Filed by Bowne Pure Compliance





Exhibit 10.33




DYNEGY INC. 401(k) SAVINGS PLAN




As Amended & Restated

Effective January 1, 2009



 


 









 





DYNEGY INC. 401(k) SAVINGS PLAN




W I T N E S S E T H :




WHEREAS, Dynegy Inc., a Delaware corporation, has heretofore adopted the Dynegy Inc. 401(k)
Savings Plan for the benefit of its eligible employees;



WHEREAS, Dynegy desires to amend the Plan in several respects and to restate the Plan,
intending thereby to provide an uninterrupted and continuing program of benefits; and



WHEREAS, the Plan is hereby restated in its entirety as follows with no interruption in time,

effective as of January 1, 2009, except as otherwise indicated herein:




 


 









 




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	I. Definitions and Construction
	 	 	1	 
	1.1 Definitions
	 	 	1	 
	1.2 Number and Gender
	 	 	15	 
	1.3 Headings
	 	 	16	 
	1.4 Construction
	 	 	16	 
	 
	 	 	 	 
	II. Participation
	 	 	16	 
	2.1 Eligibility
	 	 	16	 
	2.2 Participation
	 	 	16	 
	 
	 	 	 	 
	III. Contributions
	 	 	17	 
	3.1 Before-Tax Contributions
	 	 	17	 
	3.2 After-Tax Contributions
	 	 	19	 
	3.3 Employer Matching Contributions
	 	 	20	 
	3.4 Employer Discretionary Contributions
	 	 	21	 
	3.5 Employer Discretionary Qualified Matching Contributions
	 	 	21	 
	3.6 Restrictions on Employer Matching Contributions and After-Tax Contributions
	 	 	22	 
	3.7 Return of Contributions
	 	 	23	 
	3.8 Disposition of Excess Deferrals and Excess Contributions
	 	 	23	 
	3.9 Rollover Contributions
	 	 	25	 
	 
	 	 	 	 
	IV. Allocations and Limitations
	 	 	27	 
	4.1 Allocation of Contributions
	 	 	27	 
	4.2 Application of Forfeitures
	 	 	29	 
	4.3 Valuation of Accounts
	 	 	29	 
	4.4 Limit on Annual Additions Under Code Section 415
	 	 	29	 
	4.5 Recharacterizations
	 	 	30	 
	 
	 	 	 	 
	V. Investment of Accounts
	 	 	30	 
	5.1 Investment of Certain Employer Contributions
	 	 	30	 
	5.2 Investment of Accounts
	 	 	30	 
	5.3 VBO Investments
	 	 	31	 
	5.4 Pass-Through Voting and Other Rights with Respect to Company Stock
	 	 	31	 
	5.5 Stock Splits and Stock Dividends
	 	 	32	 
	 
	 	 	 	 
	VI. General Benefits and Determination of Vested Interest
	 	 	32	 
	6.1 No Benefits Unless Herein Set Forth
	 	 	32	 
	6.2 Retirement Benefits
	 	 	32	 
	6.3 Pre-Retirement Severance from Employment Benefits
	 	 	32	 
	6.4 Disability Benefits
	 	 	32	 
	6.5 Determination of Vested Interest
	 	 	33	 
	6.6 Crediting of Vesting Service
	 	 	34	 






 


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	 	 	PAGE	 
	 
	 	 	 	 
	6.7 Forfeitures of Vesting Service
	 	 	34	 
	6.8 Forfeitures of Nonvested Account Balance
	 	 	35	 
	6.9 Restoration of Forfeited Account Balance
	 	 	35	 
	6.10 Special Formula for Determining Vested Interest for Partial Accounts
	 	 	36	 
	 
	 	 	 	 
	VII. Death Benefits
	 	 	36	 
	7.1 Death Benefits
	 	 	36	 
	7.2 Designation of Beneficiaries
	 	 	37	 
	 
	 	 	 	 
	VIII. Payment of Benefits
	 	 	37	 
	8.1 Determination of Benefit Commencement Date
	 	 	37	 
	8.2 Minimum Distribution Requirements
	 	 	39	 
	8.3 Form of Payment and Payee
	 	 	43	 
	8.4 Direct Rollover Election
	 	 	43	 
	8.5 Notice of Direct Rollover Distribution
	 	 	44	 
	8.6 Unclaimed Benefits
	 	 	44	 
	8.7 Claims Review
	 	 	45	 
	 
	 	 	 	 
	IX. In-Service Withdrawals
	 	 	49	 
	9.1 In-Service Withdrawals
	 	 	49	 
	9.2 Restriction on In-Service Withdrawals
	 	 	50	 
	 
	 	 	 	 
	X. Loans
	 	 	51	 
	 
	 	 	 	 
	XI. Administration of the Plan
	 	 	52	 
	11.1 General Administration of the Plan
	 	 	52	 
	11.2 Records and Procedures
	 	 	52	 
	11.3 Meetings
	 	 	52	 
	11.4 Self-Interest of Members
	 	 	52	 
	11.5 Compensation and Bonding
	 	 	52	 
	11.6 Committee Powers and Duties
	 	 	53	 
	11.7 Employer to Supply Information
	 	 	54	 
	11.8 Temporary Restrictions
	 	 	54	 
	11.9 Indemnification
	 	 	54	 
	 
	 	 	 	 
	XII. Trustee and Administration of Trust Fund
	 	 	54	 
	12.1 Trust Agreement
	 	 	54	 
	12.2 Payment of Expenses
	 	 	55	 
	12.3 Trust Fund Property
	 	 	55	 
	12.4 Distributions from Participants’ Accounts
	 	 	55	 
	12.5 Payments Solely from Trust Fund
	 	 	55	 
	12.6 No Benefits to the Employer
	 	 	55	 
	 
	 	 	 	 
	XIII. Fiduciary Provisions
	 	 	56	 
	13.1 Article Controls
	 	 	56	 
	13.2 General Allocation of Fiduciary Duties
	 	 	56	 
	13.3 Delegation and Allocation of Fiduciary Duties
	 	 	56	 






 


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	 	 	PAGE	 
	 
	 	 	 	 
	13.4 Investment Manager
	 	 	56	 
	13.5 Independent Fiduciary
	 	 	57	 
	 
	 	 	 	 
	XIV. Amendments
	 	 	58	 
	14.1 Right to Amend
	 	 	58	 
	14.2 Limitation on Amendments
	 	 	58	 
	 
	 	 	 	 
	XV. Discontinuance of Contributions, Termination, Partial Termination, and Merger or Consolidation
	 	 	58	 
	15.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
	 	 	58	 
	15.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
	 	 	59	 
	15.3 Merger, Consolidation, or Transfer
	 	 	60	 
	 
	 	 	 	 
	XVI. Participating Employers
	 	 	60	 
	16.1 Designation of Other Employers
	 	 	60	 
	16.2 Single Plan
	 	 	61	 
	 
	 	 	 	 
	XVII. Miscellaneous Provisions
	 	 	61	 
	17.1 Not Contract of Employment
	 	 	61	 
	17.2 Spendthrift Clause
	 	 	61	 
	17.3 Uniformed Services Employment and Reemployment Rights Act Requirements
	 	 	63	 
	17.4 Payments to Minors and Incompetents
	 	 	63	 
	17.5 Acquisition and Holding of Company Stock
	 	 	63	 
	17.6 Power of Attorney Designations
	 	 	63	 
	17.7 Participant’s and Beneficiary’s Address
	 	 	63	 
	17.8 Incorrect Information, Fraud, Concealment, or Error
	 	 	64	 
	17.9 Severability
	 	 	64	 
	17.10 Jurisdiction
	 	 	64	 
	 
	 	 	 	 
	XVIII. Top-Heavy Status
	 	 	64	 
	18.1 Article Controls
	 	 	64	 
	18.2 Definitions
	 	 	64	 
	18.3 Top-Heavy Status
	 	 	66	 
	18.4 Top-Heavy Contribution
	 	 	66	 
	18.5 Termination of Top-Heavy Status
	 	 	67	 
	18.6 Effect of Article
	 	 	67	 






Appendix A      Participating Employers

Appendix B      Loan Policy

Appendix C      Withdrawals From Trident Accounts

Appendix D      Withdrawals From Destec Accounts





 


(iii)











 







I. DEFINITIONS AND CONSTRUCTION




1.1 Definitions. Where the following words and phrases appear in the Plan, they shall
have the respective meanings set forth below, unless their context clearly indicates to the
contrary.




(a) Account(s). A Participant’s After-Tax Account, Before-Tax Account, Dow
ESOP Account, Dow Transfer Account, Destec Account, Employer Contribution Account, Extant
Account, Rollover Contribution Account, Catch-Up Contribution Account, Class Settlement
Account I, Class Settlement Account II, and/or Roth Account, including the amounts credited
thereto and any subaccounts thereof.




(b) Act. The Employee Retirement Income Security Act of 1974, as amended.




(c) After-Tax Account. An individual account for each Participant, which is
credited with (i) all After-Tax Contributions held in such account on the Effective Date,
and (ii) all amounts of After-Tax Contributions that are deferred and/or accrued after the
Effective Date. Such Account shall also be adjusted to reflect changes in value as provided
in Section 4.3.




(d) After-Tax Contributions. Contributions made to the Plan by a Participant
in accordance with Section 3.2.




(e) Before-Tax Account. An individual account for each Participant, which is
credited with (i) all Before-Tax Contributions made by the Employer on such Participant’s
behalf in such account on the Effective Date, (ii) all amounts of Before-Tax Contributions
deferred and/or accrued after the Effective Date, and (iii) the Employer Discretionary
Qualified Matching Contributions, if any, made on such Participant’s behalf pursuant to
Section 3.5 to satisfy the restrictions set forth in Section 3.1(e) in such Account. Such
Account shall also be adjusted to reflect changes in value as provided in Section 4.3.




(f) Before-Tax Contributions. Contributions made to the Plan by the Employer
on a Participant’s behalf in accordance with the Participant’s elections to defer
Compensation under the Plan’s qualified cash or deferred arrangement as described in Section
3.1.




(g) Benefit Commencement Date. With respect to each Participant or
beneficiary, the date such Participant’s or beneficiary’s benefit is paid to him from the
Trust Fund as determined in accordance with Section 8.1.




(h) Catch-Up Contribution Account. An individual account for each Participant
which is credited with Catch-up Contributions made in accordance with Section 3.1(h) of the
Plan. Such Account shall be adjusted to reflect changes in value as provided in Section
4.3.


 


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(i) Catch-up Contributions. Contributions made to the Plan by the Employer on
a Participant’s behalf in accordance with the Participant’s elections to defer Compensation
under the Plan’s qualified cash or deferred arrangement as described in Section 3.1(h).




(j) Class Settlement Account I. A separate account established for each person
who is an Allocation Participant (as defined below) that is credited by the Trustee with the
respective restorative payment awarded to such individual pursuant to the Allocation Order,
as adjusted to reflect such Account’s changes in value in accordance with Section 4.3 of the
Plan. The Trustee shall cause such Account to be established for each Allocation
Participant. For purposes of this Section 1.1(j), the term “Allocation Order” shall mean
the Order Approving Plan of Allocation entered on December 10, 2004 by the United States
District Court for the Southern District of Texas, Houston Division, in the matter of In re
Dynegy Inc. ERISA Litigation, Civil Action No. H-02-3076. For purposes of this Section
1.1(j), the term “Allocation Participant” shall mean each Participant and former Participant
and each beneficiary (or alternate payee) of a Participant or former Participant who is
within the Settlement Class as defined in the Allocation Order and for whom a Class
Participant Share is distributed as defined in the Plan of Allocation and who shall be
deemed to be a Participant or beneficiary (or alternate payee) under the Plan to the extent
necessary or appropriate, including, but not limited to, with respect to the unclaimed
benefit provisions under Article VIII of the Plan. The amounts credited to a Class
Settlement Account I shall be fully vested. If the Trustee receives settlement proceeds
which are to be allocated to the Class Settlement Account I of each Allocation Participant,
during the period prior to such allocation, such settlement proceeds shall be invested in
the Vanguard Prime Money Market Fund. Notwithstanding the provisions of Section 5.2(a), the
Class Settlement Account I of each Allocation Participant shall be invested on April 1, 2005
in accordance with Paragraph (a) or (b) below, as applicable, until the Allocation
Participant directs to change such investment pursuant to Section 5.2(c):




(1) If an Allocation Participant is an Eligible Employee with an existing
Account balance in the Plan and is either currently contributing to the Plan or
previously contributed to the Plan, such Allocation Participant’s Class Settlement
Account I shall be invested on April 1, 2005 in accordance with such Allocation
Participant’s most recent investment direction for contributions to the Plan; or




(2) If an Allocation Participant is not described in Paragraph (a) above, the
Class Settlement Account I of such Allocation Participant shall be invested on April
1, 2005 in the appropriate investment Fund set forth below as determined on the
basis of the age of the Allocation Participant on April 1, 2005, unless such
Allocation Participant is the beneficiary (or alternate payee) of a Participant or
former Participant in which case the attained age, on April 1, 2005, of such
Participant or former Participant, whether or not deceased, shall be used instead of
the age of the Allocation Participant:


 


2









 





	 	 	 
	 	 	Age of Participant or Former Participant
	Fund Name	 	on April 1, 2005
	 
	 	 
	Vanguard Target Retirement Income Fund
	 	Ages 65 or older
	 	 	 
	Vanguard Target Retirement 2005 Fund
	 	Ages 60 to 64
	 	 	 
	Vanguard Target Retirement 2015 Fund
	 	Ages 50 to 59
	 	 	 
	Vanguard Target Retirement 2025 Fund
	 	Ages 40 to 49
	 	 	 
	Vanguard Target Retirement 2035 Fund
	 	Ages 30 to 39
	 	 	 
	Vanguard Target Retirement 2045 Fund
	 	Up to Age 29







(k) Class Settlement Account II. A separate account established for each
person who is an Allocation Participant (as defined below) that is credited by the Trustee
with the respective restorative payment awarded to such Allocation Participant pursuant to
the Stipulation and Agreement of Settlement approved by the United States District Court for
the Southern District of Texas, Houston Division, in the matter In re Dynegy Inc. Securities
Litigation, Civil Action No. H-02-1571. For purposes of this Section 1.1(k), the term
“Allocation Participant” shall mean each Participant and former Participant’ and each
beneficiary (or alternate payee) of a Participant or former Participant who is within the
Settlement Class as defined in the Stipulation and Agreement of Settlement and who shall be
deemed to be a Participant or beneficiary (or alternate payee) under the Plan to the extent
necessary or appropriate, including, but not limited to, with respect to the unclaimed
benefit provisions under Article VIII of the Plan. The amounts credited to a Class
Settlement Account II shall be fully vested. If the Trustee receives settlement proceeds in
the form of Company Stock to be allocated to the Class Settlement Account II of each
Allocation Participant, such Company Stock shall be invested in the Company Stock Fund until
the Allocation Participant directs to change such investment pursuant to Section 5.3(c). If
the Trustee receives cash settlement proceeds to be allocated to the Class Settlement
Account of each Allocation Participant, during the period prior to such allocation, such
settlement proceeds shall be invested in the Vanguard Prime Money Market Fund.
Notwithstanding the provisions of Section 5.2(a) of the Plan, cash settlement proceeds in
the Class Settlement Account II of each Allocation Participant shall be invested in
accordance with Paragraph (a) or (b) below, as applicable, until the Allocation Participant
directs to change such investment pursuant to Section 5.2(c):


 


3









 






(1) If an Allocation Participant is an Eligible Employee with an existing
Account balance in the Plan and is either currently contributing to the Plan or
previously contributed to the Plan, such Allocation Participant’s cash settlement
proceeds in the Class Settlement Account II shall be invested in accordance with
such Allocation Participant’s most recent investment, direction for contributions to
the Plan; or




(2) If an Allocation Participant is not described in Paragraph (a) above, the
cash settlement proceeds in the Class Settlement Account II of such Allocation
Participant shall be invested in the appropriate Investment Fund set forth below as
determined on the basis of the age of the Allocation Participant, unless such
Allocation Participant is the beneficiary (or alternate payee) of a Participant or
former Participant, in which case the attained age of such Participant or former
Participant, whether or not deceased, shall be used instead of the age of the
Allocation Participant:



	 	 	 
	Fund Name	 	Age of Participant or Former Participant
	 	 	 
	Vanguard Target Retirement Income Fund
	 	Ages 65 or older
	 	 	 
	Vanguard Target Retirement 2005 Fund
	 	Ages 60 to 64
	 	 	 
	Vanguard Target Retirement 2015 Fund
	 	Ages 50 to 59
	 	 	 
	Vanguard Target Retirement 2025 Fund
	 	Ages 40 to 49
	 	 	 
	Vanguard Target Retirement 2035 Fund
	 	Ages 30 to 39
	 	 	 
	Vanguard Target Retirement 2045 Fund
	 	Up to Age 29







(l) Code. The Internal Revenue Code of 1986, as amended.




(m) Committee. The Dynegy Inc. Benefit Plans Committee.




(n) Company. Dynegy Inc., a Delaware corporation, and any successor thereto.




(o) Company Stock. The Class A common stock, $0.01 par value, of the Company.


 


4









 






(p) Company Stock Fund. An Investment Fund established to invest in Company
Stock and such reserves of cash or cash equivalents as are necessary to meet the liquidity
needs of the fund.




(q) Compensation. The regular or base salary or wages (but (i) including
regular or base salary or wages paid during a military leave of absence, and (ii) excluding
overtime payments and bonuses (other than that described below)) paid by the Employer to or
for the benefit of a Participant for services rendered or labor performed for the Employer
while a Participant and an Eligible Employee, provided that the following items shall be
included as “Compensation:”




(1) Any amounts subject to a deferral election pursuant to Section 3.1 of the
Plan;




(2) Elective contributions made on a Participant’s behalf by the Employer that
are not includible in income under Sections 125, 402(e)(3), 402(h), or 403(b) of the
Code and any amounts that are not includible in the gross income of a Participant
under a salary reduction agreement by reason of the application of Section 132(f) of
the Code;




(3) Compensation deferred under an eligible deferred compensation plan within
the meaning of Section 457(b) of the Code;




(4) Employee contributions described in Section 414(h) of the Code that are
picked up by the employing unit and are treated as employer contributions; and




(5) If a Participant is scheduled to work a 12 hour shift, the regularly
scheduled overtime will be included as Compensation, and is calculated by
multiplying his straight time hourly rate of pay by the number of 12 hour shift
regularly scheduled overtime hours for which he is paid, but excluding any other
contributions or benefits under this Plan or any other pension, profit sharing,
insurance, hospitalization or other plan or policy maintained by an Employer for the
benefit of such Participant, bonuses, overtime, commissions, and all other
extraordinary and unusual payments.




Notwithstanding the foregoing, the Compensation of any Participant taken into account for
purposes of the Plan shall be limited to $245,000 for any Plan Year with such limitation to
be (i) adjusted automatically to reflect any amendments to Section 401(a)(17) of the Code
and any cost-of-living increases authorized by Section 401(a)(17) of the Code, and (ii)
prorated for a Plan Year of less than twelve months and to the extent otherwise required by
applicable law.




(r) Compensation Committee. The Compensation and Human Resources Committee of
the Board of Directors of the Company.


 


5









 






(s) Controlled Entity. Each corporation that is a member of a controlled group
of corporations, within the meaning of Section 414(b) of the Code, of which the
Employer is a member, each trade or business (whether or not incorporated) with which
the Employer is under common control within the meaning of Section 414(c) of the Code, and
each member of an affiliated service group, within the meaning of Section 414(m) of the
Code, of which the Employer is a member.




(t) Destec Account(s). A Participant’s Destec Before-Tax Subaccount, Destec
After-Tax Subaccount, Destec Employer Contribution Subaccount, and/or Destec Rollover
Contribution Subaccount, including the amounts credited thereto. In addition to other
provisions of the Plan, a Participant’s Destec Account(s) shall be subject to the provisions
of Appendix D, and in the event of any conflict, Appendix D shall control.




(1) Destec After-Tax Subaccount. A subaccount of the After-Tax Account
which was credited with the amount, if any, transferred from a Participant’s
After-Tax Account under the Destec Plan and which is adjusted to reflect such
Account’s changes in value as provided in Section 4.3.




(2) Destec Before-Tax Subaccount. A subaccount of the Before-Tax
Account which was credited with the amount, if any, transferred from a Participant’s
Before-Tax Contributions Account under the Destec Plan and which is adjusted to
reflect such Account’s changes in value as provided in Section 4.3.




(3) Destec Employer Contribution Subaccount. A subaccount of the
Employer Contribution Account which was credited with the amount, if any,
transferred from a Participant’s Employer Contribution Account under the Destec Plan
and which is adjusted to reflect such Account’s changes in value as provided in
Section 4.3.




(4) Destec Rollover Contribution Subaccount. A subaccount of the
Rollover Contribution Account which was credited with the amount, if any,
transferred from a Participant’s Rollover Account under the Destec Plan and which is
adjusted to reflect such Account’s changes in value as provided in Section 4.3.




(u) Destec Plan. The Destec Energy, Inc. Retirement and Savings Plan.




(v) Direct Rollover. A payment by the Plan to an Eligible Retirement Plan
designated by a Distributee.




(w) Directors. The Board of Directors of the Company.




(x) Distributee. Each (i) Participant entitled to an Eligible Rollover
Distribution, (ii) Participant’s surviving spouse with respect to the interest of such
surviving spouse in an Eligible Rollover Distribution, and (iii) former spouse of a
Participant who is an alternate payee under a qualified domestic relations order, as defined
in section 414(p) of the Code, with regard to the interest of such former spouse in an
Eligible Rollover Distribution. Notwithstanding the previous sentence, effective January 1,
2008, a Distributee shall also include a nonspouse beneficiary, but only with regard to the
Participant’s interest under the Plan.


 


6









 






(y) Dow ESOP Account. An individual account for each Participant which was
credited with the amount, if any, transferred from the Participant’s Dow ESOP Account under
the Destec Plan and which is adjusted to reflect such Account’s changes in value as provided
in Section 4.3. Effective as of December 1, 2001, Dow ESOP Accounts ceased to be invested
solely in the common stock of The Dow Chemical Company.




(z) Dow Transfer Account. An individual account for each Participant which (i)
was credited with the amount, if any, transferred from the Participant’s Dow Transfer
Account under the Destec Plan, (ii) was credited with amounts, if any, transferred from the
Participant’s Dow ESOP Account pursuant to the provisions of the Plan in effect prior to
December 1, 2001, and (iii) is adjusted to reflect such Account’s changes in value as
provided in Section 4.3.




(aa) Effective Date. January 1, 2009, as to this restatement of the Plan,
except (i) as otherwise indicated in specific provisions of the Plan, and (ii) provisions of
the Plan required to have an earlier effective date by applicable statute and/or regulation
shall be effective as of the required effective date in such statute and/or regulation, and
shall apply, as of such required effective date, to any plan merged into this Plan. The
original effective date of the Plan was May 1, 1989.




