Filed by Bowne Pure Compliance





Exhibit 10.69




DYNEGY INC. RETIREMENT PLAN




(Amended and Restated Effective January 1, 2009)





 


 









 









TABLE OF CONTENTS




	 	 	 	 	 
	 	 	PAGE	 
	 
	 	 	 	 
	I. DEFINITIONS AND CONSTRUCTION
	 	 	2	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	2	 
	1.2 Number and Gender
	 	 	12	 
	1.3 Headings
	 	 	12	 
	1.4 Construction
	 	 	12	 
	 
	 	 	 	 
	II. PURPOSE OF PLAN AND EFFECT OF RESTATEMENT
	 	 	13	 
	 
	 	 	 	 
	2.1 Purpose of Plan
	 	 	13	 
	2.2 Effect of Restatement
	 	 	13	 
	 
	 	 	 	 
	III. PARTICIPATION
	 	 	14	 
	 
	 	 	 	 
	3.1 Eligibility
	 	 	14	 
	3.2 Participation Service
	 	 	14	 
	3.3 Disabled Participants
	 	 	14	 
	 
	 	 	 	 
	IV. ACCRUAL SERVICE
	 	 	15	 
	 
	 	 	 	 
	4.1 Accrual Service
	 	 	15	 
	4.2 Effect of Termination of Employment and Reemployment on Accrual Service
	 	 	15	 
	 
	 	 	 	 
	V. RETIREMENT BENEFITS
	 	 	16	 
	 
	 	 	 	 
	5.1 Normal Retirement
	 	 	16	 
	5.2 Early Retirement
	 	 	17	 
	 
	 	 	 	 
	VI. SEVERANCE BENEFITS AND DETERMINATION OF VESTED INTEREST
	 	 	19	 
	 
	 	 	 	 
	6.1 No Benefits Unless Herein Set Forth
	 	 	19	 
	6.2 Severance Benefit
	 	 	19	 
	6.3 Vesting Service
	 	 	20	 
	6.4 Cash-Outs and Forfeitures
	 	 	21	 
	 
	 	 	 	 
	VII. DEATH BENEFITS
	 	 	22	 
	 
	 	 	 	 
	7.1 Before Annuity Starting Date
	 	 	22	 
	7.2 After Annuity Starting Date
	 	 	24	 
	7.3 Payment of Accumulation
	 	 	24	 
	7.4 Cash-Out of Death Benefit
	 	 	24	 
	 
	 	 	 	 
	VIII. TIME AND FORM OF PAYMENT OF BENEFITS
	 	 	25	 
	 
	 	 	 	 
	8.1 Time of Payment of Benefits
	 	 	25	 
	8.2 Restrictions on Time of Payment of Benefits
	 	 	25	 
	8.3 Standard Form of Benefit for Participants
	 	 	30	 






 


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	 	 	PAGE	 
	 
	 	 	 	 
	8.4 Election Concerning Form of Benefit
	 	 	30	 
	8.5 Alternative Forms of Benefit
	 	 	31	 
	8.6 Cash-Out of Accrued Benefit
	 	 	32	 
	8.7 Direct Rollover Election
	 	 	33	 
	8.8 Special Distribution Limitations
	 	 	33	 
	8.9 Cessation of Certain Payments if Liquidity Shortfall
	 	 	34	 
	8.10 Beneficiaries and Joint Annuitants
	 	 	34	 
	8.11 Reemployment of Participants
	 	 	34	 
	8.12 Withdrawal of Accumulation
	 	 	35	 
	8.13 Commercial Annuities
	 	 	36	 
	8.14 Unclaimed Benefits
	 	 	36	 
	8.15 Claims Procedures
	 	 	37	 
	 
	 	 	 	 
	IX. LIMITATIONS ON BENEFITS
	 	 	41	 
	 
	 	 	 	 
	9.1 Limitations Imposed by Code Section 415
	 	 	41	 
	9.2 Definitions
	 	 	41	 
	9.3 Other Rules
	 	 	52	 
	9.4 Modification of Assumptions for Interest Rates and Mortality Tables
	 	 	53	 
	 
	 	 	 	 
	X. FUNDING
	 	 	54	 
	 
	 	 	 	 
	10.1 No Contributions by Participants
	 	 	54	 
	10.2 Employer Contributions
	 	 	54	 
	10.3 Forfeitures
	 	 	54	 
	10.4 Payments to Funding Agent
	 	 	54	 
	10.5 Return of Contributions
	 	 	54	 
	 
	 	 	 	 
	XI. ADMINISTRATION OF THE PLAN
	 	 	55	 
	 
	 	 	 	 
	11.1 Appointment of Committee
	 	 	55	 
	11.2 Records and Procedures
	 	 	55	 
	11.3 Meetings
	 	 	55	 
	11.4 Self-Interest of Members
	 	 	55	 
	11.5 Compensation and Bonding
	 	 	56	 
	11.6 Committee Powers and Duties
	 	 	56	 
	11.7 Employer to Supply Information
	 	 	57	 
	11.8 Indemnification
	 	 	57	 
	 
	 	 	 	 
	XII. FUNDING AGENT AND ADMINISTRATION OF THE FUND
	 	 	58	 
	 
	 	 	 	 
	12.1 Funding Agent
	 	 	58	 
	12.2 Payment of Expenses
	 	 	58	 
	12.3 Fund Property
	 	 	58	 
	12.4 Authorization of Benefit Payments
	 	 	59	 
	12.5 Payments Solely from Fund
	 	 	59	 
	12.6 No Benefits to the Employer
	 	 	59	 
	 
	 	 	 	 
	XIII. FIDUCIARY PROVISIONS
	 	 	60	 
	 
	 	 	 	 
	13.1 Article Controls
	 	 	60	 
	13.2 General Allocation of Fiduciary Duties
	 	 	60	 






 


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	 	 	PAGE	 
	 
	13.3 Fiduciary Duty
	 	 	60	 
	13.4 Delegation of Fiduciary Duties
	 	 	61	 
	13.5 Investment Manager
	 	 	61	 
	 
	 	 	 	 
	XIV. PARTICIPATING EMPLOYERS
	 	 	62	 
	 
	 	 	 	 
	14.1 Designation of Other Employers
	 	 	62	 
	14.2 Single Plan
	 	 	62	 
	 
	 	 	 	 
	XV. AMENDMENTS
	 	 	63	 
	 
	 	 	 	 
	15.1 Right to Amend
	 	 	63	 
	15.2 Limitations on Amendments
	 	 	63	 
	 
	 	 	 	 
	XVI. TERMINATION, PARTIAL TERMINATION, AND MERGER OR CONSOLIDATION
	 	 	64	 
	 
	 	 	 	 
	16.1 Right to Terminate or Partially Terminate
	 	 	64	 
	16.2 Procedure in the Event of Termination or Partial Termination
	 	 	64	 
	16.3 Merger, Consolidation, or Transfer
	 	 	64	 
	 
	 	 	 	 
	XVII. MISCELLANEOUS PROVISIONS
	 	 	65	 
	 
	 	 	 	 
	17.1 Not Contract of Employment
	 	 	65	 
	17.2 Alienation of Interest Forbidden
	 	 	65	 
	17.3 Uniformed Services Employment and Reemployment Rights Act Requirements
	 	 	65	 
	17.4 Payments to Minors and Incompetents
	 	 	65	 
	17.5 Participant’s and Beneficiary’s Addresses
	 	 	66	 
	17.6 Incorrect Information, Fraud, Concealment, or Error
	 	 	66	 
	17.7 Severability
	 	 	66	 
	17.8 Jurisdiction
	 	 	66	 
	17.9 Appendices
	 	 	66	 
	 
	 	 	 	 
	XVIII. TOP-HEAVY STATUS
	 	 	67	 
	 
	 	 	 	 
	18.1 Article Controls
	 	 	67	 
	18.2 Definitions
	 	 	67	 
	18.3 Top-Heavy Status
	 	 	69	 
	18.4 Top-Heavy Vesting Schedule
	 	 	69	 
	18.5 Top-Heavy Benefit
	 	 	69	 
	18.6 Termination of Top-Heavy Status
	 	 	70	 
	18.7 Effect of Article
	 	 	71	 
	 
	 	 	 	 
	APPENDIX A: DYNEGY PORTABLE RETIREMENT BENEFITS
	 	 	 	 
	 
	 	 	 	 
	APPENDIX B: MERGER OF DMS PLAN
	 	 	 	 
	 
	 	 	 	 
	APPENDIX C: MERGER OF DMG PLAN
	 	 	 	 
	 
	 	 	 	 
	APPENDIX D: PARTICIPATING EMPLOYERS
	 	 	 	 







 


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DYNEGY INC. RETIREMENT PLAN




Dynegy Inc., a Delaware corporation (the “Company”), hereby adopts this restatement of the
Dynegy Inc. Retirement Plan (the “Plan”), effective as of the Effective Date, or as otherwise
specified herein.



R E C I T A L S:




The Company has previously established the Plan for the exclusive benefit of Eligible Employees of
the Employer and their beneficiaries;



The Company wants to recognize the lasting contribution made by Eligible Employees to the
successful operation of the Employer, and wants to reward their contribution by continuing the
Plan;



The Company wishes to amend and restate the Plan for the following purposes: (i) to reflect
applicable changes made to the Plan pursuant to the Economic Growth and Tax Relief Reconciliation
Act of 2001 (“EGTRRA”); (ii) to reflect additional amendments made to the Plan pursuant to
subsequent changes in the Internal Revenue Code of 1986, as amended (the “Code”) and regulations
promulgated thereunder; and (iii) to incorporate amendments made to the Plan following its last
restatement;



The Company has authorized the execution of this Plan, which is intended to continue the Plan’s
qualification under Code Sections 401(a) and 501(a);



The provisions of this Plan, as amended and restated, shall apply solely to an Employee who
terminates employment with the Employer on or after the restated Effective Date of this Plan; and



If an Employee terminates employment with the Employer prior to the restated Effective Date, that
Employee shall be entitled to benefits under the Plan as the Plan existed on the Employee’s
termination date.


 


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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) Accrual Service: The measure of Service used in determining a Participant’s
Accrued Benefit as determined pursuant to Section 4.1.



(b) Accrued Benefit: The benefit determined under the Plan expressed in the form of a
Pension commencing as of Normal Retirement Date.



(c) Accumulation: The sum of the contributions, if any, made by a Participant under
the Plan, plus any interest credited thereon, which contributions and interest have not previously
been withdrawn by the Participant. Interest will be credited on a Participant’s contributions,
compounded annually, at the rate of 2% per annum prior to July 1, 1970, 3% per annum from July 1,
1970 through December 31, 1975, 5% per annum from January 1, 1976 through November 30, 1981, 7% per
annum from December 1, 1981 through December 31, 1987, and, for each Plan Year thereafter, the
greater of (i) 7% per annum or (ii) 120% of the Federal mid-term rate (as in effect under Code
Section 1274 for the first month of such Plan Year) per annum for such Plan Year. Effective January
1, 1973, interest will be credited from the January 1 next following the date on which each
contribution was made under the Plan to the first day of the month of the first to occur of (i) the
Participant’s Retirement, (ii) the Participant’s date of death, or (iii) the date the Participant
elects the return of his Accumulation as provided in Section 8.12.




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



(e) Actuarial Equivalent: Equality in value of the aggregate amounts expected to be
received under different times and forms of payment based upon a 7% per annum interest rate
assumption (or, if lower, the interest rate specified by the Pension Benefit Guaranty Corporation
(“PBGC”) to be used to determine the amount of lump sum benefits paid by the PBGC under plans the
PBGC trustees) and mortality rate assumptions determined under the 86 PET-88.70 mortality table (a
table prepared by the Wyatt company, based on experience underlying the 1971 Group Annuity
Mortality Table, without margins, with a projection of mortality improvement to 1986 and weighting
the mortality 88.7% male and 11.3% female); provided, however, that in determining the amount of a
lump sum payment or level income option, the Applicable Mortality Table and the Applicable Interest
Rate shall be utilized. Notwithstanding the foregoing, the amount payable under the level income
option in accordance with the preceding sentence shall be no less than the level income option
amount determined using an interest rate of 7% per annum and the 86 PET-8870 mortality table based
on the Participant’s Accrued Benefit as of May 31, 2005 and the Participant’s age as of his Annuity
Starting Date.



(f) Amergen Affiliate: Any affiliate of Amergen within its controlled group of
corporations or a controlled group of trades or businesses, as defined in Code Sections 414(b) and
414(c), respectively.



(g) Annuity Starting Date: Subject to the modifications under certain circumstances
described in Sections 8.1 and 8.2, with respect to each Participant or beneficiary, the first day
of the first period for which an amount is payable to the Participant or beneficiary from the
Fund as an annuity or in any other applicable form available under the terms of the Plan.


 


2









 





(h) Applicable Interest Rate: The annual rate of interest determined in accordance
with Code Section 417(e)(3)(C) for the lookback month preceding the first day of the stability
period. Effective on and after January 1, 2008, the annual rate is the adjusted first, second and
third segment rates applied under rules similar to the rules of Code Section 430(h)(2)(C) for the
fifth month before the Plan Year that contains the Annuity Starting Date with respect to the
benefit, or such other time as the Secretary of the Treasury may prescribe by regulation. For
purposes of this Paragraph, the adjusted first, second and third segment rates are the first,
second and third segment rates which would be determined under Code Section 430(h)(2)(c) if (i)
Code Section 430(h)(2)(D) were applied by substituting the average yields for the month described
in clause (ii) for the average yields for the 24-month period described in such section; (ii) Code
Section 430(h)(2)(G)(i)(II) were applied by substituting “section 417(e)(3)(A)(ii)(II)” for
“section 412(b)(5)(B)(ii)(II)”; and (iii) the applicable percentage under Code Section 430(h)(2)(G)
were determined in accordance with the following table:



	 	 	 	 	 
	For Plan Year	 	Applicable Percentage	 
	 
	 	 	 	 
	2008
	 	 	20	%
	 
	 	 	 	 
	2009
	 	 	40	%
	 
	 	 	 	 
	2010
	 	 	60	%
	 
	 	 	 	 
	2011
	 	 	80	%






(i) Applicable Mortality Table: The mortality table prescribed by the Secretary of
the Treasury pursuant to Code Section 417(e)(3)(B).



(j) Average Monthly Compensation: The result obtained by dividing the total
Compensation paid to an Employee during a considered period by the number of months for which
Compensation was received during the considered period, as determined in a uniform manner by the
Employer based on records maintained by the Employer. The considered period shall be sixty
consecutive months within the last one hundred twenty months preceding the date the Employee’s
Accrual Service ceases that yield the highest average Compensation (disregarding any months for
which the Employee received no Compensation); provided, that if a Participant has less than sixty
consecutive months of employment, his considered period shall be all of his completed months of
employment (disregarding any months for which the Participant received no Compensation).



(k) Average Monthly Covered Compensation: One-twelfth of the average (without
indexing) of the Social Security Taxable Wage Bases in effect for each calendar year during the
thirty-five year period ending with the last day of the calendar year in which the Participant
attains (or will attain) Social Security Retirement Age. For this purpose, the Social Security
Taxable Wage Base for the Plan Year in which the determination is being made and for any subsequent
Plan Year shall be assumed to be the same as the Social Security Taxable Wage Base in effect as of
the beginning of the Plan Year in which the determination is being made. Further,
a Participant’s Average Monthly Covered Compensation for a Plan Year after the thirty-five
year period described above shall be the Participant’s Average Monthly Covered Compensation for the
Plan Year during which the Participant attained Social Security Retirement Age. Finally, a
Participant’s Average Monthly Covered Compensation for a Plan Year prior to such thirty-five year
period shall be the Social Security Taxable Wage Base in effect as of the beginning of such Plan
Year.


 


3









 






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



(m) Committee: The Dynegy Inc. Benefit Plans Committee appointed to administer the
Plan, which is comprised of any individual who becomes a member of the Dynegy Inc. Benefit Plans
Committee pursuant to Section 11.1 of the Plan, until any such individual ceases to be a member of
the Dynegy Inc. Benefit Plans Committee pursuant to Section 11.1 of the Plan.




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



(o) Compensation: The regular basic compensation paid to a Participant for services
actually rendered or labor performed for the Employer to the extent such amounts are includable in
gross income, subject to the following adjustments and limitations:




(1) Overtime pay, bonuses, and incentive or other supplemental or extra pay shall be
excluded; provided, however that 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.




(2) The following shall be included to the extent that they would otherwise constitute
regular basic compensation (as adjusted by subparagraph (1) above):




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




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




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




(3) Notwithstanding the foregoing provisions of this Section 1.1(o), effective January
1, 2002, the Compensation of any Participant taken into account for purposes of the Plan
(including for purposes of determining a Participant’s Accrued Benefit under the Plan) shall
be limited to $200,000 for any Plan Year with such limitation to be:




(A) Adjusted automatically to reflect any cost-of-living increases authorized
by Code Section 401(a)(17) (with the adjustment for a calendar year
being applicable to any period, not exceeding twelve months, over which the
Average Monthly Compensation is determined which begins with or within such calendar
year); and




(B) Prorated to the extent required by applicable law.


 


4









 






For purposes of determining benefit accruals in Plan Years beginning after December 31,
2001, the annual Compensation limitation in this subparagraph (3) for determination periods
beginning before January 1, 2002, shall be $150,000 for any determination period beginning
in 1996 or earlier; $160,000 for any determination period beginning in 1997, 1998, or 1999;
and $170,000 for any determination period beginning in 2000 or 2001.



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



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



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




(s) Directors: The Board of Directors of the Company.



(t) 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 Code Section 414(p), with regard to the
interest of such former spouse in an Eligible Rollover Distribution.



(u) Early Retirement Age: The date upon which a Participant attains fifty-five years
of age.



(v) Early Retirement Date: The first day of the month coincident with or next
following the Participant’s attainment of his Early Retirement Age.



(w) 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) that 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.


 


5









 





(x) Eligible Employee: Each Employee other than (i) an Employee whose terms of
employment are governed by a collective bargaining agreement between a collective bargaining unit
and the Employer unless such agreement provides for coverage of such individual 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 Code
Section 414(o), and (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). Notwithstanding
any provision in 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 in 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.



(y) Eligible Retirement Plan: Any of (i) an individual retirement account described
in Code Section 408(a); (ii) an individual retirement annuity described in Code Section 408(b);
(iii) an annuity plan described in Code Section 403(a); (iv) a qualified plan described in Code
Section 401(a), which, under its provisions does, and under applicable law may, accept a
Distributee’s Eligible Rollover Distribution; (v) an annuity contract described in Code Section
403(b); and (vi) an eligible plan under Code Section 457(b) 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
this Plan. 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 Code Section 414(p).



