be incurred by, imposed upon, or
asserted against the Trustee by reason of any claim, regulatory proceeding, or
litigation arising from any act done or omitted to be done by any individual or
person with respect to the Plan or Trust, excepting only any and all loss, etc.,
arising from the Trustee's negligence or bad faith.
(f) Survival. The provisions of this Section 7 shall survive the
termination of this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) Resignation. The Trustee may resign at any time upon sixty (60)
days' notice in writing to the Sponsor, unless a shorter period of notice is
agreed upon by the Sponsor.
14
(b) Removal. The Sponsor may remove the Trustee at any time upon sixty
(60) days' notice in writing to the Trustee, unless a shorter period of notice
is agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) Appointment. If the office of Trustee becomes vacant for any
reason, the Sponsor may in writing appoint a successor trustee under this
Agreement. The successor trustee shall have all of the rights, powers,
privileges, obligations, duties, liabilities, and immunities granted to the
Trustee under this Agreement. The successor trustee and predecessor trustee
shall not be liable for the acts or omissions of the other with respect to the
Trust.
(b) Acceptance. When the successor trustee accepts its appointment
under this Agreement, title to and possession of the Trust assets shall
immediately vest in the successor trustee without any further action on the part
of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably may
be requested in writing by the Sponsor or the successor trustee to vest title to
all Trust assets in the successor trustee or to deliver all Trust assets to the
successor trustee.
(c) Corporate Action. Any successor of the Trustee or successor
trustee, through sale or transfer of the business or trust department of the
Trustee or successor trustee, or through reorganization, consolidation, or
merger, or any similar transaction, shall, upon consummation of the transaction,
become the successor trustee under this Agreement.
Section 10. Termination. This Agreement may be terminated at any time by the
Sponsor upon sixty (60) days' notice in writing to the Trustee. On the date of
the termination of this Agreement, the Trustee shall forthwith transfer and
deliver to such individual or entity as the Sponsor shall designate, all cash
and assets then constituting the Trust. If, by the termination date, the Sponsor
has not notified the Trustee in writing as to whom the assets and cash are to be
transferred and delivered, the Trustee may bring an appropriate action or
proceeding for leave to deposit the assets and cash in a court of competent
jurisdiction. The Trustee shall be reimbursed by the Sponsor for all costs and
expenses of the action or proceeding including, without limitation, reasonable
attorneys' fees and disbursements.
Section 11. Resignation, Removal, and Termination Notices. All notices of
resignation, removal, or termination under this Agreement must be in writing and
mailed to the party to which the notice is being given by certified or
registered mail, return receipt requested, to the Sponsor c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Oklahoma Gas & Electric, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, and to the
Trustee c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇, Fidelity Investments, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other addresses as the parties have notified
each other of in the foregoing manner.
Section 12. Duration. This Trust shall continue in effect without limit as to
time, subject, however, to the provisions of this Agreement relating to
amendment, modification, and termination thereof.
Section 13. Amendment or Modification. This Agreement may be amended or modified
at any time and from time to time only by an instrument executed by both the
Sponsor and the Trustee. Notwithstanding the foregoing, to reflect increased
operating costs the Trustee may once each calendar year (not to commence before
November 30, 1996) amend Schedule "B" without the Sponsor's consent upon ninety
(90) days written notice to the Sponsor.
15
Section 14. General.
(a) Performance by Trustee, its Agents or Affiliates. The Sponsor
acknowledges and authorizes that the services to be provided under this
Agreement shall be provided by the Trustee, its agents or affiliates, including
Fidelity Investments Institutional Operations Company or its successor, and that
certain of such services may be provided pursuant to one or more other
contractual agreements or relationships.
(b) Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof.
(c) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and shall not be deemed in any
manner to modify, explain, expand or restrict any of the provisions of this
Agreement.
Section 15. Governing Law.
(a) Massachusetts Law Controls. The validity, construction, effect, and
administration of this Agreement shall be governed by and interpreted in
accordance with the banking laws of the Commonwealth of Massachusetts to the
extent they govern the activities of the Trustee and otherwise in accordance
with the laws of Oklahoma, except to the extent those laws are superseded under
section 514 of ERISA.
(b) Trust Agreement Controls. The Trustee is not a party to the
Plan, and in the event of any conflict between the provisions of the Plan
and the provisions of this Agreement, the provisions of this Agreement shall
control.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first above
written.
OKLAHOMA GAS & ELECTRIC
COMPANY
Attest: By:
--------------------- ---------------------
Secretary
FIDELITY MANAGEMENT TRUST
COMPANY
Attest: By:
---------------------- -------------------
Assistant Clerk Senior Vice President
17
Schedule "A"
RECORDKEEPING & ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of participant account and election percentages.
