Exhibit 10.22


 


The AES
Corporation

2004

Restoration Supplemental Retirement Plan


 





















 


The AES
Corporation


 


2004

Restoration Supplemental Retirement Plan


 


Article I.
– General Provisions


 


1.1                                 Establishment
and Purpose


 


The AES Corporation hereby establishes The AES
Restoration Supplemental Retirement Plan (the “Plan”) on the terms and
conditions hereinafter set forth.   The
Plan is designed primarily for the purpose of providing benefits for a select
group of management and highly compensated employees of the Company and its
Subsidiaries and is intended to qualify as a “top hat” plan under Sections
201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”).


 


1.2                                 Definitions


 


“Bonus Compensation”
means, as determined in the sole discretion of the Committee, such annual bonus
or other bonus Compensation paid to a Participant.


 


“Beneficiary” means the person or persons designated by a
Participant as his beneficiary hereunder in accordance with the provisions of Article V.


 


“Board” means the
Board of Directors of the Company.


 


“Change in Control” means
the occurrence of one or more of the following events: (i) any sale,
lease, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the Company to any
person or group (as that term is used in Section 13(d)(3) of the
Exchange Act) of Persons; (ii) a Person or group (as so defined) of
Persons (other than management of the Company on the date of the adoption of
this Plan or their affiliates) shall have become the beneficial owner of more
than 35% of the outstanding voting stock of the Company; or (iii) during
any one-year period, individuals who at the beginning of such period constitute
the Board (together with any new director whose election or nomination was
approved by a majority of the directors then in office who were either
directors at the beginning of such period or who were previously so approved,
but excluding under all circumstances any such new director whose initial
assumption of office occurs as a result of an actual or threatened election
contest or other actual or threatened solicitation of proxies or consents by or
on behalf of any individual, corporation, partnership or other entity or group)
cease to constitute a majority of the Board of Directors.


 


“Code” means the
Internal Revenue Code of 1986, as amended, and any successor code or law.


 


“Committee” means
the Compensation Committee of the Board, or such other committee designated by
the Board to discharge the duties of the Committee hereunder.


 


“Company” means The
AES Corporation, a Delaware Corporation,
or any successor thereto.


 


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“Company Match”
means the employer matching contributions contributed to the Participant’s
account under the Qualified Plan for the Plan Year.


 


“Compensation” shall,
unless otherwise determined by the Committee, have the meaning assigned thereto
in the Qualified Plan (determined without regard to any amounts voluntarily
deferred under the terms of this Plan to the extent necessary to carry out the
terms and intent of this Plan).


 


“Deferral Account”
means the bookkeeping account(s) established on behalf of a Participant to
track the Participant’s deferred compensation benefits under the Plan.


 


“Deferral Election”
means an election by a Participant to
defer Compensation in accordance with the provisions of Section 2.2 of the
Plan.


 


“Deferrals” shall
have the meaning ascribed thereto in Section 2.2(b) hereof.


 


“Disability” means
a Participant: (1) is unable to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to
last for a continuous period of not less than 12 months; or (2) is, by
reason of any medically determinable physical or mental impairment which can be
expected to result in death or last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than 3
months under an accident and health plan of the Company or its Subsidiaries.


 


“Disability
Date” means the date
on which a Participant’s employment terminates due to Disability.


 


“Distribution Date” means the
date on which distributions to a Participant are to commence.  Distribution Dates are determined according
to each Participant’s Deferral Account elections or as otherwise provided under
the terms of the Plan.


 


“Distribution Option” means the
form in which payments to a Plan Participant are to be paid.  Distribution Options are determined according
to each Participant’s Deferral Account elections or as otherwise provided under
the terms of the Plan.


 


“Earnings” shall
have the meaning ascribed thereto in Section 2.4(b) of the Plan.


 


“Insolvency” means,
with respect to the Company: (1) an adjudication of bankruptcy; (2) the
assignment for the benefit of creditors of or by the Company; (3) a
material part of all of the property of the Company becomes subject to the
control and direction of a receiver, which receivership is not dismissed within
sixty (60) days of such receiver’s appointment; or (4) the filing by the
Company of a petition for relief under any federal or other bankruptcy or other
insolvency law or for an arrangement with creditors.


 


“Key Employee”
means a key employee (as defined in Section 416(i) of the Code
without regard to paragraph (5) thereof) of the Company.