(bb) Eligible Employee. Each Employee other than (i) an Employee whose terms
and conditions of employment are governed by a collective bargaining agreement, unless such
agreement provides for his coverage under the Plan, (ii) a nonresident alien who receives no
earned income from the Employer that constitutes income from sources within the United
States, (iii) a Leased Employee, (iv) an individual who is deemed to be an Employee pursuant
to Treasury regulations issued under Section 414(o) of the Code, (v) an Employee who has
waived participation in the Plan through any means including, but not limited to, an
Employee whose employment is governed by a written agreement with the Employer (including an
offer letter setting forth the terms and conditions of employment) that provides that the
Employee is not eligible to participate in the Plan (a general statement in the agreement,
offer letter, or other communication stating that the Employee is not eligible for benefits
shall be construed to mean that the Employee is not an Eligible Employee), and (vi) an
Employee of an entity that has been designated to participate in the Plan pursuant to the
provisions of Article XVI to the extent that such entity’s designation specifically excepts
such Employee’s participation. Notwithstanding any provision of the Plan to the contrary,
no individual who is designated, compensated, or otherwise classified or treated by the
Employer as an independent contractor or other non-common law employee shall be eligible to
become a Participant of the Plan. It is expressly intended that individuals not treated as
common law employees by the Employer are to be excluded from Plan participation even if a
court or administrative agency determines that such individuals are common law employees.


 


7









 






(cc) Eligible Retirement Plan. Any of (i) an individual retirement account
described in Section 408(a) of the Code, (ii) an individual retirement annuity described in
Section 408(b) of the Code, (iii) an annuity plan described in Section 403(a) of the Code,
(iv) a qualified plan described in Section 401(a) of the Code, which under its provisions
does, and under applicable law may, accept a Distributee’s Eligible Rollover
Distribution, (v) an annuity contract described in Section 403(b) of the Code, (vi) an
eligible plan under Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or agency or instrumentality of a state or political subdivision of
a state and which agrees to separately account for the amounts transferred into such plan
from the Plan, and (vii) effective January 1, 2008, a Roth IRA described in Section 408A(b)
of the Code. The definition of Eligible Retirement Plan shall also apply in the case of a
distribution to a surviving spouse or to a spouse or former spouse who is an alternate payee
under a qualified domestic relations order, as defined in Section 414(p) of the Code.




Notwithstanding the foregoing, effective January 1, 2008, in the case of an Eligible
Rollover Distribution to a beneficiary who is a designated beneficiary as defined in Section
401(a)(9)(E) of the Code and is not a surviving spouse, an Eligible Retirement Plan is
limited to an individual retirement account or individual retirement annuity established for
purposes of receiving the distribution that is treated as an inherited account under Section
402(c)(11) of the Code. If the designated beneficiary is a trust, an Eligible Retirement
Plan is limited to an individual retirement account created on behalf of the trust that
satisfies the requirements to be a designated beneficiary within the meaning of Section
401(a)(9)(E) of the Code.




(dd) Eligible Rollover Distribution. With respect to a Distributee, any
distribution of all or any portion of the Accounts of a Participant other than (i) a
distribution that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the Distributee or the
joint lives (or joint life expectancies) of the Distributee and the Distributee’s designated
beneficiary or for a specified period of ten (10) years or more, (ii) a distribution to the
extent such distribution is required under Section 401(a)(9) of the Code, (iii) the portion
of a distribution that is not includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to employer securities), (iv) a loan
treated as a distribution under Section 72(p) of the Code and not excepted by Section
72(p)(2), (v) a loan in default that is a deemed distribution, (vi) any corrective
distribution provided in Sections 3.8 and 4.4, (vii) a distribution pursuant to Section
9.1(e), and (viii) any other distribution so designated by the Internal Revenue Service in
revenue rulings, notices, and other guidance of general applicability.




Notwithstanding the foregoing or any other provision of the Plan, a portion of a
distribution shall not fail to be an Eligible Rollover Distribution merely because the
portion consists of after-tax employee contributions which are not includible in gross
income; provided, however, that such portion may be transferred only to an individual
retirement account or annuity described in Section 408(a) or (b) of the Code or to a
qualified defined contribution plan described in Section 401(a) or 403(a) of the Code that
agrees to separately account for amounts so transferred, including separately accounting for
the portion of such distribution which is includible in gross income and the portion of such
distribution which is not so includible.


 


8









 






Notwithstanding the foregoing or any other provision of the Plan, an Eligible Rollover
Distribution to a nonspouse beneficiary is not subject to the direct rollover requirements
of Section 401(a)(31) of the Code, the notice requirements of Section 402(f) of the Code or
the mandatory withholding requirements of Section 3405(c) of the Code. If a nonspouse
beneficiary receives an Eligible Rollover Distribution from the Plan, the distribution is
not eligible for a “60-day” rollover.




(ee) Employee. Each (i) individual employed by the Employer (as reported on
the Employer’s payroll records and for whom the Employer has FICA taxes withheld), and (ii)
Leased Employee.




(ff) Employer. Each entity listed on Appendix A that has been designated to
participate in the Plan pursuant to the provisions of Article XVI. The Company is not an
Employer.




(gg) Employer Contribution Account. An individual account for each
Participant, which is credited with (i) all of the Participant’s Employer Contributions on
the Effective Date, (ii) all additional Employer Contributions contributed and/or accrued
after the Effective Date, and (iii) all Employer Discretionary Qualified Matching
Contributions, if any, made on such Participant’s behalf pursuant to Section 3.5 to satisfy
the restrictions set forth in Section 3.6. The Employer Contribution Account shall also be
adjusted to reflect such Account’s changes in value as provided in Section 4.3.




(hh) Employer Contribution Account Subject to Vesting. The portion of a
Participant’s Employer Contribution Account which is subject to the vesting schedule set
forth in Section 6.5(c) or (d), as applicable.




(ii) Employer Contributions. The total of Employer Matching Contributions,
Employer Discretionary Contributions, and Employer Discretionary Qualified Matching
Contributions.




(jj) Employer Discretionary Contributions. Contributions made to the Plan by
the Employer pursuant to Section 3.4.




(kk) Employer Discretionary Qualified Matching Contributions. Contributions
made to the Plan by the Employer pursuant to Section 3.5.




(ll) Employer Matching Contributions. Contributions made to the Plan by the
Employer pursuant to Section 3.3.




(mm) Employment Commencement Date. The date on which an individual first
performs an Hour of Service.




(nn) Extant Account(s). An individual account for each Participant which was
credited with the amount, if any, transferred from the Participant’s account under the
Extant, Inc. 401(k) Plan, and which is adjusted to reflect such Account’s changes in value
as provided in Section 4.3.




(oo) 415 Compensation. Compensation as defined under Section 415(c)(3) of the
Code and Treasury Regulations issued pursuant thereto.


 


9









 






(pp) Highly Compensated Employee. Each Employee who performs services during
the Plan Year for which the determination of who is highly compensated is being made (the
“Determination Year”) and who:




(1) Is a five-percent owner of the Employer (within the meaning of Section
416(i)(1)(A)(iii) of the Code) at any time during the Determination Year or the
twelve-month period immediately preceding the Determination Year (the “Look-Back
Year”); or




(2) For the Look-Back Year:




(A) Receives compensation (within the meaning of Section 414(q)(4) of
the Code; “compensation” for purposes of this Paragraph) in excess of
$90,000 (with such amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by Section 414(q)(1) of the Code)
during the Look-Back Year; and




(B) If the Committee elects the application of this clause in such
Look-Back Year, is a member of the top 20% of Employees for the Look-Back
Year (other than Employees described in Section 414(q)(5) of the Code)
ranked on the basis of compensation received during the year.




For purposes of the preceding sentence, (i) all employers aggregated with the Employer
under Sections 414(b), (c), (m), or (o) of the Code shall be treated as a single employer,
and (ii) a former Employee who had a separation year (generally, the Determination Year such
Employee separates from service) prior to the Determination Year and who was an active
Highly Compensated Employee for either such separation year or any Determination Year ending
on or after such Employee’s fifty-fifth birthday shall be deemed to be a Highly Compensated
Employee. To the extent that the provisions of this Paragraph are inconsistent or conflict
with the definition of a “highly compensated employee” set forth in Section 414(q) of the
Code and the Treasury Regulations thereunder, the relevant terms and provisions of Section
414(q) of the Code and the Treasury Regulations thereunder shall govern and control.




(qq) Hour of Service. Each hour for which an individual is directly or
indirectly paid, or entitled to payment, by the Employer or a Controlled Entity as an
Employee for the performance of duties.




(rr) Independent Fiduciary. The person or entity acting with respect to the
Company Stock Fund, as provided in Section 13.5.




(ss) Investment Fund. Investment funds made available from time to time for
the investment of Plan assets as described in Article V.


 


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(tt) Leased Employee. Each person who is not an employee of the Employer or a
Controlled Entity but who performs services for the Employer or a Controlled Entity pursuant
to an agreement (oral or written) between the Employer or a Controlled Entity and any
leasing organization, provided that (i) such person has performed such services
for the Employer or a Controlled Entity or for related persons (within the meaning of
Section 144(a)(3) of the Code) on a substantially full-time basis for a period of at least
one year, and (ii) such services are performed under primary direction or control by the
Employer or a Controlled Entity.




(uu) Normal Retirement Date. The date a Participant attains the age of
sixty-five.




(vv) Participant. Each individual who (i) has met the eligibility requirements
for participation in the Plan pursuant to Article II, or (ii) has made a Rollover
Contribution in accordance with Section 3.9, but only to the extent provided in Section 3.9.
For purposes of Article V and Section 17.6 only, the beneficiary of a deceased Participant
and any alternate payee under a qualified domestic relations order (as defined in Section
17.2) shall have the rights of a Participant.




(ww) Period of Service. Each period of an individual’s Service commencing on
his Employment Commencement Date or a Reemployment Commencement Date, if applicable, and
ending on a Severance from Service Date. Notwithstanding the foregoing, a period during
which an individual is absent from Service by reason of the individual’s pregnancy, the
birth of a child of the individual, the placement of a child with the individual in
connection with the adoption of such child by the individual, or for the purposes of caring
for such child for the period immediately following such birth or placement shall not
constitute a Period of Service between the first and second anniversary of the first date of
such absence. A Period of Service shall also include any period required to be credited as
a Period of Service by federal law other than the Act or the Code, but only under the
conditions and to the extent so required by such federal law. Further, to the extent
required by Section 414(n) of the Code and the applicable interpretative authority
thereunder, an individual’s Period of Service shall include any period for which such
individual was a Leased Employee (or would have been a Leased Employee but for the
requirements of Section 1.1(tt)(i)).




(xx) Period of Severance. Each period of time commencing on an individual’s
Severance from Service Date and ending on a Reemployment Commencement Date.




(yy) Plan. The Dynegy Inc. 401(k) Savings Plan, as amended from time to time.




(zz) Plan Year. The twelve-consecutive month period commencing January 1 of
each year.




(aaa) Reemployment Commencement Date. The first date upon which an individual
performs an Hour of Service following a Severance from Service Date.


 


11









 






(bbb) Rollover Contribution Account. An individual account for a Participant,
which is comprised of the following subaccounts:




(1) Employee After-Tax Rollover Subaccount: A subaccount for such
Participant that is credited with (i) the balance of his Rollover Contributions
consisting of after-tax employee contributions on the Effective Date, if any,
and (ii) any additional Rollover Contributions consisting of after-tax employee
contributions. A Participant’s Employee After-Tax Rollover Subaccount shall be
adjusted to reflect changes in value as provided in Section 4.3.




(2) Employee Rollover Subaccount: A subaccount for such Participant
that is credited with (i) the balance of his Employee Rollover Subaccount on the
Effective Date, and (ii) any additional Rollover Contributions consisting of amounts
other than after-tax employee contributions and Roth Contributions. A Participant’s
Employee Rollover Subaccount shall be adjusted to reflect changes in value as
provided in Section 4.3.




(3) Employee Roth Rollover Subaccount: A subaccount for such
Participant that is credited with (i) the balance of his Employee Roth Rollover
Subaccount on the Effective Date, and (ii) any additional Rollover Contributions
consisting of Roth Contributions. A Participant’s Employee Roth Rollover Subaccount
shall be adjusted to reflect changes in value as provided in Section 4.3.




(ccc) Rollover Contributions. Contributions made by an Eligible Employee
pursuant to Section 3.9.




(ddd) Roth Account. An individual account for each Participant that is
credited with Roth Contributions, if any, made in accordance with Section 3.1(i) of the
Plan. Such Account shall also be adjusted to reflect changes in value as provided in
Section 4.3.




(eee) Roth Contributions. Contributions made by a Participant pursuant to
Section 3.1(i).




(fff) Service. The period of an individual’s employment with the Employer or a
Controlled Entity; provided, however, that each individual who was employed by Sithe
Energies, Inc. or Sithe Energies Power Services, Inc. (collectively referred to as “Sithe”)
on the date of the closing of the Sithe Transaction shall be credited with Service for the
period preceding such closing date in an amount equal to the Years of Vesting Service, if
any, credited to such individual under the Sithe Energies Group Retirement 401(k) Plan
immediately prior to such closing date. For purposes of this provision, Sithe Transaction
shall mean the transaction contemplated by that certain Stock Purchase Agreement dated as of
November 1, 2004, by and among Exelon SHC, Inc., Exelon New England Power Marketing, L.P.,
ExRes SHC, Inc. and Dynegy New York Holdings Inc. Further provided, that each individual
who was employed by LS Power Generation, LLC, LS Power Development, LLC or LS Power Company,
LLC (an “LS Power Entity”) immediately prior to the “Effective Time” (as defined below) and
who subsequently becomes employed by an Employer after the Effective Time on or before
December 31, 2007, shall be credited with Service based upon his original date of hire with
an LS Power Entity. Further provided, each individual who was employed by Wood Group Power
Operations, Inc., Worley Parsons Group, Inc., North American Energy Services
Co., Prime South, Inc. or General Electric International, Inc. (each a “Prior
Company”), who incurs a Severance from Employment with a Prior Company after the Effective
Time and on or before December 31, 2007, and who becomes employed by an Employer on or
before December 31, 2007, shall be credited with Service based upon his original date of
hire with such applicable Prior Company.


 


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For purposes of this Section 1.1(fff) of the Plan, “Effective Time” shall mean the
“Effective Time” specified in that certain Plan of Merger, Contribution and Sale Agreement
by and among Dynegy Illinois, LSP GEN Investors, L.P., LS Power Partners, L.P., LS Power
Equity Partners PIE I, L.P., LS Power Equity Partners, L.P., LS Power Associates, L.P.,
Falcon Merger Sub Co., and Dynegy Acquisition, Inc., executed September 14, 2006. In
addition, the Committee may, in its discretion, credit individuals with Service for
employment with any other entity, but only if and when such individual becomes an Eligible
Employee and only if (i) such service would not otherwise be credited as Service, and (ii)
such crediting of Service (A) has a legitimate business reason, (B) does not by design or
operation discriminate significantly in favor of Highly Compensated Employees, and (C) is
applied to all similarly-situated Eligible Employees. In addition, the Committee, in its
discretion, may credit individuals with Service based on imputed service for periods after
such individual has commenced participation in the Plan while such individual is not
performing service for the Employer or while such individual is an Employee with a reduced
work schedule, but only if (i) such service would not otherwise be credited as Service, (ii)
such crediting of Service (A) has a legitimate business reason, (B) does not by design or
operation discriminate significantly in favor of Highly Compensated Employees, and (C) is
applied to all similarly situated employees, and (iii) the individual has not permanently
ceased to perform service as an Employee, provided that the preceding clause (iii) of this
sentence shall not apply if (x) the individual is not performing service for the Employer
because of a disability, (y) the individual is performing service for another employer under
an arrangement that provides some ongoing business benefit to the Employer, or (z) for
purposes of vesting, the individual is performing service for another employer that is being
treated under the Plan as actual service with the Employer. Notwithstanding the foregoing,
each Participant shall be credited with Service, as of December 31, 1997, in accordance with
the provisions of the Plan in effect at such time.




(ggg) Severance from Employment. The term “Severance from Employment” shall
have the same meaning as set forth in Treasury Regulation Section 1.401(k)-1(d). A
Severance from Employment occurs when the Participant ceases to be an Employee of an
Employer maintaining the Plan. An Employee does not have a Severance from Employment if, in
connection with a change of employment, the Employee’s new employer maintains such Plan with
respect to the Employee. For example, if a new employer maintains the Plan with respect to
an Employee by continuing or assuming sponsorship of the Plan or by accepting a transfer of
Plan assets and liabilities (within the meaning of Section 414(l) of the Code) with respect
to the Employee, such Employee does not have a Severance from Employment.


 


13









 






(hhh) Severance from Service Date. The earlier of (i) the first date on which
an individual incurs a Severance from Employment following his Employment
Commencement Date or a Reemployment Commencement Date, if applicable, (ii) the first
anniversary of the first date of a period in which an Employee remains absent from Service
(with or without pay) with the Employer for any reason other than an authorized leave of
absence, resignation, retirement, discharge, or death, such as vacation, holiday,
disability, or lay-off that is not classified by the Employer as a termination of Service,
or (iii) the second anniversary of the first date of an Employee’s authorized leave of
absence (with or without pay). Notwithstanding the foregoing, the Severance from Service
Date of an individual who is absent from Service by reason of the individual’s pregnancy,
the birth of a child of the individual, the placement of a child with the individual in
connection with the adoption of such child by the individual, or for purposes of caring for
such child for the period immediately following such birth or placement shall be the second
anniversary of the first date of such absence.




(iii) Single Plan Participant. With respect to a Plan Year, an individual who
(i) as of the last day of such Plan Year, is an Eligible Employee and is not currently
accruing benefits or earning service credit under the Trident NGL, Inc. Retirement Plan or
(ii) terminated employment during such Plan Year on or after his Normal Retirement Date or
by reason of death or Total and Permanent Disability and, immediately prior to such
termination, was not currently accruing benefits or earning service credit under the Trident
NGL, Inc. Retirement Plan. Further provided, each individual who was employed by Accenture
LLP on March 1, 2008 and who subsequently becomes employed by an Employer during the period
of time beginning on March 17, 2008 and ending on April 30, 2008, shall be credited with
Service based upon his original date of hire with Accenture LLP.




(jjj) Total and Permanent Disability. A Participant shall be considered
totally and permanently disabled if (i) the Participant has been determined to be disabled
by the Social Security Administration, and (ii) the Participant is receiving payment of
social security disability benefits.




(kkk) Trident Account(s). A Participant’s Trident Before-Tax Subaccount,
Trident Matching Subaccount, Trident Profit Sharing Stock Subaccount, including the amounts
credited thereto. In addition to other provisions of the Plan, a Participant’s Trident
Account shall be subject to the provisions of Appendix C, and in the event of any conflict,
Appendix C shall control.




(1) Trident Before-Tax Subaccount. A subaccount of the Before-Tax
Account which was credited with the amount, if any, transferred from a Trident
Participant’s Pretax Deferral Account under the Trident Plan and which is adjusted
to reflect such Account’s changes in value pursuant to Section 4.3. In addition to
other provisions of the Plan, a Participant’s Trident Before-Tax Account shall be
subject to the provisions of Appendix C, and in the event of any conflict, Appendix
C shall control.


 


14









 






(2) Trident Matching Subaccount. A subaccount of the Employer
Contribution Account which was credited with the amounts, if any, transferred from a
Participant’s Matching Account under the Trident Plan, and which is
adjusted to reflect such Account’s changes in value pursuant to Section 4.3.
In addition to other provisions of the Plan, a Participant’s Trident Matching
Account shall be subject to the provisions of Appendix C, and in the event of any
conflict, Appendix C shall control.




(3) Trident Profit Sharing Stock Subaccount. A subaccount of the
Employer Contribution Account which was credited with the amounts, if any,
transferred from a Participant’s Profit Sharing Account under the Trident Plan and
that were invested in Company Stock, and which is adjusted to reflect such Account’s
changes in value pursuant to Section 4.3.




(lll) Trident Participant. A Participant with a balance in the Trident Plan
that was transferred to the Plan.




(mmm) Trident Plan. The Trident NGL, Inc. Savings Plan which was, effective
April 1, 1995, merged with and into the Plan.




(nnn) Trust. The trust(s) established under the Trust Agreement(s) to hold and
invest contributions made under the Plan and income thereon, and from which the Plan
benefits are distributed.




(ooo) Trust Agreement. The agreement(s) entered into between the Company and
the Trustee establishing the Trust, as such agreement(s) may be amended from time to time.




(ppp) Trust Fund. The funds and properties held pursuant to the provisions of
the Trust Agreement for the use and benefit of the Participants, together with all income,
profits, and increments thereto.




(qqq) Trustee. The trustee or trustees qualified and acting under the Trust
Agreement at any time.




(rrr) Vested Interest. The portion of a Participant’s Accounts which, pursuant
to the Plan, is nonforfeitable.




(sss) VBO. The “Vanguard Brokerage Option” that is an Investment Fund under
the Plan, as described in Section 5.3.




(ttt) Vesting Service. The measure of service used in determining a
Participant’s Vested Interest as determined pursuant to Sections 6.6 and 6.7.



1.2 Number and Gender. Wherever appropriate herein, words used in the singular shall
be considered to include the plural and words used in the plural shall be considered to include the
singular. The masculine gender, where appearing in the Plan, shall be deemed to include the
feminine gender.


 


15









 





1.3 Headings. The headings of Articles and Sections herein are included solely for
convenience, and if there is any conflict between such headings and the text of the Plan, the text
shall control.



1.4 Construction. It is intended that the Plan be qualified within the meaning of
section 401(a) of the Code and that the Trust be tax exempt under Section 501(a) of the Code, and
all provisions herein shall be construed in accordance with such intent.



II. PARTICIPATION




2.1 Eligibility. On or after the Effective Date, each Eligible Employee shall be
eligible to become a Participant immediately upon his employment as an Eligible Employee.
Notwithstanding the foregoing:




(a) An individual who was a Participant of the Plan on the day prior to the Effective
Date shall remain a Participant of this restatement thereof as of the Effective Date;




(b) An Employee who has not become a Participant of the Plan because he was not an
Eligible Employee shall be eligible to become a Participant of the Plan immediately upon
becoming an Eligible Employee as a result of a change in his employment status; and




(c) A Participant who ceases to be an Eligible Employee but remains an Employee shall
continue to be a Participant but, on and after the date he ceases to be an Eligible
Employee, he shall no longer be entitled to defer Compensation hereunder, make contributions
to the Plan, or share in allocations of Employer Contributions unless and until he shall
again become an Eligible Employee.



2.2 Participation. Participation in the Plan is voluntary. By electing to make
contributions to the Plan, a Participant agrees to be bound by the terms and conditions of the
Plan. Any Eligible Employee may become a Participant upon the date he first become eligible
pursuant to Section 2.1 by following the procedures prescribed by the Committee within the time
limits prescribed by the Committee. Any Eligible Employee who does not become a Participant upon
the date he first becomes eligible pursuant to Section 2.1 may become a Participant on the first
day of any subsequent payroll period by timely following the procedures prescribed by the
Committee. Notwithstanding the foregoing, participation in the Plan is automatic for any
individual who qualifies as a Single Plan Participant.