* Maintenance of five (5) plan investment options:
-Fidelity Managed Income Portfolio
-Fidelity Asset Manager
-Fidelity Asset Manager: Income
-Fidelity Asset Manager: Growth
-Oklahoma Gas & Electric Common Stock Fund
* Maintenance of six (6) money classifications:
-Tax-Deferred Basic
-Tax-Deferred Supplemental
-Non-Deferral Basic
-Non-Deferral Supplemental
-Company
-Pension Rollover
* Processing of mutual fund trades and Oklahoma Gas & Electric Common Stock Fund
trades.
The Trustee will provide only the recordkeeping and administrative services
set forth on this Schedule "A" and no others.
Processing
* Daily processing of contribution data.
* Daily processing of transfers and changes of future allocations.
* Daily processing of withdrawals.
Other
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* l099-Rs
* Participant Loans
* Performance of section 401(k) limitation testing upon request. In order to
obtain this service, the client shall be required to provide the information
identified in the Fidelity Discrimination Testing Package Guidelines.
18
* Employee communications describing available investment options, including
multimedia informational materials and group presentations.
* Daily processing in-service withdrawals via telephone due to specific
circumstances authorized by the Sponsor.
OKLAHOMA GAS & ELECTRIC FIDELITY MANAGEMENT TRUST COMPANY
COMPANY
By: By:
------------------ -------------------------
Senior Vice President
Date: Date:
---------------- -----------------------
19
Schedule "B"
FEE SCHEDULE
Annual Participant Fee: $12 per participant* per year
(Billed and payable quarterly) to the extent that assets managed
by Fidelity are equal to or less
than $32.1 million;
$10 per participant* per year to
the extent that assets managed by
Fidelity are equal to or less
than $35.8 million but greater
than $32.1 million; and
$8 per participant* per year to
the extent that assets managed
by Fidelity are equal to or less
than $39.4 million but greater
than $35.8 million.
Loan Fee Establishment fee of $35.00 per
loan; annual fee of $15.00 per
loan.
Return of Excess Fee $25.00 per participant, a
(due to failure of ADP one-time charge per calculation
and ACP Testing) and check generation.
Remote Access Fee (optional) $1,000 per year, plus a monthly
charge for TYMNET usage. A
one-time installation fee of
$1,500 will also be charged to
the Sponsor in the first year.
Other Fees: separate charges for optional use of remote access, ADP testing,
extraordinary expenses resulting from large numbers of simultaneous manual
transactions or from errors not caused by Fidelity, or for reports not
contemplated in this Agreement. The Administrator may withdraw reasonable
administrative fees from the Trust by written direction to the Trustee.
* This fee will be imposed pro rata for each calendar quarter, or any part
thereof, that it remains necessary to maintain a participant's account(s)
as part of the Plan's records, e.g., vested, deferred, forfeiture,
top-heavy and terminated participants who must remain on file through
calendar year-end for 1099-R reporting purposes.
Management Fee for Fidelity Employee
Benefit U.S. Government Reserves Portfolio: .42%.
20
Trustee Fees
To the extent that assets are invested in Sponsor Stock, .10% of such
assets in the Trust payable pro rata quarterly on the basis of such assets
as of the calendar quarter's last valuation date, subject to a minimum of
$10,000 and a maximum of $35,000 per year.
# Note: These fees have been negotiated and accepted based on current plan
assets of $129 million, current participation of 3400 participants and
projected net cash flows of $5.5 million per year. Fees will be subject to
revision if these Plan characteristics change significantly by either
falling below or exceeding current projected levels. Fees also have been
based on the use of up to six Fidelity Fund investment options, and such
fees will be subject to revision if additional investment options are added
or deleted.
OKLAHOMA GAS & ELECTRIC FIDELITY MANAGEMENT TRUST
COMPANY COMPANY
By: By:
----------------- ---------------------
Senior Vice President
Date: Date:
--------------- -------------------
21
Schedule "C"
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby directs the
Trustee that participants' individual accounts may be invested in the following
investment options:
-Fidelity Managed Income Portfolio
-Fidelity Asset Manager
-Fidelity Asset Manager: Income
-Fidelity Asset Manager: Growth
-Oklahoma Gas & Electric Common Stock Fund
The fund advised by Fidelity Management Trust Company referred to in
Section 4(c) shall be Fidelity Managed Income Portfolio.