 


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“Participant” means any employee
who has satisfied the eligibility requirements set forth in Section 1.4 of
the Plan.


 


“Person” means
any individual, corporation, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.


 


“Plan Year” means
the twelve-month period beginning each January 1.


 


“Profit Sharing Contribution”
means the annual discretionary employer profit sharing contribution allocated
to the accounts of participants under the Qualified Plan for a Plan year.


 


“Qualified Plan”
means The AES Corporation Profit Sharing and Stock Ownership Plan, as amended,
or such other plan as designated by the Committee.


 


“Retirement” means
a Participant’s termination of employment with the Company for any reason on or
after the date such Participant attains age fifty-nine and a half (591⁄2).


 


“Subsidiary” means any entity in
which the Company owns or otherwise controls, directly or indirectly, stock or
other ownership interests having the voting power to elect a majority of the
board of directors, or other governing group having functions similar to a
board of directors, as determined by the Committee.


 


“Unforeseeable Emergency”
means a severe financial hardship
to the Participant resulting from an illness or accident of the Participant,
the Participant’s spouse, or a dependent (as determined under Section 152(a) of
the Code) of the Participant, loss of the Participant’s property due to
casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of the Participant.


 


1.3                                 Administration.


 


(a)                                  The
Committee shall administer the Plan and have sole and absolute authority and
discretion to decide all matters relating to the administration of the Plan,
including, without limitation, determining the rights and status of
Participants or their beneficiaries under the Plan.  The Committee is authorized to interpret the
Plan, to adopt administrative rules, regulations, and guidelines for the Plan,
and may correct any defect, supply any omission or reconcile any inconsistency
or conflict in the Plan.  The Committee’s
determinations under the Plan need not be uniform among all Participants, or
classes or categories of Participants, and may be applied to such Participants,
or classes or categories of Participants, as the Committee, in its sole and
absolute discretion, considers necessary, appropriate or desirable.  All determinations by the Committee shall be
final, conclusive and binding on the Company, the Participant and any and all
interested parties.


 


(b)                                 The
Committee may delegate such of its powers and authority under the Plan to the
Company’s officers as it deems necessary or appropriate.  In the event of such delegation, all
references to the Committee in this Plan shall be deemed references to such
officers as it relates to those aspects of the Plan that have been delegated.


 


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(c)                                  Any action
taken by the Committee with respect to the rights or benefits under the Plan of
any Participant shall be revocable by the Committee as to payments not yet made
to such person, and acceptance of any deferred compensation benefits under the
Plan constitutes acceptance of and agreement to the Committee’s or the Company’s
making any appropriate adjustments in future payments to such person (or to
recover from such person) any excess payment or underpayment previously made to
him.


 


(d)                                 Notwithstanding
any provision of the Plan to the contrary, if any benefit provided under this
Plan is subject to the provisions of Section 409A of the Code and the
regulations issued thereunder, the provisions of the Plan shall be
administered, interpreted and construed in a manner necessary to comply with Section 409A
and the regulations issued thereunder (or disregarded to the extent such provision
cannot be so administered, interpreted or construed).


 


1.4                                 Eligibility
and Participation.


 


(a)                                  Participation
in the Plan is limited to officers and key management employees of the Company
and its Subsidiaries who are designated by the Committee as eligible to
participate in the Plan and who are within the category of a select group of
management and highly compensated employees as referred to in Sections 201(2),
301(a)(3) and 401(a)(1) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”).


 


(b)                                 A
Participant shall cease to be a Participant upon receiving payment for the full
amount of benefits to which the Participant is entitled under the Plan.  If the Committee determines a Participant is
no longer eligible to actively participate in the Plan, he shall not be
entitled to make Deferral Elections or accrue additional supplemental matching
contributions or supplemental profit sharing awards under Article II of
the Plan.


 


Article II.
– Supplemental Retirement Benefits


 


2.1                                 Supplemental
Profit Sharing Contribution.


 


(a)                                  In the event
that the Profit Sharing Contribution for a Participant under the Qualified Plan
is limited by the application of Section 401(a)(17) or Section 415
for any Plan Year, the Participant shall receive a supplemental profit sharing
award under this Plan for such Plan year equal to the difference between: (i) the
Profit Sharing Contribution actually made to the Participant; and (ii) the
Profit Sharing Contribution that would have been made to the Qualified Plan on behalf
of such Participant for such Plan Year if the Section 401(a)(17)
limitations and the Section 415 limitations were not contained
therein.  Supplemental profit sharing
awards shall be credited to the Participant’s Retirement Account established
and maintained under the Plan.