 


16









 





III. CONTRIBUTIONS




3.1 Before-Tax Contributions.




(a) A Participant may elect to defer an integral percentage of not less than 1% of his
Compensation for a Plan Year by having the Employer contribute the amount so deferred to the
Plan. A Participant’s election to defer an amount of his Compensation pursuant to this
Section shall be made by authorizing his Employer, in the manner prescribed by the
Committee, to reduce his Compensation in the elected amount and the
Employer, in consideration thereof, agrees to contribute an equal amount to the Plan.
The Compensation elected to be deferred by a Participant for a Plan Year pursuant to this
Section shall become a part of the Employer’s Before-Tax Contributions for such Plan Year
and shall be allocated in accordance with Section 4.1(a). Compensation for a Plan Year not
so deferred by a Participant shall be received by such Participant in cash. Such elections
cannot relate to Compensation that is currently available prior to the adoption or effective
date of the Plan. In addition, except for occasional, bona fide administrative
considerations, contributions made pursuant to such an election cannot precede the earlier
of (i) the performance of services relating to the contribution, and (ii) when the
Compensation that is subject to the election would be currently available to the Participant
in the absence of an election to defer. Such election can only be made with respect to
amounts that are compensation as defined under Section 415(c)(3) of the Code and Treasury
Regulation Section 1.415(c)-2. A Participant who is not in Qualified Military Service (as
defined in Section 414(u) of the Code) cannot make an election with respect to an amount
paid after the Participant’s Severance from Employment, unless the amount is paid within 21/2
months following the Participant’s Severance from Employment and is described in Treasury
Regulation Section 1.415(c)-2(e)(3)(ii). For clarification purposes, the preceding sentence
shall permit elections to apply to: (i) amounts earned prior to a Severance from Employment,
and (ii) payments of sick leave and/or vacation pay paid to a Participant as soon as
administratively feasible following Severance from Employment.




(b) A Participant’s deferral election shall remain in force and effect for all periods
following the effective date of such election (which shall be as soon as administratively
feasible after the election is made) until modified or terminated or until such Participant
terminates his employment or ceases to be an Eligible Employee. A Participant who has
elected to defer a portion of his Compensation may change his deferral election percentage,
effective as of the next available pay date, by communicating such new deferral election
percentage to his Employer in the manner and within the time period prescribed by the
Committee.




(c) A Participant may cancel his deferral election, effective as of the next available
pay date by communicating such cancellation to his Employer in the manner and within the
time period prescribed by the Committee. A Participant who so cancels his deferral election
may resume deferrals, effective as of the next available pay date, by communicating his new
deferral election to his Employer in the manner and within the time period prescribed by the
Committee.




(d) In restriction of the Participants’ elections provided in Paragraphs (a), (b), and
(c) above, the Before-Tax Contributions and the elective deferrals (within the meaning of
Section 402(g)(3) of the Code) under all other plans, contracts, and arrangements of the
Employer on behalf of any Participant for any calendar year shall not exceed $16,500 for
calendar year 2009, (with such amount to be adjusted automatically to reflect any
cost-of-living adjustments authorized by Section 402(g)(4) of the Code).


 


17









 






(e) In further restriction of the Participants’ elections provided in Paragraphs (a),
(b), and (c) above, it is specifically provided that one of the actual deferral percentage
tests set forth in Section 401(k)(2) of the Code and Treasury regulations thereunder
(“ADP Test”) must be met in each Plan Year. Such testing shall utilize the current year
testing method as such term is defined under Treasury Regulation Section
1.401(k)-2(a)(2)(ii). The actual deferral ratio (as such term is defined under Treasury
Regulation Section 1.401(k)-6) (“ADR”) of any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to have Before-Tax Contributions (and
Employer Discretionary Qualified Matching Contributions, if treated as elective
contributions for purposes of the ADP Test) allocated to such Participant’s accounts under
two (2) or more cash or deferred arrangements described in Section 401(k) of the Code, that
are maintained by an Employer (or a Controlled Entity), shall be determined as if such
elective contributions (and, if applicable, such Qualified Matching Contributions) were made
under a single arrangement. If a Highly Compensated Employee participates in two (2) or
more cash or deferred arrangements of the Employer or a Controlled Entity that have
different Plan Years, then all elective contributions made during the Plan Year being tested
under all such cash or deferred arrangements shall be aggregated, without regard to the plan
years of the other plans. Notwithstanding the foregoing, certain plans shall be treated as
separate if mandatorily disaggregated under the Regulations of Section 401(k) of the Code.




(f) If the Committee determines that a reduction of Compensation deferral elections
made pursuant to Paragraphs (a), (b) and (c) above is necessary to ensure that the
restrictions set forth in Paragraph (d) or (e) above are met for any Plan Year, the
Committee may reduce the elections of affected Participants on a temporary and prospective
basis in such manner as the Committee shall determine.




(g) As soon as administratively feasible following the end of each payroll period, but
no later than the time required by applicable law, the Employer shall contribute to the
Trust, as Before-Tax Contributions with respect to each Participant, an amount equal to the
amount of Compensation elected to be deferred, pursuant to Paragraphs (a) and (b) above (as
adjusted pursuant to Paragraph (f) above), by such Participant during such payroll period.
Such contributions, as well as the contributions made pursuant to Sections 3.3, 3.4, and
3.5, shall be made without regard to current or accumulated profits of the Employer.
Notwithstanding the foregoing, the Plan is intended to qualify as a profit sharing plan for
purposes of Sections 401(a), 402, 412, and 417 of the Code.




(h) Notwithstanding the foregoing, all Participants who are eligible to make elective
deferrals under this Plan and who have attained age 50 before the close of the Plan Year
shall be eligible to make Catch-up Contributions in accordance with, and subject to the
limitations of, Section 414(v) of the Code. Such Catch-up Contributions shall not be taken
into account for purposes of the provisions of the Plan implementing the required
limitations of Sections 402(g) and 415 of the Code. The Plan shall not be treated as
failing to satisfy the provisions of the Plan implementing the requirements of Sections
401(k)(3), 401(k)(11), 401(k)(12), 410(b), or 416 of the Code, as applicable, by reason of
the making of such Catch-up Contributions. Notwithstanding any other provision of the Plan,
Catch-up Contributions shall not be matched by Employer Contributions. Any Catch-Up
Contribution made as a Roth Contribution under Section
3.1(i) shall be treated as a Roth Contribution for purposes of allocation, distribution
and investment.


 


18









 






(i) Effective January 1, 2008, a Participant may elect to have some or all of his or
her Before-Tax Contribution, as a whole percentage of Compensation, and some or all of any
Catch-Up Contribution, contributed to the Plan as a Roth Contribution. A Roth Contribution
means any Before-Tax Contribution that is (i) designated irrevocably by the Participant at
the time of execution of the applicable payroll deduction authorization form; supplied by
the Employer as a Roth Contribution, (ii) treated by the Employer as included in the
Participant’s income at the time the Participant would have received the amount in cash if
the Participant had not made the election with respect to such Roth Contribution so that the
Roth Contribution shall be wages subject to applicable withholding requirements, and (iii)
maintained by the Plan in a separate, designated Roth Account. Roth Contributions shall be
subject to the same dollar limits and nondiscrimination testing requirements as Before-Tax
Contributions, and shall be subject to the same Plan provisions as Before-Tax Contributions
for purposes of investment and distribution.




(j) Notwithstanding the foregoing or anything to the contrary, each Eligible Employee
whose employment with the Employer begins on or after the Effective Date shall be deemed to
have elected to defer 5% of his Compensation as a Before-Tax Contribution (and for the sake
of clarity, not as a Roth Contribution) effective as of the first administratively feasible
pay period following an opt-out period prescribed by the Committee (which shall not be less
than sixty (60) days) unless such Eligible Employee opts out of such deemed election during
such opt-out period in the manner prescribed by the Committee. Except as provided in this
Paragraph (j), all provisions applicable to the elective deferrals made pursuant to
Paragraph (a) above shall also be applicable to deemed elective deferrals made pursuant to
this Paragraph, including, but not limited to, a Participant’s ability to cancel or change
such election in accordance with Paragraphs (b) and (c) above.




3.2 After-Tax Contributions.




(a) If the Before-Tax Contributions to be made with respect to a Participant are
restricted by the limitations set forth in Section 3.1(d) for a calendar year, then,
automatically and without any further action by such Participant, such Participant’s
Compensation shall continue to be reduced by the percentage elected by the Participant and
then in effect pursuant to Section 3.1(a), (b), or (c) for the remainder of such year but on
an after-tax basis with such reductions to be contributed to the Plan as his After-Tax
Contributions. Effective as of the first day of the following Plan Year, automatically and
without any further action by the Participant, such Participant’s Compensation reduction
election as then in effect under this Paragraph (a), as adjusted pursuant to Paragraphs (c),
(d) and (f) below, shall revert to an election to defer Compensation pursuant to Section
3.1(a).


 


19









 






(b) Without limiting the applicability of Paragraph (a) above, a Participant may
contribute to the Plan, as his After-Tax Contributions, an integral percentage of not
less than 1% of his Compensation. After-Tax Contributions shall be made by authorizing
the Employer to withhold such contributions from the Participant’s Compensation as of each
payroll period. Each Participant may elect the amount of his After-Tax Contributions in the
manner and within the time period prescribed by the Committee.




(c) A Participant may change the amount of his After-Tax Contributions pursuant to
Paragraph (a) and/or (b) above effective as of the next available pay date by electing a new
After-Tax Contribution percentage in the manner and within the time period prescribed by the
Committee.




(d) A Participant may suspend his After-Tax Contributions pursuant to Paragraph (a)
and/or (b) above effective as of the next available pay date in accordance with the
procedures and within the time period prescribed by the Committee. Resumption of suspended
After-Tax Contributions shall be made effective as of the next available pay date by making
a new election in the manner and within the time period prescribed by the Committee;
provided, however, that a Participant may not resume his After-Tax Contributions pursuant to
Paragraph (a) above once such After-Tax Contributions have been suspended pursuant to this
Paragraph.




(e) A Participant may at any time elect to make a lump sum After-Tax Contribution to
the Plan. Such After-Tax Contribution shall be paid to the Employer by such Participant in
cash (including personal check or other method approved by the Committee), in an amount
determined by such Participant; provided, however, that such contribution may not exceed the
otherwise applicable limits set forth in the Plan.




(f) If the restrictions set forth in Section 3.6 would not otherwise be met for any
Plan Year, (i) the After-Tax Contribution elections made pursuant to Paragraphs (a), (b),
(c), and (d) above of affected Participants may be reduced by the Committee on a temporary
and prospective basis in such manner as the Committee shall determine, and (ii) any
After-Tax Contributions pursuant to Paragraph (e) above of affected Participants may be
limited or disallowed.




(g) As soon as administratively feasible following (i) the end of each payroll period,
or (ii) the receipt by the Employer of a Participant’s payment pursuant to Paragraph (e)
above, but in either event no later than the time required by applicable law, the Employer
shall contribute to the Trust the After-Tax Contributions withheld from the Participants’
Compensation during such payroll period or paid to the Employer in accordance with Paragraph
(e) above, as applicable.




3.3 Employer Matching Contributions.




(a) For each payroll period, the Employer shall contribute to the Trust, as Employer
Matching Contributions, an amount that equals 100% of the Before-Tax Contributions that were
made pursuant to Section 3.1 on behalf of each of the Participants during such payroll
period and that were not in excess of 5% of each such Participant’s Compensation for such
payroll period.


 


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(b) In addition to the Employer Matching Contributions made pursuant to Paragraph (a)
above, for each Plan Year the Employer shall contribute to the Trust, as Employer Matching
Contributions, an amount equal to the difference, if any, between (i) 100% of the Before-Tax
Contributions that were made pursuant to Section 3.1 on behalf of each of the Eligible
Participants during such Plan Year and that were not in excess of 5% of each such Eligible
Participant’s Compensation for such Plan Year, and (ii) the Employer Matching Contributions
made pursuant to Paragraph (a) above for each such Eligible Participant for such Plan Year.
For purposes of this Paragraph, the term “Eligible Participant” shall mean each Participant
who was an Eligible Employee on the last day of the applicable Plan Year.




(c) Employer Matching Contributions pursuant to Paragraph (a) above shall be
contributed to the Trust at the same time the related Before-Tax Contributions are
contributed to the Trust, and Employer Matching Contributions pursuant to Paragraph (b)
above shall be contributed to the Trust at the time determined by the Committee. At the
sole discretion of the Directors or the Compensation Committee of the Company’s Board of
Directors, Employer Matching Contributions on behalf of Participants shall be made in cash,
in whole shares of Company Stock, or in any combination of cash and whole shares of Company
Stock.




(d) Notwithstanding the preceding provisions of this Section 3.3, Roth Contributions
(except Catch-Up Contributions made as Roth Contributions) shall be eligible for Employer
Matching Contributions in the same manner and amount as Before-Tax Contributions.




3.4 Employer Discretionary Contributions.




(a) For each Plan Year, the Employer may contribute to the Trust, as an Employer
Discretionary Contribution, an additional amount as determined in its discretion.




(b) If it has been so determined that an Employer Discretionary Contribution shall be
made for any Plan Year, then such contribution shall be made in cash, in whole shares of
Company Stock, or in any combination of cash and whole shares of Company Stock (as
determined in the sole discretion of the Directors or the Compensation Committee of the
Company’s Board of Directors).



3.5 Employer Discretionary Qualified Matching Contributions. In addition to the
Employer Matching Contributions made pursuant to Section 3.3 and the Employer Discretionary
Contributions made pursuant to Section 3.4, for each Plan Year, the Employer, in its discretion,
may contribute to the Trust as an Employer Discretionary Qualified Matching Contribution for such
Plan Year the amounts necessary to cause the Plan to satisfy the restrictions set forth in Section
3.1(e) (with respect to certain restrictions on Before-Tax Contributions) and the amounts necessary
to cause the Plan to satisfy the restrictions set forth in Section 3.6 (with respect to certain
restrictions on Employer Matching Contributions and After-Tax Contributions). Amounts contributed
in order to satisfy the restrictions set forth in Section 3.1(e) shall be considered “Qualified
Matching Contributions” (within the meaning of Treasury Regulation Section
1.401(k)-6), and amounts contributed in order to satisfy the restrictions set forth in Section
3.6 shall be considered Employer Matching Contributions.


 


21









 





Employer Discretionary Qualified Matching Contributions may be contributed to the Plan
pursuant to the foregoing for purposes of satisfying the restrictions set forth in Section 3.1(e)
only if the conditions described in Treasury Regulation Section 1.401(k)-2(a)(6) are satisfied. A
contribution made pursuant to this Section 3.5 is not taken into account under the actual
contribution percentage test (as defined under Treasury Regulation Section 1.401(k)-6) (“ACP Test”)
or in determining the ADR for a Participant who is not a Highly Compensated Employee (a “NHCE”) to
the extent that it exceeds the greatest of:




(a) Five percent (5%) of the NHCE’s Section 414(s) of the Code compensation for the
Plan Year;




(b) The NHCE’s Before-Tax Contributions for the Plan Year; and




(c) The product of two (2) times the Plan’s “Representative Matching Rate” (as defined
below) and the NHCE’s Before-Tax Contributions for the Plan Year.



Any amounts contributed pursuant to this Paragraph shall be allocated in accordance with the
provisions of Sections 4.1(e), (f) and (g). For purposes of this Paragraph, the “Matching Rate”
for a Participant generally is the Employer Matching Contributions made for such Participant
divided by the Participant’s Before-Tax Contributions for the Plan Year. For purposes of this
Paragraph, the “Representative Matching Rate” is the lowest Matching Rate for any eligible NHCE
among a group of NHCEs that consists of half of all eligible NHCEs in the Plan for the Plan Year
(or, if greater, the lowest Matching Rate for all eligible NHCEs in the Plan who are employed by
the Employer on the last day of the Plan Year and who make Before-Tax Contributions for the Plan
Year). If the Matching Rate is not the same for all levels of Before-Tax Contributions for a
Participant, then the Participant’s Representative Matching Rate is determined assuming that a
Participant’s Before Tax Contributions are equal to six percent (6%) of his compensation under
Section 414(s) of the Code.



3.6 Restrictions on Employer Matching Contributions and After-Tax Contributions. In
restriction of the Employer Matching Contributions and After-Tax Contributions hereunder, it is
specifically provided that one of the actual contribution percentage tests set forth in Section
401(m) of the Code and Treasury regulations thereunder (“ACP Test”) must be met in each Plan Year.
Such testing shall utilize the current year testing method as such term is defined in Treasury
Regulation Section 1.401(m)-2(a)(2)(ii). The Committee may elect, in accordance with applicable
Treasury regulations, to treat Before-Tax Contributions to the Plan as Employer Matching
Contributions for purposes of meeting this requirement. The actual contribution ratio (as such
term is defined under Treasury Regulation Section 1.401(k)-6) (the “ACR”) for any Participant who
is a Highly Compensated Employee and who is eligible to have Employer Matching Contributions or
After-Tax Contributions allocated to his or her account under two (2) or more plans described in
Section 401(a) of the Code, or arrangements described in Section 401(k) of the Code that are
maintained by the same Employer (or Controlled Entity), shall be determined as if the total of such
contributions was made under each plan and arrangement. If a Highly Compensated Employee
participates in two (2) or more such plans or
arrangements that have different plan years, then all Employer Matching Contributions and
After-Tax Contributions made during the Plan Year being tested under all such plans and
arrangements shall be aggregated, without regard to the plan years of the other plans.
Notwithstanding the foregoing, certain plans shall be treated as separate if mandatorily
disaggregated under the Regulations of Section 401(k) of the Code.


 


22









 





3.7 Return of Contributions. Anything to the contrary herein notwithstanding, the
Employer’s contributions to the Plan are contingent upon the deductibility of such contributions
under Section 404 of the Code. To the extent that a deduction for contributions is disallowed,
such contributions shall, upon the written demand of the Employer, be returned to the Employer by
the Trustee within one year after the date of disallowance, reduced by any net losses of the Trust
Fund attributable thereto but not increased by any net earnings of the Trust Fund attributable
thereto, which net earnings shall be treated as a forfeiture in accordance with Section 4.2.
Moreover, if Employer contributions are made under a mistake of fact, such contributions shall,
upon the written demand of the Employer, be returned to the Employer by the Trustee within one year
after the payment thereof, reduced by any net losses of the Trust Fund attributable thereto but not
increased by any net earnings of the Trust Fund attributable thereto, which net earnings shall be
treated as a forfeiture in accordance with Section 4.2.




3.8 Disposition of Excess Deferrals and Excess Contributions.




(a) Anything to the contrary herein notwithstanding, any Before-Tax Contributions or
Roth Contributions to the Plan for a calendar year on behalf of a Participant in excess of
the limitations set forth in Section 3.1(d) and any “excess deferrals” from other plans
allocated to the Plan by such Participant no later than March 1 of the next following
calendar year within the meaning of, and pursuant to the provisions of, Section 402(g)(2) of
the Code, shall be distributed to such Participant not later than April 15 of the next
following calendar year.




(b) Anything to the contrary herein notwithstanding, if, for any Plan Year, the
aggregate Before-Tax Contributions and/or Roth Contributions made by the Employer on behalf
of Highly Compensated Employees exceeds the maximum amount of Before-Tax Contributions
and/or Roth Contributions permitted on behalf of such Highly Compensated Employees pursuant
to Section 3.1(e) or 3.1(i), respectively, an excess amount shall be determined by reducing
Before-Tax Contributions and/or Roth Contributions on behalf of Highly Compensated Employees
in order of the highest ADRs to equal the highest permitted ADR in accordance with Section
401(k)(8)(B)(ii) of the Code and the Treasury Regulations thereunder. Once determined, the
Committee may adjust the contributions of each affected Highly Compensated Employee by
causing such excess amounts to be (i) recharacterized as Catch-up Contributions pursuant to
the provisions of Section 4.5 of the Plan to the maximum extent possible, and (ii)
distributed to Highly Compensated Employees in order of the highest dollar amounts
contributed on behalf of such Highly Compensated Employees in accordance with Section
401(k)(8)(C) of the Code and the Treasury Regulations thereunder before the end of the next
following Plan Year. Income allocable to such excess amounts with respect to a Plan Year
shall be distributed therewith and shall include income for such Plan Year including the gap
period between the end of such Plan Year and the date of distribution of such excess
amounts computed under the safe harbor method of allocating gap period income set forth
in Treasury Regulation Section 1.401(k)-2(b)(2)(iv)(D).


 


23









 






(c) Anything to the contrary herein notwithstanding, if, for any Plan Year, the
aggregate Employer Matching Contributions and After-Tax Contributions allocated to the
Accounts of Highly Compensated Employees exceeds the maximum amount of such Employer
Matching Contributions and After-Tax Contributions permitted on behalf of such Highly
Compensated Employees pursuant to Section 3.6, an excess amount shall be determined by
reducing, first, After-Tax Contributions made by, and second, Employer Matching
Contributions made on behalf of, Highly Compensated Employees in order of the highest ACR to
equal the highest permitted ACR in accordance with Section 401(m)(6)(B)(ii) of the Code and
the Treasury Regulations thereunder. Once determined, such excess shall be distributed to
Highly Compensated Employees in order of the highest dollar amounts contributed by or on
behalf of such Highly Compensated Employees in accordance with Section 401(m)(6)(C) of the
Code and the Treasury Regulations thereunder (or, if such excess contributions are
forfeitable, they shall be forfeited) before the end of the next following Plan Year.
Income allocable to such excess amounts with respect to a Plan Year shall be distributed
therewith and shall include income for such Plan Year including the gap period between the
end of such Plan Year and the date of distribution of such excess amounts computed under the
safe harbor method of allocating gap period income set forth in Treasury Regulation Section
1.401(m)-2(b)(2)(iv)(D). Employer Matching Contributions which are not then vested shall be
forfeited pursuant to this Paragraph only if distribution of all vested Employer Matching
Contributions is insufficient to meet the requirements of this Paragraph. If vested
Employer Matching Contributions are distributed to a Participant and nonvested Employer
Matching Contributions remain credited to such Participant’s Accounts, such nonvested
Employer Matching Contributions shall vest at the same rate as if such distribution had not
been made.




(d) Effective January 1, 2008, in coordinating the disposition of excess deferrals and
excess contributions pursuant to this Section, such excess deferrals and excess
contributions shall be disposed of in the following order:




(1) First, excess Roth Contributions that constitute excess deferrals described
in Paragraph (a) above that are not considered in determining the amount of Employer
Matching Contributions pursuant to Section 3.3 shall be distributed.