(z) Eligible Rollover Distribution: With respect to a Distributee, any distribution
of all or any portion of the Accrued Benefit 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 years or more; (ii) a distribution to the extent such distribution is required under
Code Section 401(a)(9); (iii) the portion of a distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized appreciation with respect to
employer securities); and (iv) 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 includable in gross income; provided, however, that such portion may be
transferred only to an individual retirement account or annuity described in Code Sections 408(a)
or (b) or to a qualified defined contribution plan described in Code Sections 401(a) or 403(a) that
agrees to separately account for amounts so transferred, including separately accounting for the
portion of such distribution which is includable in gross income and the portion of such
distribution which is not so includable.


 


6









 





(aa) Eligible Surviving Spouse: With respect to a Participant who dies prior to his
Annuity Starting Date, a surviving spouse to whom a deceased Participant was married throughout the
twelve-month period preceding his death.



(bb) 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.



(cc) Employer: Each entity that has been designated to participate in the Plan
pursuant to the provisions of Article XIV and is so listed in Appendix D. The Company is not an
Employer.



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



(ee) Employment Year: With respect to each Participant, a twelve consecutive month
period beginning on the Participant’s Employment Commencement Date and any anniversary thereof or,
in the event of a termination of employment that results in any One-Year Break-in-Service, his
Reemployment Commencement Date and any anniversary thereof.




(ff) Entry Date: The first day of each calendar month.



(gg) Final Average Monthly Compensation: The result obtained by dividing the total
Compensation paid to an Employee during the considered period by the number of months for which
Compensation was received during the considered period. The considered period shall be the
thirty-six consecutive months of employment with the Employer preceding the date the Participant’s
Accrual Service ceases; provided that if a Participant has less than thirty-six consecutive months
of employment with the Employer, his considered period shall be all of his completed months of
employment. In determining a Participant’s Final Average Monthly Compensation under this
paragraph, Compensation for any month during a Plan Year in excess of one-twelfth of the Social
Security Taxable Wage Base in effect at the beginning of the Plan Year for which the determination
is being shall not be taken into account.



(hh) Fund: The fund established pursuant to Section 12.1 to hold and invest Plan
Assets and from which the Plan benefits are distributed. When there is more than one Fund, the term
“Fund” shall refer to all such Funds.



(ii) Funding Agent: The legal reserve life insurance company or trustee selected to
hold and/or invest the Plan Assets, and if and when directed, to pay benefits provided under the
Plan. When there is more than one Funding Agent, the term “Funding Agent” shall refer to all such
Funding Agents.


 


7









 





(jj) 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 or for reasons other than the performance of duties; provided, however, that
no more than 501 Hours of Service shall be credited to an individual on account of any continuous
period during which he performs no duties. Such Hours of Service shall be credited to the
individual for the computation period in which such duties were performed or in which
occurred the period during which no duties were performed. An Hour of Service also includes
each hour, not credited above, for which back pay, irrespective of mitigation of damages, has been
either awarded or agreed to by the Employer or a Controlled Entity. These Hours of Service shall be
credited to the individual for the computation period to which the award or agreement pertains
rather than the computation period in which the award, agreement, or payment is made. The number of
Hours of Service to be credited to an individual for any computation period shall be governed by
Department of Labor Regulation sections 2530.200b-2(b) and (c). Hours of Service shall also include
any hours required to be credited 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, an individual’s Hours of
Service shall also include any hours required to be credited under Code Section 414(n) and the
applicable interpretative authority thereunder while such individual was a Leased Employee (or
would have been a Leased Employee but for the requirements of clause (i) of the definition of such
term set forth in Section 1.1(ll)).



The preceding notwithstanding, for purposes of determining Hours of Service with respect to an
individual whose hours are not required to be tracked under the Fair Labor Standards Act, and where
hourly records are not maintained for such individual, such individual shall be credited Hours of
Service under the 190 hour equivalency provisions of Department of Labor Regulation section
2530.200b-3 pursuant to which an individual who is credited with one Hour of Service for
performance of duties in a month shall be credited with 190 Hours of Service for such month;
provided, however, with respect to a Participant with 3 or more Employment Years as of June 1,
2005, such Participant shall be credited, beginning with the month in which the 190 hour
equivalency provisions are first applicable, with the better of the Hours of Service calculated
applying (i) such 190 hour equivalency provisions or (ii) 10 Hours of Service for each day for
which the individual would, if hourly records were maintained, be required to be credited with at
least one Hour of Service for the performance of duties.



In the case of an individual who is paid for reasons other than the performance of duties and
whose payment made or due is calculated on the basis of units of time, such individual shall be
credited with the number of regularly scheduled working hours included in the units of time on the
basis of which the payment is calculated. In the case of an individual who is paid for reasons
other than the performance of duties and who is without a regular work schedule, such individual
shall be credited with eight Hours of Service per day (to a maximum of forty (40) Hours of Service
per week) for each day that the individual is so paid.



In no event shall Hours of Service include any period of service with a corporation or other
entity prior to the date it became a Controlled Entity or after it ceases to be a Controlled Entity
except to the extent required by law, or to the extent determined by the Committee. The Committee,
in its discretion, may credit individuals with Hours of Service based on employment with an entity
other than the Employer, but only if and when such individual becomes an Eligible Employee and only
if such crediting of Hours of Service (i) has a legitimate business reason, (ii) does not by design
or operation discriminate significantly in favor of highly compensated employees, and (iii) is
applied to all similarly-situated Eligible Employees. In addition, the Committee, in its
discretion, may credit individuals with Hours of 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



 


8









 






an Employee with a reduced work schedule, but
only if (i) such service would not otherwise be credited as  Hours of Service, (ii) such crediting of Hours of Service (1) has a legitimate business
reason, (2) does not by design or operation discriminate significantly in favor of highly
compensated employees, and (3) 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 (A) the individual is not performing
service for the Employer because of a disability, (B) the individual is performing service for
another employer under an arrangement that provides some ongoing business benefit to the Employer,
or (C) for purposes of vesting and accrual, the individual is performing service for another
employer that is being treated under the Plan as actual service with the Employer.



(kk) Hypothetical Accumulation: The sum of the contributions, if any, made by the
Participant under the Plan, plus any interest credited thereon, which contributions and interest
have not previously been withdrawn by the Participant. For purposes of calculating a Participant’s
Hypothetical Accumulation, interest will be credited on a Participant’s contributions, compounded
annually, at the rate of 2% per annum prior to July 1, 1970, 3% per annum, from July 1, 1970
through December 31, 1975, 5% per annum from January 1, 1976 through November 30, 1981, 7% per
annum from December 1, 1981 through December 31, 1987, 120% of the Federal mid-term rate (as in
effect under Code Section 1274 for the first month of a Plan Year) per annum from January 1, 1988
until the date of the Participant’s withdrawal of his Accumulation pursuant to Section 8.12 (the
“Withdrawal Date”), and, for the period, if any, beginning on the Withdrawal Date and ending on his
Normal Retirement Date, the Applicable Interest Rate per annum in effect from time to time during
such period.



(ll) 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 Code Section 144(a)(3)) 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.



(mm) Normal Retirement Age: The date upon which a Participant attains sixty-five
years of age.



(nn) Normal Retirement Date: The first day of the month coincident with or next
following the Participant’s attainment of his Normal Retirement Age.



(oo) One-Year Break-in-Service: Any Employment Year during which an individual has
less than 501 Hours of Service. Solely for purposes of determining whether a One-Year
Break-in-Service has occurred, an Hour of Service shall include each normal work hour, not
otherwise credited in Section 1.1(jj), during which an individual is absent from work 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. The Committee
may in its discretion require, as a condition to the crediting of Hours of Service under the
preceding sentence, that the individual furnish appropriate and timely information to the Committee
establishing the reason for any such absence. Such Hours of Service shall be credited
to the individual for the computation period in which the absence from work begins if such
crediting is necessary to prevent the occurrence of a One-Year Break-in-Service in such computation
period; otherwise such Hours of Service shall be credited to the individual in the next following
computation period.


 


9









 





(pp) Participant: Each individual who has met the eligibility requirements for
participation in the Plan as set forth in Article III herein.



(qq) Participation Service: The measure of service used in determining an Employee’s
eligibility to participate in the Plan as determined pursuant to Section 3.2.



(rr) Pension: With respect to a Participant entitled to receive benefits under the
Plan, a series of monthly payments for the life of the Participant.



(ss) 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.



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




(uu) Plan: The Dynegy Inc. Retirement Plan.



(vv) Plan Assets: Any and all assets of the Plan held by the Funding Agent pursuant
to the Plan.



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



(xx) Qualified Optional Survivor Annuity: An annuity for the life of the Participant
with a survivor annuity for the life of the spouse which is equal to 75% of the annuity which is
payable during the joint lives of the Participant and the spouse that is the Actuarial Equivalent
of the standard form of benefit and that is provided in compliance with Code Section 417(g)
commencing as of January 1, 2008.



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



(zz) Retirement: With respect to each Participant, termination of his employment with
the Employer on or after his Early Retirement Date or Normal Retirement Date.


 


10









 





(aaa) Service: The period of an individual’s employment with the Employer or a
Controlled Entity. In no event shall Service include any period of service with a corporation or
other entity prior to the date it became a Controlled Entity or after it ceases to be a Controlled
Entity except to the extent required by law; provided, however, that:




(1) Each individual who was employed by LS Power Generation, LLC, LS Power Development,
LLC or LS Power Company, LLC (each 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 solely for
purposes of determining such individual’s Vesting Service under Section A-10 of Appendix A
based upon his original date of hire with an LS Power Entity;




(2) 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 terminates 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
solely for purposes of determining such individual’s Vesting Service under Section A-10 of
Appendix A based upon his original date of hire with the Prior Company; and




(3) 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 March 17,
2008 and ending on April 30, 2008, shall be credited with Service solely for purposes of
determining such individual’s Vesting Service under Section A-10 of Appendix A based upon
his original date of hire with Accenture LLP.



For purposes of this Section, “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.



(bbb) Severance from Service Date: The earlier of (i) the first date on which an
individual terminates his Service following his Employment Commencement Date or a Reemployment
Commencement Date, if applicable, or (ii) the first anniversary of the first day of a period in
which an Employee remains absent from Service (with or without pay) with the Employer or any
Controlled Entity for any reason other than the resignation, retirement, discharge, or death, such
as vacation, holiday, sickness, leave of absence, disability, or lay-off that is not classified by
the Employee as a termination of Service. 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 or 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.


 


11









 





(ccc) Social Security Benefit: 33.12% of a Participant’s Final Average Monthly
Compensation for a Participant whose Social Security Retirement Age is 65; provided, however, that
30.36% shall be substituted in this definition of Social Security Benefit if the Participant’s
Social Security Retirement Age is 66, and 27.60% shall be substituted for a Participant whose
Social Security Retirement Age is 67. Notwithstanding the foregoing, if a Participant’s Final
Average Monthly Compensation exceeds his Average Monthly Covered Compensation for a Plan Year, the
Social Security Benefit for such Participant for such Plan Year shall be calculated in accordance
with the following table:



	 	 	 	 	 
	If the ratio of Final Average	 	 	 
	Monthly Compensation to	 	Then the Social Security	 
	Average Monthly Covered	 	Benefit should be	 
	Compensation is:	 	multiplied by:	 
	 
	 	 	 	 
	1.00 or less
	 	 	100	%
	1.25
	 	 	86.96	%
	1.50
	 	 	76.81	%
	1.75
	 	 	68.12	%
	2.00 or more
	 	 	60.87	%






If the ratio of Final Average Monthly Compensation to Average Monthly Covered Compensation falls
between the ratios listed above, the appropriate factor shall be determined by interpolation.



(ddd) Social Security Retirement Age: The age used as the retirement age under
section 216(1) of the Social Security Act, applied without regard to the age increase factor and as
if the early retirement age under such section were sixty-two.



(eee) Social Security Taxable Wage Base: For a Plan Year, the contribution and
benefit base determined under section 230 of the Social Security Act in effect at the beginning of
such Plan Year.



(fff) Vested Interest: The percentage of a Participant’s Accrued Benefit which,
pursuant to the Plan, is nonforfeitable.



(ggg) Vesting Service: The measure of service used in determining a Participant’s
nonforfeitable right to a benefit as determined in accordance with Section 6.3.



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.



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
Code Section 401(a) and that the Fund be tax exempt under Code Section 501(a), and all provisions
herein shall be construed in accordance with such intent.


 


12









 





II. PURPOSE OF PLAN AND EFFECT OF RESTATEMENT




2.1 Purpose of Plan. The purpose of the Plan is to provide retirement and incidental
benefits for those Participants who complete the required period of employment with the Employer.
The benefits provided by the Plan will be paid from the Fund and will be in addition to any
benefits the Participants may be entitled to receive pursuant to any other Employer programs or
pursuant to the federal Social Security Act. The Plan and the Fund are established and shall be
maintained for the exclusive benefit of the Participants and their beneficiaries. No part of the
Fund can ever revert to the Employer, except as hereinafter provided in Section 10.5 and 16.2(c),
or be used for or diverted to purposes other than the exclusive benefit of the Participants and
their beneficiaries.




2.2 Effect of Restatement.



(a) Contrary Plan provisions notwithstanding, in no event shall any Participant’s Accrued
Benefit under the Plan as restated be less than such Participant’s Accrued Benefit determined on
the date immediately prior to the date of adoption of this restatement of the Plan based upon the
terms of the Plan on such date and such Participant’s Average Monthly Compensation and Accrual
Service as of such date.



(b) Except as otherwise provided in the Plan, all benefit payments being made under the terms
of the Plan as in effect prior to the Effective Date shall continue to be made in the same amount
and manner and shall not be affected by the terms of this restated Plan.



(c) Except as otherwise provided in the Plan, the terms of this restated Plan shall not affect
the Accrued Benefit or Vested Interest of Participants who do not complete an Hour of Service on or
after the Effective Date.


 


13









 





III. PARTICIPATION




3.1 Eligibility. Each Eligible Employee shall become a Participant upon the Entry
Date coincident with or next following the date on which such Eligible Employee has completed one
year of Participation Service. Notwithstanding the foregoing:



(a) An Eligible Employee who was a Participant in the Plan prior to a termination of
employment shall remain a Participant upon his reemployment as an Eligible Employee;



(b) An Employee who has completed one year of Participation Service but who has not become a
Participant in the Plan because he was not an Eligible Employee shall become a Participant in the
Plan upon the later of (i) the date he becomes an Eligible Employee as a result of a change in his
employment status or (ii) the first Entry Date upon which he would have become a Participant if he
had been an Eligible Employee;



(c) An Eligible Employee who had met the service requirements of this Section to become a
Participant in the Plan but who terminated employment prior to the Entry Date upon which he would
have become a Participant shall become a Participant upon the later of (i) the date of his
reemployment or (ii) the Entry Date upon which he would have become a Participant if he had not
terminated employment; and



(d) Except as otherwise provided in the Plan, 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 credited with Accrual Service or otherwise
accrue additional benefits hereunder unless and until he shall again become an Eligible Employee.



(e) All Eligible Employees with Employment Commencement Dates or Reemployment Commencement
Dates occurring on or after January 1, 2009 shall be eligible to Participate in the Plan, subject
to the otherwise applicable eligibility provisions contained herein, but, in lieu of the benefits
described in Articles V, VI, and VII, shall, subject to Appendix D, participate in (i) the Dynegy
Portable Retirement Benefits described in Appendix A, or (ii) Appendix C, if applicable.



3.2 Participation Service. An individual completes one year of Participation Service
on the last day of the Employment Year during which he completes 1,000 Hours of Service.



3.3 Disabled Participants. Notwithstanding any provision of the Plan to the contrary,
a Participant who has been approved for benefits under a long term disability plan sponsored by the
Employer (an “Employer LTD Plan”) shall be credited with Accrual Service, Compensation and Vesting
Service under the Plan for any period during which such Participant is receiving such long term
disability benefits; provided however, that any such crediting shall cease as of the earlier of (i)
such Participant’s Annuity Starting Date or (ii) such Participant’s Normal Retirement Date. For
purposes of the accruals described in the preceding sentence, a Participant’s Compensation pursuant
to Section 1.1(o) immediately prior to the disability entitling him to benefits under an Employer
LTD Plan shall be utilized.


 


14









 





IV. ACCRUAL SERVICE




4.1 Accrual Service.



(a) For the period preceding April 1, 1975, a Participant shall be credited with Accrual
Service in an amount equal to all “Credited Service” credited to him for such period for accrual of
benefit purposes under the Plan as it existed on or before March 31, 1975.



(b) From and after April 1, 1975, a Participant shall be credited with Accrual Service (which
shall be measured in Employment Years and fractions of an Employment Year (rounded to the nearest
whole month)) in an amount equal to his aggregate Periods of Service whether or not such Periods of
Service are completed consecutively except that (i) no credit shall be given for Periods of Service
prior to the date the Participant first becomes a Participant in the Plan (except as provided in
Paragraph (c) below), (ii) no credit shall be given for Periods of Service with a Controlled Entity
that is not an Employer, and (iii) no credit shall be given for periods of absence for which a
Participant receives credit pursuant to Section 6.3(c)(3).



(c) Paragraph (b) above notwithstanding, a Participant shall not be credited with Accrual
Service for any period during which he does not meet the requirements of Section 3.1, or any period
during which the Employer made contributions on his behalf to any other qualified pension or
retirement plan (other than any defined contribution plan sponsored by the Employer or a Controlled
Entity or the federal Social Security Act) if such period is used in calculating his retirement
benefits under such pension or retirement plan; provided, however, that if such Participant was a
participant in the DMG Plan (as defined in Appendix C) before December 31, 2007, his years of
Accrual Service under the Plan shall be increased to include the number of years taken into account
under the DMG Plan for benefit accrual purposes and the amount of his Accrued Benefit hereunder
shall be determined in accordance with the provisions hereof using his total years of Accrual
Service; and provided, further, however, that in no event may a Participant’s total years of
Accrual Service as determined under this subparagraph be greater than the sum of (i) the service
accrued by such Participant for benefit accrual purposes under the Collectively Bargained Plan and
(ii) the Accrual Service accrued by such Participant under this Plan.



4.2 Effect of Termination of Employment and Reemployment on Accrual Service.



(a) In the case of an individual who incurs a Severance from Service Date at a time when he
has a 0% Vested Interest and who is subsequently reemployed by an Employer or a Controlled Entity,
such individual’s Accrual Service prior to his termination of employment shall be disregarded if
(i) his Period of Severance equals or exceeds five years or (ii) his Period of Severance equals or
exceeds one year but is less than five years and he is not employed by the Employer or a Controlled
Entity on the first anniversary of his Reemployment Commencement Date.