 


(b)                                 The award
for any Plan year shall be deemed to be made as of the day the Profit Sharing
Contribution is made under the Qualified Plan, and shall be deemed invested in
Company stock.  Supplemental profit
sharing awards are not required to remain invested in Company stock and a
Participant may subsequently change his investment designations as permitted
under Section 2.4(b).


 


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2.2                                 Supplemental
Deferral Elections.


 


(a)                                  Each Participant
shall be eligible to elect to defer Compensation under the Plan with respect to
a Plan Year in accordance with the terms of the Plan and the rules and
procedures established by the Committee. 
Deferral Elections under the Plan are entirely voluntary and are irrevocable once made.


 


(b)                                 A
Participant may make a Deferral Election by filing a written or electronic
election with the Committee directing the Company to reduce the Participant’s
Compensation and to credit the amount of any such reduction (the “Deferrals”)
to the Deferral Accounts established and maintained for such Participant
pursuant to Section 2.4 of the Plan. 
Deferral Elections hereunder shall be made in accordance with the terms
of the Plan and the rules established by the Committee, and must be filed
not later than December 31 of the calendar year preceding the Plan Year to
which the election relates (or at such other times as may be established by the
Committee).  Notwithstanding, for the
first Plan Year in which a Participant is eligible to participate in the Plan,
a Participant’s initial Deferral Election may be made within thirty (30) days
after the date the Participant becomes eligible to participate in the Plan and
shall apply only to Compensation for services performed after the date of such
election.  Unless otherwise determined by
the Committee, a separate
Deferral Election must be filed each Plan Year.


 


(c)                                  Deferrals
shall be credited to each Participant’s Deferral Accounts as of such time or
times determined by the Committee; provided, however, that Deferrals shall be
credited to each Participant’s Deferral Accounts not later than thirty (30)
days after the date on which such Compensation would have otherwise been
paid.  Deferrals shall be deemed to be
invested in accordance with a Participant’s investment designations as
permitted under Section 2.4(b).


 


(d)                                 Unless
otherwise determined by the Committee, a Participant may elect to defer up to
50% of Compensation (exclusive of Bonus Compensation) and up to 80% of Bonus
Compensation paid to the Participant.


 


(e)                                  Notwithstanding
the foregoing and unless otherwise determined by the Committee, a Deferral
Election shall automatically terminate on the earliest to occur of: (1) the
termination of a Participant’s employment for any reason; (2) the
Insolvency of the Company; (3) the Committee’s determination that the
Participant is no longer eligible to participate in the Plan; (4) the
termination or discontinuance of the Plan; or (5) a Change in Control.


 


2.3                                 Supplemental
Company Matching Awards.


 


(a)                                  With respect
to each Plan Year and to the extent provided under this Section 2.3, the
Company shall annually credit a supplemental matching contribution (“Supplemental
Match”) to each eligible Participant’s Deferral Accounts.  To be eligible for a Supplemental Match, a
Participant must have made a Deferral Election for the Plan Year and be
employed on December 31st of the Plan Year (or have terminated during the
Plan Year due to Retirement, death or Disability).


 


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(b)                                 The amount
of the Supplemental Match shall be equal to: (i) the Company Match that
would have been awarded under the Qualified Plan, taking into account the
Participant’s Deferral Election and the maximum percentage of Compensation for
matching awards permitted under the Qualified Plan, if the Participant’s
Compensation and elective contributions to the Qualified Plan were not subject
to the Section 401(a)(17) and 402(g) limitations under the Qualified
Plan; less (ii) the maximum Company Match available for award to the
Participant under the Qualified Plan.


 


(c)                                  The
Supplemental Match will be allocated to the Participant’s Deferral Accounts in
the same proportion as the Participant’s Deferrals are allocated among the
Participant’s Deferral Accounts and shall be deemed invested in Company
stock.  Supplemental Matching
contributions are not required to remain invested in Company stock and a
Participant may subsequently change his investment designations as permitted
under Section 2.4(b).