OKLAHOMA GAS & ELECTRIC COMPANY
By:
----------------------------
Date
22
Schedule "D"
[Administrator's Letterhead]
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fidelity Investments Institutional Operations Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Name of Plan]
*** NOTE: This schedule should contain names and signatures for ALL
individuals who will be providing directions to Fidelity
representatives in connection with the Plan. Fidelity representatives
will be unable to accept directions from any individual whose name does
not appear on this schedule.***
Dear ▇▇. ▇▇▇▇▇▇▇▇:
This letter is sent to you in accordance with Section 7(b) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual], [name
of individual], and [name of individual], as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be fully protected
in relying. Only one such individual need provide any direction. The signature
of each designated individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or We] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[ADMINISTRATOR]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
23
Schedule "E"
[Named Fiduciary's Letterhead]
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fidelity Investments Institutional Operations Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[Name of Plan]
Dear ▇▇. ▇▇▇▇▇▇▇▇:
This letter is sent to you in accordance with Section 7(c) of the Trust
Agreement, dated as of [date], between [name of Plan Sponsor] and Fidelity
Management Trust Company. [I or We] hereby designate [name of individual], [name
of individual], and [name of individual], as the individuals who may provide
directions upon which Fidelity Management Trust Company shall be fully protected
in relying. Only one such individual need provide any direction. The signature
of each designated individual is set forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until [I or We] deliver to you written notice of the termination of
authority of a designated individual.
Very truly yours,
[NAMED FIDUCIARY]
By
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
[signature of designated individual]
[name of designated individual]
24
Schedule "F"
[Law Firm Letterhead]
▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fidelity Institutional Retirement
Services Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[Name of Plan]
Dear ▇▇. ▇▇▇▇▇▇▇▇:
In accordance with your request, this letter sets forth our opinion
with respect to the qualified status under section 401(a) of the Internal
Revenue Code of 1986 (including amendments made by the Employee Retirement
Income Security Act of 1974) (the "Code"), of the [name of plan], as amended to
the date of this letter (the "Plan").
The material facts regarding the Plan as we understand them are as
follows. The most recent favorable determination letter as to the Plan's
qualified status under section 401(a) of the Code was issued by the [location of
Key District] District Director of the Internal Revenue Service and was dated
[date] (copy enclosed). The version of the Plan submitted by [name of company]
(the "Company") for the District Director's review in connection with this
determination letter did not contain amendments made effective as of [date].
These amendments, among other matters, [brief description of amendments].
[Subsequent amendments were made on [date] to amend the provisions dealing with
[brief description of amendments].]
The Company has informed us that it intends to submit the Plan to the
[location of Key District] District Director of the Internal Revenue Service and
to request from him a favorable determination letter as to the Plan's qualified
status under section 401(a) of the Code. The Company may have to make some
modifications to the Plan at the request of the Internal Revenue Service in
order to obtain this favorable determination letter, but we do not expect any of
these modifications to be material. The Company has informed us that it will
make these modifications.
Based on the foregoing statements of the Company and our review of the
provisions of the Plan, it is our opinion that the Internal Revenue Service will
issue a favorable determination letter as to the qualified status of the Plan,
as modified at the request of the Internal Revenue Service, under section 401(a)
of the Code, subject to the customary condition that continued qualification of
the Plan, as modified, will depend on its effect in operation.
[Furthermore, in that the assets are in part invested in common stock
issued by the Company or an affiliate, it is our opinion that the Plan is an
"eligible individual account plan" (as defined under Section 407(d)(3) of ERISA)
and that the shares of common stock of the Company held and to be purchased
under the Plan are "qualifying employer securities" (as defined under Section
407(d)(5) of ERISA). Finally, it is our opinion that interests in the Plan are
not required to be registered under the Securities Act of 1933, as amended, or,
if such registration is required, that such interests are effectively registered
under said Act.]
Sincerely,
[name of law firm]
By [signature]
[name of partner]
25
Schedule "G"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by Fidelity
Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) on each business
day. A "business day" is any day on which the New York Stock Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at its
discretion.
Mutual Funds, Sponsor Stock Fund and Fidelity
Managed Income Portfolio
I. Exchanges Between Mutual Funds, Sponsor Stock Fund and
Fidelity Managed Income Portfolio
Participants may call on any business day to exchange
between mutual funds, Sponsor Stock and Fidelity Managed
Income Portfolio. If the request is received before 4:00
p.m. (EST), it will receive that day's trade date. Calls
received after 4:00 p.m. (EST) will be processed on a next
day basis.