(b) In the case of an individual who incurs a Severance from Service Date at a time when he
has a 100% Vested Interest, but whose Annuity Starting Date has not yet occurred as of his
Reemployment Commencement Date, such individual’s Accrual Service as of his Severance from Service
Date will be disregarded after his reemployment if his Reemployment Commencement Date occurs after
a one year Period of Severance and he is not employed by the Employer or a Controlled Entity on the
first anniversary of his Reemployment Commencement Date.



(c) Accrual Service may also be disregarded pursuant to the provisions of Section 6.4.


 


15









 





V. RETIREMENT BENEFITS





5.1 Normal Retirement.



(a) Subject to Section 5.1(b), a Participant whose employment with the Employer and all
Controlled Entities is terminated, for a reason other than death, on or after his Normal Retirement
Date shall be entitled to receive a retirement benefit, payable at the time and in the form
provided in Article VIII, that is based upon a Pension commencing on the Participant’s Annuity
Starting Date, each monthly payment of such Pension being equal to the greater of the following
amounts:




(1) The amount of the Participant’s benefit as of December 31, 1991, disregarding
Accrual Service, Compensation, and any other changes occurring after that date; or




(2) An amount equal to (i) 2% of the Participant’s Average Monthly Compensation (the
“Base Formula”) minus 1-2/3% of his Social Security Benefit (the “Offset”), multiplied by
(ii) his years of Accrual Service (not to exceed thirty years).



(b) Notwithstanding anything to the contrary in Section 5.1(a):




(1) The maximum Offset will not be greater than 50% of the Base Formula, multiplied by
a fraction (not to exceed one), the numerator of which is the Participant’s Average Monthly
Compensation, and the denominator of which is the Participant’s Final Average Monthly
Compensation;




(2) In no event shall a Participant’s Accrued Benefit be less than his Vested Value (as
defined in Section 8.12); and




(3) Any increase in the Social Security Taxable Wage Base or benefit level payable
under Title II of the federal Social Security Act occurring after the later of (i) September
2, 1974 or (ii) the earlier of the date the Participant’s or his beneficiary’s Annuity
Starting Date or the date a Participant separates from service with a nonforfeitable right
to a benefit under the Plan, shall not effect a decrease of the Participant’s Accrued
Benefit as determined in accordance with this Section 5.1.



(c) In the event a Participant remains employed beyond his Normal Retirement Date:




(1) The Committee shall furnish any Participant whose employment with the Employer or
any Controlled Entity continues beyond his Normal Retirement Date (or resumes his employment
after his Normal Retirement Date, but prior to commencement of the payment of his retirement
benefit) with the notification described in Department of Labor Regulation section
2530.203-3. Upon such Participant’s subsequent termination of employment, his retirement
benefit payable pursuant to Article VIII shall be increased to the extent required, if at
all, under such regulations as provided in Paragraph (2) below to avoid the effecting of a
prohibited forfeiture of benefits by reason of the suspension of benefits during such
Participant’s post Normal Retirement Date employment.


 


16









 






(2) A Participant described in Paragraph (c)(1) above shall be entitled to a retirement
benefit equal to the greater of:




(A) his Accrued Benefit determined pursuant to the applicable provisions of the
Plan through the date of his subsequent termination of employment; or




(B) the Actuarial Equivalent of his Accrued Benefit payable at his Normal
Retirement Date.




(3) Further, such Participant’s retirement benefit payable pursuant to Section 5.1(c)
shall be increased to the extent required, if at all, under Code Section 401(a)(9)(C)(iii)
in the event his employment or reemployment continues after April 1 of the year immediately
following the year he attains age seventy and one-half.




5.2 Early Retirement.



(a) A Participant whose employment with the Employer and all Controlled Entities is
terminated, for a reason other than death, on or after his Early Retirement Date and prior to his
Normal Retirement Date, shall be entitled to receive a retirement benefit, payable at the time and
in the form provided in Article VIII, that is based upon a Pension commencing on the Participant’s
Annuity Starting Date, each monthly payment of such Pension being computed in the manner provided
in Section 5.1(a) (subject to Section 5.1(b) considering his Average Monthly Compensation, Social
Security Benefit, and Accrual Service to the date of his termination of employment.



(b) A Participant entitled to a benefit pursuant to Paragraph (a) may, by request to the
Committee in the form prescribed by the Committee, commence his benefit as of the first day of the
month coinciding with or next following the date of his Retirement, or as of the first day of any
subsequent month which precedes his Normal Retirement Date, provided, that such request must be
received by the Committee not less than thirty days prior to the proposed date of commencement of
the benefit (unless such thirty days’ notice is waived by the Committee in its discretion), and the
value thereof shall be based upon a Pension commencing on the date so requested, each monthly
payment of such Pension being computed in the manner provided in Paragraph (a) above, provided
that:


 


17









 






(1) the portion of his retirement benefit attributable to the Base Formula shall be
reduced in accordance with the following table:



	 	 	 	 	 
	Age at Annuity Starting Date	 	Early Retirement Factors	 
	 
	 	 	 	 
	62-64
	 	 	1.00	 
	61
	 	 	.96	 
	60
	 	 	.92	 
	59
	 	 	.82	 
	58
	 	 	.76	 
	57
	 	 	.70	 
	56
	 	 	.64	 
	55
	 	 	.58	 







(2) the portion of his retirement benefit attributable to the Offset shall be
multiplied by the appropriate factor from the following table:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Years Between Annuity	 	 	 
	Starting Date and Normal	 	Early Retirement Reduction Factors	 
	Retirement Date	 	Social Security Retirement Age	 
	 	 	65	 	 	66	 	 	67	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	0
	 	 	1.0000	 	 	 	1.0000	 	 	 	1.0000	 
	1
	 	 	1.0000	 	 	 	1.0000	 	 	 	1.0000	 
	2
	 	 	1.0000	 	 	 	1.0000	 	 	 	1.0000	 
	3
	 	 	1.0000	 	 	 	1.0000	 	 	 	1.0000	 
	4
	 	 	.9167	 	 	 	.9091	 	 	 	.9500	 
	5
	 	 	.8333	 	 	 	.8646	 	 	 	.9000	 
	6
	 	 	.7917	 	 	 	.8182	 	 	 	.8500	 
	7
	 	 	.7500	 	 	 	.7727	 	 	 	.8000	 
	8
	 	 	.7083	 	 	 	.7273	 	 	 	.7500	 
	9
	 	 	.6667	 	 	 	.6818	 	 	 	.6880	 
	10
	 	 	.6250	 	 	 	.6225	 	 	 	.6320	 






If the Participant’s Annuity Starting Date is a fractional number of years prior to his Normal
Retirement Date, the appropriate factor with respect to the tables in subparagraphs (1) and (2)
above shall be determined by interpolation.



(c) Notwithstanding any provision of the Plan to the contrary, but solely for the purpose of
determining a Participant’s eligibility to receive a benefit pursuant to Paragraph (a) (and for
purposes of determining a Participant’s eligibility to receive a benefit under any Appendix to the
Plan conditioned upon the attainment of age 55 while in the employ of the Employer), and not for
purposes of determining a Participant’s Accrued Benefit, a Participant who was a Participant
immediately prior to December 15, 1999 will be treated as though he is employed by the Employer
during any period that he is employed by Amergen or any Amergen Affiliate on and after December 15,
1999; provided, however, that the foregoing provisions of this sentence shall apply only with
respect to benefits payable following the Participant’s termination of employment with Amergen or
any Amergen Affiliate.


 


18









 





VI. SEVERANCE BENEFITS AND DETERMINATION OF VESTED

INTEREST




6.1 No Benefits Unless Herein Set Forth. Except as set forth in this Article, upon
termination of employment of a Participant for any reason other than Retirement or death, such
Participant shall acquire no right to any benefit from the Plan or the Fund.




6.2 Severance Benefit.



(a) Each Participant whose employment is terminated for any reason other than Retirement or
death shall be entitled to receive a retirement benefit, payable at the time and in the form
provided in Article VIII, that is based upon a Pension commencing on the Participant’s Annuity
Starting Date, each monthly payment of such Pension being equal to the product of such
Participant’s Vested Interest multiplied by the amount computed in the manner provided in Section
5.1(a) (subject to Section 5.1(b), considering his Average Monthly Compensation, Social Security
Benefit, and Accrual Service to the date of his termination of employment.



(b) A Participant who is entitled to a benefit pursuant to Paragraph (a) may, by request to
the Committee in the form prescribed by the Committee, commence his benefit as of the first day of
the month coinciding with or next following his fifty-fifth birthday, or as of the first day of any
subsequent month which precedes his Normal Retirement Date, provided, that such request must be
received by the Committee not less than thirty days nor more than one hundred eighty (180) days
prior to the proposed date of commencement of the benefit (unless such thirty days’ notice is
waived by the Committee in its discretion). The value of such Participant’s severance benefit shall
be based upon a Pension commencing on the first day of the month so requested, each monthly payment
of such Pension being computed in the manner provided in Paragraph (a) above, but multiplied by the
appropriate factor from the following table:



	 	 	 	 	 
	Duration in Years of Interval	 	 	 
	Between the Annuity Starting Date	 	 	 
	and Normal Retirement Date	 	Reduction Factor	 
	 
	 	 	 	 
	0
	 	 	1.000	 
	1
	 	 	.914	 
	2
	 	 	.839	 
	3
	 	 	.771	 
	4
	 	 	.712	 
	5
	 	 	.659	 
	6
	 	 	.611	 
	7
	 	 	.570	 
	8
	 	 	.531	 
	9
	 	 	.497	 
	10
	 	 	.466	 





 


19









 





If the Participant’s Annuity Starting Date is a fractional number of years prior to his Normal
Retirement Date, then the appropriate factor under the table above shall be determined by
interpolation.



(c) A Participant’s Vested Interest shall be determined by such Participant’s full years of
Vesting Service in accordance with the following schedule:



	 	 	 	 	 
	Full Years of	 	 	 
	Vesting Service	 	Vested Interest	 
	 
	Less than 5 years
	 	 	0	%
	5 years or more
	 	 	100	%






(d) Paragraph (c) above notwithstanding, a Participant shall have a 100% Vested Interest upon
attainment of his Early Retirement Date while employed by the Employer or a Controlled Entity.



(e) A Participant who is an employee of Dynegy Midstream Services, Limited Partnership (“DMS,
LP”) as of the closing date of the sale, shall have a 100% Vested Interest upon attainment of his
Early Retirement Date while employed by the Employer or a Controlled Entity.




6.3 Vesting Service.



(a) For Employment Years beginning prior to the Effective Date, subject to the remaining
provisions of this Section, an individual shall be credited with Vesting Service in an amount equal
to all Service credited to him for vesting purposes for such years under the terms of the Plan as
it existed on the day prior to the Effective Date.



(b) For Employment Years beginning on or after the Effective Date, subject to the remaining
provisions of this Section, an individual shall be credited with one year of Vesting Service for
each Employment Year for which he is credited with 1,000 or more Hours of Service.



(c) Subject to (1) through (7) below, in the case of an individual who terminates employment
and has any One-Year Break-in-Service, years of Vesting Service completed prior to such One-Year
Break-in-Service shall be disregarded in determining such individual’s years of Vesting Service
until such individual completes one year of Vesting Service after his return.




(1) In the case of an individual who terminates employment at a time when he has a 0%
Vested Interest in his Accrued Benefit and who then incurs a number of consecutive One-Year
Breaks-in-Service that equals or exceeds the greater of five years or his aggregate number
of years of Vesting Service completed before such One-Year Breaks-in-Service, such
individual’s years of Vesting Service completed before such One-Year Breaks-in-Service shall
be disregarded in determining his years of Vesting Service.




(2) In the case of an individual who incurs a One Year Break-in-Service after December
31, 1975 at a time when he has a 100% Vested Interest in his Accrued Benefit,
years of Vesting Service completed prior to such One Year Break-in-Service shall be
added to years of Vesting Service with which the individual is credited after such One Year
Break-in-Service.


 


20









 






(3) An individual who is on a leave of absence duly authorized in accordance with
customary personnel practices and policies of the Employer shall be credited with Vesting
Service for the period of authorized leave if he returns to work immediately upon the
expiration of such period.




(4) If the employment of a Participant shall have been terminated prior to January 1,
1976 and he shall have been reemployed thereafter (whether before or after such date), his
period of prior employment shall be included in his Vesting Service only if, and to the
extent, provided in the Plan as in effect on December 31, 1975.




(5) An individual shall not be credited with more than one year of Vesting Service in
any Employment Year.




(6) An individual who completes more than 500 but less than 1,000 Hours of Service in
an Employment Year shall not accrue any Vesting Service during such year but also shall not
incur a One-Year Break-in-Service.




(7) Notwithstanding any provision in the Plan to the contrary, for purposes of
determining a Participant’s Vesting Service, an individual who was a Participant immediately
prior to December 15, 1999 and who became employed by Amergen or any Amergen Affiliate on
such date shall be credited with Vesting Service in accordance with the terms of the Plan
for all periods of employment with Amergen or any Amergen Affiliate on and after December
15, 1999 as if such individual’s employer were an Employer under the Plan during such
period.




6.4 Cash-Outs and Forfeitures.



(a) If a Participant terminates employment with the Employer and has a 0% Vested Interest or
receives a lump sum distribution pursuant to Section 8.5 or 8.6, such Participant’s Accrual Service
prior to such termination shall be disregarded and such Participant’s nonvested Accrued Benefit
shall become a forfeiture as of the date of such distribution (or as of the date of termination of
employment if the Participant has a 0% Vested Interest with such Participant being considered to
have received a distribution of zero dollars on the date of his termination of employment).



(b) Paragraph (a) above notwithstanding, if such terminated Participant is subsequently
reemployed by the Employer or a Controlled Entity and the Participant had a 0% Vested Interest at
the time of his termination, the Accrual Service that was disregarded and the forfeiture that
occurred pursuant to Paragraph (a) above shall be restored as of the Reemployment Commencement Date
unless such Accrual Service is disregarded pursuant to the provisions of Section 4.2(a).


 


21









 





VII. DEATH BENEFITS




7.1 Before Annuity Starting Date.




(a) Except as provided in Paragraphs (b), (c), (d), (e), and (f) below and in Section 7.3, no
benefits shall be paid pursuant to this Plan with respect to any Participant who dies prior to his
Annuity Starting Date.



(b) A married Participant with an Eligible Surviving Spouse shall have a survivor annuity paid
to his Eligible Surviving Spouse in the event such Participant dies (i) after he attains age fifty
but before his Annuity Starting Date and (ii) while employed by the Employer or a Controlled Entity
or while receiving a Company-provided disability allowance. The survivor annuity provided by this
Paragraph shall be a single life annuity consisting of monthly payments for the life of the
Eligible Surviving Spouse in an amount equal to 50% of the monthly amount that the Participant
would have been eligible to receive under Section 5.2(a) as if he had retired on the date of his
death under circumstances described in Section 5.2(a) and had elected to receive a benefit for his
life alone, except that no reduction shall be made (i) under Section 5.2(b) to reflect that payment
of his benefits would commence prior to his Normal Retirement Date, or (ii) to reflect payment of
his Accumulation under Section 7.3; provided, however, that if the Eligible Surviving Spouse is
more than ten years younger than the Participant, the amount of the annuity payable to such spouse
shall be reduced by one-half of one percent thereof for each year in excess of ten years difference
in their ages. Payment of the survivor annuity provided by this Paragraph shall begin as of the
first day of the month coinciding with or next following the Participant’s date of death and shall
end with the last payment made before the death of the Eligible Surviving Spouse.



(c) A married Participant who has received credit for at least one Hour of Service on or
after August 23, 1984, who dies leaving an Eligible Surviving Spouse (i) on or after January 1,
1989, (ii) while employed by the Employer or a Controlled Entity or while receiving a
Company-provided disability allowance, (iii) at a time when he has a 100% Vested Interest in his
Accrued Benefit under the Plan, (iv) prior to attaining the age of fifty, and (v) before his
Annuity Starting Date shall have a survivor annuity paid to his Eligible Surviving Spouse. The
survivor annuity provided by this Paragraph shall be a single life annuity consisting of monthly
payments for the life of the Eligible Surviving Spouse in an amount equal to 50% of the monthly
amount (or the Actuarial Equivalent of such amount in the case of a Participant who has an
Accumulation at the date of his death) that the Participant would have been entitled to receive
under Section 5.2(a) (payable in the form set forth in Section 8.3(a), without any reduction to
reflect payment of his Accumulation under Section 7.3 and reduced as set forth under Section 5.2(b)
to reflect the fact that payments commenced before the Participant’s Normal Retirement Date), as if
the Participant had terminated his employment with the Employer on the date of his death, survived
to his fifty-fifth birthday and then commenced receiving such early retirement benefit and died on
the day after he would have attained age fifty-five.



Payment of the survivor annuity provided by this Paragraph shall (i) in the case of a
Participant who has an Accumulation at the date of his death, begin on the first day of the month
following the Participant’s death and end with the last payment made before the Eligible Surviving
Spouse’s death, and (ii) in the case of a Participant who does not have an
Accumulation at the date of his death, begin on the first day of the month in which the
Participant would have attained age fifty-five and end with the last payment made before the
Eligible Surviving Spouse’s death.


 


22









 





(d) If a Participant’s employment with the Employer has terminated on or after his Early
Retirement Date and the Participant subsequently dies leaving an Eligible Surviving Souse prior to
his Annuity Starting Date, then a survivor annuity shall be paid to his Eligible Surviving Spouse.
The survivor annuity provided by this Paragraph shall be a single life annuity consisting of
monthly payments for the life of the Eligible Surviving Spouse in a monthly amount equal to the
monthly amount that would have been payable to such Eligible Surviving Spouse if the Participant
had commenced receiving his Accrued Benefit in the form described in Section 8.3(a) on the first
day of the month preceding his death and reduced to reflect any withdrawal of his Accumulation
under Section 8.12. Payment of the survivor annuity provided by this Paragraph shall begin as of
the first day of the month following the Participant’s death and end with the last payment made
before the Eligible Surviving Spouse’s death.



(e) If a Participant terminates employment with the Employer before his Early Retirement Date
and at a time when he has a 100% Vested Interest in his Accrued Benefit under the Plan, and if the
Participant subsequently dies on or after January 1, 1989, prior to his Annuity Starting Date and
leaving an Eligible Surviving Spouse, then a survivor annuity shall be paid to his Eligible
Surviving Spouse. The survivor annuity provided by this Paragraph shall be a single life annuity
consisting of monthly payments for the life of the Eligible Surviving Spouse.




