Exhibit 10.15


 


The AES
Corporation


Restoration Supplemental Retirement Plan


 


 


As Amended and Restated on December 29,
2008


 

















 


The AES Corporation

Restoration Supplemental Retirement Plan

As
Amended and Restated on December 29, 2008


 


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”). The Plan is amended and restated as set forth
herein to comply with Section 409A.


 


1.2  Definitions


 


“Bonus
Compensation” means the regular annual bonus paid by the
Company or Subsidiary, as applicable, and shall exclude all other bonus
compensation paid to a Participant, including special and non-recurring bonuses
unless timely determined by the Committee, in its sole discretion, prior to the
applicable Plan Year (in each instance, as identified and reported on the books
and records of Company).  Bonus
Compensation shall be determined without regard to any pre-tax salary reduction
amounts, including but not limited to, amounts voluntarily deferred under the
terms of this Plan.


 


“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.  Notwithstanding the foregoing or any
provision of this Plan to the contrary, the
foregoing definition of Change in Control shall be interpreted,
administered and construed in manner necessary to ensure that the occurrence of
any such event shall result in a Change of Control only if such event qualifies as a change in the 


 


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ownership or effective control of a
corporation, or a change in the ownership of a substantial portion of the
assets of a corporation, as applicable, within the meaning of Treas. Reg. § 1.409A-3(i)(5).


 


“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.


 


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


 


“Compensation”
shall mean total annual regular earnings, retroactive regular
earnings that relate to the period for which a Deferral Agreement has been
timely made, holiday pay, sick pay and vacation pay and/or such other
compensation, in each case as timely determined by the Committee, in its sole
discretion, prior the applicable Plan Year (as identified and reported on the
books and records of Company). 
Compensation shall be determined without regard to any pre-tax salary
reduction amounts, including but not limited to amounts voluntarily deferred
under the terms of this Plan.  Incentive
and supplemental compensation, including but not limited to, bonus
compensation, assignment related allowances and compensation payable under The
AES Corporation 2003 Long Term Compensation Plan, or any successor thereto, are
not eligible for benefit purposes under this Plan and shall not be included in the
definition of Compensation.


 


“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 or Bonus 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 who: (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 or
(3) is determined to be totally disabled by the Social Security
Administration.


 


“Disability Date” means the date on which a Participant
Separates from Service 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.


 


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“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 as determined in accordance with Section 409A
and the procedures established by the Company.


 


“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 Retirement Savings Plan, as
amended, or such other plan as designated by the Committee.


 


“Retirement”
means a Participant’s Separation From Service on or after the date such
Participant attains age fifty-nine and a half (591⁄2).


 


“Section 409A”
shall mean Section 409A of the Code, the regulations and other binding guidance
promulgated thereunder.


 


“Separation
From Service” and “Separate
from Service” shall mean a Participant’s death, retirement or other
termination of employment with the Company and all of its controlled group
members within the meaning of Section 409A of the Code.  For purposes hereof, the determination of
controlled group members shall be made pursuant to the provisions of Section 414(b) and
414(c) of the Code; provided that the language “at least 50 percent” shall
be used instead of “at least 80 percent” in each place it appears in Section 1563(a)(1),(2) and
(3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where
legitimate business reasons exist (within the meaning of Treas. Reg. §
1.409A-1(h)(3)), the language “at least 20 percent” shall be used instead of “at
least 80 percent” in each place it appears. 
Whether a Participant has a Separation from Service will be determined
based on all 


 


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of the facts and circumstances and in accordance with the guidance
issued under Section 409A. For this purpose, a Participant will be presumed to have experienced a
Separation from Service when the level of bona fide
services performed permanently decreases to a level less than twenty percent
(20%) of the average level of bona fide
services performed during the immediately preceding thirty-six (36) month
period or such other applicable period as provided by Section 409A.


 


“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, a beneficiary, or a
dependent (as determined under Section 152(a) of the Code, without
regard to Section 152(b)(1), (b)(2) and (d)(1)(B)) of the
Participant; the need to pay for the funeral expenses of a spouse, beneficiary
or dependent (as defined above); 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 decide questions of fact, 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.