(2) Next, excess Roth Contributions that constitute excess deferrals described
in Paragraph (a) above that are considered in determining the amount of Employer
Matching Contributions pursuant to Section 3.3 shall be distributed, and the
Employer Matching Contributions with respect to such Before-Tax Contributions shall
be forfeited;




(3) Next, excess Before-Tax Contributions that constitute excess deferrals
described in Paragraph (a) above that are not considered in determining
the amount of Employer Matching Contributions pursuant to Section 3.3 shall be
distributed;


 


24









 






(4) Next, excess Before-Tax Contributions that constitute excess deferrals
described in Paragraph (a) above that are considered in determining the amount of
Employer Matching Contributions pursuant to Section 3.3 shall be distributed, and
the Employer Matching Contributions with respect to such Before-Tax Contributions
shall be forfeited;




(5) Next, excess Before-Tax Contributions described in Paragraph (b) above that
are not considered in determining the amount of Employer Matching Contributions
pursuant to Section 3.3 shall be distributed;




(6) Next, excess Before-Tax Contributions described in Paragraph (b) above that
are considered in determining the amount of Employer Matching Contributions pursuant
to Section 3.3 shall be distributed, and the Employer Matching Contributions with
respect to such Before-Tax Contributions shall be forfeited;




(7) Next, excess After-Tax Contributions described in Paragraph (c) above shall
be distributed; and




(8) Finally, excess Employer Matching Contributions described in Paragraph (c)
above shall be distributed (or, if forfeitable, forfeited).




(e) Any distribution or forfeiture of excess deferrals or excess contributions pursuant
to the provisions of this Section shall be adjusted for income or loss allocated thereto in
the manner determined by the Committee in accordance with any method permissible under
applicable Treasury Regulations.




3.9 Rollover Contributions.




(a) Rollover Contributions may be made to the Plan by any Eligible Employee of amounts
received by such Eligible Employee from a qualified plan described in Section 401(a) or
403(a) of the Code or an annuity contract described in Section 403(b) of the Code
(excluding, in each case, after-tax employee contributions). In addition, the Plan will
accept a Rollover Contribution of the portion of a distribution received by an Eligible
Employee from an individual retirement account or annuity described in Section 408(a) or
408(b) of the Code that is eligible to be rolled over and would otherwise be includible in
gross income. Rollover Contributions pursuant to this Paragraph may only be made to the
Plan pursuant to and in accordance with applicable provisions of the Code and Treasury
Regulations promulgated thereunder.




Notwithstanding the foregoing, effective January 1, 2008, the Plan will accept a Rollover
Contribution of after-tax employee contributions and/or Roth contributions as Rollover
Contributions. The Plan will account separately for amounts so transferred, including
accounts separately for the portion of such distribution which is includible in gross income
and the portion of such distribution which is not includible in gross income.


 


25









 






(b) Rollover Contributions may be made to the Plan by any Eligible Employee of amounts
received by such Eligible Employee from any of a qualified plan described in Section 401(a)
or 403(a) of the Code (including after-tax employee contributions) or an annuity described
in Section 403(b) of the Code (excluding after-tax employee contributions). Rollover
Contributions may be made to the Plan only pursuant to and in accordance with applicable
provisions of the Code and Treasury Regulations promulgated thereunder. A Rollover
Contribution of amounts that are “eligible rollover distributions” within the meaning of
Section 402(f)(2)(A) of the Code may be made to the Plan irrespective of whether such
eligible rollover distribution was paid to the Eligible Employee or paid to the Plan as a
“direct” Rollover Contribution.




(c) Any Participant desiring to effect a Rollover Contribution to the Plan must follow
the procedures prescribed by the Committee for such purpose. The Committee may require as a
condition to accepting any Rollover Contribution that such Eligible Employee furnish any
evidence that the Committee in its discretion deems satisfactory to establish that the
proposed Rollover Contribution is in fact eligible for rollover to the Plan and is made
pursuant to and in accordance with applicable provisions of the Code and Treasury
Regulations. All Rollover Contributions to the Plan must be made in cash. A Rollover
Contribution shall be credited to the Rollover Contribution Account of the Eligible Employee
for whose benefit such Rollover Contribution is being made as of the day such Rollover
Contribution is received by the Trustee.




Notwithstanding the foregoing, if a Participant’s interest under a qualified plan described
in Section 401(a) of the Code is distributed in connection with an acquisition of stock or
assets by an Employer or a Controlled Entity, the Participant’s entire outstanding loan
under such plan may be contributed as a Rollover Contribution to this Plan, in accordance
with this Section 3.9, provided that the transferor plan provides the Committee with a
current favorable IRS determination letter issued to such transferor plan and trust or such
other evidence that the Committee in its discretion deems satisfactory to establish that the
proposed Rollover Contribution is in fact eligible for rollover to the Plan and is made
pursuant to and in accordance with applicable provisions of the Code and Treasury
Regulations. The Committee shall determine, in its discretion, whether or not a
distribution is made in connection with an acquisition of stock or assets by an Employer or
a Controlled Entity.




(d) A Participant who has made a Rollover Contribution in accordance with this Section,
but who has not otherwise become a Participant of the Plan in accordance with Section 2.2,
shall become a Participant coincident with such Rollover Contribution; provided, however,
that such Participant shall not have a right to defer Compensation, make contributions to
the Plan, or have Employer Contributions made on his behalf until he has otherwise satisfied
the requirements imposed by Section 2.2.


 


26









 





IV. ALLOCATIONS AND LIMITATIONS




4.1 Allocation of Contributions.




(a) Before-Tax Contributions made by the Employer on a Participant’s behalf shall be
allocated to such Participant’s Before-Tax Account. Further, Catch-up Contributions
pursuant to Section 3.1(h) made by the Employer on a Participant’s behalf shall be allocated
to such Participant’s Catch-Up Contribution Account.




(b) After-Tax Contributions made by a Participant pursuant to Section 3.2 shall be
allocated to such Participant’s After-Tax Account.




(c) Employer Matching Contributions made by the Employer on a Participant’s behalf
shall be allocated to such Participant’s Employer Contribution Account.




(d) The Employer Discretionary Contribution, if any, made pursuant to Section 3.4 for a
Plan Year shall be allocated as follows:




(1) For contributions made by the Employer for all Participants, such amounts
shall be allocated to such Participant’s Employer Contribution Account. The
allocation to each such eligible Participant’s Employer Contribution Account shall
be that portion of such Employer Discretionary Contribution which is in the same
proportion that such eligible Participant’s Compensation for such Plan Year bears to
the total of all such eligible Participant’s Compensation for such Plan Year; and




(2) For contributions made by the Employer for Single Plan Participants who
received contributions for such a Plan Year, such amounts shall be allocated to such
Single Plan Participant’s Employer Contribution Account. The allocation to each
such eligible Single Plan Participant’s Employer Contribution Account shall be that
portion of such Employer Discretionary Contribution which is in the same proportion
that such Single Plan Participant’s Compensation for such Plan Year bears to the
total of all such Single Plan Participant’s Compensation for such Plan Year.




(e) The Employer Discretionary Qualified Matching Contributions, if any, made pursuant
to Section 3.5 for a Plan Year in order to satisfy the restrictions set forth in Section
3.1(e) shall be allocated to the Before-Tax Accounts of Participants who (i) received an
allocation of Before-Tax Contributions for such Plan Year, and (ii) were not Highly
Compensated Employees for such Plan Year (each such Participant individually referred to as
an “Eligible Participant” for purposes of this Paragraph). Such allocation shall be made,
first, to the Before-Tax Account of the Eligible Participant who received the least amount
of Compensation for such Plan Year until the lesser of the limitation set forth in Treasury
Regulation Section 1.401(k)-2(a)(6)(v) or the limitation set forth in Section 4.4 (the
“401(k) Additional Contribution Limitation”) has been reached as to such Eligible
Participant, then to the Before-Tax Account of the Eligible Participant who received the
next smallest amount of Compensation for such Plan Year until the 401(k)
Additional Contribution Limitation has been reached as to such Eligible Participant,
and continuing in such manner until the Employer Discretionary Qualified Matching
Contribution for such Plan Year has been completely allocated or the 401(k) Additional
Contribution Limitation has been reached as to all Eligible Participants.


 


27









 






(f) The Employer Discretionary Qualified Matching Contribution, if any, made pursuant
to Section 3.5 for a Plan Year in order to satisfy the restrictions set forth in Section 3.6
shall be allocated to the Employer Contribution Accounts of Participants who (i) received an
allocation of Employer Matching Contributions for such Plan Year, and (ii) were not Highly
Compensated Employees for such Plan Year (each such Participant individually referred to as
an “Eligible Participant” for purposes of this Paragraph). Such allocation shall be made,
first, to the Employer Contribution Account of the Eligible Participant who received the
least amount of Compensation for such Plan Year until the lesser of the limitation set forth
in Treasury Regulation Section 1.401(m)-2(a)(5) or the limitation set forth in Section 4.4
(the “401(m) Additional Contribution Limitation”) has been reached as to such Eligible
Participant; then to the Employer Contribution Account of the Eligible Participant who
received the next smallest amount of Compensation for such Plan Year until the 401(m)
Additional Contribution Limitation has been reached as to such Eligible Participant, and
continuing in such manner until the Employer Discretionary Qualified Matching Contribution
for such Plan Year has been completely allocated or the 401(m) Additional Contribution
Limitation has been reached as to all Eligible Participants.




(g) If an Employer Discretionary Qualified Matching Contribution is made in order to
satisfy the restrictions set forth in both Section 3.1(e) and Section 3.6 for the same Plan
Year, the Employer Discretionary Qualified Matching Contributions made in order to satisfy
the restrictions set forth in Section 3.1(e) shall be allocated (pursuant to Paragraph (e)
above) prior to allocating the Employer Discretionary Qualified Matching Contribution made
in order to satisfy the restrictions set forth in Section 3.6 (pursuant to Paragraph (f)
above). In determining the application of the limitations set forth in Section 4.4 to the
allocations of Employer Discretionary Qualified Matching Contributions, all Annual Additions
(as such term is defined in Section 4.4) to a Participant’s Accounts other than Employer
Discretionary Qualified Matching Contributions shall be considered allocated prior to
Employer Discretionary Qualified Matching Contributions.




(h) Roth Contributions pursuant to Sections 3.1 and 3.2, as applicable, made by the
Employer on a Participant’s behalf shall be allocated to such Participant’s Roth Account.




(i) All contributions to the Plan shall be considered allocated to Participants’
Accounts no later than the last day of the Plan Year for which they were made, as determined
pursuant to Article III, except that, for purposes of Section 4.3, contributions shall be
considered allocated to Participants’ Accounts when received by the Trustee.


 


28









 





4.2 Application of Forfeitures. Any amounts that are forfeited under any provision
hereof during a Plan Year shall be applied in the manner determined by the Committee to reduce
Employer Contributions next coming due and/or to pay expenses incident to the administration
of the Plan and Trust. Prior to such application, forfeited amounts shall be held in suspense and
invested in the Investment Fund or Funds designated from time to time by the Committee.



4.3 Valuation of Accounts. All amounts contributed to the Trust Fund shall be
invested as soon as administratively feasible following their receipt by the Trustee, and the
balance of each Account shall reflect the result of daily pricing of the assets in which such
Account is invested from the time of receipt by the Trustee until the time of distribution.



4.4 Limit on Annual Additions Under Code Section 415. Effective January 1, 2008,
contributions hereunder shall be subject to the limitations of Code Section 415 and Treasury
Regulations published pursuant to such Code Section on April 5, 2007, the provisions of which are
specifically incorporated by reference; to the extent any portion of this Section conflicts with
such Regulations, the provisions of the Regulations shall govern.




(a) The Annual Additions to a Participant’s Accounts hereunder (together with the
Annual Additions to the Participant’s account(s) under any other defined contribution plans
required to be aggregated with the Plan) for any Limitation Year may not exceed the lesser
of:




(1) Forty-nine Thousand Dollars ($49,000.00), subject to cost-of-living
increases as allowed under Code Section 415(d); or




(2) One hundred percent (100%) of the Participant’s 415 Compensation for the
Limitation Year.




In the event the preceding limitations apply to an individual who is a Participant in this
Plan and was a Participant in any other defined contribution plan maintained by the
Employer, the limitations shall apply first to this Plan.




(b) For purposes of this Section the following definitions shall apply:




(1) “Annual Addition” shall mean the sum of the following additions to a
Participant’s Accounts for the Limitation Year: (i) employer contributions
(including salary reduction contributions), (ii) employee contributions, and (iii)
forfeitures, if any. For purposes of this definition, “Annual Additions” to other
Employer defined contribution plans (also taken into account when applying the
limitations in Paragraph (a) above) include any voluntary employee contributions to
an account in a qualified defined benefit plan and any employer contribution to an
individual retirement account or annuity under Code Section 408 or to a medical
account for a key employee under Code Section 401(h) or 419A(d), except that the
25%-of-pay limit below shall not apply to employer contributions to a key employee’s
medical account after his separation from service.




(2) “Limitation Year” shall be the Plan Year.



(c) In the event the limitations in this Section are not satisfied, correction shall be
made under the rules provided in Revenue Procedure 2008-50 (and any successor to that
Revenue Procedure).



 


29









 







4.5 Recharacterizations. In the event a Participant’s Before-Tax Contributions for a
Plan Year do not equal a limitation described in Section 3.1(h) for any reason whether or not
related to an election by a Participant, his Catch-up Contributions, if any, for such Plan Year
shall be recharacterized as Before-Tax Contributions for all purposes to the extent necessary to
either (i) increase Before-Tax Contributions to equal such limitation, or (ii) exhaust the Catch-up
Contributions made for such Plan Year; provided, however, in no event shall such recharacterized
Catch-up Contributions be eligible to be matched by Employer Matching Contributions.



In the event a Participant who is eligible to elect Catch-up Contributions pursuant to the
provisions of Section 3.1(h) is determined by the Committee, applying the provisions of Section
3.8, to have excess deferrals for a Plan Year, then before causing a distribution of such
Participant’s excess deferrals, the Committee may cause such Participant’s Before-Tax Contributions
to be recharacterized as Catch-up Contributions to the extent necessary to either (i) exhaust his
excess deferrals, or (ii) increase his Catch-up Contributions to the applicable limit under section
414(v) of the Code for the Plan Year.



V. INVESTMENT OF ACCOUNTS




5.1 Investment of Certain Employer Contributions. Subject to the Independent
Fiduciary’s authority, pursuant to Section 13.5, to terminate the availability of the Company Stock
Fund as an investment option under the Plan, Employer Matching Contributions and Employer
Discretionary Contributions, and any earnings thereon, shall be initially invested in the Company
Stock Fund. In the event the Independent Fiduciary terminates the availability of the Company
Stock Fund as an investment option under the Plan, the Independent Fiduciary shall designate an
alternative investment fund to receive Employer Matching Contributions and Employer Discretionary
Contributions pending further investment directions from the Participants and beneficiaries.




5.2 Investment of Accounts.




(a) Except as provided in Section 5.1, each Participant shall designate, in accordance
with the procedures established from time to time by the Committee, the manner in which the
amounts allocated to each of his Accounts shall be invested from among the Investment Funds
made available from time to time by the Committee, except that, subject to Section 13.5,
there shall be a Company Stock Fund and the Committee may not eliminate such fund. With
respect to the portion of a Participant’s Accounts that is subject to investment discretion,
such Participant may designate one of such Investment Funds for all the amounts allocated to
such portion of his Accounts (except to the extent otherwise provided by the Committee
pursuant to Section 5.3 with respect to the VBO) or he may split the investment of the
amounts allocated to such portion of his Accounts between such Investment Funds in such
increments as the Committee may prescribe. Except as otherwise provided in Section 13.5, if
a Participant fails to make a designation (including, for example, with respects to amounts
deferred under Section
3.1(j)), then such portions of his Accounts shall be invested in the Investment Fund or
Funds designated by the Committee from time to time in a uniform and nondiscriminatory
manner.


 


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(b) Except as provided in Section 5.1, a Participant may change his investment
designation for future contributions to be allocated to his Accounts. Any such change shall
be made in accordance with the procedures established by the Committee, and the frequency of
such changes may be limited by the Committee.




(c) A Participant may elect to convert his investment designation with respect to the
amounts already allocated to his Accounts (including, without limitation, the conversion of
the investment designation with respect to amounts allocated to the Company Stock Fund
pursuant to Section 5.1). Any such conversion shall be made in accordance with the
procedures established by the Committee, and the frequency of such conversions may be
limited by the Committee.



5.3 VBO Investments. The VBO shall be one of the Investment Funds available for the
investment of the amounts in a Participant’s Accounts with respect to which the Participant has a
Vested Interest. A Participant may designate that a portion of the amounts in his Accounts with
respect to which he has a Vested Interest shall be invested in the VBO in accordance with the
procedures, and subject to any limitations, established by the Committee. Upon such a designation,
the amounts so invested in the VBO shall be available, in accordance with such Participant’s
directions, for the purchase and subsequent sale of such stocks, bonds, mutual fund units, and
other securities as the Committee shall make available from time to time. A Participant’s
directions with respect to any such purchases and sales shall be effected in accordance with the
procedures established by the Committee. Investment in the VBO by a Participant shall subject the
amounts in his Accounts to such annual, transactional, or other fees and expenses as the Committee
may determine. Further, investment in the VBO shall be subject to such other terms, conditions,
and limitations as the Committee may from time to time determine. Voting and other rights
associated with Participants’ investments in the VBO shall be exercisable by Participants to the
extent and in the manner determined by the Committee in its sole discretion.




5.4 Pass-Through Voting and Other Rights with Respect to Company Stock.




(a) Each Participant shall have the right to direct the Trustee as to the manner of
voting and the exercise of all other rights which a shareholder of record has with respect
to shares (and fractional shares) of Company Stock which have been allocated to the
Participant’s Accounts including, but not limited to, the right to sell or retain shares in
a public or private tender offer.




(b) All shares (and fractional shares) of Company Stock for which the Trustee has not
received timely Participant directions shall be voted or exercised by the Trustee in the
same proportion as the shares (and fractional shares) of Company Stock for which the Trustee
received timely Participant directions, except in the case where to do so would be
inconsistent with the provisions of Title I of the Act.


 


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(c) Notwithstanding anything herein to the contrary, in the event of a tender offer for
Company Stock, the Trustee shall interpret a Participant’s silence as a direction not to
tender the shares of Company Stock allocated to the Participant’s Accounts and, therefore,
the Trustee shall not tender any shares (or fractional shares) of Company Stock for which it
does not receive timely directions to tender such shares (or fractional shares) from
Participants, except in the case where to do so would be inconsistent with the provisions of
Title I of the Act.



5.5 Stock Splits and Stock Dividends. Stock or other securities received by the
Trustee by reason of a stock split, stock dividend, or recapitalization shall be appropriately
allocated to the Accounts of each affected Participant.



VI. GENERAL BENEFITS AND DETERMINATION OF VESTED INTEREST




6.1 No Benefits Unless Herein Set Forth. Except as set forth in this Article, a
Participant who incurs a Severance from Employment prior to his Normal Retirement Date for any
reason other than death or who incurs a Total and Permanent Disability shall acquire no right to
any benefit from the Plan or the Trust Fund.



6.2 Retirement Benefits. A Participant who incurs a Severance from Employment on or
after his Normal Retirement Date shall be entitled to a retirement benefit, payable at the time and
in the form, provided in Article VIII, equal in value to the aggregate amount in his Accounts on
his Benefit Commencement Date. Any contribution allocable to a Participant’s Accounts after his
Benefit Commencement Date shall be distributed, if his benefit was paid in a lump sum, or used to
increase his payments, if his benefit is being paid on a periodic basis, as soon as
administratively feasible after the date that such contribution is paid to the Trust Fund.



6.3 Pre-Retirement Severance from Employment Benefits. Each Participant who incurs a
Severance from Employment prior to his Normal Retirement Date for any reason other than Total and
Permanent Disability or death shall be entitled to a Severance from Employment benefit, payable at
the time and in the form provided in Article VIII, equal in value to his Vested Interest in the
aggregate amount in his Accounts on his Benefit Commencement Date. A Participant’s Vested Interest
in any contribution allocable to such Participant’s Accounts after his Benefit Commencement Date
shall be distributed, if his benefit was paid in a lump sum, or used to increase his payments, if
his benefit is being paid on a periodic basis, as soon as administratively feasible after the date
that such contribution is paid to the Trust Fund.



6.4 Disability Benefits. Each Participant who incurs a Total and Permanent Disability
shall be entitled to a disability benefit, payable at the time and in the form provided in Article
VIII, equal in value to the aggregate amount in his Accounts on his Benefit Commencement Date. Any
contribution allocable to a Participant’s Accounts after his Benefit Commencement Date shall be
distributed, if his benefit was paid in a lump sum, or used to increase his payments, if his
benefit is being paid on a periodic basis, as soon as administratively feasible after the date that
such contribution is paid to the Trust Fund.


 


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6.5 Determination of Vested Interest.




(a) A Participant shall have a 100% Vested Interest in his Before-Tax Account, Dow ESOP
Account, Dow Transfer Account, Destec Account(s), Extant Account, Trident Account(s),
After-Tax Account, Rollover Contribution Account, Roth Account, Class Settlement Account I,
and Class Settlement Account II at all times.




(b) A Participant’s Vested Interest in Employer Contributions allocated to his Employer
Contribution Account under the Plan after April 1, 1995, and the earnings thereon, shall be
determined as follows:




(1) The Vested Interest in such contributions and earnings of any Participant
with three or more years of Vesting Service under the Plan as of April 1, 1995,
shall be 100%.




(2) The Vested Interest in such contributions and earnings of any Participant
with less than three years of Vesting Service as of April 1, 1995, shall be
determined by such Participant’s years of Vesting Service in accordance with the
applicable vesting schedule set forth in Paragraph (c) or Paragraph (d) below.




(c) A Participant’s Vested Interest in his Employer Contribution Account determined in
accordance with the following schedule:



	 	 	 	 	 
	Years of Vesting Service	 	Vested Interest	 
	 
	 	 	 	 
	Less than 1 year
	 	 	0	%
	1 year
	 	 	50	%
	2 years
	 	 	100	%







(d) Notwithstanding Paragraph (c) above, a Participant that is a member of IBEW Local
1245, IBEW Local 320, or IBEW Local 769, shall have his Vested Interest in his Employer
Contribution Account determined in accordance with the following schedule:



	 	 	 	 	 
	Years of Vesting Service	 	Vested Interest	 
	 
	 	 	 	 
	Less than 1 year
	 	 	0	%
	1 year
	 	 	25	%
	2 years
	 	 	50	%
	3 years
	 	 	75	%
	4 years or more
	 	 	100	%







(e) Paragraphs (b), (c), and (d) above notwithstanding, a Participant shall have a 100%
Vested Interest in his Employer Contribution Account (i) upon the attainment of his Normal
Retirement Date while employed by the Employer or a Controlled Entity, (ii) upon incurring a
Total and Permanent Disability, (iii) upon the death of such Participant
while an Employee, or (iv) if such Participant is an affected Participant, upon the
occurrence of an event described in, under the conditions set forth in, Section 15.2.


 


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(f) Paragraphs (b), (c), and (d) above notwithstanding, a Participant who was employed
by Dynegy Midstream Services, Limited Partnership (“DMS”) on the date of the closing of the
sale of DMS in the transaction by and between Dynegy Inc., Dynegy Holdings Inc., Dynegy
Midstream Holdings, Inc., Dynegy Midstream G.P., Inc., and Targa Resources, Inc., Targa
Resources Partners OLP LP and Targa Midstream GP, LLC shall have a 100% Vested Interest in
his Employer Contribution Account on such date.