 


2.4                                 Deferral
Accounts/Earnings


 


(a)                                  Unless
otherwise determined by the Committee, the Company shall maintain on behalf of
each Participant as many as three (3) separate Deferral Accounts which
accounts shall be designated Special Purpose Account #1, Special Purpose
Account #2 and Retirement Account.  A
Participant may elect to allocate his Deferrals among such Deferral Accounts
and may have a different Distribution Date and Distribution Option for such
Deferral Accounts as provided under Article III.


 


(b)                                 The Participant’s
Deferral Account shall be adjusted by an amount equal to the amount that would
have been earned (or lost) if the amounts deferred under this Plan had been
invested in hypothetical investments designated by the Participant from time to
time, based on a list of hypothetical investments provided by the Committee
from time to time (such hypothetical earnings or losses shall be referred to as
“Earnings”).  The Participant shall
designate the investments used to measure Earnings from the list of authorized
investments provided by the Committee by completing the appropriate form (or
electronically via the Plan’s website) or in such other manner as the Committee
may designate from time to time.  The
Participant may change such designations at such times as are permitted by the
Committee, provided that the Participant shall be entitled to change such
designations at least quarterly. 
Earnings shall be credited to the Participant’s Deferral Accounts at
least annually (or more frequently at the discretion of the Company).  Earnings shall be credited to Deferral
Accounts until all payments with respect to such account have been made under
this Plan.  Neither the Company nor the
Committee shall act as a guarantor, or be liable or otherwise responsible for
the investment performance of the designated investments (including any losses
sustained by a Participant) with respect to a Participant’s Deferral Accounts.


 


(c)                                  Each
Participant shall at all times be 100% vested in his Deferral Accounts and the
Earnings thereon.


 


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Article III. – Distributions


 


3.1                                 Distribution Dates.


 


(a)                                  Distribution
Dates shall be established and determined in accordance with the Participant’s
Deferral Account elections. 
Distributions from Special Purpose Accounts shall be paid annually
commencing on or about February 1 of the year following the year
designated by the Participant as his Distribution Date.  Distributions from Retirement Accounts are
payable on or about February 1 of the year following a Participant’s
Retirement.  Notwithstanding, a
Distribution Date must be on or before February 1 of the year following
the calendar year in which the Participant obtains age 70.


 


(b)                                 Notwithstanding
the foregoing or any Plan provision to the contrary, distributions to Key
Employees upon separation from service (including termination and Retirement)
may not be made before the date that is 6 months after the date of separation
from service (or, if earlier, the date of death of the employee).


 


3.2                                 Distribution
Option/Manner of Payment.


 


The Distribution Option for Deferral Accounts shall be
determined in accordance with such election procedures as are established by
the Committee and distributions shall, at the Participant’s option, be paid in
the form of a lump sum or in annual installments over a period of 2-to-15
years; provided, however, that the Distribution Option must be established at
the time of initial deferral.  All
payments under the Plan shall be made in cash.


 


3.3                                 Modification
of Distribution Elections.


 


(a)                                  A
Participant has the right to change any Distribution Date or Distribution
Option associated with a Special Purpose Account previously designated by the
Participant pursuant to this Article III; provided,
however, that: (1) any new Distribution Date must be later in
time than the Distribution Date previously designated; (2) all payments
that otherwise would have begun on the Distribution Date previously designated
must, after such change, begin on the new Distribution Date; (3) the new
Distribution Option can extend, but not accelerate payments; (4) the
Participant must file an election designating the new Distribution Date and
Distribution Option not later than one year prior to the Distribution Date
previously designated; and (5) the new election must also provide that the
new Distribution Date be a minimum of five years later than the existing
Distribution Date.  Any such election
shall be made in accordance with such rules and procedures as are
established by the Committee and shall not take effect for at least twelve (12)
months after the date on which such election is made


 


(b)                                 A
Participant cannot change the Distribution Option associated with his
Retirement Account originally designated pursuant to Section 3.2.  The Distribution Date for Retirement Accounts
must remain payable on or about February 1 of the year following a
Participant’s Retirement.


 


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(c)                                  A
Participant cannot postpone the commencement of distributions beyond February 1
of the year following the calendar year in which the Participant obtains age
70.


 


3.4                                 Termination.


 


Notwithstanding the foregoing provisions, in the event
a Participant’s employment terminates for any reason (other than death) prior
to the Participant reaching Retirement eligibility, the Participant will
receive a lump sum payment of all amounts credited to the Participant’s
Deferral Accounts.  Such payments will be
made as soon as administratively practicable following such termination,
subject to the rules applicable to Key Employees.