(1) If the Participant dies on or prior to his Early Retirement Date, the monthly
amount of such annuity shall be equal to 50% of the monthly amount (or the Actuarial
Equivalent of such amount in the case of a Participant who has an Accumulation at the date
of his death) that the Participant would have been eligible to receive under Section 5.2(a)
(payable in the form set forth in Section 8.3(a), and reduced (i) to reflect any withdrawal
of his Accumulation under Section 8.12 and (ii) as set forth under Section 5.2(b) to reflect
the fact that payments commence before the Participant’s Normal Retirement Date), as if the
Participant had survived to his Early Retirement Date, and then commenced receiving such
early retirement benefit, and died on the day after his Early Retirement Date.




(2) If the Participant dies after his Early Retirement Date, the monthly amount of such
annuity shall be equal to 50% of the monthly amount that the Participant would have been
eligible to receive under Section 5.2(a) (payable in the form set forth in Section 8.3(a),
and reduced (i) to reflect any withdrawal of his Accumulation under Section 8.12 and (ii) as
set forth under Section 5.2(b) to reflect the fact that payments commence before the
Participant’s Normal Retirement Date), as if the Participant had retired and commenced
receiving such early retirement benefit on the day before the date of his death.



In the case of a Participant who has an Accumulation at the date of his death, any annuity
that is payable pursuant to this Paragraph shall commence on the first day of the month following
the Participant’s death and shall terminate with the last payment made before the Eligible
Surviving Spouse’s death. In the case of a Participant who does not have an Accumulation at the
date of his death, any annuity that is payable pursuant to this Paragraph shall commence as of
the later to occur of (i) the first day of the month following the date of his death, and (ii) the
first day of the month in which the Participant would have attained his fifty-fifth birthday, and
shall terminate with the last payment made before the Eligible Surviving Spouse’s death.


 


23









 





(f) Any Plan provisions to the contrary notwithstanding, in the absence of consent by the
Participant’s Eligible Surviving Spouse, payment of any survivor annuity payable to such spouse
pursuant to this Section may not begin prior to the date such Participant would have reached his
Normal Retirement Date.



7.2 After Annuity Starting Date. With respect to any Participant who dies on or after
his Annuity Starting Date, whether or not payment of his benefit has actually begun, the only
benefit payable pursuant to this Plan shall be that, if any, provided for his beneficiary pursuant
to the form of benefit he was receiving or about to receive in accordance with Article VIII.




7.3 Payment of Accumulation.



(a) If a Participant dies before his Annuity Starting Date, his Accumulation will be paid to
his beneficiary designated pursuant to Paragraph (b) below in a single lump sum. If a Participant
dies after his Annuity Starting Date, if he did not withdraw his Accumulation prior to his death
pursuant to Section 8.12, and if payment of his benefits under the Plan are not to be continued
following his death to his spouse or the contingent annuitant pursuant to Sections 7.1(d), 7.1(e),
8.3(a), 8.3(b) or 8.5(a), the excess, if any, of his Accumulation as of his Annuity Starting Date
over the sum of the benefits paid to him under the Plan as of the date of his death, if any, shall
be paid in a lump sum to the beneficiary designated by the Participant pursuant to Paragraph (b)
below. If a Participant referred to in the preceding sentence dies after his Annuity Starting Date,
upon the death of the second to die of the Participant and his contingent annuitant or surviving
spouse, the excess, if any, of the Participant’s Accumulation at his Annuity Starting Date over the
sum of the benefits paid to him and his contingent annuitant or spouse shall be paid in a lump sum
to the beneficiary designated by the Participant pursuant to Paragraph (b) below.



(b) Subject to Section 8.4(c), each Participant shall have the right to designate the
beneficiary or beneficiaries to receive any amounts payable under Paragraph (a) above in the event
of the death of the Participant and his contingent annuitant or surviving spouse, if applicable.
Successive designations may be made by the Participant, and the last designation received by the
Committee prior to the death of the Participant shall be effective and shall revoke all prior
designations. If a designated person shall die before the date for payment pursuant to Paragraph
(a) above, then his interest shall terminate, and, unless otherwise provided in the Participant’s
designation, such interest shall be paid in equal shares to those designated beneficiaries, if any,
who are living on such date for payment. The Participant shall have the right to revoke the
designation of any beneficiary without the consent of the beneficiary. Designations pursuant to
this Paragraph shall be made on the form prescribed by the Committee and shall be filed with the
Committee. If a Participant shall fail to designate a beneficiary for purposes of this Paragraph,
if such designation shall for any reason be illegal or ineffective, or if no beneficiary designated
by the Participant for purposes of this Paragraph shall be living on the date for payment pursuant
to Paragraph (a) above, then the designated beneficiary to receive the
amount payable pursuant to Paragraph (a) shall be: (i) if the Participant leaves a surviving
spouse, any such amount shall be paid to such surviving spouse; and (ii) if the Participant leaves
no surviving spouse, any such amount shall be paid to such Participant’s executor or administrator
or to his heirs-at-law if there is no administration of such Participant’s estate.



7.4 Cash-Out of Death Benefit. If a Participant dies prior to his Annuity Starting
Date, his surviving spouse or other beneficiary is entitled to a death benefit pursuant to this
Article and the Actuarially Equivalent present value of such death benefit is not in excess of
$1,000, such present value shall be paid to such surviving spouse or other beneficiary in a lump
sum payment in lieu of any other benefit herein provided and without regard to the spousal consent
requirement of Section 7.1. Any such payment shall be made as soon as administratively feasible
following the Participant’s date of death.


 


24









 





VIII. TIME AND FORM OF PAYMENT OF BENEFITS




8.1 Time of Payment of Benefits. Payment of benefits under the Plan to a Participant
(other than death benefits payable pursuant to Article VII) shall commence as of such Participant’s
Annuity Starting Date, determined as follows, but the first payment shall be made no earlier than
the expiration of the election period described in Section 8.2(c)(4):



(a) Except as provided in Paragraph (d) below, with respect to any Participant who is to
receive his normal retirement benefit pursuant to Section 5.1(a), such Participant’s Annuity
Starting Date shall be the first day of the month coincident with or next following the date of
such Participant’s Retirement.



(b) Except as provided in Paragraph (d) below, with respect to any Participant who is to
receive his early retirement benefit pursuant to Section 5.2(a), such Participant’s Annuity
Starting Date shall be the first day of the month coincident with or next following his Normal
Retirement Date, or, if an earlier commencement date is elected pursuant to Section 5.2(b), such
Participant’s Annuity Starting Date shall be the first day of the month so requested.



(c) Except as provided in Paragraph (d) below, with respect to any Participant who is to
receive his severance retirement benefit pursuant to Section 6 2(a), such Participant’s Annuity
Starting Date shall be the first day of the month coincident with or next following his Normal
Retirement Date, or, if an earlier commencement date is elected pursuant to Section 6.2(b), such
Participant’s Annuity Starting Date shall be the first day of the month so requested.



(d) With respect to any benefit payable pursuant to the provisions of Section 8.6, the Annuity
Starting Date shall be the date determined by the Committee which shall be as soon as
administratively feasible following the date of the Participant’s termination of employment.




8.2 Restrictions on Time of Payment of Benefits.



(a) Plan provisions to the contrary notwithstanding, a Participant’s Annuity Starting Date
shall not occur:




(1) Unless such Participant consents (and, if such Participant is married, unless his
spouse consents (with such consent being irrevocable)), in accordance with the requirements
of Code Section 417 and applicable Treasury Regulations thereunder), prior to such
Participant’s Normal Retirement Date, except that (i) consent of the Participant’s spouse
under this Paragraph (a)(1) shall not be required if the Participant’s benefit is to be paid
in the standard form of benefit described in Section 8.3, and (ii) no consent under this
Paragraph (a)(1) shall be required if the Participant’s benefit is to be paid under Section
8.6;




(2) After the sixtieth day following the close of the Plan Year during which such
Participant attains, or would have attained, his Normal Retirement Date or, if later,
terminates his employment with the Employer and all Controlled Entities; or


 


25









 






(3) The Plan will cash-out each Participant’s Accrued Benefit, or will begin annuity
payments, no later than the April 1 of the calendar year following the later of the
calendar year in which he reaches age 701/2 or the year in which he retires, except that
the Plan will make required annual payments to any participant who is a 5 percent (5%) owner
even if he has not retired. The Plan will pay the Accrued Benefit over a period not
extending beyond the Participant’s lifetime or life expectancy, or over a period not
extending beyond the joint and last survivor life expectancies of the Participant and his
spouse or other beneficiary.




(A) If the Participant dies before his Annuity Starting Date, the only
preretirement death benefit payable under the Plan is the benefit payable to the
Eligible Surviving Spouse (if any) under Article VII. The Plan will cash-out any
survivor benefit with a present value not greater than $1,000, or will begin annuity
payments of benefits with a greater present value, no later than the end of the Plan
Year during which the Participant would have reached age 701/2. Payments will cease
as of the spouse’s date of death.




(B) If the Participant dies after his Annuity Starting Date, his remaining
Accrued Benefit will be paid at least as rapidly as under the method of payment in
effect before his death.




(C) The intent of this Section is that the beginning dates and payment periods
of benefits payable to each Participant and beneficiary will be within the
limitations permitted under Code Section 401(a)(9) and will comply with Treasury
Regulations published on April 17, 2002 and June 15, 2004, as they may thereafter be
amended, including the minimum incidental death benefit requirement. If there is
any discrepancy between this Section and Code Section 401(a)(9), that Code section
will prevail.



(b) Payment of a death benefit pursuant to Article VII, (i) if payable to other than the
Participant’s spouse, must commence no later than the last day of the calendar year following the
calendar year in which such Participant died or (ii) if payable to the surviving spouse, must
commence no later than the later of (1) the last day of the calendar year following the calendar
year in which such Participant died or (2) the last day of the calendar year in which such
Participant would have attained the age of 701/2, unless such surviving spouse dies before payments
commence, in which case the commencement of payment may not be deferred beyond the last day of the
calendar year following the calendar year in which such surviving spouse died.




(c) Benefit Notice and Commencement Rules.




(1) Except as provided in Paragraphs (c)(2) and (c)(3) below, within the period of time
commencing one hundred eighty (180) days, and ending thirty (30) days, prior to his Annuity
Starting Date, the Committee shall give each Participant a written notice that Plan benefits
thereafter payable will be in the form of a joint and survivor annuity under Section 8.3(a)
in the case of a married Participant unless the Participant makes a Qualified Election
within the applicable Election Period to receive Plan benefits payable under the Plan in
another form. In the case of a Participant who is not married, the notice shall inform him
that Plan benefits will be paid in the form of an applicable life annuity under Section
8.3(b) unless a Qualified Election is made for another form of
benefit payable under the Plan. Such notice shall also provide written explanation of
(i) the terms and conditions of the applicable standard form of annuity; (ii) the
Participant’s right to make, and the effect of, an election to waive the applicable standard
annuity form of benefit; (iii) the relative values of the applicable optional forms of
benefit available; (iv) the rights of a Participant’s spouse; (v) the right to make, and the
effect of, a revocation of a previous election to waive the applicable standard form of
annuity; (vi) if applicable, the right to defer the Annuity Starting Date; and (vii) if
applicable, the right to a Direct Rollover pursuant to Section 8.7.





 


26









 







(2) In the event the written notice described in Paragraph (c)(1) above is provided to
a Participant before his Annuity Starting Date but less than thirty (30) days prior to such
date, such Participant (with the consent of his spouse, if he is married) may elect, on a
properly completed election form provided by the Committee, to waive the minimum thirty (30)
day notice period described in Paragraph (c)(1) above, provided the following conditions are
met:




(A) The Committee provides descriptive information to the Participant clearly
indicating that he has the right to at least thirty (30) days to consider whether to
waive the applicable standard form of annuity and elect an alternative form of
benefit available to him under the Plan;




(B) The Participant is permitted to revoke an election made pursuant to (A)
above at least until the Annuity Starting Date, or, if later, at any time prior to
the expiration of the seven (7)-day period which begins on the day immediately
following the date the written notice described in Paragraph (c)(1) above is
provided to the Participant and distribution in accordance with such election does
not commence prior to the expiration of such seven (7)-day period; and




(C) The Participant’s Annuity Starting Date is after the date such written
notice is provided to the Participant.




The Participant’s Annuity Starting Date may be prior to the date the Participant
makes any affirmative benefit distribution election pursuant to this Paragraph
(c)(1) and prior to the date distribution is permitted to commence pursuant to (B)
above, provided that, except in a case due solely to administrative delay,
distribution pursuant to such election shall commence not more than one hundred
eighty (180) days after the written notice described in Paragraph (c)(1) above is
provided to the Participant.



(3) In accordance with the conditions and requirements of this Paragraph (c)(3) and of
Code Section 417(a)(7) and the Treasury Regulations promulgated thereunder, a Participant
who is eligible to do so may elect a retroactive annuity starting date with respect to the
distribution of his retirement benefit. For purposes of the Plan, a retroactive annuity
starting date (“RASD”) means an Annuity Starting Date affirmatively elected by a Participant
which is on or before the date the written notice described in Paragraph (c)(1) above is
provided to the Participant.



 


27









 






(A) A Participant shall be eligible to elect a RASD only if the following
requirements and conditions are met:




(i) The Participant has requested the written notice described in
Paragraph (c)(1) above prior to his Annuity Starting Date and, solely due to
administrative delay, such written notice is provided to the Participant on
or after his Annuity Starting Date;




(ii) The Participant’s retirement benefit payments have not commenced;




(iii) The Participant’s elected RASD is not prior to the date of his
termination of employment,




(iv) The Participant’s spouse (including an alternate payee who is
treated as such spouse under an order the Committee has determined to be a
qualified domestic relations order), determined as if the date distributions
are to commence was the Participant’s Annuity Starting Date, consents to the
distribution in a Qualified Election; provided, however, such spousal
consent is not applicable if the amount of the survivor annuity payments for
such spouse under the RASD election are not less than the amount of the
survivor annuity payments for such spouse under the applicable standard form
of annuity with an Annuity Starting Date after the date the written notice
described in Paragraph (c)(1) above is provided to the Participant;




(v) Any distribution (including appropriate interest adjustments) based
on the RASD must satisfy the requirements of Code Section 415 if the date
the distribution is to commence is substituted for the Annuity Starting Date
for all purposes, including for purposes of determining the Applicable
Interest Rate and the Applicable Mortality Table; provided, however,
satisfaction of such requirement is not required in the case of a
distribution in the form of an annuity described in Section 8.3 or Section
8.5 and the date such distribution is to commence in any such form is twelve
(12) months or less from the RASD; and




(vi) In the case of a form of retirement benefit distribution which
would have been subject to the present value requirements of Code Section
417(e)(3) if such distribution had actually commenced as of the RASD, such
distribution must be not less than the retirement benefit produced by
application of the Applicable Interest Rate and the Applicable Mortality
Table determined as of the date distribution is to commence to the annuity
form which corresponds to the annuity form used to determine the retirement
benefit amount as of the RASD.


 


28









 






(B) The future payments of retirement benefit to the Participant must be the
same as the future payments of retirement benefit which would have been
paid to the Participant if such payments had actually commenced on the RASD and
the Participant must receive a make-up payment to reflect the missed payment or
payments for the period between the RASD and the date of the actual make-up payment
(with an appropriate adjustment for interest at the Applicable Interest Rate for
such period on such missed payment or payments);




(C) The written notice described in Paragraph (c)(1) above must generally be
provided to the Participant not less than thirty (30) days nor more than one hundred
eighty (180) days prior to the date of the first payment pursuant to the
Participant’s election of an RASD and such election must be made after such written
notice is provided but on or prior to the date of such first payment; provided,
however, such written notice may be provided less than thirty (30) days prior to the
date of such first payment if the requirements of Paragraph (c)(2) above would be
satisfied when such date is substituted for the Annuity Starting Date in applying
the requirements of such Paragraph other than the requirements described in the
final sentence of such Paragraph; and, provided, further, that, except in a case due
solely to administrative delay, the date of such first payment shall be not more
than one hundred eighty (180) days after such written notice is provided to the
Participant.




(4) For purposes of this Section 8.2(c), the following defined terms have the meanings
provided below where such terms are used in the initially capitalized form:




(A) The term “Election Period” shall mean, subject to the modifications under
certain circumstances described in Paragraphs (c)(2) and (c)(3) above, the one
hundred eighty (180) day period ending on the Participant’s Annuity Starting Date.




(B) The term “Qualified Election” shall mean an election to waive the
applicable standard form of annuity and to elect or waive the Qualified Optional
Survivor Annuity. The Participant’s election must be in writing and, if he is
married, must be consented to by his spouse. The spouse’s consent to an election
must acknowledge the applicable standard form of annuity and the spouse must
acknowledge such consent before a notary public or Plan representative. The waiver
must state the specific beneficiary applicable (including any class of
beneficiaries). Such election may not be changed without further spousal consent
Notwithstanding this consent requirement, if the Participant establishes to the
satisfaction of the Committee that such written consent may not be obtained because
there is no spouse or the spouse cannot be located, an election will be deemed a
Qualified Election. Also, if the Participant is legally separated or has been
abandoned (within the meaning of applicable law) and the Participant has a court
order to such effect, spousal consent is not required. Any consent necessary under
this Paragraph (4)(B) will be valid only with respect to the spouse who signs the
consent, or in the event of a deemed Qualified Election, the designated spouse.
Additionally, a revocation of a prior election may be made by a Participant without
the consent of the spouse at any time during the applicable Election Period. The
number of revocations shall not be limited. Any new
election of an optional form of benefit will require new spousal consent. The
preceding sentence shall not apply if such election is back to the applicable
standard form of annuity.


 


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(d) Subject to the provisions of Paragraphs (a)(2) and (a)(3), a Participant’s Annuity
Starting Date shall not occur while the Participant is employed by the Employer or any Controlled
Entity.



(e) Section 8.1 and Paragraphs (a)(1) and (a)(2) above notwithstanding, but subject to the
provisions of Paragraph (a)(3) above, a Participant, other than a Participant whose Actuarially
Equivalent present value of his Vested Interest in his Accrued Benefit is not in excess of $1,000,
must file a claim for benefits in the manner prescribed by the Committee before payment of his
benefits will commence. In the event that the requirement in the preceding sentence delays the
commencement of payment of a Participant’s benefits to a date after his Normal Retirement Date,
such Participant’s benefit shall not be less than the Actuarial Equivalent of his Accrued Benefit
payable at his Normal Retirement Date.