6.6 Crediting of Vesting Service.




(a) For the period preceding the Effective Date, subject to the provisions of Section
8.5, an individual shall be credited with Vesting Service in an amount equal to all service
credited to him for vesting purposes under the Plan as it existed on the day prior to the
Effective Date; provided, however, that each individual who was employed by Illinois Power
Company or any of its affiliates (collectively, “Illinois Power”) on the date of the closing
of the Illinova Transaction (as defined in Section 8.3(g)(2)) shall be credited with Vesting
Service for the period preceding such date based upon his original date of hire with
Illinois Power.




(b) On or after the Effective Date, subject to the remaining Paragraphs of this Section
and to the provisions of Section 6.7, an individual shall be credited with Vesting Service
in an amount equal to his aggregate Periods of Service whether or not such Periods of
Service are completed consecutively.




(c) Paragraph (b) above notwithstanding, if an individual terminates his Service (at a
time other than during a leave of absence) and subsequently resumes his Service, if his
Reemployment Commencement Date is within twelve months of his Severance from Service Date,
such Period of Severance shall be treated as a Period of Service for purposes of Paragraph
(b) above.




(d) Paragraph (b) above notwithstanding, if an individual terminates his Service during
a leave of absence and subsequently resumes his Service, if his Reemployment Commencement
Date is within twelve months of the beginning of such leave of absence, such Period of
Severance shall be treated as a Period of Service for purposes of Paragraph (b) above.




6.7 Forfeitures of Vesting Service.




(a) In the case of an individual who incurs a Severance from Employment at a time when
he has no balance credited to his Before-Tax Account and a 0% Vested Interest in his
Employer Contribution Account and thereafter incurs a Period of Severance that equals or
exceeds the greater of five (5) years or his aggregate Period of Service completed before
such Period of Severance, such individual’s Period of Service completed before such Period
of Severance shall be forfeited and completely disregarded in determining his years of
Vesting Service.


 


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(b) In the case of a Participant who incurs a Severance from Employment with the
Employer at a time when he has a balance credited to his Before-Tax Account or a Vested
Interest in his Employer Contribution Account of less than 100% and thereafter incurs a
Period of Severance of five (5) consecutive years, such Participant’s years of Vesting
Service completed after such Period of Severance shall be disregarded for purposes of
determining such Participant’s Vested Interest in any Plan benefits derived from Employer
Contributions on his behalf before such Period of Severance, but his years of Vesting
Service completed before such Period of Severance shall not be disregarded in determining
his nonforfeitable right to Employer Contributions on his behalf after such Period of
Severance.




(c) A Participant who incurs a Severance from Employment with the Employer at a time
when he has a 100% Vested Interest shall not forfeit any of his Vesting Service.




6.8 Forfeitures of Nonvested Account Balance.




(a) With respect to a Participant who incurs a Severance from Employment with the
Employer with a Vested Interest in his Employer Contribution Account that is less than 100%
and either is not entitled to any distribution from the Plan or receives a distribution from
the Plan of the balance of his Vested Interest in his Accounts in the form of a lump sum
distribution, the nonvested portion of such terminated Participant’s Employer Contribution
Account as of his Benefit Commencement Date shall become a forfeiture as of his Benefit
Commencement Date (or as of the date he incurs a Severance from Employment if no amount is
payable from the Trust Fund on behalf of such Participant with such Participant being
considered to have received a distribution of zero dollars on his Severance from Employment
date).




(b) With respect to a Participant who incurs a Severance from Employment with a Vested
Interest in his Employer Contribution Account that is less than 100% and who has not
previously incurred a forfeiture under the provisions of Paragraph (a) above (or Section 8.8
below), the nonvested portion of his Employer Contribution Account shall be forfeited as of
the earlier of (i) the date the Participant completes a Period of Severance of five (5)
consecutive years, or (ii) the date of the Participant’s death.



6.9 Restoration of Forfeited Account Balance. In the event that the nonvested portion
of a terminated Participant’s Employer Contribution Account becomes a forfeiture pursuant to
Section 6.8, the terminated Participant shall, upon subsequent reemployment with the Employer prior
to incurring a Period of Severance of five (5) consecutive years, have the forfeited amount
restored to such Participant’s Employer Contribution Account, unadjusted by any subsequent gains or
losses of the Trust Fund; provided, however, that such restoration shall be made only if such
Participant repays in cash an amount equal to the amount so distributed to him pursuant to Section
6.8 within five (5)years from the date the Participant is reemployed. A reemployed Participant who
was not entitled to a distribution from the Plan when he incurred a Severance from Employment shall
be considered to have repaid a distribution of zero dollars on the date of his reemployment. Any
such restoration shall be made as soon as administratively feasible following the date of
repayment. Notwithstanding anything to the contrary in the Plan,



 


35









 






forfeited amounts to be restored by the Employer pursuant to this Section shall be charged
against and deducted from forfeitures for the Plan Year in which such amounts are restored that
would otherwise be available to be applied pursuant to Section 4.2. If such forfeitures otherwise
available are not sufficient to provide such restoration, the portion of such restoration not
provided by forfeitures shall be charged against and deducted from Employer Discretionary
Contributions otherwise available for allocation to other Participants in accordance with Section
4.1(d), and any additional amount needed to restore such forfeited amounts shall be a minimum
required Employer Discretionary Contribution (which shall be made without regard to current or
accumulated earnings and profits). Any amounts repaid to the Plan by a Participant pursuant to
this Section shall be subject to the same restrictions under the Plan as are the Account or
Accounts from which such amounts were originally distributed. Repayment shall be permitted from an
individual retirement account or individual retirement annuity if such individual retirement
account or individual retirement annuity contains only amounts distributed to the Participant from
the Plan and earnings thereon.



6.10 Special Formula for Determining Vested Interest for Partial Accounts. With
respect to a Participant whose Vested Interest in his Employer Contribution Account Subject to
Vesting is less than 100% and who receives a termination distribution from his Employer
Contribution Account Subject to Vesting other than a lump sum distribution, any amount remaining in
his Employer Contribution Account Subject to Vesting shall continue to be maintained as a separate
account. At any relevant time, such Participant’s nonforfeitable portion of his separate account
shall be determined in accordance with the following formula:



X=P(AB + (R x D)) — (R x D)




For purposes of applying the formula: (i) X is the nonforfeitable portion of such separate account
at the relevant time; (ii) P is the Participant’s Vested Interest in his Employer Contribution
Account Subject to Vesting at the relevant time; (iii) AB is the balance of such separate account
at the relevant time; (iv) R is the ratio of the balance of such separate account at the relevant
time to the balance of such separate account after the distribution; and (v) D is the amount of the
distribution. For all other purposes of the Plan, a Participant’s separate account shall be
treated as an Employer Contribution Account. Upon his incurring a Period of Severance of five (5)
consecutive years, the forfeitable portion of a terminated Participant’s separate account and
Employer Contribution Account Subject to Vesting shall be forfeited as of the end of the Plan Year
during which the terminated Participant completes such Period of Severance if not forfeited earlier
pursuant to the provisions of Section 8.6



VII. DEATH BENEFITS




7.1 Death Benefits. Upon the death of a Participant while an Employee, the
Participant’s designated beneficiary shall be entitled to a death benefit, payable at the time and
in the form provided in Article VIII, equal to the value of the Participant’s Accounts on his
Benefit Commencement Date.


 


36









 






7.2 Designation of Beneficiaries.




(a) Each Participant shall have the right to designate the beneficiary or beneficiaries
to receive payment of his benefit in the event of his death. Each such designation shall be
made by executing the beneficiary designation form prescribed by the Committee and filing
such form with the Committee. Any such designation may be changed at any time by such
Participant by execution and filing of a new designation in accordance with this Section.
Notwithstanding the foregoing, if a Participant who is married on the date of his death has
designated an individual or entity other than his surviving spouse as his beneficiary, such
designation shall not be effective unless (i) such surviving spouse has consented thereto in
writing and such consent (A) acknowledges the effect of such specific designation, (B)
either consents to the specific designated beneficiary (which designation may not
subsequently be changed by the Participant without spousal consent) or expressly permits
such designation by the Participant without the requirement of further consent by such
spouse, and (C) is witnessed by a Plan representative (other than the Participant) or a
notary public, or (ii) the consent of such spouse cannot be obtained because such spouse
cannot be located or because of other circumstances described by applicable Treasury
Regulations. Any such consent by such surviving spouse shall be irrevocable.




(b) If no beneficiary designation is on file with the Committee at the time of the
death of the Participant or if such designation is not effective for any reason as
determined by the Committee, the designated beneficiary or beneficiaries to receive such
death benefit shall be as follows:




(1) If a Participant leaves a surviving spouse, his designated beneficiary
shall be such surviving spouse; and




(2) If a Participant leaves no surviving spouse, his designated beneficiary
shall be (i) such Participant’s executor or administrator, or (ii) his heirs at law
if there is no administration of such Participant’s estate.




(c) Notwithstanding the preceding provisions of this Section and to the extent not
prohibited by state or federal law, if a Participant is divorced from his spouse and at the
time of his death is not remarried to the person from whom he was divorced, any designation
of such divorced spouse as his beneficiary under the Plan filed prior to the divorce shall
be null and void unless the contrary is expressly stated in writing filed with the Committee
by the Participant. The interest of such divorced spouse failing hereunder shall vest in
the persons specified in Paragraph (b) above as if such divorced spouse did not survive the
Participant.



VIII. PAYMENT OF BENEFITS





8.1 Determination of Benefit Commencement Date.




(a) A Participant’s Benefit Commencement Date shall be the date that is as soon as
administratively feasible after the date the Participant or his beneficiary becomes entitled
to a benefit pursuant to Article VI or VII unless the Participant has been
reemployed by the Employer or a Controlled Entity before such potential Benefit
Commencement Date.


 


37









 






(b) Unless (i) the Participant has attained age sixty-five (65) or died, (ii) the
Participant consents to a distribution pursuant to Paragraph (a) within the
one-hundred-eighty (180) day period ending on the date payment of his benefit hereunder is
to commence pursuant to Paragraph (a), or (iii) the Participant’s Vested Interest in his
Accounts is not in excess of $1,000, the Participant’s Benefit Commencement Date shall be
deferred to the date which is as soon as administratively feasible after the earlier of the
date the Participant attains age sixty-five (65) or the Participant’s date of death, or such
earlier date as the Participant may elect by written notice to the Committee prior to such
date. No less than thirty (30) days (unless such thirty-day period is waived by an
affirmative election in accordance with applicable Treasury Regulations) and no more than
one-hundred-eighty (180) days before his Benefit Commencement Date, the Committee shall
inform the Participant of his right to defer his Benefit Commencement Date and shall
describe the Participant’s Direct Rollover election rights pursuant to Section 8.3 below.




(c) A Participant’s Benefit Commencement Date shall in no event be later than the
sixtieth (60th) day following the close of the Plan Year during which such
Participant attains, or would have attained, his Normal Retirement Date or, if later, incurs
a Severance from Employment from the Employer and all Controlled Entities.




(d) Subject to the provisions of Section 8.2, a Participant’s Benefit Commencement Date
shall not occur unless the Article VI or VII event entitling the Participant (or his
beneficiary) to a benefit constitutes a distributable event described in Section
401(k)(2)(B) of the Code and shall not occur while the Participant is employed by the
Employer or any Controlled Entity (irrespective of whether the Participant has become
entitled to a distribution of his benefit pursuant to Article VI or VII).




(e) Paragraphs (a), (b) and (c) above notwithstanding, but subject to the provisions of
Section 8.2 below, a Participant and the beneficiary of a Participant who dies prior to his
Benefit Commencement Date, other than a Participant whose balance in his Accounts is not in
excess of $1,000, must file a claim for benefits in the manner prescribed by the Committee
before payment of his benefit will be made.




(f) For purposes of this Section, in determining whether a Participant’s Vested
Interest in his Accounts is not in excess of $1,000, the value of the Participant’s Vested
Interest in his Accounts shall be determined without regard to that portion of his Accounts
which is attributable to Rollover Contributions (and earnings allocable thereto) within the
meaning of Sections 402(c), 403(a)(4), 403(b)(8), 408(d)(3)(A)(ii) and 457(e)(16) of the
Code. If the value of a Participant’s Vested Interest in his Accounts as so determined is
$1,000 or less, then the Participant’s entire nonforfeitable account balance (including
amounts attributable to such Rollover Contributions) shall be immediately distributed in a
single lump sum payment.


 


38









 





8.2 Minimum Distribution Requirements. All distributions required under this Section
8.2 will be determined and made in accordance with the Treasury Regulations under Section 401(a)(9)
of the Code. The following provisions reflect such model amendments, but are not intended to
provide any right to any optional form of distribution not otherwise provided in the Plan.




(a) General Rules.




(1) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section 9.2 will be determined and made in
accordance with the Treasury Regulations under Section 401(a)(9) of the Code.




(2) TEFRA Section 242(b)(2) Elections. Notwithstanding the other
provisions of this Section 9.2, distributions may be made under a designation made
before January 1, 1984, in accordance with Section 242(b)(2) of the Tax Equity and
Fiscal Responsibility Act (“TEFRA”) and the provisions of the Plan that relate to
Section 242(b)(2) of TEFRA.




(b) Time and Manner of Distribution.




(1) Required Beginning Date. A Participant’s entire interest will be
distributed, or begin to be distributed, to the Participant no later than the
Participant’s required beginning date.




(2) Death of Participant Before Distributions Begin. If the
Participant dies before distributions begin, the Participant’s entire interest will
be distributed, or begin to be distributed, no later than as follows:




(A) If the Participant’s surviving spouse is the Participant’s sole
designated beneficiary, distributions to the surviving spouse will begin by
December 31 of the calendar year immediately following the calendar year in
which the Participant died, or by December 31 of the calendar year in which
the Participant would have attained age 701/2, if later.




(B) If the Participant’s surviving spouse is not the Participant’s sole
designated beneficiary, distributions to the designated beneficiary will
begin by December 31 of the calendar year immediately following the calendar
year in which the Participant died.




(C) If there is no designated beneficiary as of September 30 of the
year following the year of the Participant’s death, the Participant’s entire
interest will be distributed by December 31 of the calendar year containing
the fifth anniversary of the Participant’s death.




(D) If the Participant’s surviving spouse is the Participant’s sole
designated beneficiary and the surviving spouse dies after the Participant
but before distributions to the surviving spouse begin, this Subparagraph
(b)(2), other than Subparagraph (b)(2)(A), will apply as if the
surviving spouse were the Participant.


 


39









 






For purpose of this Subparagraph (b)(2) and Subparagraph (d), unless Subsection
(b)(2)(D) applies, distributions are considered to begin on the Participant’s required
beginning date. If Subparagraph (b)(2)(D) applies, distributions are considered to
begin on the date distributions are required to begin to the surviving spouse under
Subparagraph (b)(2)(A). If distributions under an annuity purchased from an insurance
company irrevocably commence to the Participant before the Participant’s required
beginning date (or to the Participant’s surviving spouse before the date distributions
are required to begin to the surviving spouse under Subparagraph (b)(2)(A)), the date
distributions are considered to begin is the date distributions actually commence.




(3) Forms of Distribution. Unless the Participant’s interest is
distributed in the form of an annuity purchased from an insurance company or in a
single sum on or before the required beginning date, as of the first distribution
calendar year, distributions will be made in accordance with Subparagraphs (c) and
(d) of this Section. If the Participant’s interest is distributed in the form of an
annuity purchased from an insurance company, distributions thereunder will be made
in accordance with the requirements of Section 401(a)(9) of the Code and the
Treasury Regulations.




(c) Required Minimum Distributions During Participant’s Lifetime.




(1) Amount of Required Minimum Distribution For Each Distribution Calendar
Year. During the Participant’s lifetime, the minimum amount that will be
distributed for each distribution calendar year is the lesser of:




(A) The quotient obtained by dividing the Participant’s account balance
by the distribution period in the Uniform Lifetime Table set forth in
Treasury Regulations Section 1.401(a)(9)-9, using the Participant’s age as
of the Participant’s birthday in the distribution calendar year; or




(B) If the Participant’s sole designated beneficiary for the
distribution calendar year is the Participant’s spouse, the quotient
obtained by dividing the Participant’s account balance by the number in the
Joint and Last Survivor Table set forth in Treasury Regulations Section
1.401(a)(9)-9, using the Participant’s and spouse’s attained ages as of the
Participant’s and spouse’s birthdays in the distribution calendar year.




(2) Lifetime Required Minimum Distributions Continue Through Year of
Participant’s Death. Required minimum distributions will be determined under
this Subsection (c) beginning with the first distribution calendar year and up to
and including the distribution calendar year that includes the Participant’s date of
death.


 


40









 






(d) Required Minimum Distributions After Participant’s Death.




(1) Death On or After Date Distributions Begin.




(A) Participant Survived by Designated Beneficiary. If the
Participant dies on or after the date distributions begin and there is a
designated beneficiary, the minimum amount that will be distributed for each
distribution calendar year after the year of the Participant’s death is the
quotient obtained by dividing the Participant’s account balance by the
longer of the remaining life expectancy of the Participant or the remaining
life expectancy of the Participant’s designated beneficiary, determined as
follows:




(i) The Participant’s remaining life expectancy is calculated
using the age of the Participant in the year of death, reduced by one
for each subsequent year.




(ii) If the Participant’s surviving spouse is the Participant’s
sole designated beneficiary, the remaining life expectancy of the
surviving spouse is calculated for each distribution calendar year
after the year of the Participant’s death using the surviving
spouse’s age as of the spouse’s birthday in that year. For
distribution calendar years after the year of the surviving spouse’s
death, the remaining life expectancy of the surviving spouse is
calculated using the age of the surviving spouse as of the spouse’s
birthday in the calendar year of the spouse’s death, reduced by one
for each subsequent calendar year.




(iii) If the Participant’s surviving spouse is not the
Participant’s sole designated beneficiary, the designated
beneficiary’s remaining life expectancy is calculated using the age
of the beneficiary in the year following the year of the
Participant’s death, reduced by one for each subsequent year.




(B) No Designated Beneficiary. If the Participant dies on or
after the date distributions begin and there is no designated beneficiary as
of September 30 of the year after the year of the Participant’s death, the
minimum amount that will be distributed for each distribution calendar year
after the year of the Participant’s death is the quotient obtained by
dividing the Participant’s account balance by the Participant’s remaining
life expectancy calculated using the age of the Participant in the year of
death, reduced by one for each subsequent year.




(2) Death Before Date Distributions Begin.




(A) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is a
designated beneficiary, the minimum amount that will be distributed for
each distribution calendar year after the year of the Participant’s
death is the quotient obtained by dividing the Participant’s account balance
by the remaining life expectancy of the Participant’s designated
beneficiary, determined as provided in Subsection (d)(1).


 


41









 






(B) No Designated Beneficiary. If the Participant dies before
the date distributions begin and there is no designated beneficiary as of
September 30 of the year following the year of the Participant’s death,
distribution of the Participant’s entire interest will be completed by
December 31 of the calendar year containing the fifth anniversary of the
Participant’s death.




(C) Death of Surviving Spouse Before Distributions to Surviving
Spouse Are Required to Begin. If the Participant dies before the date
distributions begin, the Participant’s surviving spouse is the Participant’s
sole designated beneficiary, and the surviving spouse dies before
distributions are required to begin to the surviving spouse under Subsection
(b)(2)(A), this Subsection (d)(2) will apply as if the surviving spouse were
the Participant.




(e) Definitions.




(1) Designated beneficiary. The individual who is designated as the
beneficiary under the applicable section of the Plan and is the designated
beneficiary under Section 401(a)(9) of the Code and Treasury Regulation Section
1.401(a)(9)-1.




(2) Distribution calendar year. A calendar year for which a minimum
distribution is required. For distributions beginning before the Participant’s
death, the first distribution calendar year is the calendar year immediately
preceding the calendar year which contains the Participant’s required beginning
date. For distributions beginning after the Participant’s death, the first
distribution calendar year is the calendar year in which distributions are required
to begin under Subsection (b)(2). The required minimum distribution for the
Participant’s first distribution calendar year will be made on or before the
Participant’s required beginning date. The required minimum distribution for other
distribution calendar years, including the required minimum distribution for the
distribution calendar year in which the Participant’s required beginning date
occurs, will be made on or before December 31 of that distribution calendar year.




(3) Life expectancy. Life expectancy as computed by use of the Single
Life Table in Treasury Regulation Section 1.401(a)(9)-9.




(4) Participant’s account balance. The account balance as of the last
valuation date in the calendar year immediately preceding the distribution calendar
year (valuation calendar year) increased by the amount of any contributions made and
allocated or forfeitures allocated to the account balance as
of dates in the valuation calendar year after the valuation date and decreased
by distributions made in the valuation calendar year after the valuation date. The
account balance for the valuation calendar year includes any amounts rolled over or
transferred to the Plan either in the valuation calendar year or in the distribution
calendar year if distributed or transferred in the valuation calendar year.


 


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(5) Required beginning date. The date specified in Section
401(a)(9)(C) of the Code.




(f) A Designated Beneficiary that is not a surviving spouse may not elect a Direct
Rollover of an amount which is a required minimum distribution according to this Section 9.2
of the Plan. If the Participant dies before his required beginning date and the nonspouse
beneficiary elects a Direct Rollover to an Eligible Retirement Plan the maximum amount
eligible for a Direct Rollover, the beneficiary may elect to use either the five (5)-year
rule or the Life expectancy rule, in determining the required minimum distributions from the
Eligible Retirement Plan that receives the nonspouse beneficiary’s distribution.




8.3 Form of Payment and Payee.




(a) Subject to the provisions of Paragraph (b) below, a Participant’s benefit shall be
provided from the balance of such Participant’s Accounts under the Plan and shall be paid in
cash in one lump sum on the Participant’s Benefit Commencement Date. Except as provided in
Section 17.4, the Participant’s benefit shall be paid to the Participant unless the
Participant has died prior to his Benefit Commencement Date, in which case the Participant’s
benefit shall be paid to his beneficiary designated in accordance with the provisions of
Section 7.2.




(b) Benefits shall be paid (or transferred) in cash except that a Participant (or his
designated beneficiary or legal representative in the case of a deceased Participant) may
elect to have the portion of his Accounts invested in Company Stock paid (or transferred) in
full shares of Company Stock with any balance (including fractional shares of Company Stock)
to be paid (or transferred) in cash. Conversions of Company Stock to cash and cash to
Company Stock shall be based upon the value of Company Stock on the Participant’s Benefit
Commencement Date.



8.4 Direct Rollover Election. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a Distributee’s election under this Section, a Distributee may
elect, at the time and in the manner prescribed by the Committee, to have all or any portion of an
Eligible Rollover Distribution (other than any portion attributable to the offset of an outstanding
loan balance of such Participant pursuant to the Plan’s loan procedure) paid directly to an
Eligible Retirement Plan specified by the Distributee in a Direct Rollover. The preceding sentence
notwithstanding, a Distributee may elect a Direct Rollover pursuant to this Section only if such
Distributee’s Eligible Rollover Distributions during the Plan Year are reasonably expected to total
$200 or more. Furthermore, if less than 100% of the Participant’s Eligible Rollover Distribution
is to be a Direct Rollover, the amount of the Direct Rollover must be $500 or more. Prior to any
Direct Rollover pursuant to this Section, the Committee may require the Distributee to furnish the
Committee with a statement from the plan, account, or annuity to which the benefit is to be
transferred verifying that such plan, account, or annuity is, or is intended to be, an Eligible
Retirement Plan.