II. Exchange Restrictions
It is the intention of the Trustee to maintain a sufficient
liquidity reserve in the Sponsor Stock Fund to meet
exchange, redemption or withdrawal requests. However, if
there is insufficient liquidity in the Sponsor Stock Fund to
allow for same day exchanges, the Trustee will be required
to sell shares of Sponsor Stock to meet the exchange
requests. If this occurs, the subsequent exchange into other
Plan investment options will take place five (5) business
days later. This allows for settlement of the stock trade at
the custodian and the corresponding transfer to Fidelity.
OKLAHOMA GAS & ELECTRIC COMPANY
By:
-------------------------
Date
26
EXHIBIT
-------
FIRST AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
OKLAHOMA GAS & ELECTRIC COMPANY
THIS FIRST AMENDMENT, dated as of the first day of February, 1995, by
and between Fidelity Management Trust Company (the "Trustee") and Oklahoma Gas &
Electric Company (the "Sponsor"):
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated November 30, 1993 with regard to the Oklahoma Gas & Electric
Company Retirement Savings Plan (the "Plan"); and
NOW THEREFORE, in consideration of the above premises, the Trustee and
the Sponsor hereby amend the trust agreement as provided for in Section 13
thereof by:
(1) Replacing all references to Fidelity Employee Benefit U.S.
Government Reserves Portfolio with the following:
Fidelity Institutional Cash Portfolios; Money Market
Portfolio; Class A or such other Mutual Fund or commingled
money market pool as agreed to by the Sponsor and Trustee.
(2) Amending and adding the following mutual funds to the
"investment options" portions of Schedules "A" and "C", as
follows:
Fidelity Contrafund
Fidelity Balanced Fund
Fidelity Blue Chip Growth Fund
(3) Amending Schedule "A" by inserting a new bullet under
"Other," to read as follows:
The Trustee shall provide coupon books to retired,
terminated, or leave of absence employees, as directed by
the Sponsor, for outstanding loan balances.
(4) Amending Schedule "B" to reflect the addition of the Coupon
Books Fee, to read as follows:
Coupon Books Fee $5.00 per coupon book.
27
SECOND AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
OKLAHOMA GAS & ELECTRIC COMPANY
THIS SECOND AMENDMENT, dated as of the first day of September, 1995 by
and between Fidelity Management Trust Company (the "Trustee") and Oklahoma Gas &
Electric Company (the "Sponsor"):
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated November 30, 1993, with regard to the Oklahoma Gas & Electric
Company Retirement Savings Plan (the "Plan"); and
WHEREAS, the Trustee and the Sponsor now desire to amend said trust
agreement as provided for in Section 13 thereof,
NOW THEREFORE, in consideration of the above premises the Trustee and
the Sponsor hereby amend the trust agreement by:
(1) Amending and restating the "investment options" portion of
Schedules "A" and "C", to read as follows:
Oklahoma Gas & Electric Common Stock Fund
Fidelity Contrafund
Fidelity Growth & Income Portfolio
Fidelity Blue Chip Growth Fund
Fidelity Asset Manager
Fidelity Asset Manager: Growth
Fidelity Asset Manager: Income
Fidelity Managed Income Portfolio
28
AMENDMENT NUMBER THREE
TO THE
OKLAHOMA GAS AND ELECTRIC COMPANY
RETIREMENT SAVINGS PLAN TRUST
Dated as of November 30, 1993
-----------------------------
Oklahoma Gas and Electric Company, an Oklahoma corporation (the
"Company"), in accordance with the authority contained in Section 13 of the
Oklahoma Gas and Electric Company Employees' Retirement Savings Plan Trust (the
"Trust"), hereby amends the Trust, effective as of the effective date of the
reorganization of the Company and its affiliates (whereby the Company will
become a wholly-owned subsidiary of OGE Energy Corp.), as follows:
1. The Oklahoma Gas and Electric Company Employees' Retirement
Savings Plan Trust (the "Trust") is hereby renamed the OGE
Energy Corp. Employees' Retirement Savings Plan Trust.
2. The reference to "Oklahoma Gas and Electric Company
Retirement Savings Plan Trust" contained in Section 1 of the
Trust is hereby amended to read "OGE Energy Corp. Employees'
Retirement Savings Plan Trust."
3. The references to "Oklahoma Gas and Electric Company"
contained in the introduction to the Trust and in Section 11
of the Trust are hereby amended to read "OGE Energy Corp."
4. The references to "Oklahoma Gas and Electric Company Common
Stock Fund" in Section 4(e), Schedule A and Schedule C of
the Trust are hereby amended to read "OGE Energy Corp.
Common Stock Fund."
5. The name "▇▇▇▇▇▇ ▇▇▇▇▇▇" in Section 11 of the Trust is
hereby replaced with the name "▇▇▇▇▇▇ ▇. ▇▇▇▇."
29