8.3 Standard Form of Benefit for Participants. For purposes of Article V or VI the
following standard forms of benefit shall apply:



(a) The standard form of benefit for any Participant who is married on his Annuity Starting
Date shall be an annuity pursuant to which the Participant shall receive the greater of (i) a joint
and survivor annuity which is the Actuarial Equivalent of the Pension described in paragraph (b)
and which is payable for the life of the Participant with a survivor annuity for the life of the
Participant’s spouse that shall be one-half the amount of the annuity payable during the joint
lives of the Participant and the Participant’s spouse and (ii) the Pension determined under Article
V or VI hereof, as applicable, multiplied by a factor of .9000 reduced by.0050 for each year by
which the Participant’s spouse is more than ten years younger than the Participant, and such spouse
shall receive a benefit equal to one-half of the amount of the annuity payable during the joint
lives of the Participant and such spouse.



(b) The standard form of benefit for any Participant who is not married on his Annuity
Starting Date shall be the Pension described in Section 8.5(b), determined in accordance with
Article V or VI, whichever is applicable to such Participant.



8.4 Election Concerning Form of Benefit. Any Participant who would otherwise receive
the standard form of benefit described in Section 8.3 may elect not to take his benefit in such
form by properly executing and filing the benefit election form prescribed by the Committee during
the Election Period described in Section 8.2(c)(4)(A) as a Qualified Election as described in
Section 8.2(c)(4)(B).


 


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8.5 Alternative Forms of Benefit. For purposes of Article V or VI, the benefit for
any Participant who has elected pursuant to Section 8.4 not to receive his benefit in the standard
form set forth in Section 8.3 or the Qualified Optional Survivor Annuity, shall be paid in one of
the following alternative forms described below selected by such Participant, or, in the absence of
such selection, by the Committee prior to his Annuity Starting Date; provided, however, that
the period and method of payment of such form shall be in compliance with the provisions of
Code Section 401(a)(9) and applicable Treasury Regulations thereunder:




(a) Joint and Survivor Option.




(1) Except as otherwise provided in this Paragraph (a), a Participant may elect to
receive an annuity payable for the life of the Participant with a survivor annuity (with
monthly payments under such survivor annuity equal to 1%, 50%, 75% or 100%, as specified by
the Participant in his election of this option, of such Participant’s monthly benefit) to
the beneficiary designated by such Participant in accordance with Section 8.10 for such
designated beneficiary’s remaining lifetime. The benefit elected under this clause (1)
shall be the Actuarial Equivalent of the Pension referred to in Section 8.3(b).




(2) Notwithstanding the foregoing, the following rules will apply to a joint and
survivor option elected under this Paragraph (a):




(A) If a Participant elects a joint and survivor option with a survivor benefit
equal to 50% or more of the monthly benefit that he will receive during his
lifetime, then the Participant will receive a reduced series of annuity payments
that is the Actuarial Equivalent of the benefit computed under Section 8.3(a) (or
that would be computed under Section 8.3(a) if the contingent annuitant was the
Participant’s spouse).




(B) If a Participant elects a joint and survivor option with a survivor benefit
equal to less than 50% of the monthly benefit that he will receive during his
lifetime, then the Participant will receive a reduced series of annuity payments
that is the sum of:




(i) the benefit computed under Section 8.5(a)(1), plus




(ii) an additional amount determined by dividing one minus the elected
survivor benefit percentage by 50% and multiplying the quotient by the
excess of the benefit computed under Section 8.3(a) (or that would be
computed under Section 8.3(a) if the contingent annuitant was the
Participant’s spouse) over the benefit computed under Section 8.5(a)(1), and




(C) Notwithstanding the provisions of clause (B) above, the reduced series of
annuity payments payable to a married Participant who names his spouse to whom he
has been married for at least 12 consecutive months immediately prior to his Annuity
Starting Date, as contingent annuitant, and who elects a joint and survivor option
with a survivor benefit equal to less than 50% of the monthly benefit that he will
receive during his lifetime shall be no less than the sum of:




(i) his Accrued Benefit as of January 1, 1990, converted into the
selected joint and survivor option based upon the procedures applicable to
the Plan immediately prior to such date, plus




(ii) his Accrued Benefit earned from January 1, 1990, to his retirement
date converted into the selected joint and survivor option on a basis that
is the Actuarial Equivalent of such Accrued Benefit.


 


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(3) Any Plan provision to the contrary notwithstanding, the optional form of payment
described in this Paragraph (a) shall become effective on the Participant’s Annuity Starting
Date, except that such election will be automatically cancelled if either the Participant or
his contingent annuitant dies before such Participant’s Annuity Starting Date. An election
of such optional form cannot be modified or rescinded after the effective date thereof




(4) A Participant may not elect an optional form of benefit pursuant to this Paragraph
(a) providing monthly benefits to a contingent annuitant who is other than his spouse unless
the Actuarial Equivalent of the payments expected to be made to the Participant is more than
50% of the Actuarial Equivalent of the total payments expected to be made under such
optional form. In no event, however, shall the amount of each monthly payment to a
contingent annuitant exceed the amount of each monthly payment made to the Participant.



(b) Life Annuity. The Participant may elect to receive an annuity payable for the life
of the Participant. The benefit elected under this Paragraph shall be the Actuarial Equivalent of
the Pension referred to in Section 8.3(b). The optional form of payment described in this
Paragraph shall become effective on the Participant’s Annuity Starting Date, except that such
election will be automatically cancelled if the Participant dies before such date. An election of
such optional form cannot be modified or rescinded after the effective date thereof



(c) Level Income Option. If payment of a Participant’s benefit commences prior to the
earliest age as of which such Participant will become eligible for an Old-Age Insurance Benefit
under the Social Security Act and such Participant’s benefits will be paid in the form of an
annuity, then at the request of the Participant the amount of the payments of his benefit may be
adjusted so that an increased amount will be paid prior to such age and a reduced amount
thereafter; the purpose of this adjustment is to enable the Participant to receive from the Plan
and under the Social Security Act an aggregate income in approximately a level amount for life.
Such adjusted payments shall be the Actuarial Equivalent of the benefit otherwise payable to such
Participant,



8.6 Cash-Out of Accrued Benefit. If a Participant terminates his employment with the
Employer and all Controlled Entities and the Actuarially Equivalent present value of his Vested
Interest in his Accrued Benefit is not in excess of $1,000, then such present value shall be paid
to such terminated Participant in lieu of any other benefit herein provided and without regard to
the consent requirements of Section 8.2(a)(l) and the election and spousal consent requirements of
Section 8.2(c). Any such payment shall be made as soon as administratively feasible following such
Participant’s termination of employment. The provisions of this Section shall not be applicable to
a Participant following his Annuity Starting Date.


 


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8.7 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 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.




8.8 Special Distribution Limitations.




(a) For purposes of this Section, the following terms shall have the following meanings:




(1) “Benefit” of a Participant includes (i) loans from the Plan in excess of
the amounts set forth in Code Section 72(p)(2)(A); (ii) any periodic income from the Plan;
(iii) any Plan withdrawal values payable to a living Participant; and (iv) any death
benefits from the Plan not provided for by insurance on the Participant’s life.




(2) “Current Plan Liabilities” means with respect to a Plan Year the amount
described in Code Section 412(1)(7) for such Plan Year.




(3) “Restricted Participant” includes with respect to a Plan Year any
Participant who during such Plan Year is (i) either a “highly compensated employee,” as such
term is defined in Code Section 414(q), or a “highly compensated former employee,” as such
term is defined in Code Section 414(q)(6); and (ii) is one of the twenty-five most highly
compensated nonexcludable employees and former employees, as defined in Treasury Regulation
Section 1.401(a)(4)-12, based on compensation, within the meaning of Code Section 414(s),
received from the Employer and Controlled Entities in the current or any other Plan Year.



(b) Subject to the provisions of Paragraph (c), the annual payments from the Plan to a
Restricted Participant for a Plan Year may not exceed an amount equal to the annual payments that
would be made on behalf of such Restricted Participant under (i) a single life annuity that is the
Actuarial Equivalent of the sum of (1) the Restricted Participant’s Accrued Benefit and (2) the
Restricted Participant’s Benefit under the Plan other than his Accrued Benefit and any Social
Security supplement provided by the Plan and (ii) any Social Security supplement provided by the
Plan.



(c) The provisions of Paragraph (b) shall not apply if (i) after payment to a Restricted
Participant of his Benefit, the value of the assets of the Fund equals or exceeds 110% of the value
of Current Plan Liabilities, (ii) the value of the Restricted Participant’s Benefit is less than 1%
of the value of Current Plan Liabilities before payment of the Restricted Participant’s Benefit, or
(iii) the present value of the Restricted Participant’s Benefit does not (and at the time of any
prior distribution did not) exceed $5,000.


 


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8.9 Cessation of Certain Payments if Liquidity Shortfall. Plan provisions to the
contrary notwithstanding, no payment in excess of a life annuity payment as described in Code
Section 401(a)(32)(B) shall be made during any period that the Plan has a “liquidity shortfall” (as
defined in Code Section 430(j)(4)).




8.10 Beneficiaries and Joint Annuitants.



(a) Subject to the restrictions of Section 8.4, each Participant shall have the right to
designate the beneficiary or beneficiaries or joint annuitant to receive any continuing payments in
the event such Participant’s benefit is payable in a form whereby payments could continue beyond
such Participant’s death. Each such designation shall be separate from the beneficiary designation
under Section 7.3(b), and each such designation shall be made on the form prescribed by the
Committee and shall be filed with the Committee. Any such designation may be changed at any time by
such Participant by execution of a new designation form and filing such form with the Committee
except that a joint annuitant cannot be changed after a Participant’s Annuity Starting Date.



(b) If a Participant’s designated joint annuitant dies before the Participant’s Annuity
Starting Date, such Participant’s election of a form of benefit for the joint lives of the
Participant and such joint annuitant shall be cancelled automatically and such Participant’s
benefit shall be paid in the form of the standard benefit set forth in Section 8.3, unless a new
election of an alternative form of benefit is made in accordance with the provisions of Section
8.4. The death of a joint annuitant following a Participant’s Annuity Starting Date shall not
affect a Participant’s benefit election or permit such Participant to revoke such election.



8.11 Reemployment of Participants. In the event a Participant to whom payment of his
retirement benefit under the Plan has commenced is reemployed by an Employer or a Controlled
Entity, whether or not as an Eligible Employee, payment of his retirement benefit shall not be
interrupted or otherwise adversely affected, but shall be subject to the terms and conditions of
this Section 8.11.



(a) In the event a Participant is reemployed by an Employer or Controlled Entity, whether or
not as an Eligible Employee, before payment of his retirement benefit has commenced, his benefit
shall not commence during his period of reemployment, but shall be subject to the terms and
conditions of Sections 5.1(c) and 8.2(d).



(b) If a Participant described above is reemployed as an Eligible Employee he shall resume
benefit accruals pursuant to the applicable provisions of the Plan, subject to the modifications
required by this Section 8.11. In this regard, the benefit accrual of such Participant during his
reemployment shall be determined at the end of such period of reemployment to be the excess, if
any, of the amount determined pursuant to the applicable provisions of the Plan over the Actuarial
Equivalent of the Participant’s Accrued Benefit as of his Annuity Starting Date. Any such excess
shall be applied as of the first retirement benefit payment after the Participant’s period of
reemployment to increase such retirement benefit payment and each payment thereafter in the annuity
form in which such Participant’s retirement benefit is being paid, together with an actuarial
adjustment, if necessary, adequate to satisfy the requirements of Code Section 411(a) and
Department of Labor Regulation Section 2530.203-3 concerning the
delay in payment of the amount of such increase. In the event such Participant’s reemployment
continues after April 1 of the year immediately following the year in which he attains age 701/2, an
actuarial adjustment, if necessary, adequate to satisfy the requirements of Code Section
401(a)(9)(C)(iii) with respect to the delay in payment of the amount of such increase for periods
after such April 1 shall be applied. In no event shall retirement benefit payments made prior to
the date of such Participant’s reemployment or during his period of reemployment be taken into
account with respect to his benefit accruals or retirement benefits payable after his reemployment
or after his subsequent termination of employment.


 


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8.12 Withdrawal of Accumulation.



(a) A Participant may not withdraw his Accumulation while he remains in the active employ of
the Employer or a Controlled Entity, but a Participant whose employment has terminated and who has
not begun to receive payment of his benefit under the Plan may withdraw his Accumulation. In that
event, the benefit otherwise payable to the Participant under the Plan shall be determined pursuant
to Paragraph (b) of this Section. Notwithstanding the preceding provisions of this Section, a
Participant may not elect to withdraw his Accumulation unless the Participant’s spouse consents in
writing to the Participant’s election to make such withdrawal, such consent acknowledges the effect
of such election, and such consent is witnessed by a representative of the Plan or a notary public,
unless the Participant establishes to the satisfaction of a Plan representative that such consent
may not be obtained because there is no spouse, such spouse cannot be located, or under such other
circumstances as the Secretary of the Treasury may by regulation prescribe. Any consent by a spouse
(or establishment that the consent of the spouse may not be obtained) pursuant to this Section
shall be effective only with respect to such spouse. The portion of a Participant’s Accumulation
which is attributable to interest credited thereon pursuant to Section 1.1(c) and which is
withdrawn pursuant to the terms of this Section shall be subject to the mandatory withholding
requirements for lump sum distributions from a qualified plan and shall be eligible for Direct
Rollover pursuant to Section 8.7.



(b) Notwithstanding any Plan provision to the contrary, if a Participant has elected to
withdraw his Accumulation under Paragraph (a) of this Section, his remaining Accrued Benefit (the
“Residual Benefit”) shall be calculated according to the following provisions of this Paragraph.




(1) Determine the “Vested Value”. The Vested Value shall be the greater of (i)
the annual retirement benefit payable to the Participant commencing at his Normal Retirement
Date determined under Section 5.1 of the Plan, and (ii) a single life annuity commencing in
an annual amount at his Normal Retirement Date determined by converting the Participant’s
Hypothetical Accumulation into such an annuity using the Applicable Interest Rate and, with
respect to the period after the Participant’s Normal Retirement Date, the Applicable
Mortality Table.




(2) Determine the “Vested Portion”. The Vested Portion is a single life annuity
payable in an annual amount commencing at the Participant’s Normal Retirement Date. The
Vested Portion shall be determined by converting the Participant’s Hypothetical Accumulation
into such an annuity using the Applicable Interest Rate and,
with respect to the period after the Participant’s Normal Retirement Date, the
Applicable Mortality Table.


 


35









 






(3) Determine the “Residual Vested Annuity”. The Residual Vested Annuity is
determined by reducing the Vested Value, but not below zero, by the amount of the Vested
Portion.




(4) Determine the “Residual Benefit”. The Residual Benefit is the lump sum
Actuarial Equivalent of the Residual Vested Annuity, determined as of the date of
withdrawal, based upon the Applicable Interest Rate and the Applicable Mortality Table.



(c) The following provisions shall apply with respect to the aggregate amount of the
Accumulation and the Residual Benefit:




(1) If such aggregate amount is not in excess of $1,000, the Committee shall direct
that such amount be paid to the Participant in a lump sum, in full satisfaction and release
of all further rights of the Participant, his spouse and his beneficiary or beneficiaries
(designated pursuant to Section 7.3(b)) to receive any benefits under the Plan.




(2) If such aggregate amount is more than $1,000, the Participant shall receive the
Accumulation in a lump sum, and shall receive the Residual Vested Annuity, payable at the
time and in the form provided in Article VIII.




(3) Any lump sum distribution pursuant to this Paragraph (c) shall be paid within one
hundred twenty (120) days after the end of the Plan Year in which the Participant’s
Severance from Service Date occurs.



(d) The Accrued Benefit of a Participant who received a lump sum distribution of his
Accumulation prior to January 1, 1988, and who is reemployed and becomes entitled to a benefit
under the Plan after that date, shall be calculated to reflect such distribution pursuant to the
provisions of paragraphs (1), (2) and (3) of subsection (b) above.



8.13 Commercial Annuities. At the direction of the Committee, the Funding Agent may
pay any form of benefit provided hereunder other than a lump sum or a Direct Rollover pursuant to
Section 8.7 by the purchase of a commercial annuity contract and the distribution of such contract
to the Participant or beneficiary. Thereupon, the Plan shall have no further liability with respect
to the amount used to purchase the annuity contract and such Participant or beneficiary shall look
solely to the company issuing such contract for such annuity payments. All certificates for
commercial annuity benefits shall be nontransferable, except for surrender to the issuing company,
and no benefit thereunder may be sold, assigned, discounted, or pledged (other than as collateral
for a loan from the company issuing same). Notwithstanding the foregoing, the terms of any such
commercial annuity contract shall conform with the time of payment, form of payment, and consent
provisions of Articles VII and VIII.



8.14 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 Sections 8.1 and 8.2.
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.


 


36









 






8.15 Claims Procedures.



(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;


 


37









 






(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;




(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 (90) days after
receipt of such claim for Plan benefits (or within one hundred eighty (180) days if special
circumstances necessitate an extension of the ninety (90) day period and the Claimant is informed
of such extension in writing within the ninety (90) 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.


 


38









 





(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 sixty (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.


 


39









 





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
(60) 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 (60) day review period. In no event
shall such extension exceed a period of sixty (60) days from the end of the initial sixty (60) 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.



(h) 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.



(i) 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.


 


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IX. LIMITATIONS ON BENEFITS




9.1 Limitations Imposed by Code Section 415.



(a) The limitations of this Article IX shall apply on and after January 1, 2008, except as
otherwise provided herein.



(b) The Annual Benefit otherwise payable to a Participant under the Plan at any time shall not
exceed the Maximum Permissible Benefit. If the benefit the Participant would otherwise accrue in a
Limitation Year would produce an Annual Benefit in excess of the Maximum Permissible Benefit, the
benefit shall be limited (or the rate of accrual reduced) to a benefit that does not exceed the
Maximum Permissible Benefit.



(c) If the Participant is, or has ever been, a participant in another qualified defined
benefit plan (without regard to whether the plan has been terminated) maintained by the employer or
a Predecessor Employer, the sum of the Participant’s Annual Benefits from all such plans may not
exceed the Maximum Permissible Benefit. Where the Participant’s employer-provided benefits under
all such defined benefit plans (determined as of the same age) would exceed the Maximum Permissible
Benefit applicable at that age, the maximum monthly retirement income applicable to all such
defined benefit plans of the employer shall be determined and allocated on a pro rata basis in
proportion to the actuarially equivalent amount of retirement income otherwise accrued under each
such defined benefit plan so that the Maximum Permissible Benefit is not exceeded.



(d) The application of the provisions of this Section shall not cause the Maximum Permissible
Benefit for any Participant to be less than the Participant’s Accrued Benefit under all the defined
benefit plans of the Employer or a Predecessor Employer as of the end of the last Limitation Year
beginning before July 1, 2007 under provisions of the plans that were both adopted and in effect
before April 5, 2007. The preceding sentence applies only if the provisions of such defined benefit
plans that were both adopted and in effect before April 5, 2007 satisfied the applicable
requirements of statutory provisions, regulations, and other published guidance relating to Code
Section 415 in effect as of the end of the last Limitation Year beginning before July 1, 2007, as
described in Section 1.415(a)-1(g)(4) of the Treasury Regulations.