 


3.5                                 Unforeseeable
Emergency.


 


The Committee may, upon request of the Participant,
cause to be paid to such Participant an amount equal to all or any part of the
amounts credited to such Participant’s Deferral Accounts if the Committee
determines, in its absolute discretion based on such reasonable evidence that
it shall require, that such a payment or payments is necessary for the purpose
of alleviating the consequences of an Unforeseeable Emergency occurring with
respect to the Participant.  The amounts
distributed with respect to an Unforeseeable Emergency may not exceed the
amount necessary to satisfy the emergency plus amounts necessary to pay taxes
on the distribution, after taking into account the extent to which the hardship
is or may be relieved through reimbursement or compensation by insurance or
otherwise or by liquidation of the Participant’s assets (to the extent
liquidation would not itself cause severe financial hardship).


 


3.6                                 Change in
Control.


 


Notwithstanding the foregoing provisions, upon a
Change in Control the Participant will receive a lump sum payment of all of the
amounts credited to the Participant’s Deferral Accounts.  Such payment will be paid in a lump sum
within thirty (30) days of the Change in Control.


 


3.7                                 Death.


 


The Beneficiary or Beneficiaries of a Participant
shall be entitled to receive the unpaid balance of the Participant’s Deferral
Accounts to which the Participant was entitled at his death, payable according
to the Participant’s elections, if the Participant dies on or after age
591⁄2.  In the event of a Participant’s
death prior to obtaining Retirement eligibility, the value of the Participant’s
Deferral Accounts will be paid to the Participant’s beneficiary in a lump sum
as soon as administratively practicable. 
If the Beneficiary is the Participant’s estate, then the unpaid balance
of the Participant’s Deferral Accounts will be paid in a lump sum to the
Participant’s estate as soon as administratively practicable (regardless of
whether the Participant obtained Retirement age).  The Participant shall designate his
Beneficiary in accordance with the provisions of Article V.


 


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Article IV.
– Funding By Company


 


4.1                                 Unsecured
Obligation of Company.


 


(a)                                  Any benefit
payable pursuant to this Plan shall be paid from the general assets of the
Company.  Nothing contained in this Plan
and no action taken pursuant to the provisions of this Plan shall create a
trust of any kind or a fiduciary relationship between any Participant (or any
other interested person) and the Company or the Committee, or require the
Company to maintain or set aside any specific funds for the purpose of paying
any benefit hereunder.  To the extent
that a Participant or any other person acquires a right to receive payments
from the Company under this Plan, such right shall be no greater than the right
of any unsecured general creditor of the Company.


 


(b)                                 If
the Company maintains a separate fund or makes specific investments, including
the purchase of insurance insuring the life of the a
Participant, to assure its ability to pay any benefits due under this
Plan, neither the Participant nor the Participant’s beneficiary shall have any
legal or equitable ownership interest in, or lien on, such fund, policy,
investment or any other asset of the Company. 
The Company, in its sole discretion, may determine the exact nature and
method of informal funding (if any) of the obligations under this Plan.  If the Company elects to maintain a separate
fund or makes specific investments to fund its
obligations under this Plan, the Company reserves the right, in its sole
discretion, to terminate such method of funding at any time, in whole or in
part.


 


4.2                                 Cooperation
of Participant.


 


If the Company, in its sole
discretion, elects to invest in a life insurance, disability or annuity policy
on the life of Participant to assist it with the informal funding of its
obligations under this Plan, Participant shall assist the Company, from time to
time, promptly upon the request of the Company, in obtaining such insurance
policy by supplying any information necessary to obtain such policy as well as
submitting to any physical examinations required therefore.  The Company shall be responsible for the
payment of all premiums with respect to any whole life, variable, or universal
life insurance policy purchased in connection with this Plan unless otherwise
expressly agreed.