 


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Notwithstanding the preceding paragraph, effective January 1, 2008, a Direct Rollover from a
Participant’s Roth Account and/or After-Tax Account shall only be made to: (i) a qualified plan,
(ii) a 403(b) plan, or (iii) for the Roth Account, a Roth individual retirement account described
in Section 408A of the Code and only to the extent the rollover is permitted under Section 402A(c)
of the Code, including accounting separately for the portion of such distribution which is
includible in gross income and the portion of such distribution which is not includible in gross
income.



8.5 Notice of Direct Rollover Distribution. Effective for Plan years beginning after
January 1, 2006, the Plan Administrator shall, within one-hundred-eighty (180) days before making
an eligible rollover distribution, provide a written explanation to the recipient:




(a) Of the provisions under which the recipient may have the distribution directly
transferred to an Eligible Retirement Plan and that the automatic distribution by direct
transfer applies to certain distributions in accordance with Section 401(a)(31)(B) of the
Code;




(b) The provision which requires the withholding of tax on the distribution if it is
not directly transferred to an Eligible Retirement Plan;




(c) Of the provisions under which the distribution will not be subject to tax if
transferred to an Eligible Retirement Plan within sixty (60) days after the date on which
the recipient received the distribution; and




(d) And of the provisions under which distributions from the Eligible Retirement Plan
receiving the distribution may be subject to restrictions and tax consequences which are
different from those applicable to distributions from the plan making such distribution.



8.6 Unclaimed Benefits. In the case of a benefit payable on behalf of a Participant,
if the Committee is unable to locate the Participant or beneficiary to whom such benefit is
payable, upon the Committee’s determination thereof, such benefit shall be forfeited. The timing
of such forfeiture shall comply with the time of payment rules described in Section 8.1.
Notwithstanding the foregoing, if subsequent to any such forfeiture the Participant or beneficiary
to whom such benefit is payable makes a valid claim for such benefit, such forfeited benefit shall
be restored to the Plan by having the forfeited amount restored to such Participant, unadjusted by
any subsequent gains or losses of the Trust Fund. Any such restoration shall be made as soon as
administratively feasible following the date of the submission of such valid claim.
Notwithstanding anything to the contrary in the Plan, forfeited amounts to be restored by the
Employer pursuant to this Section shall be charged against and deducted from forfeitures for the
Plan Year in which such amounts are restored that would otherwise be available to be applied
pursuant to Section 4.2. If such forfeitures otherwise available are not sufficient to provide
such restoration, the portion of such restoration not provided by forfeitures shall be charged
against
and deducted from Employer Discretionary Contributions otherwise available for allocation to
other Participants in accordance with Section 4.1(d), and any additional amount needed to restore
such forfeited amounts shall be a minimum required Employer Discretionary Contribution (which shall
be made without regard to current or accumulated earnings and profits).


 


44









 






8.7 Claims Review.




(a) Definitions. For purposes of this Section, the following terms, when
capitalized, will be defined as follows:




(1) Adverse Benefit Determination: Any denial, reduction or
termination of or failure to provide or make payment (in whole or in part) for a
Plan benefit, including any denial, reduction, termination or failure to provide or
make payment that is based on a determination of a Claimant’s eligibility to
participate in the Plan. Further, any invalidation of a claim for failure to comply
with the claim submission procedure will be treated as an Adverse Benefit
Determination.




(2) Benefits Administrator: The person or office to whom the Committee
has delegated day-to-day Plan administration responsibilities and who, pursuant to
such delegation, processes Plan benefit claims in the ordinary course.




(3) Claimant: A Participant or beneficiary or an authorized
representative of such Participant or beneficiary who has filed or desires to file a
claim for a Plan benefit.




(b) Filing of Benefit Claim. To file a benefit claim under the Plan, a
Claimant must obtain from the Benefits Administrator the information and benefit election
forms, if any, provided for in the Plan and otherwise follow the procedures established from
time to time by the Committee or the Benefits Administrator for claiming Plan benefits. If,
after reviewing the information so provided, the Claimant needs additional information
regarding his Plan benefits, he may obtain such information by submitting a written request
to the Benefits Administrator describing the additional information needed. A Claimant may
only request a Plan benefit by fully completing and submitting to the Benefits Administrator
the benefit election forms, if any, provided for in the Plan and otherwise following the
procedures established from time to time by the Committee or the Benefits Administrator for
claiming Plan benefits.




(c) Processing of Benefit Claim. Upon receipt of a fully completed benefit
claim from a Claimant, the Benefits Administrator shall determine if the Claimant’s right to
the requested benefit, payable at the time or times and in the form requested, is clear and,
if so, shall process such benefit claim without resort to the Committee. If the Benefits
Administrator determines that the Claimant’s right to the requested benefit, payable at the
time or times and in the form requested, is not clear, it shall refer the benefit claim to
the Committee for review and determination, which referral shall include:



(1) All materials submitted to the Benefits Administrator by the Claimant in
connection with the claim;




(2) A written description of why the Benefits Administrator was of the view
that the Claimant’s right to the benefit, payable at the time or times and in the
form requested, was not clear;



 


45









 








(3) A description of all Plan provisions pertaining to the benefit claim;




(4) Where appropriate, a summary as to whether such Plan provisions have in the
past been consistently applied with respect to other similarly situated Claimants;
and




(5) Such other information as may be helpful or relevant to the Committee in
its consideration of the claim.




If the Claimant’s claim is referred to the Committee, the Claimant may examine any relevant
document relating to his claim and may submit written comments or other information to the
Committee to supplement his benefit claim. Within thirty days of receipt from the Benefits
Administrator of a benefit claim referral (or such longer period as may be necessary due to
unusual circumstances or to enable the Claimant to submit comments), but in any event not
later than will permit the Committee sufficient time to fully and fairly consider the claim
and make a determination within the time frame provided in Paragraph (d) below, the
Committee shall consider the referral regarding the claim of the Claimant and make a
decision as to whether it is to be approved, modified or denied. If the claim is approved,
the Committee shall direct the Benefits Administrator to process the approved claim as soon
as administratively practicable.




(d) Notification of Adverse Benefit Determination. In any case of an Adverse
Benefit Determination of a claim for a Plan benefit, the Committee shall furnish written
notice to the affected Claimant within a reasonable period of time but not later than ninety
days after receipt of such claim for Plan benefits (or within 180 days if special
circumstances necessitate an extension of the ninety-day period and the Claimant is informed
of such extension in writing within the ninety-day period and is provided with an extension
notice consisting of an explanation of the special circumstances requiring the extension of
time and the date by which the benefit determination will be rendered). Any notice that
denies a benefit claim of a Claimant in whole or in part shall, in a manner calculated to be
understood by the Claimant:




(1) State the specific reason or reasons for the Adverse Benefit Determination;




(2) Provide specific reference to pertinent Plan provisions on which the
Adverse Benefit Determination is based;




(3) Describe any additional material or information necessary for the Claimant
to perfect the claim and explain why such material or information is necessary; and



(4) Describe the Plan’s review procedures 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 the Act following an Adverse Benefit Determination on
review.



 


46









 








(e) Review of Adverse Benefit Determination. A Claimant has the right to have
an Adverse Benefit Determination reviewed in accordance with the following claims review
procedure:




(1) The Claimant must submit a written request for such review to the Committee
not later than 60 days following receipt by the Claimant of the Adverse Benefit
Determination notification;




(2) The Claimant shall have the opportunity to submit written comments,
documents, records, and other information relating to the claim for benefits to the
Committee;




(3) The Claimant shall have the right to have all comments, documents, records,
and other information relating to the claim for benefits that have been submitted by
the Claimant considered on review without regard to whether such comments,
documents, records or information were considered in the initial benefit
determination; and




(4) The Claimant shall have reasonable access to, and copies of, all documents,
records, and other information relevant to the claim for benefits free of charge
upon request, including (i) documents, records or other information relied upon for
the benefit determination, (ii) documents, records or other information submitted,
considered or generated without regard to whether such documents, records or other
information were relied upon in making the benefit determination, and (iii)
documents, records or other information that demonstrates compliance with the
standard claims procedure.




The decision on review by the Committee will be binding and conclusive upon all persons, and
the Claimant shall neither be required nor be permitted to pursue further appeals to the
Committee.




(f) Notification of Benefit Determination on Review. Notice of the Committee’s
final benefit determination regarding an Adverse Benefit Determination will be furnished in
writing or electronically to the Claimant after a full and fair review. Notice of an
Adverse Benefit Determination upon review will:




(1) State the specific reason or reasons for the Adverse Benefit Determination;




(2) Provide specific reference to pertinent Plan provisions on which the
Adverse Benefit Determination is based;


(3) State that the Claimant is entitled to receive, upon request and free of
charge, reasonable access to, and copies of, all documents, records, and other
information relevant to the Claimant’s claim for benefits including (i) documents,
records or other information relied upon for the benefit determination, (ii)
documents, records or other information submitted, considered or generated without
regard to whether such documents, records or other information were relied upon in
making the benefit determination, and (iii) documents, records or other information
that demonstrates compliance with the standard claims procedure; and




(4) Describe the Claimant’s right to bring an action under section 502(a) of
the Act.



 


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The Committee shall notify a Claimant of its determination on review with respect to the
Adverse Benefit Determination of the Claimant within a reasonable period of time but not
later than sixty days after the receipt of the Claimant’s request for review unless the
Committee determines that special circumstances require an extension of time for processing
the review of the Adverse Benefit Determination. If the Committee determines that such
extension of time is required, written notice of the extension (which shall indicate the
special circumstances requiring the extension and the date by which the Committee expects to
render the determination on review) shall be furnished to the Claimant prior to the
termination of the initial sixty-day review period. In no event shall such extension exceed
a period of sixty days from the end of the initial sixty-day review period. In the event
such extension is due to the Claimant’s failure to submit necessary information, the period
for making the determination on a review will be tolled from the date on which the
notification of the extension is sent to the Claimant until the date on which the Claimant
responds to the request for additional information.




(g) Exhaustion of Administrative Remedies. Completion of the claims procedures
described in this Section will be a condition precedent to the commencement of any legal or
equitable action in connection with a claim for benefits under the Plan by a Claimant or by
any other person or entity claiming rights individually or through a Claimant; provided,
however, that the Committee may, in its sole discretion, waive compliance with such claims
procedures as a condition precedent to any such action.




(1) Payment of Benefits. If the Benefits Administrator or Committee
determines that a Claimant is entitled to a benefit hereunder, payment of such
benefit will be made to such Claimant (or commence, as applicable) as soon as
administratively practicable after the date the Benefits Administrator or Committee
determines that such Claimant is entitled to such benefit or on any other later date
designated by and in the discretion of the Committee.




(2) Authorized Representatives. An authorized representative may act
on behalf of a Claimant in pursuing a benefit claim or an appeal of an Adverse
Benefit Determination. An individual or entity will only be determined to be a
Claimant’s authorized representative for such purposes if the Claimant has provided
the Committee with a written statement identifying such individual or
entity as his authorized representative and describing the scope of the
authority of such authorized representative. In the event a Claimant identifies an
individual or entity as his authorized representative in writing to the Committee
but fails to describe the scope of the authority of such authorized representative,
the Committee shall assume that such authorized representative has full powers to
act with respect to all matters pertaining to the Claimant’s benefit claim under the
Plan or appeal of an Adverse Benefit Determination with respect to such benefit
claim.


 


48









 





IX. IN-SERVICE WITHDRAWALS




9.1  In-Service Withdrawals.




(a) A Participant may withdraw from his After-Tax Account any or all amounts held in
such Account.




(b) A Participant may withdraw from his Rollover Contribution Account, his Class
Settlement Account I and/or his Class Action Settlement Account II any or all amounts held
in such Accounts.




(c) A Participant may withdraw from his Dow ESOP Account any or all amounts held in
such Account.




(d) A Participant who has attained age fifty-nine and one-half (59-1/2) may withdraw
from his Before-Tax Account, his Catch-up Contribution Account, and the Vested Interest in
his Employer Contribution Account, on a pro rata basis, an amount not exceeding his then
Vested Interest in the aggregate value of such Accounts.




(e) A Participant who has a financial hardship, as determined by the Committee, and who
has made all available withdrawals pursuant to the Paragraphs above and Appendices A and/or
B hereunder, as applicable, and pursuant to the provisions of any other plans of the
Employer and any Controlled Entities of which he is a Participant and who has obtained all
available loans pursuant to Article X and pursuant to the provisions of any other plans of
the Employer and any Controlled Entities of which he is a Participant may withdraw from his
Before-Tax Account and Catch-Up Contribution Account an amount not to exceed the lesser of
(i) the balance of such Accounts, or (ii) the amount required to meet the immediate
financial need created by the hardship. The amount required to meet the immediate financial
need may include any amounts necessary to pay any federal, state, or local income taxes or
penalties reasonably anticipated to result from the distribution. For purposes of this
Paragraph, financial hardship shall mean one of the following immediate and heavy financial
needs of the Participant:




(1) Expenses for (or necessary to obtain) medical care that would be deductible
under Section 213(d) of the Code (determined without regard to whether the expenses
exceed 7.5% of adjusted gross income);



(2) Costs directly related to the purchase of a principal residence of the
Participant (excluding mortgage payments);



 


49









 








(3) Payment of tuition, related educational fees, and room and board expenses,
for up to the next twelve months of post-secondary education for the Participant,
the Participant’s spouse, children, or dependents (as defined in Section 152 of the
Code and without regard to Sections 152(b)(1), (b)(2) and (d)(1)(B));




(4) Payments necessary to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the Participant’s principal
residence;




(5) Payments for burial or funeral expenses for the Participant’s deceased
parent, spouse, children or dependents (as defined in Section 152 of the Code and
without regard to Sections 152(b)(1), (b)(2) and (d)(1)(B));




(6) Expenses for the repair of damage to the Participant’s principal residence
that would qualify for the casualty deduction under Section 165 of the Code
(determined without regard to whether the loss exceeds 10% of adjusted gross
income); or




The above notwithstanding, (i) withdrawals under this Paragraph from a Participant’s
Before-Tax Account shall be limited to the sum of the Participant’s Before-Tax Contributions
to the Plan, plus income allocable to the Participant’s Before-Tax Contributions and
credited to the Participant’s Before-Tax Account as of December 31, 1988, less any previous
withdrawals of such amounts, (ii) withdrawals from a Participant’s Catch-Up Contribution
Account shall be limited to the Participant’s Catch-up Contributions pursuant to Section
3.1(h), less any previous withdrawals of such amounts, and (iii) Employer Discretionary
Qualified Matching Contributions utilized to satisfy the restrictions set forth in Section
3.1(e), and income allocable thereto, shall not be subject to withdrawal. A Participant who
receives a distribution pursuant to this Paragraph on account of hardship shall be
prohibited from making elective deferrals and employee contributions under this and all
other plans maintained by the Employer or any Controlled Entity for six (6) months after
receipt of the distribution.




9.2 Restriction on In-Service Withdrawals.




(a) All withdrawals pursuant to this Article shall be made in accordance with
procedures established by the Committee.




(b) Notwithstanding the provisions of this Article, (i) not more than one withdrawal
pursuant to Section 9.1(d) may be made in any one Plan Year, (ii) no withdrawal shall be
made from an Account to the extent such Account has been pledged to secure a loan from the
Plan, and (iii) any portion of an Account that is invested in the VBO shall not be subject
to withdrawal pursuant to any Paragraphs of Section 9.1.




 


50









 






(c) If a Participant’s Account from which a withdrawal is made is invested in more than
one Investment Fund, the withdrawal shall be made pro rata from each Investment Fund (other
than the VBO) in which such Account is invested.




(d) All withdrawals under this Article shall be paid in cash; provided, however, that a
Participant may elect to have withdrawals pursuant to Section 9.1 paid in full shares of
Company Stock (with any fractional shares to be paid in cash) to the extent that his Vested
Interest in the Accounts from which such withdrawals are made are invested in such stock.




(e) Any withdrawal hereunder that constitutes an Eligible Rollover Distribution shall
be subject to the Direct Rollover election described in
Section 8.4.




(f) Except as provided in Appendix A and Appendix B, this Article shall not be
applicable to a Participant following a Severance from Employment and the amounts in such
Participant’s Accounts shall be distributable only in accordance with the provisions of
Article VIII.



X. LOANS




The Plan authorizes the Trustee to make loans on a nondiscriminatory basis to a Participant or
beneficiary in accordance with the written loan policy established by the Committee attached to the
Plan as Appendix B, as amended from time to time; provided (i) the loan policy satisfies the
requirements of this Article X; (ii) loans are available to all Participants and beneficiaries on a
reasonably equivalent basis and are not available in a greater amount for Highly Compensated
Employees than for other Employees; (iii) any loan is adequately secured and bears a reasonable
rate of interest; (iv) the loan provides for repayment within a specified time; (v) the default
provisions of the note prohibit offset of the Participant’s Account balance prior to the time the
Trustee otherwise would distribute the Participant’s Account balance; and (vii) the loan otherwise
conforms to the exemption provided by Section 4975(d)(1) of the Code.



The loan policy, attached to the Plan as Appendix B, must be a written document and must
include (i) the identity of the person or positions authorized to administer the participant loan
program; (ii) a procedure for applying for the loan; (iii) the criteria for approving or denying a
loan; (iv) the limitations, if any, on the types and amounts of loans available; (v) the procedure
for determining a reasonable rate of interest; (vi) the types of collateral which may secure the
loan; and (vii) the events constituting default and the steps the Plan will take to preserve Plan
assets in the event of default. This Section specifically incorporates the written loan policy
adopted by the Committee, as amended from time to time, attached to the Plan as Appendix B.


 


51









 





XI. ADMINISTRATION OF THE PLAN




11.1 General Administration of the Plan. The general administration of the Plan shall
be vested in the Committee. For purposes of the Act, the Committee shall be the Plan
“administrator” and shall be the “named fiduciary” with respect to the general administration of
the Plan (except as to the investment of the assets of the Trust Fund). Each member of the
Committee shall serve until he resigns, dies or is removed by the Committee or the Compensation
Committee. The Committee may remove any of its members at any time, with or without cause, by
unanimous vote of the remaining members of the Committee and by written notice to such member;
further, the Compensation Committee may remove any of the Committee members, with or without cause,
and shall provide written notice to such member. Any member may resign by delivering a written
resignation to the Committee and the Compensation Committee, such resignation to become effective
as of a date specified in such notice that is on or after the date such notice is given as herein
provided. A member of the Committee who is an employee of the Company or any of its affiliates
shall cease to be a member of the Committee as of the date he ceases to be employed by the Company
or any of its affiliates. Vacancies in the Committee arising by death, resignation or removal
shall be filled by the Committee. The Committee may select officers (including a Chairman) and may
appoint a secretary who need not be a member of the Committee.



11.2 Records and Procedures. The Committee shall keep appropriate records of its
proceedings and the administration of the Plan and shall make available for examination during
business hours to any Participant or beneficiary such records as pertain to that individual’s
interest in the Plan. The Committee shall designate the person or persons who shall be authorized
to sign for the Committee and, upon such designation, the signature of such person or persons shall
bind the Committee.



11.3 Meetings. The Committee shall hold meetings upon such notice and at such time
and place as it may from time to time determine. Notice to a member shall not be required if
waived in writing by that member. A majority of the members of the Committee duly appointed shall
constitute a quorum for the transaction of business. All resolutions or other actions taken by the
Committee at any meeting where a quorum is present shall be by vote of a majority of those present
at such meeting and entitled to vote. Resolutions may be adopted or other action taken without a
meeting upon written consent signed by all of the members of the Committee. The Committee may hold
any meeting telephonically and any business conducted at a telephonic meeting shall have the same
force and effect as if the members had met in person.



11.4 Self-Interest of Members. No member of the Committee shall have any right to
vote or decide upon any matter relating solely to himself under the Plan or to vote in any case in
which his individual right to claim any benefit under the Plan is particularly involved. In any
case in which a Committee member is so disqualified to act and the remaining members cannot agree,
the Directors or the Compensation Committee shall appoint a temporary substitute member to exercise
all the powers of the disqualified member concerning the matter in which he is disqualified.



11.5 Compensation and Bonding. The members of the Committee shall not receive
compensation with respect to their services for the Committee. To the extent required by the Act
or other applicable law, or required by the Company, members of the Committee shall furnish bond or
security for the performance of their duties hereunder.


 


52









 





11.6 Committee Powers and Duties. The Committee shall supervise the administration
and enforcement of the Plan according to the terms and provisions hereof and shall have all powers
necessary to accomplish these purposes, including, but not by way of limitation, the right, power,
authority, and duty:




(a) To make rules, regulations, and bylaws for the administration of the Plan that are
not inconsistent with the terms and provisions hereof, provided such rules, regulations, and
bylaws are evidenced in writing and copies thereof are delivered to the Trustee and to the
Company, and to enforce the terms of the Plan and the rules and regulations promulgated
thereunder by the Committee;




(b) To construe in its discretion all terms, provisions, conditions, and limitations of
the Plan, and, in all cases, the construction necessary for the Plan to qualify under the
applicable provisions of the Code shall control;




(c) To correct any defect or to supply any omission or to reconcile any inconsistency
that may appear in the Plan in such manner and to such extent as it shall deem expedient in
its discretion to effectuate the purposes of the Plan;




(d) To employ and compensate such accountants, attorneys, investment advisors, and
other agents, employees, and independent contractors as the Committee may deem necessary or
advisable for the proper and efficient administration of the Plan;




(e) To determine in its discretion all questions relating to eligibility;




(f) To make a determination in its discretion as to the right of any person to a
benefit under the Plan and to prescribe procedures to be followed by Distributees in
obtaining benefits hereunder;




(g) To prepare, file, and distribute, in such manner as the Committee determines to be
appropriate, such information and material as is required by the reporting and disclosure
requirements of the Act;




(a) To furnish the Employer any information necessary for the preparation of such
Employer’s tax return or other information that the Committee determines in its discretion
is necessary for a legitimate purpose;




(h) To require and obtain from the Employer and the Participants any information or
data that the Committee determines is necessary for the proper administration of the Plan;




(i) To instruct the Trustee as to the loans to Participants pursuant to the provisions
of Article X;




(j) To appoint investment managers pursuant to Section 13.4;




(a) To receive and review reports from the Trustee and from investment managers as to
the financial condition of the Trust Fund, including its receipts and disbursements;




(k) To establish or designate Investment Funds as investment options as provided in
Article V; and




(l) To designate entities as participating Employers under the Plan pursuant to Article
XVI.


 


53









 





Any provisions of the Plan to the contrary notwithstanding, benefits under the Plan will be paid
only if the Committee decides in its discretion that the applicant is entitled to them.