(e) The limitations of this Article IX shall be determined and applied taking into account the
rules in Section 9.3 below.




9.2 Definitions. 



(a) “Annual Benefit” shall mean a benefit that is payable annually in the form of a straight
life annuity. Except as provided below, where a benefit is payable in a form other than a straight
life annuity, the benefit shall be adjusted to an Actuarially Equivalent straight life annuity that
begins at the same time as such other form of benefit and is payable on the first day of each
month, before applying the limitations of this Article IX. For a Participant who has or will have
distributions commencing at more than one Annuity Starting Date, the Annual Benefit shall be
determined as of each such Annuity Starting Date (and shall satisfy the limitations of this Article
IX as of each such date), actuarially adjusting for past and future distributions of benefits
commencing at the other Annuity Starting Dates. For this purpose, the determination of
whether a new Annuity Starting Date has occurred shall be made without regard to Section
1.401(a)-20, Q&A 10(d), and with regard to Section 1.415(b)-1(b)(1)(iii)(B) and (C) of the Treasury
Regulations.


 


41









 





No actuarial adjustment to the benefit shall be made for (i) survivor benefits payable to a
surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not
be payable if the Participant’s benefit were paid in another form; (ii) benefits that are not
directly related to retirement benefits (such as a qualified Disability benefit, preretirement
incidental death benefits, and postretirement medical benefits); or (iii) the inclusion in the form
of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to
Code Section 417(e)(3) and would otherwise satisfy the limitations of this Article IX, and the Plan
provides that the amount payable under the form of benefit in any Limitation Year shall not exceed
the limits of this Article IX applicable at the Annuity Starting Date, as increased in subsequent
years pursuant to Code Section 415(d). For this purpose, an automatic benefit increase feature is
included in a form of benefit if the form of benefit provides for automatic, periodic increases to
the benefits paid in that form.



The determination of the Annual Benefit shall take into account Social Security supplements
described in Code Section 411(a)(9) and benefits transferred from another defined benefit plan,
other than transfers of distributable benefits pursuant to Section 1.411(d)-4, Q&A-3(c), of the
Treasury Regulations, but shall disregard benefits attributable to employee contributions or
rollover contributions.



Effective for distributions in Plan Years beginning after December 31, 2003, the determination of
Actuarial Equivalence of forms of benefit other than a straight life annuity shall be made in
accordance with Section 9.2(a)(1) or (2) below.




(1) Benefit Forms Not Subject to Code Section 417(e)(3): The straight life
annuity that is Actuarially Equivalent to the Participant’s form of benefit shall be
determined under this subsection (1) if the form of the Participant’s benefit is either (i)
a nondecreasing annuity (other than a straight life annuity) payable for a period of not
less than the life of the Participant (or, in the case of a qualified pre-retirement
survivor annuity, the life of the surviving spouse); or (ii) an annuity that decreases
during the life of the Participant merely because of (a) the death of the survivor annuitant
(but only if the reduction is not below fifty percent (50%) of the benefit payable before
the death of the survivor annuitant); or (b) the cessation or reduction of Social Security
supplements or qualified disability payments (as defined in Code Section 401(a)(11)).




(A) Limitation Years beginning before July 1, 2007. For Limitation
Years beginning before July 1, 2007, the Actuarially Equivalent straight life
annuity is equal to the annual amount of the straight life annuity commencing at the
same Annuity Starting Date that has the same actuarial present value as the
Participant’s form of benefit computed using whichever of the following produces the
greater annual amount: (i) the interest rate specified in Section 1.1(e) of the
Plan (which is seven percent (7%) per annum and is hereinafter referred to as the
“Plan Interest Rate”) and the mortality table (or other tabular factor) specified in
Section 1.1(e) of the Plan (which is the 86 PET-88.70 mortality table and is
hereinafter referred to as the “Plan Mortality Table”) for adjusting benefits
in the same form; and (ii) a five percent (5%) interest rate assumption and the
Applicable Mortality Table prescribed in Revenue Ruling 2001-62 for that Annuity
Starting Date.


 


42









 






(B) Limitation Years beginning on or after July 1, 2007. For
Limitation Years beginning on or after July 1, 2007, the Actuarially Equivalent
straight life annuity is equal to the greater of (i) the annual amount of the
straight life annuity (if any) payable to the Participant under the Plan commencing
at the same Annuity Starting Date as the Participant’s form of benefit; and (ii) the
annual amount of the straight life annuity commencing at the same Annuity Starting
Date that has the same actuarial present value as the Participant’s form of benefit,
computed using a five percent (5%) interest rate assumption and the Applicable
Mortality Table defined in Section 1.1(i) of the Plan for that Annuity Starting
Date.




(2) Benefit Forms Subject to Code Section 417(e)(3): The straight life annuity
that is Actuarially Equivalent to the Participant’s form of benefit shall be determined
under this subsection (2) if the form of the Participant’s benefit is other than a benefit
form described in subsection (1) above. In this case, the Actuarially Equivalent straight
life annuity shall be determined as follows:




(A) Annuity Starting Date in Plan Years Beginning After 2005. If the
Annuity Starting Date of the Participant’s form of benefit is in a Plan Year
beginning after 2005, the Actuarially Equivalent straight life annuity is equal to
the greatest of (i) the annual amount of the straight life annuity commencing at the
same Annuity Starting Date that has the same actuarial present value as the
Participant’s form of benefit, computed using the Plan Interest Rate and the Plan
Mortality Table (or other tabular factor) specified for adjusting benefits in the
same form; (ii) the annual amount of the straight life annuity commencing at the
same Annuity Starting Date that has the same actuarial present value as the
Participant’s form of benefit, computed using a five and one-half percent (5.5%)
interest rate assumption and the Applicable Mortality Table prescribed in Revenue
Ruling 2001-62; and (iii) the annual amount of the straight life annuity commencing
at the same Annuity Starting Date that has the same actuarial present value as the
Participant’s form of benefit, computed using the Applicable Interest Rate defined
in the Plan for that Annuity Starting Date and the Applicable Mortality Table
prescribed in Revenue Ruling 2001-62, divided by 1.05.




(B) Annuity Starting Date in Plan Years Beginning in 2004 or 2005. If
the Annuity Starting Date of the Participant’s form of benefit is in a Plan Year
beginning in 2004 or 2005, the Actuarially Equivalent straight life annuity is equal
to the annual amount of the straight life annuity commencing at the same Annuity
Starting Date that has the same actuarial present value as the Participant’s form of
benefit, computed using whichever of the following produces the greater annual
amount: (i) the Plan Interest Rate and the Plan Mortality Table (or other tabular
factor) specified for adjusting benefits in the
same form; and (ii) a five and one-half percent (5.5%) interest rate assumption
and the Applicable Mortality Table prescribed in Revenue Ruling 2001-62.


 


43









 






(b) “IRC 415 Compensation”.




(1) General. “IRC 415 Compensation” shall mean wages, salaries, and fees for
professional services and other amounts received (without regard to whether or not an amount
is paid in cash) for personal services actually rendered in the course of employment with
the Employer maintaining the Plan to the extent that the amounts are includible in gross
income (including, but not limited to, commissions paid salespersons, compensation for
services on the basis of a percentage of profits, commissions on insurance premiums, tips,
bonuses, fringe benefits, and reimbursements, or other expense allowances under a
nonaccountable plan (as described in Section 1.62-2(c) of the Treasury Regulations), and
excluding the following:




(A) Employer contributions (other than elective contributions described in Code
Sections 402(e)(3), 408(k)(6), 408(p)(2)(A)(i), or 457(b)) to a plan of deferred
compensation (including a simplified employee pension described in Code Section
408(k) or a simple retirement account described in Code Section 408(p), and whether
or not qualified) to the extent such contributions are not includible in the
Employee’s gross income for the taxable year in which contributed, and any
distributions (whether or not includible in gross income when distributed) from a
plan of deferred compensation (whether or not qualified), other than, amounts
received during the year by an Employee pursuant to a nonqualified unfunded deferred
compensation plan to the extent includible in gross income;




(B) Amounts realized from the exercise of a nonstatutory stock option (that is,
an option other than a statutory stock option as defined in Section 1.421-1(b) of
the Treasury Regulations), or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer subject to a substantial
risk of forfeiture;




(C) Amounts realized from the sale, exchange or other disposition of stock
acquired under a statutory stock option;




(D) Other amounts that receive special tax benefits, such as premiums for
group-term life insurance (but only to the extent that the premiums are not
includible in the gross income of the Employee and are not salary reduction amounts
that are described in Code Section 125); and




(E) Other items of remuneration that are similar to any of the items listed in
(A) through (D).




(2) For any self-employed individual, IRC 415 Compensation shall mean earned income.


 


44









 






(3) Except as provided herein, for Limitation Years beginning after December 31, 1991,
IRC 415 Compensation for a Limitation Year is the IRC 415 Compensation actually paid or made
available during such Limitation Year. IRC 415 Compensation for a Limitation Year shall
include amounts earned but not paid during the Limitation Year solely because of the timing
of pay periods and pay dates, provided the amounts are paid during the first few weeks of
the next Limitation Year, the amounts are included on a uniform and consistent basis with
respect to all similarly situated Employees, and no compensation is included in more than
one Limitation Year.




For Limitation Years beginning on or after July 1, 2007, IRC 415 Compensation for a
Limitation Year shall also include compensation paid by the later of 21/2 months after an
Employee’s Severance from Employment with the Employer maintaining the Plan or the end of
the Limitation Year that includes the date of the Employee’s Severance from Employment with
the Employer maintaining the Plan, if:




(A) The payment is regular compensation for services during the Employee’s
regular working hours, or compensation for services outside the Employee’s regular
working hours (such as overtime or shift differential), commissions, bonuses, or
other similar payments, and, absent a Severance from Employment, the payments would
have been paid to the Employee while the Employee continued in employment with the
Employer;




(B) The payment is for unused accrued bona fide sick, vacation or other leave
that the Employee would have been able to use if employment had continued; or




(C) The payment is received by the Employee pursuant to a nonqualified unfunded
deferred compensation plan and would have been paid at the same time if employment
had continued, but only to the extent includible in gross income.




Any payments not described above shall not be considered IRC 415 Compensation if paid after
Severance from Employment, even if they are paid by the later of 21/2 months after the date of
Severance from Employment or the end of the Limitation Year that includes the date of
Severance from Employment, except, (i) payments to an individual who does not currently
perform services for the Employer by reason of qualified military service (within the
meaning of Code Section 414(u)(1)) to the extent these payments do not exceed the amounts
the individual would have received if the individual had continued to perform services for
the Employer rather than entering qualified military service; or (ii) compensation paid to a
Participant who is permanently and totally disabled (as defined in Code Section 22(e)(3)),
provided that salary continuation applies to all Participants who are permanently and
totally disabled for a fixed or determinable period, or the Participant was not a Highly
Compensated Employee immediately before becoming disabled.




(4) Back pay, within the meaning of Section 1.415(c)-2(g)(8) of the Treasury
Regulations, shall be treated as IRC 415 Compensation for the Limitation Year to which
the back pay relates to the extent the back pay represents wages and compensation that
would otherwise be included under this definition.


 


45









 






(5) Additional Inclusions and Exclusions.




(A) For Limitation Years beginning after December 31, 1997, IRC 415
Compensation paid or made available during such Limitation Year shall include
amounts that would otherwise be included in IRC 415 Compensation but for an election
under Code Sections 125(a), 402(e)(3), 402(h)(1)(B), 402(k), or 457(b).




(B) For Limitation Years beginning after December 31, 2000, IRC 415
Compensation shall also include any elective amounts that are not includible in the
gross income of the Employee by reason of Code Section 132(f)(4).




(C) For Limitation Years beginning after December 31, 2001, IRC 415
Compensation shall also include deemed Section 125 compensation. Deemed Section 125
compensation is an amount that is excludable under Code Section 106 that is not
available to a Participant in cash in lieu of group health coverage under a Code
Section 125 arrangement solely because the Participant is unable to certify that he
or she has other health coverage. Amounts are deemed Section 125 compensation only
if the Employer does not request or otherwise collect information regarding the
Participant’s other health coverage as part of the enrollment process for the health
plan.




(D) IRC 415 Compensation shall not include amounts paid as compensation to a
nonresident alien, as defined in Code Section 7701(b)(1)(B), who is not a
Participant in the Plan to the extent the compensation is excludable from gross
income and is not effectively connected with the conduct of a trade or business
within the United States.



(c) “Defined Benefit Compensation Limitation” shall mean one hundred percent (100%) of a
Participant’s High Three-Year Average Compensation, payable in the form of a straight life annuity.




(1) In the case of a Participant who has had a Severance from Employment with the
Employer, the Defined Benefit Compensation Limitation applicable to the Participant in any
Limitation Year beginning after the date of severance shall be automatically adjusted by
multiplying the limitation applicable to the Participant in the prior Limitation Year by the
annual adjustment factor under Code Section 415(d); provided, however, if the Employer
maintains a plan for the purpose of restoring benefits that certain Participants may not
receive under the Plan due to the limitations on contributions and benefits imposed by Code
Section 415 and/or due to the limitations imposed on compensation under Code Section
401(a)(17), and if the Participant or his Beneficiary receives or has received a benefit or
benefits under such restoration plan and a portion of such benefit or benefits would be
duplicated by the cost-of-living adjustment provided under this paragraph, then such
cost-of-living adjustment that would represent a duplication of benefits shall not apply to
the Participant or Beneficiary unless the value of
the benefit payable from the restoration plan that would cause such duplication of
benefits under the Plan is returned to the Employer by the Participant or Beneficiary within
sixty (60) days of the effective date of such cost-of-living adjustment or the date that
such cost-of-living adjustment is announced by the Internal Revenue Service, whichever date
is later; and provided further, however, that such sixty (60)-day period may be extended by
the Committee if, in its opinion, reasonable cause exists for such an extension. The
adjusted compensation limit shall apply to Limitation Years ending with or within the
calendar year of the date of the adjustment, but a Participant’s benefits shall not reflect
the adjusted limit prior to January 1 of that calendar year.



 


46









 







(2) In the case of a Participant who is rehired after a Severance from Employment, the
Defined Benefit Compensation Limitation is the greater of one hundred percent (100%) of the
Participant’s High Three-Year Average Compensation, as determined prior to the Severance
from Employment, as adjusted pursuant to the preceding paragraph, if applicable; or one
hundred percent (100%) of the Participant’s High Three-Year Average Compensation, as
determined after the Severance from Employment under subsection (g) below.



(d) “Defined Benefit Dollar Limitation” shall mean, effective for Limitation Years ending
after December 31, 2001, $160,000, automatically adjusted under Code Section 415(d) effective
January 1 of each year, and payable in the form of a straight life annuity. The new limitation
shall apply to Limitation Years ending with or within the calendar year of the date of the
adjustment, but a Participant’s benefits shall not reflect the adjusted limit prior to January 1 of
that calendar year. The automatic annual adjustment of the Defined Benefit Dollar Limitation shall
apply to Participants who have had a separation from employment.



(e) “Employer” shall mean the Employer that adopts this Plan, and all members of a controlled
group of corporations, as defined in Code Section 414(b), as modified by Code Section 415(h), all
commonly controlled trades or businesses (as defined in Code Section 414(c), as modified, except in
the case of a brother-sister group of trades or businesses under common control, by Code Section
415(h)), or affiliated service groups (as defined in Code Section 414(m)) of which the adopting
Employer is a part, and any other entity required to be aggregated with the Employer pursuant to
Code Section 414(o).



(f) “Formerly Affiliated Plan of the Employer” shall mean a plan that, immediately prior to
the cessation of affiliation, was actually maintained by the Employer and, immediately after the
cessation of affiliation, is not actually maintained by the Employer. For this purpose, cessation
of affiliation means the event that causes an entity to no longer be considered the Employer, such
as the sale of a member of the controlled group of corporations, as defined in Code Section 414(b),
as modified by Code Section 415(h), to an unrelated corporation, or that causes a plan to not
actually be maintained by the Employer, such as transfer of plan sponsorship outside a controlled
group.


 


47









 





(g) “High Three-Year Average Compensation” shall mean the average Compensation for the three
consecutive years of Service (or, if the Participant has less than three consecutive years of
Service, the Participant’s longest consecutive Period of Service, including fractions of years, but
not less than one year) with the Employer that produces the highest average. A year of
Service with the employer is the 12-consecutive month period that begins on January 1 of each
calendar year. In the case of a Participant who is rehired by the Employer after a Severance from
Employment, the Participant’s High Three-Year Average Compensation shall be calculated by excluding
all years for which the Participant performs no services for and receives no Compensation from the
Employer (the break period) and by treating the years immediately preceding and following the break
period as consecutive. A Participant’s Compensation for a year of Service shall not include
Compensation in excess of the limitation under Code Section 401(a)(17) that is in effect for the
calendar year in which such year of Service begins.



(h) “Limitation Year” shall mean the calendar year unless a different 12-month period has been
elected by the Employer in accordance with regulations or rulings issued by the Internal Revenue
Service. All qualified plans maintained by the Employer must use the same Limitation Year. If the
Limitation Year is amended to a different 12-consecutive month period, the new Limitation Year must
begin on a date within the Limitation Year in which the amendment is made.



(i) “Maximum Permissible Benefit” shall mean the lesser of the Defined Benefit Dollar
Limitation or the Defined Benefit Compensation Limitation (both adjusted where required as provided
below).




(1) Adjustment for Less Than Ten (10) Years of Participation or Service: If
the Participant has less than ten (10) Years of Participation in the Plan, the Defined
Benefit Dollar Limitation shall be multiplied by a fraction, the numerator of which is the
number of Years (or part thereof, but not less than one year) of Participation in the Plan,
and the denominator of which is ten (10). In the case of a Participant who has less than ten
(10) Years of Service with the Employer, the Defined Benefit Compensation Limitation shall
be multiplied by a fraction, the numerator of which is the number of Years (or part thereof,
but not less than one year) of Service with the Employer, and the denominator of which is
ten (10).




(2) Adjustment of Defined Benefit Dollar Limitation for Benefit Commencement Before
Age 62 or after Age 65: Effective for benefits commencing in Limitation Years ending
after December 31, 2001, the Defined Benefit Dollar Limitation shall be adjusted if the
Annuity Starting Date of the Participant’s benefit is before age 62 or after age 65. If the
Annuity Starting Date is before age 62, the Defined Benefit Dollar Limitation shall be
adjusted under subsection (A) below, as modified by subsection (C) below in this subsection
(2). If the Annuity Starting Date is after age 65, the Defined Benefit Dollar Limitation
shall be adjusted under subsection (B) below, as modified by subsection (C) below in this
subsection (2).