 


Article V.
– Beneficiaries


 


5.1                                 Beneficiary
Designations.


 


A designation of a Beneficiary
hereunder may be made only by an instrument (in form acceptable to the
Committee) signed by the Participant and filed with the Committee prior to the
Participant’s death.  In the absence of
such a designation and at any other time when there is no existing Beneficiary
designated hereunder, the unpaid value of the Participant’s Deferral
Accounts to which the Participant was entitled at his death shall be distributed to the Participant’s
estate.  A Beneficiary who dies or which
ceases to exist shall not be entitled to any part of any payment thereafter to
be made to the Participant’s Beneficiary unless the Participant’s designation
specifically provides to the contrary.  If two or more persons designated
as a Participant’s Beneficiary are in existence with respect to a single
Deferred Compensation Benefit, the amount of any payment to the Beneficiary


 


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under this Plan shall be
divided equally among such persons, unless the Participant’s designation
specifically provides to the contrary. 
The Beneficiary Designations must be the same for all Deferral Accounts
under the Plan.


 


5.2                                 Change in
Beneficiary.


 


A Participant may, at any
time and from time to time, change a Beneficiary designation hereunder without
the consent of any existing Beneficiary or any other person. Any change in
Beneficiary shall be made only by an instrument (in form acceptable to the
Committee) signed by the Participant, and any change shall be effective only if
received by the Committee prior to the death of the Participant.


 


Article VI.
– Claims Procedures


 


6.1                                 Claims for
Benefits.


 


The Committee shall determine the rights of any
Participant to any deferred compensation benefits hereunder.  Any Participant who believes that he has not
received the deferred compensation benefits to which he is entitled under the
Plan may file a claim in writing with the Committee.  The Committee shall, no later than 90 days
after the receipt of a claim (plus an additional period of 90 days if required
for processing, provided that notice of the extension of time is given to the
claimant within the first 90-day period), either allow or deny the claim in
writing.  If a claimant does not receive
written notice of the Committee’s decision on his claim within the above-mentioned
period, the claim shall be deemed to have been denied in full.


 


A denial of a claim by the Committee, wholly or
partially, shall be written in a manner calculated to be understood by the
claimant and shall include:


 


(a)                                  the specific
reasons for the denial;


 


(b)                                 specific
reference to pertinent Plan provisions on which the denial is based;


 


(c)                                  a
description of any additional material or information necessary for the
claimant to perfect the claim and an explanation of why such material or information
is necessary; and


 


(d)                                 an
explanation of the claim review procedure and the time limits applicable to
such procedures, including a statement of the claimant’s right to bring a civil
action under Section 502(a) of ERISA.


 


6.2                                 Appeal
Provisions.


 


A claimant whose claim is denied (or his duly
authorized representative) may within 60 days after receipt of denial of a
claim file with the Committee a written request for a review of such
claim.  If the claimant does not file a
request for review of his claim within such 60-day period, the claimant shall
be deemed to have acquiesced in the original decision of the Committee on his
claim, the decision shall become final and the claimant will not be entitled to
bring a civil action under Section 502(a) of


 


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ERISA..  If such
an appeal is so filed within such 60-day period, the Company (or its delegate)
shall conduct a full and fair review of such claim.  During such review, the claimant (or the
claimant’s authorized representative) shall be given the opportunity to review
all documents that are pertinent to his claim and to submit issues and comments
in writing.


 


The Company shall mail or deliver to the claimant a
written decision on the matter based on the facts and the pertinent provisions
of the Plan within 60 days after the receipt of the request for review (unless
special circumstances require an extension of up to 60 additional days, in
which case written notice of such extension shall be given to the claimant
prior to the commencement of such extension). 
Such decision shall be written in a manner calculated to be understood
by the claimant, shall state the specific reasons for the decision and the
specific Plan provisions on which the decision was based and shall, to the
extent permitted by law, be final and binding on all interested persons.  If the decision on review is not furnished to
the claimant within the above-mentioned time period, the claim shall be deemed
to have been denied on review.


 


Article VII.
– Miscellaneous


 


7.1                                 Withholding.


 


The Company shall have the right to withhold from any
deferred compensation benefits payable under the Plan or other wages payable to
a Participant an amount sufficient to satisfy all federal, state and local tax
withholding requirements, if any, arising from or in connection with the
Participant’s receipt or vesting of deferred compensation benefits under the
Plan.