 


(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.


 


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(d)           Notwithstanding
any provision of the Plan to the contrary, this Plan is intended to comply with
the provisions of Section 409A and shall be administered, interpreted and
construed accordingly (or disregarded to the extent such provision cannot be so
administered, interpreted or construed). 
With respect to
payments subject to Section 409A: (i) it is intended that
distribution events authorized under the Plan qualify as permissible
distribution events for purposes of Section 409A; and (ii) the Company reserve the right to accelerate
and/or defer any payment to the extent permitted and consistent with Section 409A. 
Notwithstanding any provision of this Plan to the contrary, to the extent the
timing of any benefit payment due under this Plan was modified pursuant to the
transition guidance provided by the Internal Revenue Service concerning the
time and form of payment, any such modification shall only apply to amounts
that would not otherwise be payable in 2008 and may not cause an amount to be
paid in 2008 that would not otherwise be paid in 2008.  To the extent any such payment cannot be made
in 2008 under the transition guidance, such payment will be made in January 2009.  Notwithstanding any provision of the
Plan to the contrary, in no event shall the Committee, the Company or a
Subsidiary (or their employees, officers, directors, members or affiliates)
have any liability to any Participant (or any other person) due to the failure
of the Plan to satisfy the requirements of Section 409A.


 


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”).  An
employee’s participation in the Plan shall be effective upon notification to
the employee by the Committee of eligibility to participate in the Plan.


 


(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.


 


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(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).


 


2.2  Supplemental
Deferral Elections.


 


(a)           Each
Participant shall be eligible to elect to defer Compensation and/or Bonus
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/or Bonus 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 earlier times as may
be established by the Committee). 
Notwithstanding the provisions of the 
preceding sentence, if permitted by the Committee, a Deferral Election
with respect to a Participant’s Bonus Compensation shall be given effect if
made by June 30 of the Plan Year for which the Bonus Compensation is to be
paid, provided that the Committee determines that the Bonus Compensation
satisfies the requirements for “performance-based compensation” within the
meaning of Section 409A(a)(4)(B)(iii) of the Code.  Additionally, for the Plan Year in which a
Participant first becomes 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 and Bonus Compensation paid for services performed after
the date of such election.  Accordingly, if a Deferral Election is
made in the first-year of eligibility but after the beginning of the specified
performance period (e.g., annual bonus compensation), the Deferral Election
shall only apply to the total amount of such Compensation multiplied by the ratio
of (i) the number of days remaining in the performance period after the
election to (ii) the total number of days in the performance period.  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 or Bonus 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 and up to 80% of Bonus Compensation paid to the
Participant.


 


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(e)                                  Notwithstanding
the foregoing, a Deferral Election shall automatically terminate if a
Participant suffers a disability, receives a distribution on account of
Unforeseeable Emergency or dies. For
purposes of this Section, a disability refers to any medically determinable
physical or mental impairment resulting in the Participant’s inability to
perform the duties of his or her position or any substantially similar
position, where such impairment can be expected to result in death or can be
expected to last for a continuous period of not less than six months.


 


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).


 


(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. 
For purposes of this Section 2.3, Compensation shall have the
meaning assigned thereto in the Qualified Plan (determined without regard to
any pre-tax salary reduction amounts, including but not limited to amounts
voluntarily deferred under the terms of this Plan to the extent necessary to
carry out the terms and intent of this 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 four (4) separate Deferral Accounts which
accounts shall be designated Special Purpose Account #1, Special Purpose
Account #2, Special Purpose Account #3 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.  If a Participant fails to properly and timely
allocate Deferrals, such participant shall be deemed to have selected the
Retirement Account.


 


(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 


 


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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.


 


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 February 1 of the year designated by the Participant as his
Distribution Date.  Distributions from
Retirement Accounts are payable on February 1 of the year following a
Participant’s Retirement. 
Notwithstanding, a Distribution Date for a Special Purpose Account 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 for any reason (other than death) may not be made
before the date that is 6 months after the date of Separation from
Service.  Any payment otherwise due prior
to the 6-month anniversary of the Participant’s date of Separation from Service
will be accumulated and paid on the first business day of the seventh month
following the date of Separation from Service (or, if earlier, the date of
death of the Participant), and subsequent distributions, if any, shall be made
on each succeeding February 1.