 


48









 






(A) Adjustment of Defined Benefit Dollar Limitation for Benefit
Commencement Before Age 62:




(i) Limitation Years Beginning Before July 1, 2007. If the
Annuity Starting Date for the Participant’s benefit is prior to age 62 and
occurs in a Limitation Year beginning before July 1, 2007, the Defined
Benefit Dollar Limitation for the Participant’s Annuity Starting Date is the
annual amount of a benefit payable in the form of a straight life
annuity commencing at the Participant’s Annuity Starting Date that is the
Actuarial Equivalent of the Defined Benefit Dollar Limitation (adjusted for
Years of Participation less than ten (10), if required) with Actuarial
Equivalence computed using whichever of the following produces the smaller
annual amount: (i) the Plan Interest Rate and the Plan Mortality Table (or
other tabular factor); or (ii) a five percent (5%) interest rate assumption
and the Applicable Mortality Table as prescribed in Revenue Ruling 2001-62.




(ii) Limitation Years Beginning on or After July 1, 2007.




(I) Plan Does Not Have Immediately Commencing Straight Life
Annuity Payable at Both Age 62 and the Age of Benefit
Commencement. If the Annuity Starting Date for the Participant’s
benefit is prior to age 62 and occurs in a Limitation Year beginning
on or after July 1, 2007, and the Plan does not have an immediately
commencing straight life annuity payable at both age 62 and the age
of benefit commencement, the Defined Benefit Dollar Limitation for
the Participant’s Annuity Starting Date is the annual amount of a
benefit payable in the form of a straight life annuity commencing at
the Participant’s Annuity Starting Date that is the Actuarial
Equivalent of the Defined Benefit Dollar Limitation (adjusted for
Years of Participation less than ten (10), if required) with
Actuarial Equivalence computed using a five percent (5%) interest
rate assumption and the Applicable Mortality Table for the Annuity
Starting Date (and expressing the Participant’s age based on
completed calendar months as of the Annuity Starting Date).




(II) Plan Has Immediately Commencing Straight Life Annuity
Payable at Both Age 62 and the Age of Benefit Commencement. If
the Annuity Starting Date for the Participant’s benefit is prior to
age 62 and occurs in a Limitation Year beginning on or after July 1,
2007, and the Plan has an immediately commencing straight life
annuity payable at both age 62 and the age of benefit commencement,
the Defined Benefit Dollar Limitation for the Participant’s Annuity
Starting Date is the lesser of the limitation determined under
subsection (I) immediately above and the Defined Benefit Dollar
Limitation (adjusted for Years of Participation less than ten (10),
if required) multiplied by the ratio of the annual amount of the
immediately commencing straight life annuity under the Plan at the
Participant’s Annuity Starting Date to the annual amount of the
immediately commencing straight life annuity under the Plan at age
62, both determined without applying the limitations of this Article
IX.


 


49









 






(B) Adjustment of Defined Benefit Dollar Limitation for Benefit
Commencement After Age 65:




(i) Limitation Years Beginning Before July 1, 2007. If the
Annuity Starting Date for the Participant’s benefit is after age 65 and
occurs in a Limitation Year beginning before July 1, 2007, the Defined
Benefit Dollar Limitation for the Participant’s Annuity Starting Date is the
annual amount of a benefit payable in the form of a straight life annuity
commencing at the Participant’s Annuity Starting Date that is the Actuarial
Equivalent of the Defined Benefit Dollar Limitation (adjusted for Years of
Participation less than ten (10), if required) with Actuarial Equivalence
computed using whichever of the following produces the smaller annual
amount: (i) the Plan Interest Rate and the Plan Mortality Table (or other
tabular factor); or (ii) a five percent (5%) interest rate assumption and
the Applicable Mortality Table as prescribed in Revenue Ruling 2001-62.




(ii) Limitation Years Beginning After July 1, 2007.




(I) Plan Does Not Have Immediately Commencing Straight Life
Annuity Payable at Both Age 65 and the Age of Benefit
Commencement. If the Annuity Starting Date for the Participant’s
benefit is after age 65 and occurs in a Limitation Year beginning on
or after July 1, 2007, and the Plan does not have an immediately
commencing straight life annuity payable at both age 65 and the age
of benefit commencement, the Defined Benefit Dollar Limitation at the
Participant’s Annuity Starting Date is the annual amount of a benefit
payable in the form of a straight life annuity commencing at the
Participant’s Annuity Starting Date that is the Actuarial Equivalent
of the Defined Benefit Dollar Limitation (adjusted for Years of
Participation less than ten (10), if required), with Actuarial
Equivalence computed using a five percent (5%) interest rate
assumption and the Applicable Mortality Table for that Annuity
Starting Date (and expressing the Participant’s age based on
completed calendar months as of the Annuity Starting Date).




(II) Plan Has Immediately Commencing Straight Life Annuity
Payable at Both Age 65 and the Age of Benefit Commencement. If
the Annuity Starting Date for the Participant’s benefit is after age
65 and occurs in a Limitation Year beginning on or after July 1,
2007, and the Plan has an immediately commencing straight life
annuity payable at both age 65 and the age of benefit commencement,
the Defined Benefit Dollar Limitation at the Participant’s Annuity
Starting Date is the lesser of the limitation determined under
subsection (I) immediately above and the Defined Benefit Dollar
Limitation (adjusted for
Years of Participation less than ten (10), if required)
multiplied by the ratio of the annual amount of the adjusted
immediately commencing straight life annuity under the Plan at the
Participant’s Annuity Starting Date to the annual amount of the
adjusted immediately commencing straight life annuity under the Plan
at age 65, both determined without applying the limitations of this
Article IX. For this purpose, the adjusted immediately commencing
straight life annuity under the Plan at the Participant’s Annuity
Starting Date is the annual amount of such annuity payable to the
Participant, computed disregarding the Participant’s accruals after
age 65 but including actuarial adjustments even if those actuarial
adjustments are used to offset accruals; and the adjusted immediately
commencing straight life annuity under the Plan at age 65 is the
annual amount of such annuity that would be payable under the Plan to
a hypothetical participant who is age 65 and has the same Accrued
Benefit as the Participant.



 


50









 








(C) Notwithstanding the other requirements of this subsection (2), no
adjustment shall be made to the Defined Benefit Dollar Limitation to reflect the
probability of a Participant’s death between the Annuity Starting Date and age 62,
or between age 65 and the Annuity Starting Date, as applicable, if benefits are not
forfeited upon the death of the Participant prior to the Annuity Starting Date. To
the extent benefits are forfeited upon death before the Annuity Starting Date, such
an adjustment shall be made. For this purpose, no forfeiture shall be treated as
occurring upon the Participant’s death if the Plan does not charge Participants for
providing a qualified preretirement survivor annuity, as defined in Code Section
417(c), upon the Participant’s death.




(3) Minimum Benefit Permitted: Notwithstanding anything else in this Section
to the contrary, the benefit otherwise accrued or payable to a Participant under this Plan
shall be deemed not to exceed the Maximum Permissible Benefit if:




(A) The retirement benefits payable for a Limitation Year under any form of
benefit with respect to such Participant under this Plan and under all other defined
benefit plans (without regard to whether a Plan has been terminated) ever maintained
by the Employer do not exceed $10,000 multiplied by a fraction, the numerator of
which is the Participant’s number of Years (or part thereof, but not less than one
year) of Service (not to exceed ten (10)) with the Employer, and the denominator of
which is ten (10); and




(B) The Employer (or a Predecessor Employer) has not at any time maintained a
defined contribution plan in which the Participant participated (for this purpose,
mandatory employee contributions under a defined benefit plan, individual medical
accounts under Code Section 401(h), and accounts for postretirement medical benefits
established under Code Section 419A(d)(1) are not considered a separate defined
contribution plan).


 


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(j) “Predecessor Employer” shall mean, if the Employer maintains a plan that provides a
benefit which the Participant accrued while performing services for a former employer, the former
employer with respect to the Participant in the plan. A former entity that antedates the Employer
is also a Predecessor Employer with respect to a Participant if, under the facts and circumstances,
the Employer constitutes a continuation of all or a portion of the trade or business of the former
entity.



(k) “Severance from Employment” shall mean the Employee ceases to be an Employee of the
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 the Plan with respect
to the Employee.



(l) “Year of Participation.” The Participant shall be credited with a Year of Participation
(computed to fractional parts of a year) for each accrual computation period for which the
following conditions are met: (i) the Participant is credited with at least the number of Hours of
Service (or Period of Service if the elapsed time method is used) for benefit accrual purposes,
required under the terms of the Plan in order to accrue a benefit for the accrual computation
period; and (ii) the Participant is included as a participant under the eligibility provisions of
the Plan for at least one day of the accrual computation period. If these two conditions are met,
the portion of a Year of Participation credited to the Participant shall equal the amount of
benefit accrual service credited to the Participant for such accrual computation period. A
Participant who is permanently and totally disabled within the meaning of Code Section
415(c)(3)(C)(i) for an accrual computation period shall receive a Year of Participation with
respect to that period. In addition, for a Participant to receive a Year of Participation (or part
thereof) for an accrual computation period, the Plan must be established no later than the last day
of such accrual computation period. In no event shall more than one Year of Participation be
credited for any 12-month period.



(m) “Year of Service.” For purposes of Section 9.2(g), the Participant shall be credited with
a Year of Service (computed to fractional parts of a year) for each accrual computation period for
which the Participant is credited with at least the number of Hours of Service (or Period of
Service if the elapsed time method is used) for benefit accrual purposes, required under the terms
of the Plan in order to accrue a benefit for the accrual computation period, taking into account
only Service with the Employer or a Predecessor Employer.




9.3 Other Rules. 



(a) Benefits Under Terminated Plans. If a defined benefit plan maintained by the
Employer has terminated with sufficient assets for the payment of benefit liabilities of all plan
participants and a Participant in the Plan has not yet commenced benefits under the Plan, the
benefits provided pursuant to the annuities purchased to provide the Participant’s benefits under
the terminated plan at each possible Annuity Starting Date shall be taken into account in applying
the limitations of this Article IX. If there are not sufficient assets for the payment of all
participants’ benefit liabilities, the benefits taken into account shall be the benefits that are
actually provided to the Participant under the terminated plan.


 


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(b) Benefits Transferred From the Plan. If a Participant’s benefits under a defined
benefit plan maintained by the Employer are transferred to another defined benefit plan maintained
by the Employer and the transfer is not a transfer of distributable benefits pursuant to Section
1.411(d)-4, Q&A-3(c), of the Treasury Regulations, the transferred benefits are not treated as
being provided under the transferor plan (but are taken into account as benefits provided under the
transferee plan). If a Participant’s benefits under a defined benefit plan maintained by the
Employer are transferred to another defined benefit plan that is not maintained by the Employer and
the transfer is not a transfer of distributable benefits pursuant to Section 1.411(d)-4, Q&A-3(c),
of the Treasury Regulations, the transferred benefits are treated by the Employer’s plan as if such
benefits were provided under annuities purchased to provide benefits under a plan maintained by the
Employer that terminated immediately prior to the transfer with sufficient assets to pay all
participants’ benefit liabilities under the plan. If a Participant’s benefits under a defined
benefit plan maintained by the Employer are transferred to another defined benefit plan in a
transfer of distributable benefits pursuant to Section 1.411(d)-4, Q&A-3(c), of the Treasury
Regulations, the amount transferred is treated as a benefit paid from the transferor plan.



(c) Formerly Affiliated Plans of the Employer. A Formerly Affiliated Plan of the
Employer shall be treated as a plan maintained by the Employer, but the Formerly Affiliated Plan of
the Employer shall be treated as if it had terminated immediately prior to the cessation of
affiliation with sufficient assets to pay participants’ benefit liabilities under the plan and had
purchased annuities to provide benefits.



(d) Plans of a Predecessor Employer. If the Employer maintains a defined benefit plan
that provides benefits accrued by a Participant while performing services for a Predecessor
Employer, the Participant’s benefits under a plan maintained by the Predecessor Employer shall be
treated as provided under a plan maintained by the Employer. However, for this purpose, the plan of
the Predecessor Employer shall be treated as if it had terminated immediately prior to the event
giving rise to the Predecessor Employer relationship with sufficient assets to pay participants’
benefit liabilities under the plan, and had purchased annuities to provide benefits; the Employer
and the Predecessor Employer shall be treated as if they were a single employer immediately prior
to such event and as unrelated employers immediately after the event; and if the event giving rise
to the predecessor relationship is a benefit transfer, the transferred benefits shall be excluded
in determining the benefits provided under the plan of the Predecessor Employer.



(e) Special Rules. The limitations of this Article IX shall be determined and applied
taking into account the rules in Section 1.415(f)-1(d), (e) and (h) of the Treasury Regulations.




(f) Aggregation with Multiemployer Plans.




(1) If the Employer maintains a multiemployer plan, as defined in Code Section 414(f),
and the multiemployer plan so provides, only the benefits under the multiemployer plan that
are provided by the Employer shall be treated as benefits provided under a plan maintained
by the Employer for purposes of this Article IX.




(2) Effective for Limitation Years ending after December 31, 2001, a multiemployer plan
shall be disregarded for purposes of applying the Compensation limitation of Sections 9.2(c)
and 9.2(i)(1) to a plan which is not a multiemployer plan.



9.4 Modification of Assumptions for Interest Rates and Mortality Tables. The
foregoing provisions of this Article IX regarding the limitations imposed by Code Section 415, as
described therein: (i) shall apply to all benefit forms subject to Code Section 417(e)(3); and
(ii) shall apply to all other benefit forms (except as may be modified by any other Appendix to the
Plan for provisions applicable to the benefits of eligible Participants therein regarding the
interest rate and mortality table (or other tabular factor) specified in such Appendix for the
determination of actuarial equivalence of forms of payment other than a straight life annuity).


 


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X. FUNDING




10.1 No Contributions by Participants. From and after April 1, 1975, the Plan is to
be funded solely from contributions by the Employer and Participants are neither required nor
permitted to make contributions to this Plan.



10.2 Employer Contributions. The Employer, acting under the advice of the actuary for
the Plan, intends but does not guarantee to make contributions to the Fund in such amount and at
such times as are required to maintain the Plan and Fund for its Employees in compliance with the
provisions of Code Sections 412 and 430. All contributions made by the Employer to the Fund shall
be used to fund benefits under the Plan or to pay expenses of the Plan and Fund and shall be
irrevocable, except as otherwise provided in Sections 10.5 and 16.2(c).



10.3 Forfeitures. All forfeitures arising under the Plan will be applied to reduce
the Employer’s contributions thereunder and shall not be used to increase the benefits any
Participant would otherwise receive under the Plan at any time prior to termination of the Plan.



10.4 Payments to Funding Agent. If the Plan shall terminate or partially terminate
(as determined by the Secretary of the Treasury), the benefits then accrued for each Participant
affected by such termination will be fully vested in him; provided, however, such benefits will be
payable only out of the Fund or by the PBGC, in accordance with the Act, and no Participant or
other person shall have any recourse against the Company in the event the assets held by the
Funding Agents and the amounts paid by the PBGC shall not be sufficient to provide such benefits in
full. On or about the date of any such payment, the Committee shall be informed as to the amount
of such payment.



10.5 Return of Contributions. Anything to the contrary herein notwithstanding, the
Employer’s contributions are contingent upon the deductibility of such contributions under Code
Section 404. 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 Funding Agent
within one year after the date of disallowance, reduced by any net losses of the Fund attributable
thereto but not increased by any net earnings of the Fund attributable thereto. 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 Funding Agent within one year after the
payment thereof, reduced by any net losses of the Fund attributable thereto but not increased by
any net earnings of the Fund attributable thereto.


 


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XI. ADMINISTRATION OF THE PLAN




11.1 Appointment of Committee. 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 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 member 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.


 


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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.



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 Funding Agent 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, actuaries, and
other agents and employees 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 the amount, if any, of such benefit 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;



(h) To issue directions, which shall be in writing and signed by an authorized member of the
Committee, to the Funding Agent concerning all benefits that are to be paid from the Fund pursuant
to the provisions of the Plan;




(i) To designate entities as participating Employers under the Plan;




(j) To establish an investment policy for the Plan; and



(k) To receive and review reports from the Funding Agent as to the financial condition of the
Fund, including its receipts and disbursements.


 


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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 termination of employment and
such other pertinent facts as the Committee may require. The Employer shall advise the Funding
Agent of such of the foregoing facts as are deemed necessary for the Funding Agent to carry out the
Funding Agent’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 Indemnification. The Company shall indemnify and hold harmless each member of
the Committee and each individual employed by the Company or a Controlled Entity 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.


 


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XII. FUNDING AGENT AND ADMINISTRATION OF THE FUND




12.1 Funding Agent. The assets of the Plan shall be maintained in a fund by the
Funding Agent for the purpose of providing the benefits provided for under the Plan. The Company
may provide for such fund by entering into an annuity contract or a trust agreement with the
Funding Agent. The Company may maintain the Plan’s fund through more than one Funding Agent and
under more than one annuity contract or trust agreement, or any combination thereof. The Company,
at any time and from time to time, may substitute a new funding medium or Funding Agent without
such substitution being considered a discontinuance of the Plan.



The Funding Agent shall receive such compensation for its services as Funding Agent as may be
agreed upon from time to time by the Company and the Funding Agent. The Funding Agent shall be
reimbursed for all reasonable expenses it incurs while acting as the Funding Agent, as agreed upon
by the Company.



12.2 Payment of Expenses. All expenses incident to the administration of the Plan and
Fund, including but not limited to, actuarial, legal, accounting, premiums to the PBGC, Funding
Agent fees, direct expenses of the Company, 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 Funding Agent from the Fund and, until paid, shall constitute a claim against the Fund which
is paramount to the claims of Participants and beneficiaries; provided, however, that (i) the
obligation of the Funding Agent to pay such expenses from the Fund shall cease to exist to the
extent such expenses are paid by the Company or the Employer and (ii) in the event the Funding
Agent’s compensation is to be paid, pursuant to this Section, from the Fund, any individual serving
as a trustee who already receives full-time pay from the Company, 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 a trustee. This Section
shall be deemed a part of any contract to provide for expenses of Plan and Fund administration,
whether or not the signatory to such contract is, as a matter of convenience, the Employer.




12.3 Fund Property.



(a) All contributions heretofore made and hereafter made under this Plan shall be paid to the
Funding Agent and shall be held, invested, and reinvested by the Funding Agent as Plan Assets. All
property and funds of the Fund, including income from investments and from all other sources, shall
be retained for the exclusive benefit of Participants, as provided in the Plan, and shall be used
to pay benefits to Participants or their beneficiaries, or to pay expenses of administration of the
Plan and Fund to the extent not paid by the Company or the Employer.