 


7.2                                 No Guarantee
of Employment.


 


Nothing in this Plan shall be construed as
guaranteeing future employment to any Participant.  Without limiting the generality of the
preceding sentence, except as otherwise set forth in a written agreement, a
Participant continues to be an employee of the Company solely at the will of the
Company subject to discharge at any time, with or without cause.  The benefits provided for herein for a Participant shall not be deemed
to modify, affect or limit any salary or salary increases, bonuses, profit
sharing or any other type of compensation of a Participant in any manner
whatsoever.  Nothing contained in this
Plan shall affect the right of a Participant to participate in or be covered by
or under any qualified or nonqualified pension, profit sharing, group, bonus or
other supplemental compensation, retirement or fringe benefit Plan constituting
any part of the Company’s compensation structure whether now or hereinafter
existing.


 


7.3                                 Payment to
Guardian.


 


If a benefit payable hereunder is payable to a minor,
to a person declared incompetent or to a person incapable of handling the disposition
of his property, the Committee may direct payment of such benefit to the
guardian, legal representative or person having the care and custody of such
minor, incompetent or person.  The
Committee may require such proof of incompetency, minority, incapacity


 


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or guardianship, as it may deem appropriate prior to
distribution of the benefit.  Such
distribution shall completely discharge the Company from all liability with
respect to such benefit.


 


7.4                                 Assignment.


 


No right or interest under this Plan of any
Participant or Beneficiary shall be assignable or transferable in any manner or
be subject to alienation, anticipation, sale, pledge, encumbrance or other
legal process or in any manner be liable for or subject to the debts or
liabilities of the Participant or Beneficiary.


 


7.5                                 Severability.


 


If any provision of this Plan or the application
thereof to any circumstance(s) or person(s) is held to be invalid by a court of
competent jurisdiction, the remainder of the Plan and the application of such
provision to other circumstances or persons shall not be affected thereby.


 


7.6                                 Amendment
and Termination.


 


The Company may at any time
(without the consent of any Participant) modify, amend or terminate any or all of the provisions of this Plan;
provided, however, that no modification, amendment or termination of
this Plan shall adversely affect
the rights of a Participant under the Plan without the consent of such
Participant.   Notwithstanding the foregoing or any
provision of the Plan to the contrary, the Company may at any time (without the
consent of any Participant) modify, amend or terminate any or all of the provisions of this Plan to the extent necessary to conform the
provisions of the Plan with Section 409A of the Code regardless of whether
such modification, amendment or termination of this Plan shall adversely affect the rights of
a Participant under the Plan.


 


7.7                                 Exculpation
and Indemnification


 


The Company shall indemnify and hold harmless the members
of the Committee from and against any and all liabilities, costs and expenses
incurred by such persons as a result of any act, or omission to act, in
connection with the performance of such person’s duties, responsibilities and
obligations under the Plan, other than such liabilities, costs and expenses as
may result from the gross negligence, willful misconduct, and/or criminal acts
of such persons.


 


7.8                                 Confidentiality.


 


In further consideration of
the benefits available to each Participant under this Plan, each Participant
shall agree that, except as such may be disclosed in financial statements and
tax returns, or in connection with estate planning, all terms and provisions of
this Plan, and any agreement between the Company and the Participant entered
into pursuant this Plan, are and shall forever remain confidential until the
death of Participant; and the Participant shall not reveal the terms and
conditions contained in this Plan or any such agreement at any time to any
person or entity, other than his respective financial and professional advisors
unless required to do so by a court of competent jurisdiction or as otherwise
may be required by law.


 


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7.9                                 Leave of
Absence.


 


The Company may, in its sole
discretion, permit a Participant to take a leave of absence for a period not to
exceed one year.  Any such leave of
absence must be approved by the Company. 
During this time, the Participant will still be considered to be in the
employ of the Company for purposes of this Plan.


 


7.10                           Gender and
Number.


 


For purposes of interpreting the provisions of this
Plan, the masculine gender shall be deemed to include the feminine, the
feminine gender shall be deemed to include the masculine, and the singular shall
include the plural unless otherwise clearly required by the context.


 


7.11                           Governing
Law.


 


Except as otherwise preempted by the laws of the
United States, this Plan shall be governed by and construed in accordance with
the laws of the State of Delaware, without giving effect to its conflict of law
provisions.


 


7.12                           Effective
Date.


 


The effective date of the Plan is generally January 1,
2005; provided, however, that the effective date of the Plan for purposes of
determining contributions under Section 2.1 of the Plan shall be January 1,
2004.


 


 


	
   

  	
  The AES Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Jay Kloosterboer

  
	
   

  	
   

  	
  Title:

  	
  Vice President and

  Chief Human Resources Officer

  
						



 


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