 


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.  In the event that no valid and timely
Distribution Option has been made, benefits will be paid in a lump sum.  All payments under the Plan shall be made in
cash. For purposes of Section 409A and the
Plan: (i) the right to installment payments shall be treated as the right
to a single payment; and (ii) a payment shall be treated as made on the
scheduled payment date if such payment is made at such date or a later 


 


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date in the same calendar year or, if later,
by the 15th day of the third calendar month following the scheduled payment
date.  Except as specified in Section 3.1(a) and
3.3(a), a Participant shall have no right to designate the date of any payment
under the Plan.


 


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) the
change will not take effect until twelve (12) months after the election is
made; (2) with respect to a payment on a specified distribution date,  the change must be
made at least twelve (12) months prior to the previously scheduled payment date
(or initial scheduled payment date in the case of installment payments); and (3) the
payment with respect to which the change is made must be deferred for at least
five (5) years from the date the payment would otherwise have been made
(or initial scheduled payment date in the case of installment payments);  provided, that, the Committee may, in its
discretion, authorize a Participant to change a distribution election under any
applicable transition rule authorized under Section 409A to the
extent consistent therewith.


 


(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 February 1 of the year following a Participant’s
Retirement, except as otherwise provided under Section 3.1(b).


 


(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       Separation From Service.


 


Notwithstanding
the foregoing provisions, in the event a Participant Separates From Service 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 on the date of
Separation from Service,  subject to the
provisions of Section 3.1(b) of this Plan.


 


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 


 


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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 reaching age 591⁄2, the value of the
Participant’s Deferral Accounts will be paid to the Participant’s beneficiary
in a lump sum on the date of death of the Participant..  The Participant shall designate his
Beneficiary in accordance with the provisions of Article V.


 


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 


 


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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 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;


 


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(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
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.  If a claimant’s claim for benefits is denied in whole or in part, the
claimant may file suit in a state or federal court. Notwithstanding the aforementioned,
before the claimant may file suit in a state or federal court, the claimant must
exhaust the Plan’s administrative claims procedure set forth in this Article VI.  If any such state or federal judicial or
administrative proceeding is undertaken, the evidence presented will be
strictly limited to the evidence timely presented to the Company.  In addition, any such state or federal
judicial or administrative proceeding must be filed within six (6) months
after the Company’s final decision. In addition, any such state or federal judicial or
administrative proceeding relating to this Plan shall only be brought in the
Circuit Court for Arlington County, Virginia or in the United States District
Court for the Eastern District of Virginia, Alexandria Division.  If any
such action or proceeding is brought in any other location, then the filing
party expressly consents to the transfer of such action to the Circuit Court
for Arlington County, Virginia or the United States District Court for the
Eastern District of Virginia, Alexandria Division.  Nothing in this clause
shall be deemed to prevent any party from removing an action or proceeding to
enforce or interpret this Plan from the Circuit Court for Arlington County,
Virginia to the United States District Court for the Eastern District of
Virginia, Alexandria Division.


 


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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 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.


 


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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 (in
its sole discretion and without the
consent of any Participant) modify, amend or terminate any or all of the provisions of this Plan or
take any other action  to the
extent necessary to conform the provisions of the Plan with Section 409A
regardless of whether such modification, amendment or termination of
this Plan or other action shall
adversely affect the rights of a Participant under the Plan. 
Termination of this Plan shall not be a distribution event under the
Plan unless otherwise permitted under Section 409A.


 


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.


 


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 six months, or if longer, so long
as the Participant retains a right to reemployment under any applicable statute
or by contract.  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.


 


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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.


 


This amendment and
restatement of The AES Corporation Restoration Supplemental Retirement Plan has
been duly executed by the undersigned and is effective this 29 day of December 2008.


 


	
   

  	
  The AES Corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay L. Kloosterboer

  
	
   

  	
   

  	
  Jay L. Kloosterboer, Executive Vice President, Business Excellence 

  



 


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