11.7 Employer to Supply Information. The Employer shall supply full and timely
information to the Committee, including, but not limited to, information relating to each
Participant’s Compensation, age, retirement, death, or other cause of Severance from Employment and
such other pertinent facts as the Committee may require. The Employer shall advise the Trustee of
such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustee’s
duties under the Plan. When making a determination in connection with the Plan, the Committee
shall be entitled to rely upon the aforesaid information furnished by the Employer.



11.8 Temporary Restrictions. In order to ensure an orderly transition in the transfer
of assets to the Trust Fund from another trust fund maintained under the Plan or from the trust
fund of a plan that is merging into the Plan or transferring assets to the Plan, the Committee may,
in its discretion, temporarily prohibit or restrict withdrawals, loans, changes to contribution
elections, changes of investment designation of future contributions, transfers of amounts from one
Investment Fund to another Investment Fund, or such other activity as the Committee deems
appropriate; provided that any such temporary cessation or restriction of such activity shall be in
compliance with all applicable law.



11.9 Indemnification. The Company shall indemnify and hold harmless each member of
the Committee and each Employee who is a delegate of the Committee against any and all expenses and
liabilities arising out of his administrative functions or fiduciary responsibilities, including
any expenses and liabilities that are caused by or result from an act or omission constituting the
negligence of such individual in the performance of such functions or responsibilities, but
excluding expenses and liabilities that are caused by or result from such individual’s own gross
negligence or willful misconduct. Expenses against which such individual shall be indemnified
hereunder shall include, without limitation, the amounts of any settlement or judgment, costs,
counsel fees, and related charges reasonably incurred in connection with a claim asserted or a
proceeding brought or settlement thereof.



XII. TRUSTEE AND ADMINISTRATION OF TRUST FUND




12.1 Trust Agreement. As a means of administering the assets of the Plan, the Company
has entered into a Trust Agreement. The administration of the assets of the Plan and the duties,
obligations, and responsibilities of the Trustee shall be governed by the Trust Agreement. The
Trust Agreement may be amended from time to time as the Company and the Trustee deem advisable in
order to effectuate the purposes of the Plan. The Trust Agreement is incorporated herein by
reference and thereby made a part of the Plan.


 


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12.2 Payment of Expenses. All expenses incident to the administration of the Plan and
Trust (whether incurred before or after the Effective Date), including but not limited to, legal,
accounting, Trustee fees, direct expenses of the Employer and the Committee in the
administration of the Plan, and the cost of furnishing any bond or security required of the
Committee shall be paid by the Trustee from the Trust Fund, and, until paid, shall constitute a
claim against the Trust Fund which is paramount to the claims of Participants and beneficiaries;
provided, however, that (i) the obligation of the Trustee to pay such expenses from the Trust Fund
shall cease to exist to the extent such expenses are paid by the Employer, and (ii) in the event
the Trustee’s compensation is to be paid, pursuant to this Section, from the Trust Fund, any
individual serving as Trustee who already receives full-time pay from an Employer or an association
of Employers whose employees are Participants, or from an employee organization whose members are
Participants, shall not receive any additional compensation for serving as Trustee. This Section
shall be deemed to be a part of any contract to provide for expenses of Plan and Trust
administration, whether or not the signatory to such contract is, as a matter of convenience, the
Employer.



12.3 Trust Fund Property. All income, profits, recoveries, contributions,
forfeitures, and any and all moneys, securities, and properties of any kind at any time received or
held by the Trustee shall be held for investment purposes as a commingled Trust Fund. The
Committee shall maintain Accounts in the name of each Participant, but the maintenance of an
Account designated as the Account of a Participant shall not mean that such Participant shall have
a greater or lesser interest than that due him by operation of the Plan and shall not be considered
as segregating any funds or property from any other funds or property contained in the commingled
fund. No Participant shall have any title to any specific asset in the Trust Fund.



12.4 Distributions from Participants’ Accounts. Distributions from a Participant’s
Accounts shall be made by the Trustee only if, when, and in the amount and manner directed by the
Committee. Any distribution made to a Participant or for his benefit shall be debited to such
Participant’s Account or Accounts. All distributions hereunder shall be made in cash except as
otherwise specifically provided herein.



12.5 Payments Solely from Trust Fund. All benefits payable under the Plan shall be
paid or provided for solely from the Trust Fund, and neither the Employer nor the Trustee assumes
any liability or responsibility for the adequacy thereof. The Committee or the Trustee may require
execution and delivery of such instruments as are deemed necessary to assure proper payment of any
benefits.



12.6 No Benefits to the Employer. No part of the corpus or income of the Trust Fund
shall be used for any purpose other than the exclusive purpose of providing benefits for the
Participants and their beneficiaries and of defraying reasonable expenses of administering the Plan
and Trust. Anything to the contrary herein notwithstanding, the Plan shall not be construed to
vest any rights in the Employer other than those specifically given hereunder.



 


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XIII. FIDUCIARY PROVISIONS




13.1 Article Controls. This Article shall control over any contrary, inconsistent or
ambiguous provisions contained in the Plan.



13.2 General Allocation of Fiduciary Duties. Each fiduciary with respect to the Plan
shall have only those specific powers, duties, responsibilities and obligations as are specifically
given him under the Plan. The Directors shall have the sole authority to appoint and remove
the Trustee. Except as otherwise specifically provided herein and in the Trust Agreement, the
Committee shall have the sole responsibility for the administration of the Plan, which
responsibility is specifically described herein. Except as otherwise specifically provided herein
and in the Trust Agreement, the Trustee shall have the sole responsibility for the administration,
investment, and management of the assets held under the Plan. It is intended under the Plan that
each fiduciary shall be responsible for the proper exercise of his own powers, duties,
responsibilities, and obligations hereunder and shall not be responsible for any act or failure to
act of another fiduciary except to the extent provided by law or as specifically provided herein.



13.3 Delegation and Allocation of Fiduciary Duties. The Committee may appoint
subcommittees, individuals, or any other agents as it deems advisable and may delegate to any of
such appointees any or all of the powers and duties of the Committee. Such appointment and
delegation must be in writing, specifying the powers or duties being delegated, and must be
accepted in writing by the delegatee. Upon such appointment, delegation, and acceptance, the
delegating Committee members shall have no liability for the acts or omissions of any such
delegatee, as long as the delegating Committee members do not violate any fiduciary responsibility
in making or continuing such delegation.



13.4 Investment Manager. The Committee may, in its sole discretion, appoint an
“investment manager,” with power to select any or all of the Investment Funds available pursuant to
Section 5.2 and/or with power to manage, acquire, or dispose of any asset of the Plan and to direct
the Trustee in this regard, so long as:




(a) The investment manager is (i) registered as an investment adviser under the
Investment Advisers Act of 1940, (ii) not registered as an investment adviser under such act
by reason of paragraph (1) of section 203A of such act, is registered as an investment
adviser under the laws of the state (referred to in such paragraph (1)) in which it
maintains its principal office and place of business, and, at the time it last filed the
registration form most recently filed by it with such state in order to maintain its
registration under the laws of such state, also filed a copy of such form with the Secretary
of Labor, (iii) a bank, as defined in the Investment Advisers Act of 1940, or (iv) an
insurance company qualified to do business under the laws of more than one state; and




(b) Such investment manager acknowledges in writing that he is a fiduciary with respect
to the Plan.



Upon such appointment, the Committee shall not be liable for the acts of the investment
manager, as long as the Committee members do not violate any fiduciary responsibility in making or
continuing such appointment. The Trustee shall follow the directions of such investment manager
and shall not be liable for the acts or omissions of such investment manager. The investment
manager may be removed by the Committee at any time and within its sole discretion.


 


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13.5 Independent Fiduciary. The Committee may, at its sole discretion, appoint an
Independent Fiduciary, who must be an investment manager as defined in Section 13.4(a), with the
sole and exclusive authority and responsibility on behalf of the Plan to exercise all authority to:




(a) Determine whether acquiring or holding Company Stock in the Plan is no longer
consistent with the Act, if so, to determine whether to:




(1) prohibit or limit (for example, as a percentage of a Participant’s Account)
further purchases or holdings of Company Stock or increasing the Company Stock
Fund’s holding of cash or cash equivalent investments, and in the event of such
prohibition or limitation, to designate, as necessary, an alternative investment
fund for the investment of the proceeds or contributions pending further investment
directions from the Participants and beneficiaries;




(2) liquidate some or all of the Plan’s holdings in the Company Stock Fund and
determine how such liquidation should be accomplished and in the event of such
liquidation, to designate, as necessary, an alternative investment fund for the
investment of the proceeds or contributions pending further investment directions
from the Participants and beneficiaries; or




(3) terminate the availability of the Company Stock Fund as an investment
option under the Plan on such terms and conditions as the Independent Fiduciary
shall deem prudent and in the interests of the Plan, Participants and beneficiaries
(and notwithstanding any Participant or beneficiary investment directions to the
contrary), including the determination of the manner and timing of termination of
the Company Stock Fund and orderly liquidation of its assets and designation of an
alternative investment fund for the investment of the proceeds or contributions
pending further investment directions from the Participants and beneficiaries.




(b) Direct the Trustee to execute and deliver to the Independent Fiduciary such forms
and other documents as the Independent Fiduciary may determine are advisable to be filed
with the Securities and Exchange Commission or other governmental agency.




(c) Serve as the fiduciary responsible for ensuring the confidentiality of the proxy
voting process.




(d) Subject to the Committee’s right to reasonable notice and opportunity to review and
comment on any proposed communication to Participants, which comments shall be reflected in
such communication except to the extent the Independent Fiduciary reasonably determines such
comments to be inconsistent with their duties as detailed herein, direct the Plan’s record
keeper to make such communications to Participants and beneficiaries as the Independent
Fiduciary reasonably determines to be necessary in connection with the exercise of its
responsibilities with respect to the Plan.



Upon such appointment, the Committee shall not be liable for the acts of the Independent
Fiduciary. An Independent Fiduciary may be removed by the Committee at any time and within its
sole discretion.


 


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XIV. AMENDMENTS




14.1 Right to Amend. Subject to Section 14.2 and any other limitations contained in
the Act or the Code, the Directors or the Compensation Committee of the Company’s Board of
Directors may from time to time amend, in whole or in part, any or all of the provisions of the
Plan on behalf of the Company and all Employers; provided, however, that (i) any amendments to the
Plan that do not have a significant cost impact on the Employer may also be made by the Committee,
and (ii) any amendments to the Plan that do not have any cost impact on the Employer may also be
made by the Chairman of the Committee. Further, but not by way of limitation, the Directors, the
Compensation Committee of the Company’s Board of Directors, the Committee, or the Chairman of the
Committee may make any amendment necessary to acquire and maintain a qualified status for the Plan
under the Code or to maintain the Plan in compliance with applicable law, whether or not
retroactive.



14.2 Limitation on Amendments. No amendment of the Plan shall be made that would vest
in the Employer, directly or indirectly, any interest in or control of the Trust Fund. No
amendment shall be made that would vary the Plan’s exclusive purpose of providing benefits to
Participants and their beneficiaries and of defraying reasonable expenses of administering the Plan
or that would permit the diversion of any part of the Trust Fund from that exclusive purpose. No
amendment shall be made that would reduce any then nonforfeitable interest of a Participant. No
amendment shall increase the duties or responsibilities of the Trustee unless the Trustee consents
thereto in writing.



No amendment shall retroactively decrease a Participant’s accrued benefits or otherwise
retroactively place greater restrictions or conditions on a Participant’s rights to Section
411(d)(6) protected benefits, even if the amendment adds a restriction or condition that is
otherwise permitted under Section 411(a) of the Code, unless otherwise permitted under Treasury
Regulations Sections 1.411(d)-3 or 1.411(d)-4. Effective January 1, 2007, an optional form of
benefit hereunder may be eliminated prospectively provided that the Plan will satisfy the
requirements of Treasury Regulations Sections 1.411(d)-3(c), (d) or (e) or 1.411(d)-4.



XV. DISCONTINUANCE OF CONTRIBUTIONS, TERMINATION,

PARTIAL TERMINATION, AND MERGER OR CONSOLIDATION




15.1 Right to Discontinue Contributions, Terminate, or Partially Terminate. The
Company and the Employer has established the Plan with the bona fide intention and expectation that
from year to year it will be able to, and will deem it advisable to, make its contributions as
herein provided. However, the Company and the Employers realize that circumstances not now
foreseen, or circumstances beyond its control, may make it either impossible or inadvisable for the
Employer to continue to make its contributions to the Plan. Therefore, the Directors shall have
the power to discontinue contributions to the Plan, terminate the Plan, or partially terminate the
Plan at any time hereafter. Each member of the Committee and the Trustee shall be notified of such
discontinuance, termination, or partial termination.


 


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15.2 Procedure in the Event of Discontinuance of Contributions, Termination, or Partial
Termination.




(a) If the Plan is amended so as to permanently discontinue Employer Contributions, or
if Employer Contributions are in fact permanently discontinued, the Vested Interest of each
affected Participant shall be 100%, effective as of the date of discontinuance. In case of
such discontinuance, the Committee shall remain in existence and all other provisions of the
Plan that are necessary, in the opinion of the Committee, for equitable operation of the
Plan shall remain in force.




(b) In the event that the Plan is terminated or partially terminated, each affected
Participant shall have a 100% Vested Interest of his Account, effective as of the
termination date or partial termination date, as applicable. Unless the Plan is otherwise
amended prior to dissolution of the Company, the Plan shall terminate as of the date of
dissolution of the Company.




(c) Upon discontinuance of contributions, termination, or partial termination, any
previously unallocated contributions and forfeitures shall be allocated among the Accounts
of the Participants on such date of discontinuance, termination, or partial termination
according to the provisions of Article IV. Thereafter, the net income (or net loss) shall
continue to be allocated to the Accounts of the Participants until the balances of the
Accounts are distributed.




(d) In the case of a termination of the Plan, the Accounts of a Participant shall,
subject to the consent provisions of Article VIII, be distributed to such Participant in a
“lump sum distribution” as such term is defined below; provided, however, a distribution may
not be made if the Employer establishes or maintains another “Alternative Defined
Contribution Plan.” For purposes of this Section 15.2(d), an “Alternative Defined
Contribution Plan” is a defined contribution plan that exists at any time during the period
beginning on the date of Plan termination and ending twelve (12) months after distribution
of all assets from the terminated Plan. However, if at all times during the twenty-four
(24)-month period beginning twelve (12) months before the date of Plan termination, fewer
than two-percent (2%) of the employees who were eligible under the defined contribution plan
that includes the cash or deferred arrangement as of the date of Plan termination are
eligible under the other defined contribution plan, the other Plan is not an Alternative
Defined Contribution Plan. In addition, a defined contribution plan is not treated as an
Alternative Defined Contribution Plan if it is an employee stock ownership plan, as defined
in Section 4975(e)(7) or Section 409(a) of the Code, a simplified employee pension plan as
defined in Section 408(k) of the Code, a SIMPLE IRA plan as defined in Section 408(p) of the
Code, a plan or contract that satisfies the requirements of Section 403(b) of the Code, or a
plan that is described in Section 457(b) or (f) of the Code. The term “lump sum
distribution” shall have the meaning provided in Section 402(e)(4)(D) of the Code (without
regard to Section 402(e)(4)(D)(i)(I), (II), (III) and (IV) of the Code). In the case of a
Participant who is affected by a partial termination of the Plan, the Accounts of such
Participant shall, subject to the consent provisions of Article VIII, be distributed in
accordance with the applicable provisions of Article VIII after he has incurred a Severance
from Employment.


 


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15.3 Merger, Consolidation, or Transfer. This Plan and Trust Fund may not merge or
consolidate with, or transfer its assets or liabilities to, any other plan, unless immediately
thereafter each Participant would, in the event such other plan terminated, be entitled to a
benefit which is equal to or greater than the benefit to which he would have been entitled if the
Plan were terminated immediately before the merger, consolidation, or transfer.



XVI. PARTICIPATING EMPLOYERS




16.1 Designation of Other Employers.




(a) The Committee may designate any entity or organization eligible by law to
participate in the Plan and the Trust as an Employer by written instrument delivered to the
Secretary of the Company and the designated Employer. Such written instrument shall specify
the effective date of such designated participation, may incorporate specific provisions
relating to the operation of the Plan which apply to the designated Employer only, and shall
become, as to such designated Employer and its Employees, a part of the Plan.




(b) Each designated Employer shall be conclusively presumed to have consented to its
designation or participation, as applicable, and to have agreed to be bound by the terms of
the Plan and any and all amendments thereto upon its submission of information to the
Committee required by the terms of or with respect to the Plan or upon making a contribution
to the Trust Fund pursuant to the terms of the Plan; provided, however, that the terms of
the Plan may be modified so as to increase the obligations of an Employer only with the
consent of such Employer, which consent shall be conclusively presumed to have been given by
such Employer upon its submission of any information to the Committee required by the terms
of or with respect to the Plan or upon making a contribution to the Trust Fund pursuant to
the terms of the Plan following notice of such modification.




(c) The provisions of the Plan and the Trust Agreement shall apply separately and
equally to each Employer and its Employees in the same manner as is expressly provided for
the Company and its Employees, except that the power to appoint or otherwise affect the
Committee or the Trustee and the power to amend or terminate the Plan and the Trust
Agreement shall be exercised by the Directors alone (except as provided in Section 14.1)
and, in the case of Employers which are Controlled Entities, Employer Discretionary
Contributions to be allocated pursuant to Section 4.1(d) shall be allocated on an aggregate
basis among the Participants employed by all Employers; provided, however, that each
Employer shall contribute to the Trust Fund its share of the total Employer Discretionary
Contribution for a Plan Year based on the Participants in its employ during such Plan Year.




(d) Transfer of employment among Employers shall not be considered a Severance from
Employment hereunder, and Service with one shall be considered as Service with all others.


 


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(e) Any Employer may, by appropriate action of its Board of Directors or noncorporate
counterpart that is communicated in writing to the Secretary of the Company and to the
Committee, terminate its participation in the Plan and the Trust. Moreover, the Committee
may, in its discretion, terminate an Employer’s Plan and Trust participation at any time by
written instrument delivered to the Secretary of the Company and the designated Employer.




(f) All participating Employers shall be listed on Appendix A of the Plan.



16.2 Single Plan. For purposes of the Code and the Act, the Plan as adopted by the
Employers shall constitute a single plan rather than a separate plan of each Employer. All assets
in the Trust Fund shall be available to pay benefits to all Participants and their beneficiaries.



XVII. MISCELLANEOUS PROVISIONS




17.1 Not Contract of Employment. The adoption and maintenance of the Plan shall not
be deemed to be a contract between the Employer and any person or to be consideration for the
employment of any person. Nothing herein contained shall be deemed to give any person the right to
be retained in the employ of the Employer or to restrict the right of the Employer to discharge any
person at any time nor shall the Plan be deemed to give the Employer the right to require any
person to remain in the employ of the Employer or to restrict any person’s right to terminate his
employment at any time.



17.2 Spendthrift Clause. Except as provided below, no Participant, former Participant
or beneficiary shall have the right to anticipate, assign or alienate any benefit provided under
the Plan, and the Trustee will not recognize any anticipation, assignment or alienation.
Furthermore, a benefit under the Plan is not subject to attachment, garnishment, levy, execution or
other legal or equitable process. All provisions of this Section 17.2 shall be for the exclusive
benefit of those designated herein. These restrictions shall not apply in the following case(s):




(a) Distributions Pursuant to Qualified Domestic Relations Orders. The
Committee may direct the Trustee under the nondiscriminatory policy adopted by the Committee
to pay an Alternate Payee designated under a “qualified domestic relations order” as defined
in Section 414(p) of the Code (or any domestic relations order entered before January 1,
1985 if payment of benefits pursuant to the order has commenced as of that date). To the
extent provided under a qualified domestic relations order, a former spouse of a Participant
shall be treated as the spouse or surviving spouse for all purposes of the Plan.




Upon receipt of a qualified domestic relations order, the Committee shall direct the
Trustee to pay the Alternate Payee designated under such qualified domestic relations order
the benefits awarded thereunder at the time and in the form elected by the Alternate Payee,
subject to the limitations of Article VIII and the applicable Treasury Regulations. Unless
otherwise provided in the qualified domestic relations order, an Alternate Payee shall be
eligible to receive payment as soon as administratively feasible following the Committee’s
receipt of the Alternate Payee’s written election for payment of benefits. The Committee
shall adopt such procedures as necessary, in accordance with a
nondiscriminatory policy, to effect the orderly administration of this Section 17.2(a).
The amount payable, unless otherwise specified in the qualified domestic relations order,
shall be determined as of the date immediately preceding the date of distribution to the
Alternate Payee.


 


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A qualified domestic relations order that otherwise satisfies the requirements under
Section 414(p) of the Code will not fail to be a qualified domestic relations order (i)
solely because the order is issued after, or revises, another domestic relations order or a
qualified domestic relations order or (ii) solely because of the time at which the order is
issued, including issuance after the annuity starting date or after the Participant’s death.




(b) Distributions Pursuant to Certain Judgments or Orders. The Committee may
direct the Trustee to comply with a judgment or settlement entered into on or after August
3, 1997, which requires the Trustee to reduce a Participant’s benefits under the Plan by an
amount that the Participant is ordered or required to pay to the Plan if each of the
following criteria are satisfied:




(1) The order or requirement must arise:




(A) Under a judgment of conviction for a crime involving the Plan;




(B) Under a civil judgment (including a consent order or decree)
entered by a court in an action brought in connection with an actual or
alleged violation of Part 4 of Title I of the Act; or




(C) Under a settlement agreement with either the Secretary of Labor or
the Pension Benefit Guaranty Corporation and the Participant in connection
with an actual or alleged violation of Part 4 of Title I of the Act by a
fiduciary or any other person.




(2) The decree, judgment, order or settlement must expressly provide for the
offset of all or part of the amount ordered or required to be paid to the Plan
against the Participant’s benefits under the Plan.




(3) In addition, if the joint and survivor annuity requirements of Section
401(a)(11) of the Code apply with respect to distributions from the Plan to the
Participant and the Participant has a spouse at the time at which the offset is to
be made, then one of the following three conditions must be satisfied:




(A) Such spouse has consented in writing to such offset and such
consent is witnessed by a notary public or representative of the Plan (or it
is established to the satisfaction of a Plan representative that such
consent may not be obtained by reason of circumstances described in Section
417(a)(2)(B) of the Code), or an election to waive the right of the spouse
to either a qualified joint and survivor annuity or a qualified
preretirement survivor annuity is in effect in accordance with the
requirements of Section 417(a) of the Code;


 


62









 






(B) Such spouse is ordered or required in such judgment, order, decree,
or settlement to pay an amount to the Plan in connection with a violation of
part 4 of subtitle B of Title I of the Act; or




(C) In such judgment, order, decree, or settlement, such spouse retains
the right to receive the survivor annuity under a qualified joint and
survivor annuity provided pursuant to Section 401(a)(11)(A)(i) of the Code
and under a qualified preretirement survivor annuity provided pursuant to
Section 401(a)(11)(A)(ii) of the Code, determined in accordance with Section
401(a)(13)(D) of the Code.



17.3 Uniformed Services Employment and Reemployment Rights Act Requirements.
Notwithstanding any provision of the Plan to the contrary, contributions, benefits, and service
credit with respect to qualified military service will be provided in accordance with section
414(u) of the Code.



17.4 Payments to Minors and Incompetents. If a Participant or beneficiary entitled to
receive a benefit under the Plan is a minor or is determined by the Committee in its discretion to
be incompetent or is adjudged by a court of competent jurisdiction to be legally incapable of
giving valid receipt and discharge for a benefit provided under the Plan, the Committee may pay
such benefit to the duly appointed guardian or conservator of such Participant or beneficiary for
the account of such Participant or beneficiary. If no guardian or conservator has been appointed
for such Participant or beneficiary, the Committee may pay such benefit to any third party who is
determined by the Committee, in its sole discretion, to be authorized to receive such benefit for
the account of such Participant or beneficiary. Such payment shall operate as a full discharge of
all liabilities and obligations of the Committee, the Trustee, the Employer, and any fiduciary of
the Plan with respect to such benefit.



17.5 Acquisition and Holding of Company Stock. The Plan is specifically authorized to
acquire and hold up to 100% of its assets in Company Stock so long as Company Stock is a
“qualifying employer security,” as such term is defined in Section 407(d)(5) of the Act.



17.6 Power of Attorney Designations. In accordance with the procedures established by
the Committee, a Participant may grant any individual a “Power of Attorney” to exercise, on behalf
of such Participant, any investment designation or conversion rights available to such Participant
under the Plan with respect to such Participant’s Accounts.



17.7 Participant’s and Beneficiary’s Address. It shall be the affirmative duty of
each Participant to inform the Committee of, and to keep on file with the Committee, his current
mailing address and the current mailing address of his designated beneficiary. If a Participant
fails to keep the Committee informed of his current mailing address and the current mailing address
of his designated beneficiary, neither the Committee, the Trustee, the Employer, nor any fiduciary
under the Plan shall be responsible for any late or lost payment of a benefit or for failure of any
notice to be provided timely under the terms of the Plan.


 


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17.8 Incorrect Information, Fraud, Concealment, or Error. Any contrary provisions of
the Plan notwithstanding, if, because of a human or systems error, or because of
incorrect information provided by or correct information failed to be provided by, fraud,
misrepresentation, or concealment of any relevant fact (as determined by the Committee) by any
person the Plan enrolls any individual, pays benefits under the Plan, incurs a liability or makes
any overpayment or erroneous payment, the Plan shall be entitled to recover from such person the
benefit paid or the liability incurred, together with all expenses incidental to or necessary for
such recovery.



17.9 Severability. If any provision of this Plan shall be held illegal or invalid for
any reason, said illegality or invalidity shall not affect the remaining provisions hereof;
instead, each provision shall be fully severable and the Plan shall be construed and enforced as if
said illegal or invalid provision had never been included herein.



17.10 Jurisdiction. The situs of the Plan hereby created is Texas. All provisions of
the Plan shall be construed in accordance with the laws of Texas except to the extent preempted by
federal law.



XVIII. TOP-HEAVY STATUS




18.1 Article Controls. Any Plan provisions to the contrary notwithstanding, the
provisions of this Article shall control to the extent required to cause the Plan to comply with
the requirements imposed under Section 416 of the Code.



18.2 Definitions. For purposes of this Article, the following terms and phrases shall
have these respective meanings:




(a) Account Balance: As of any Valuation Date, the aggregate amount credited
to an individual’s account or accounts under a qualified defined contribution plan
maintained by the Employer or a Controlled Entity (excluding employee contributions that
were deductible within the meaning of Section 219 of the Code and rollover or transfer
contributions made after December 31, 1983, by or on behalf of such individual to such plan
from another qualified plan sponsored by an entity other than the Employer or a Controlled
Entity), increased by (i) the aggregate distributions made to such individual from such plan
(including a terminated plan which, had it not been terminated, would have been aggregated
with the Plan under Section 416(g)(2)(A)(i) of the Code) during a one-year period (or, in
the case of a distribution made for a reason other than separation from service, death or
disability, a five-year period) ending on the Determination Date, and (ii) the amount of any
contributions due as of the Determination Date immediately following such Valuation Date.


 


64









 






(b) Accrued Benefit: As of any Valuation Date, the present value (computed on
the basis of the Assumptions) of the cumulative accrued benefit (excluding the portion
thereof that is attributable to employee contributions that were deductible pursuant to
Section 219 of the Code, to rollover or transfer contributions made after December 31, 1983,
by or on behalf of such individual to such plan from another qualified plan sponsored by an
entity other than the Employer or a Controlled Entity, to proportional subsidies or to
ancillary benefits) of an individual under a qualified defined benefit plan maintained by
the Employer or a Controlled Entity increased by (i) the aggregate
distributions made to such individual from such plan (including a terminated plan
which, had it not been terminated, would have been aggregated with the Plan under Section
416(g)(2)(A)(i) of the Code) during a one-year period (or, in the case of a distribution
made for a reason other than separation from service, death or disability, a five-year
period) ending on the Determination Date, and (ii) the estimated benefit accrued by such
individual between such Valuation Date and the Determination Date immediately following such
Valuation Date. Solely for the purpose of determining top-heavy status, the Accrued Benefit
of an individual shall be determined under (i) the method, if any, that uniformly applies
for accrual purposes under all qualified defined benefit plans maintained by the Employer
and the Controlled Entities, or (ii) if there is no such method, as if such benefit accrued
not more rapidly than under the slowest accrual rate permitted under Section 411(b)(1)(C) of
the Code.




(c) Aggregation Group: The group of qualified plans maintained by the Employer
and each Controlled Entity consisting of (i) each plan in which a Key Employee participates
and each other plan that enables a plan in which a Key Employee participates to meet the
requirements of Section 401(a)(4) or 410 of the Code, or (ii) each plan in which a Key
Employee participates, each other plan that enables a plan in which a Key Employee
participates to meet the requirements of Sections 401(a)(4) or 410 of the Code and any other
plan that the Employer elects to include as a part of such group; provided, however, that
the Employer may elect to include a plan in such group only if the group will continue to
meet the requirements of Sections 401(a)(4) and 410 of the Code with such plan being taken
into account.




(d) Assumptions: The interest rate and mortality assumptions specified for
top-heavy status determination purposes in any defined benefit plan included in the
Aggregation Group which includes the Plan.




(e) Determination Date: For the first Plan Year of any plan, the last day of
such Plan Year and for each subsequent Plan Year of such plan, the last day of the
preceding Plan Year.




(f) Key Employee: A “key employee” as defined in Section 416(i) of the Code
and the Treasury regulations thereunder.




(g) Plan Year: With respect to any plan, the annual accounting period used by
such plan for annual reporting purposes.




(h) Remuneration: 415 Compensation.




(i) Valuation Date: With respect to any Plan Year of any defined contribution
plan, the most recent date within the twelve-month period ending on a Determination Date as
of which the trust fund established under such plan was valued and the net income (or loss)
thereof allocated to Participants’ accounts. With respect to any Plan Year of any defined
benefit plan, the most recent date within a twelve-month period ending on a
Determination Date as of which the plan assets were valued for
purposes of computing plan costs for purposes of the requirements imposed under Section
412 of the Code.


 


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18.3 Top-Heavy Status.




The Plan shall be deemed to be top-heavy for a Plan Year if, as of the Determination Date
for such Plan Year, (i) the sum of Account Balances of Participants who are Key Employees
exceeds 60% of the sum of Account Balances of all Participants unless an Aggregation Group
including the Plan is not top-heavy, or (ii) an Aggregation Group including the Plan is
top-heavy. An Aggregation Group shall be deemed to be top-heavy as of a Determination Date
if the sum (computed in accordance with Section 416(g)(2)(B) of the Code and the Treasury
regulations promulgated thereunder) of (i) the Account Balances of Key Employees under all
defined contribution plans included in the Aggregation Group, and (ii) the Accrued Benefits
of Key Employees under all defined benefit plans included in the Aggregation Group exceeds
60% of the sum of the Account Balances and the Accrued Benefits of all individuals under
such plans. Notwithstanding the foregoing, the Account Balances and Accrued Benefits of
individuals who are not Key Employees in any Plan Year but who were Key Employees in any
prior Plan Year shall not be considered in determining the top-heavy status of the Plan for
such Plan Year. Further, notwithstanding the foregoing, the Account Balances and Accrued
Benefits of individuals who have not performed services for the Employer or any Controlled
Entity at any time during the one-year period ending on the applicable Determination Date
shall not be considered.




18.4 Top-Heavy Contribution.




(a) If the Plan is determined to be top-heavy for a Plan Year, the Employer shall
contribute to the Plan for such Plan Year on behalf of each Participant who is not a Key
Employee and who has not terminated his employment as of the last day of such Plan Year an
amount equal to:




(1) The lesser of (i) 3% of such Participant’s Remuneration for such Plan Year,
or (ii) a percent of such Participant’s Remuneration for such Plan Year equal to the
greatest percent determined by dividing for each Key Employee the amounts allocated
to such Key Employee’s Before-Tax Account and Employer Contribution Account for such
Plan Year by such Key Employee’s Remuneration; reduced by




(2) The amount of Employer Matching Contributions and Employer Discretionary
Contributions allocated to such Participant’s Accounts for such Plan Year.




(b) The minimum contribution required to be made for a Plan Year pursuant to this
Section for a Participant employed on the last day of such Plan Year shall be made
regardless of whether such Participant is otherwise ineligible to receive an allocation of
the Employer’s contributions for such Plan Year. The minimum contribution required to be
made pursuant to this Section shall also be made for an Eligible Employee who is not
a Key Employee and who is excluded from participation in the Plan solely because of
failing to make Before-Tax Contributions.


 


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(c) Notwithstanding the foregoing, no contribution shall be made pursuant to this
Section for a Plan Year with respect to a Participant who is a participant in another
defined contribution plan sponsored by the Employer or a Controlled Entity if such
Participant receives under such other defined contribution plan (for the plan year of such
plan ending with or within the Plan Year of the Plan) a contribution which is equal to or
greater than the minimum contribution required by Section 416(c)(2) of the Code.




(d) Notwithstanding the foregoing, no contribution shall be made pursuant to this
Section for a Plan Year with respect to a Participant who is a participant in a defined
benefit plan sponsored by the Employer or a Controlled Entity if such Participant accrues
under such defined benefit plan (for the plan year of such plan ending with or within the
Plan Year of this Plan) a benefit that is at least equal to the benefit described in Section
416(c)(1) of the Code. If the preceding sentence is not applicable, the requirements of
this Paragraph shall be met by providing a minimum benefit under such defined benefit plan
which, when considered with the benefit provided under the Plan as an offset, is at least
equal to the benefit described in Section 416(c)(1) of the Code.



18.5 Termination of Top-Heavy Status. If the Plan has been deemed to be top-heavy for
one (1) or more Plan Years and thereafter ceases to be top-heavy, the provisions of this Article
shall cease to apply to the Plan effective as of the Determination Date on which it is determined
no longer to be top-heavy.



18.6 Effect of Article. Notwithstanding anything contained herein to the contrary,
the provisions of this Article shall automatically become inoperative and of no effect to the
extent not required by the Code or the Act.



EXECUTED this
 _____ 
day of December, 2008, effective January 1, 2009, or otherwise provided
herein.



	 	 	 	 	 
	 	DYNEGY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 


67









 







Appendix A:


PARTICIPATING EMPLOYERS





1. Dynegy Energy Services, Inc.



2. Dynegy Marketing and Trade, LLC




3. Dynegy Midwest Generation, Inc. shall be an “Employer” solely for the purpose of providing
benefits under the Plan to Eligible Employees who are salaried non-union employees hired by Dynegy
Midwest Generation, Inc. on or after January 1, 2009.



4. Dynegy Northeast Generation, Inc. shall be an “Employer” solely for the purpose of providing
benefits under the Plan to (i) Eligible Employees who are hired by Dynegy Northeast Generation,
Inc. on or after April 3, 2008 and who are covered by that certain Memorandum of Agreement between
Dynegy Northeast Generation, Inc. and Local Union 320 of the International Brotherhood of
Electrical Workers, dated March 26, 2008, as ratified on April 3, 2008; and (ii) all Eligible
Employees who are hired by Dynegy Northeast Generation, Inc. on or after January 1, 2009.



5. Dynegy Operating Company




6. Dynegy Power Company




7. Sithe Energies Power Services, Inc.




 


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Appendix B:


LOAN POLICY





B-1 Eligibility for Loan. Upon application by (i) any Participant who is an
Employee, or (ii) any Participant (A) who is a party-in-interest, as that term is defined in
Section 3(14) of the Act, (B) who is no longer employed by the Employer, who is a
beneficiary of a deceased Participant, or who is an alternate payee under a qualified
domestic relations order, as that term is defined in Section 414(p)(8) of the Code, and (C)
who retains an Account balance under the Plan (an individual who is eligible to apply for a
loan under this Appendix B being hereinafter referred to as a “Participant” for purposes of
this Appendix B) and subject to such uniform and nondiscriminatory rules and regulations as
the Committee may establish, the Committee may in its discretion direct the Trustee to make
a loan or loans to such Participant. No individual may have more than three (3) loans
outstanding under the Plan at any time, and no individual may have more than one loan
outstanding under the Plan at any time that is being used to acquire any dwelling unit which
within a reasonable time is to be used (determined at the time the loan is made) as a
principal residence.




B-2 Maximum Loan.




(a) A loan to a Participant may not exceed fifty-percent (50%) of the then value of
such Participant’s Vested Interest in his Accounts as reduced by the sum of then value of
the portion of each of such Accounts invested in the VBO.




(b) Paragraph (a) above to the contrary notwithstanding, no loan shall be made from the
Plan to the extent that such loan would cause the total of all loans made to a Participant
from all qualified plans of an Employer or a Controlled Entity, including loans deemed
distributed in accordance with regulations promulgated under Section 72(p) of the Code, and
the interest accruing thereafter, that has not been repaid (‘Outstanding Loans’) to exceed
the lesser of:




(i) $50,000 (reduced by the excess, if any, of (A) the highest outstanding
balance of Outstanding Loans during the one-year period ending on the day before the
date on which the loan is to be made, over (B) the outstanding balance of
Outstanding Loans on the date on which the loan is to be made); or




(ii) One-half the present value of the Participant’s nonforfeitable accrued
benefit under all qualified plans of the Employer or a Controlled Entity.




B-3 Minimum Loan. A loan to a Participant may not be for an amount less than
$500.00.




B-4 Interest and Security.




(a) Any loan made pursuant to this Appendix B shall bear interest at a rate established
by the Committee from time to time and communicated to the Participants, which rate shall
provide the Plan with a return commensurate with the interest rates
charged by persons in the business of lending money for loans which would be made under
similar circumstances.


 


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(b) Any loan shall be made as an investment of a segregated loan fund to be established
in the Trust Fund for the Participant to whom the loan is made. Any loan shall be
considered to come, first, from the Participant’s After-Tax Account, second, from the
Participant’s Rollover Contribution Account, third, from the Participant’s Class Settlement
Account I, fourth, from the Participant’s Class Settlement Account II, and fifth, from the
Participant’s Vested Interest in the remainder of his Accounts on a pro rata basis. The
Trustee shall fund a Participant’s segregated loan fund by liquidating such portion of the
assets of the Accounts from which the Participant’s loan is to be made as is necessary to
fund the loan and transferring the proceeds to such segregated loan fund. If a
Participant’s Accounts are invested in more than one Investment Fund, the transfer shall be
made pro rata from each such Investment Fund (other than the VBO). The loan shall be
secured by a pledge of the Participant’s segregated loan fund.




Notwithstanding the foregoing, in the event that a loan from the Plan is deemed distributed
to a Participant and has not been repaid by the Participant, and the Participant applies for
another loan from the Plan, then the new loan shall satisfy such additional conditions as
may be required in accordance with Section 72(p) of the Code and the Treasury regulations
promulgated thereunder. Notwithstanding any foregoing provision of this Paragraph (b) to
the contrary, no loan shall be considered to come from, and no liquidation shall be made
with respect to, the portion of a Participant’s Accounts that are invested in the VBO.




(c) The actual and reasonable expenses incurred by the Plan (including attorneys’ fees)
in connection with the documentation of a loan, the recording of security interests, the
enforcement of the terms of the loan, and collection activities associated with any default
may be charged to the borrowing Participant’s Accounts pursuant to uniform and
nondiscriminatory policies established by the Committee from time to time.




B-5 Repayment Terms of Loan.




(a) A Participant who is an Employee receiving compensation at the time of receipt of a
loan shall be required, as a condition to receiving a loan, to enter into an irrevocable
agreement authorizing the Employer to make payroll deductions from his compensation so long
as the Participant is an Employee and to transfer such payroll deduction amounts to the
Trustee in payment of such loan plus interest. In the case of a Participant who (i) is not
at the time of commencement of his loan an Employee, or (ii) is not at the commencement of
his loan receiving compensation, or (iii) was an Employee receiving compensation at the time
of commencement of his loan but ceases to receive compensation or ceases to be an Employee,
such Participant shall make his loan repayments in the manner prescribed by the Committee.


 


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(b) The terms of the loan shall (i) require level amortization with payments not less
frequently than quarterly, (ii) require that the loan be repaid within five (5) years unless
the Participant certifies in writing to the Committee that the loan is to be used to
acquire any dwelling unit which within a reasonable time is to be used (determined at the
time the loan is made) as a principal residence of the Participant, in which case such loan
shall be repaid within ten (10) years, (iii) allow prepayment without penalty, provided that
any prepayment must be for the full outstanding loan balance (including interest), (iv)
require that the balance of the loan (including interest) shall become due and payable (to
the extent not otherwise due and payable) on the date the Participant or, if applicable, the
Participant’s beneficiary, becomes entitled to a distribution pursuant to Article VI or VII
of the Plan, irrespective of whether such Participant or beneficiary elects or consents to
such distribution, and (v) provide that such Participant’s Outstanding Loan balance
(including interest), if not paid in accordance with the repayment provisions of the loan,
shall be repaid by offsetting such balance against the amount in the Participant’s
segregated loan fund pledged as security for the loan. Notwithstanding the foregoing, in
the event that a Participant becomes entitled to, but has not yet received, a distribution
pursuant to Article VI of the Plan, such Participant may elect to continue to make payments
of principal and interest on his loan in accordance with the terms thereof and subject to
the provisions of this Appendix B. By agreeing to the pledge of the segregated loan fund as
security for the loan, a Participant shall be deemed to have consented to the distribution
of such segregated loan fund prior to the time specified in Section 411(a)(11) of the Code
and the applicable Treasury Regulations thereunder.




Notwithstanding any other provision of the Plan to the contrary, if the distribution of a
Participant’s Vested Interest is made in connection with the sale of the stock or the assets
of an Employer, the entire loan may be distributed solely as a Direct Rollover, in
accordance with Article VIII of the Plan, to a trust for a qualified plan under Section
401(a) of the Code, maintained by the purchaser, provided such trust will accept the
Participant’s loan as an investment. The Committee shall determine, in its discretion,
whether or not a Direct Rollover is in connection with an acquisition of the stock or assets
of an Employer.




(c) If the Participant fails in any way to comply with the repayment terms of a loan,
such loan shall be repaid by offsetting the Participant’s Outstanding Loan balance
(including interest) against the amount in the Participant’s segregated loan fund pledged as
security for the loan. Any such Outstanding Loan (including interest) shall be so offset
and repaid on the earlier of (i) the last day of the “Grace Period” (as hereinafter defined)
applicable with respect to such failure to comply, or (ii) the date of any withdrawal or
distribution of benefits from the pledged portion of the Participant’s Accounts pursuant to
the provisions of the Plan. Notwithstanding the foregoing, amounts in a Participant’s
Accounts may not be offset and used to satisfy the payment of such loan (including interest)
prior to the earliest time such amounts would otherwise be permitted to be distributed under
applicable law. For purposes of this Paragraph, the “Grace Period” with respect to any
failure to comply with the repayment terms of a loan shall be the period beginning on the
date of such failure and ending on the last day of the calendar quarter following the
calendar quarter in which such failure occurred.


 


3









 






(d) Amounts tendered to the Trustee by a Participant in repayment of a loan made
pursuant to this Appendix B (i) shall initially be credited to the Participant’s segregated
loan fund, (ii) then shall be transferred as soon as practicable following receipt
thereof to the Account or Accounts from which the Participant’s loan was made, and (iii)
shall be invested in accordance with the Participant’s current designation as to the
investment of contributions pursuant to Article V of the Plan.




B-6 Operation of Article. The provisions of this Appendix B shall be applicable to
loans granted or renewed on or after the Effective Date. Loans granted or renewed prior to
the Effective Date shall be governed by the provisions of the Plan as in effect prior to the
Effective Date.




 


4









 







Appendix C:


WITHDRAWALS FROM TRIDENT ACCOUNTS




(a) A Participant who has attained age fifty-nine and one-half and who has made all available
withdrawals pursuant to Section 9.1(a) of the Plan may withdraw from his Trident Before-Tax Account
an amount not exceeding the then value of such Account.



(b) A Participant who is an Employee and who has made all available withdrawals under Section
9.1(a) of the Plan and Paragraph (a) above may withdraw from his Trident Matching Account any or
all amounts held in such Account that have been so held for twenty-four months or more. A
Participant (other than a Participant who has attained age 591/2 at the time the withdrawal is
requested and who withdraws the entire balance of his Trident Before-Tax Account and his Trident
Matching Account) who makes a withdrawal under this Paragraph may not make Before-Tax Contributions
to the Plan for a period of six (6) months following the date of such withdrawal.



(c) Not more than one withdrawal pursuant to the provisions of this Appendix C shall be made
in any twelve (12) month period; provided, however, that withdrawals may be made under Paragraphs
(a) and (b) above, in accordance with the ordering rules therein, simultaneously.



(d) Except as provided in Paragraphs (a) and (c) above, all withdrawals pursuant to the
provisions of this Appendix C shall be subject to the restrictions provided in Section 9.2 of the
Plan.




 


1









 







Appendix D:


WITHDRAWALS FROM DESTEC ACCOUNTS




(a) A Participant who has attained age fifty-nine and one-half may withdraw from his Destec
Before-Tax Subaccount an amount not exceeding the then value of such Account. A withdrawal by a
Participant pursuant to the provisions of this Paragraph may not be for an amount equal to the
lesser of (i) the then value of such Account, or (ii) $1,000.00.



(b) A Participant who terminated employment with the Employer after attaining age fifty, the
occurrence of whose Benefit Commencement Date is not prohibited by Section 9.1(a) of the Plan, may
withdraw from his Destec Accounts an amount not exceeding the then value of such Accounts. An
eligible Participant may make no more than one withdrawal pursuant to the provisions of this
Paragraph in any Plan Year.



(c) Except as provided in Paragraph (b) above, all withdrawals pursuant to the provisions of
this Appendix D shall be subject to the restrictions provided in Section 9.2 of the Plan.




 


1