(b) No Participant shall have any title to any specific asset in the Fund. No Participant
shall have any right to, or interest in, any assets of the Fund upon termination of his employment
or otherwise, except as provided from time to time under this Plan, and then only to the extent of
the benefits payable to such Participant out of the assets of the Fund.


 


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12.4 Authorization of Benefit Payments. The Committee shall issue directions to the
Funding Agent concerning all benefits which are to be paid from the Fund pursuant to the
provisions of the Plan. All distributions hereunder shall be made in cash or in the form of a
commercial annuity contract.



12.5 Payments Solely from Fund. All benefits payable under the Plan shall be paid or
provided for solely from the Fund, and neither the Company, the Employer nor the Funding Agent
assumes any liability or responsibility for the adequacy thereof. The Committee or the Funding
Agent 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 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 the
Fund. Anything to the contrary herein notwithstanding, the Plan shall not be construed to vest any
rights in the Company or 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
Funding Agent. Except as otherwise specifically provided herein, the Committee shall have the sole
responsibility for the administration of the Plan, which responsibility is specifically described
herein. Except as otherwise specifically provided, the Funding Agent 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 Fiduciary Duty.



(a) Each fiduciary under the Plan, including but not limited to the Committee as “named
fiduciary,” shall discharge his duties and responsibilities with respect to the Plan:




(1) Solely in the interest of the Participants, for the exclusive purpose of providing
benefits to Participants, and their beneficiaries, and defraying reasonable expenses of
administering the Plan and Fund;




(2) With the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character and with like aims;




(3) By diversifying the investments of the Plan so as to minimize the risk of large
losses, unless under the circumstances it is prudent not to do so; and




(4) In accordance with the documents and instruments governing the Plan insofar as such
documents and instruments are consistent with applicable law.



(b) No fiduciary shall cause the Plan or Fund to enter into a “prohibited transaction” as
provided in Code Section 4975 or Section 406 of the Act.



(c) No fiduciary shall permit a “prohibited payment” (as defined in Section 206(e)(2) of the
Act) to be made from the Plan or Fund during a period in which the Plan has a “liquidity shortfall”
(as defined in Section 303(j)(4) of the Act).



 


60









 




13.4 Delegation 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.



13.5 Investment Manager. The Committee may, in its sole discretion, appoint an
“investment manager,” with power to manage, acquire, or dispose of any asset of the Plan and to
direct the Funding Agent 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(a) 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 does not violate any fiduciary responsibility in making or continuing such
appointment, Notwithstanding anything to the contrary herein contained, the Funding Agent 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 the Committee’s sole discretion.


 


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XIV. PARTICIPATING EMPLOYERS




14.1 Designation of Other Employers.



(a) The Committee may designate any entity or organization eligible by law to participate in
the Plan and the Fund 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 that apply to the designated Employer only, and shall become, as to such designated Employer
and its Employees, a part of the Plan. All Employers shall be identified in Appendix D.



(b) Each designated Employer shall be conclusively presumed to have consented to its
designation and to have agreed to be bound by the terms of the Plan and Fund 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 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 Fund pursuant to the terms of the Plan following notice of such modification.



(c) The provisions of the Plan and the Fund 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 Funding Agent,
the power to select the actuary for the Plan, and the power to amend or terminate the Plan and Fund
shall be exercised by the Company or the Directors, as applicable, alone (except as otherwise
provided in Section 15.1).



(d) Transfer of employment among Employers shall not be considered a termination of employment
hereunder, and an Hour of Service with one shall be considered as an Hour of Service with all
others.



(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 Fund. Moreover, the Committee may, in its
discretion, terminate an Employer’s Plan and Fund participation at any time by written instrument
delivered to the Secretary of the Company and the designated Employer.



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


 


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XV. AMENDMENTS




15.1 Right to Amend. Subject to Section 15.2 and any other limitations contained in
the Act or the Code, the Directors or the Compensation Committee 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, 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.



15.2 Limitations on Amendments. No amendment of the Plan may be made that would vest
in the Employer, directly or indirectly, any interest in or control of the Fund. No amendment shall
be made that would vary the Plan’s exclusive purpose of providing benefits to Participants and
their beneficiaries and defraying reasonable expenses of administering the Plan or that would
permit the diversion of any part of the 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 Funding Agent unless the Funding Agent consents
thereto in writing. No amendment shall be made that will increase liabilities under the Plan for
any Employer while such Employer is a debtor in bankruptcy under Title 11 of the United States Code
or similar federal or state law if (i) such increased liabilities result from (1) any increase in
benefits, (2) any change in the accrual of benefits, or (3) any change in the rate at which
benefits become nonforfeitable under the Plan, with respect to Employees of such Employer, and (ii)
such amendment is effective prior to the effective date of such Employer’s plan of reorganization.


 


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XVI. TERMINATION, PARTIAL TERMINATION, AND MERGER OR

CONSOLIDATION




16.1 Right to Terminate or Partially Terminate. The Company and the Employer have
established the Plan with the bona fide intention and expectation that from year to year the
Employer will be able to, and will deem it advisable to, make its contributions as herein provided.
However, the Company and the Employer 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 right and the power to
terminate the Plan or partially terminate the Plan at any time hereafter. Each member of the
Committee, the Funding Agent and all affected Participants shall be notified of such termination or
partial termination.




16.2 Procedure in the Event of Termination or Partial Termination.



(a) If the Plan is terminated or partially terminated, then the rights of all affected
Participants to benefits accrued to the date of such termination or partial termination, as
applicable, to the extent funded as of such date shall become nonforfeitable.



(b) Upon termination of the Plan, the affected assets of the Fund shall be liquidated and
distributed in accordance with section 4044 of the Act and the time of payment, form of payment,
and consent provisions of Articles VII and VIII.



(c) Upon termination of the Plan and notwithstanding any other provisions of the Plan, after
the satisfaction of all liabilities of the Plan to the affected Participants and beneficiaries, the
Employer shall receive any remaining amount resulting from any variations between actual
requirements and actuarially expected requirements.



(d) Upon termination of the Plan and notwithstanding any other provisions of the Plan, the
Plan termination benefit of any “highly compensated employee,” as such term is defined in Code
Section 414(q), and any “highly compensated former employee,” as such term is defined in Code
Section 414(q)(6), shall be limited to a benefit that is nondiscriminatory under Code Section
401(a)(4) and regulations promulgated thereunder.



(e) Upon termination or partial termination of the Plan and notwithstanding any other
provisions of the Plan, the basis for converting from one periodic form of payment to another
periodic form of payment shall be the basis used by the insurer in the qualifying bid (as defined
under the regulations issued by the PBGC) under which the Committee will purchase annuities for the
payment of benefits.



16.3 Merger, Consolidation, or Transfer. This Plan or 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.


 


64









 





XVII. MISCELLANEOUS PROVISIONS




17.1 Not Contract of Employment. The adoption and maintenance of the Plan shall not
be deemed to be, either a contract between the Employer and any person or 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 Alienation of Interest Forbidden. Except as otherwise provided with respect to
“qualified domestic relations orders” and certain judgments and settlements pursuant to Section
206(d) of the Act and Code Sections 401(a)(13) and 414(p), and except as otherwise provided under
other applicable law, no right or interest of any kind in any benefit shall be transferable or
assignable by any Participant or any beneficiary or be subject to anticipation, adjustment,
alienation, encumbrance, garnishment, attachment, execution, or levy or any kind. Plan provisions
to the contrary notwithstanding, the Committee shall comply with the terms and provisions of any
“qualified domestic relations order” and shall establish appropriate procedures to effect the same.
This Section 17.2 shall not bar any voluntary and revocable assignment to an Employer (or other
designated person) by a Participant which is permitted under Treasury Regulation section
1.401(a)-13, including any such assignment of a portion of any payment that such Participant
otherwise is entitled to receive under this Plan for the purpose of paying part or all of the costs
allocable to the Participant under a retiree medical expense plan; provided, however, in any case
in which the exception of subsection (e) of such Treasury Regulation is relied upon, the assignee
must file a written acknowledgment (including a blanket acknowledgment within the meaning of such
subsection) with the Committee recognizing that such assignment is revocable and may be revoked at
any time.



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 Code Section
414(u).



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 foil discharge of
all liabilities and obligations of the Committee, the Funding Agent, the Company, the Employer, and
any fiduciary of the Plan with respect to such benefit.


 


65









 





17.5 Participant’s and Beneficiary’s Addresses. 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 Funding Agent, the
Company, 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.



17.6 Incorrect Information, Fraud, Concealment, or Error. Any contrary provisions of
the Plan notwithstanding, 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.



17.7 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. In
such case, 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.



17.8 Jurisdiction. All provisions of the Plan shall be construed in accordance with
the laws of Texas except to the extent preempted by federal law.



17.9 Appendices. Any appendix attached hereto setting forth special Plan rules and
provisions shall constitute a part of the Plan for all purposes.


 


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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 Code Section 416.



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 Code Section 219 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 Code Section 416(g)(2)(A)(i)) 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.



(b) Accrued Benefit: As of any Valuation Date, the present value (computed on the
basis of the assumptions specified in Paragraph (c) below) of the cumulative accrued benefit
(excluding the portion thereof that is attributable to employee contributions that were deductible
pursuant to Code Section 219, 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 Code Section 416(g)(2)(A)(i)) 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 Code Section 411(b)(1)(C).



(c) Actuarial Equivalent: Equality in value of the aggregate amounts expected to be
received under different times and forms of payment based upon the interest and mortality rate
assumptions set forth in Section 1.1(e).


 


67









 





(d) 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 Code Sections 401(a)(4) or 410; 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 Code Sections 401(a)(4) or 410 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 Code Sections 401(a)(4)
and 410.



(e) Annual Retirement Benefit: A benefit payable annually in the form of a single
life annuity for the life of a Participant (with no ancillary benefits) beginning at his Normal
Retirement Date.



(f) Average Remuneration for His High Five Years: The result obtained by dividing the
total Remuneration paid to a Participant during a considered period by the number of years for
which such Remuneration was received. The considered period shall be the five consecutive Years of
Service during which the Participant was both an active Participant in the Plan and had the
greatest Remuneration from the Employer; provided, however, that if the Participant has less than
five consecutive Years of Service, such shorter period shall be deemed his considered period.



(g) 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.



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



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



(j) Remuneration: Compensation within the meaning of Code Section 415(c)(3), as
limited by Code Section 401(a)(17).



(k) 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 Code
Section 412.



(l) Years of Service: Shall be determined under the rules of Code Sections 411(a)(4),
(5) and (6) except that Years of Service beginning prior to January 1, 1984 and Years of Service
for any Plan Year for which the Plan was not top-heavy shall be disregarded. Further, and for
purposes of satisfying the minimum benefit requirements described in Section 18.5, any service with
the Employer or a Controlled Entity shall be disregarded in determining an Employee’s Years of
Service to the extent that such service occurs during a Plan Year when the Plan benefits (within
the meaning of Code Section 410(b)) no Key Employee or former Key Employee.


 


68









 





18.3 Top-Heavy Status. The Plan shall be deemed to be top-heavy for a Plan Year
commencing after December 31, 1983, if, as of the Determination Date for such Plan Year, (i) the
sum of Accrued Benefits of Participants who are Key Employees exceeds 60% of the sum of Accrued
Benefits 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 Code Section
416(g)(2)(B) 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 Vesting Schedule. If the Plan is determined to be top-heavy for a Plan
Year, the Vested Interest of each Participant who is credited with an Hour of Service during such
Plan Year shall be determined in accordance with the following schedule:



	 	 	 	 	 
		 	 	 
	Years of Vesting Service	 	Vested Interest	 
	 
	 	 	 	 
	Less than 2
years
	 	 	0	%
	2 years
	 	 	20	%
	3 years
	 	 	40	%
	4 years
	 	 	60	%
	5 years or more
	 	 	100	%







18.5 Top-Heavy Benefit.



(a) If the Plan is determined to be top-heavy for a Plan Year, the retirement benefit, payable
at the time and in the form provided in Article VIII, of each Participant who is not a Key Employee
shall in no event be less than the Actuarial Equivalent of an Annual Retirement Benefit equal to
the lesser of:




(1) 2% of his Average Remuneration for His High Five Years multiplied by his Years of
Service; or




(2) 20% of his Average Remuneration for His High Five Years.



(b) The minimum benefit required to be accrued for a Plan Year pursuant to this Section for a
Participant shall be accrued regardless of whether such Participant has terminated his employment
with the Employer prior to the end of such Plan Year.


 


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(c) Notwithstanding the foregoing, no benefit shall be accrued pursuant to this Paragraph for
a Plan Year with respect to a Participant who is a participant in another 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 the Plan) a
benefit that is at least equal to the benefit described in Code Section 416(c)(1).



(d) Notwithstanding the foregoing, no benefit shall be accrued pursuant to this Section for a
Plan Year with respect to a Participant who is a participant in a defined contribution plan
sponsored by the Employer or a Controlled Entity if such Participant receives under such 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 5% of such Participant’s Remuneration for such
Plan Year. If the preceding sentence is not applicable, the requirements of this Section shall be
met by providing a minimum benefit under the Plan which, when considered with the benefit provided
under such defined contribution plan as an offset, is at least equal to the minimum benefit
provided pursuant to this Section. For this purpose, the actuarial assumptions specified in the
Plan shall be utilized to determine the value of such offset as of the applicable Determination
Date.



(e) Section 6.4 to the contrary notwithstanding, if the Plan is determined to be top-heavy for
a Plan Year, a Participant who receives a distribution from the Plan in such Plan Year or in any
Plan Year thereafter pursuant to Section 8.5(b) or 8.3 which is less than the present value of his
entire Accrued Benefit at the time of such distribution and who is subsequently reemployed by the
Employer or a Controlled Entity must repay, within five years from the date the Participant is
reemployed, such distribution plus interest thereon at the rate of 5% (or at a rate which may later
be specified by regulation or by law) per annum compounded annually from the date of distribution
to the date of repayment in order to be entitled to a restoration of the Accrual Service that was
disregarded and the forfeiture that occurred pursuant to the provision of Section 6.4.



18.6 Termination of Top-Heavy Status. If the Plan has been deemed to be top-heavy for
one 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 deemed no longer
to be top-heavy. Notwithstanding the foregoing, the Vested Interest of each Participant as of such
Determination Date shall not be reduced and, with respect to each Participant who has three or more
years of Vesting Service on such Determination Date, the Vested Interest of each such Participant
shall continue to be determined in accordance with the schedule set forth in Section 18.4. Further
notwithstanding the foregoing, the Accrued Benefit of a Participant shall in no event be less than
the Actuarial Equivalent of the benefit determined in accordance with Sections 18.5(a) or 18.5(e),
if applicable, as of the last Determination Date on which the Plan was deemed to be top-heavy.


 


70









 





18.7 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 18th day of December, 2008, effective as of the Effective Date.



	 	 	 	 	 
	 	DYNEGY INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


71









 






APPENDIX A




Dynegy Portable Retirement Benefits




	 	 	 
	Purpose	 	A-1. The purpose of this Appendix is to provide for the terms of the Portable
Retirement Benefits (as defined) for Eligible Participants (as defined below) which
are provided in lieu of the benefits provided under the Plan as described in
Articles V, VI and VII for other Plan Participants.

	 	 	 

	Effective Date
	 	A-2. This Appendix is effective as of January 1, 2001.

	 	 	 

	Definitions
	 	A-3. Unless the context clearly implies or indicates the contrary, a word, term or
phrase used or defined in the Plan is similarly used or defined in this Appendix.
For purposes of this Appendix, the term “Employer” means those entities included as
Employers for purposes of this Appendix in Appendix D. The entities that are
Employers for purposes of this Appendix may be changed by the Committee in
accordance with the Plan.

	 	 	 

	Eligible Participants
	 	A-4. Any Eligible Employee (determined by reference to employment with an Employer
as defined above) who was employed by an Employer at any time between December 1,
2001 and December 31, 2001, who was a participant in the Dynegy Inc. Profit
Sharing/401(k) Plan during 2001 and who was not eligible to receive a contribution
allocation under the Dynegy Inc. Profit Sharing/401(k) Savings Plan, as amended
through December 31, 2001, pursuant to the provision of Section 3.3 thereof for the
Plan Year ending December 31, 2001, shall become an “Eligible Participant”
retroactive to the later of his Employment Commencement Date or January 1, 2001.
Any other Eligible Employee (determined by reference to employment with an Employer
as defined above) who was employed by an Employer during 2001 shall become an
“Eligible Participant” as of January 1, 2002, and any other Eligible Employee
(determined by reference to employment with an Employer as defined above) who is
employed by an Employer from and after January 1, 2002 shall become an “Eligible
Participant” effective as of the first day of the first month coincident with or
next following the later of his Employment Commencement Date or the date he became
an Eligible Employee. Notwithstanding the foregoing, no individual shall be an
“Eligible Participant” with respect to any period during a Plan Year in which such
individual is accruing benefits or earning service credit under the Trident NGL,
Inc. Retirement Plan.

	 	 	 

	Base Compensation
	 	A-5. The “Base Compensation” of an Eligible Participant shall be the regular or
base salary or wages (but excluding overtime payments and bonuses) paid by the
Employer to or for the benefit of a Participant for services rendered or labor
performed for the Employer, subject to the applicable adjustments and limitations
under Section 1.1(o) of the Plan.







 


72









 





	 	 	 
	 	 	For purposes of determining an Eligible Participant’s Base Compensation, the phrase
“overtime payment” shall mean any payment that is classified by the Employer as a
payment for overtime; provided, however, that if a Participant is scheduled to work
a 12 hour shift, the regularly scheduled overtime will be included as Base
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.

	 	 	 

	Interest Crediting
Rate
	 	A-6. The term “Interest Crediting Rate” with respect to a Plan Year shall mean the
annual rate of interest on 30-year Treasury securities for the look back month
preceding the first day of the stability period that is coincident with such Plan
Year. For purposes of this definition, the “look back month” shall be the fifth
month preceding the first day of the stability period, and the “stability period”
shall be the Plan Year for which interest is being credited pursuant to Section A-8
below.

	 	 	 

	Base Compensation
Accruals
	 	A-7. As of the last day of each Plan Year beginning on and after January 1, 2001,
an Eligible Participant with respect to such Plan Year shall be credited with a
“Base Compensation Accrual” equal to 6% of such Eligible Participant’s Base
Compensation for the period in such Plan Year during which he was an Eligible
Participant; provided, however, that if an Eligible Participant having a Vested
Interest (determined in accordance with Section A-10 below) terminates employment
during a Plan Year and elects to receive an immediate distribution of his Portable
Retirement Benefit prior to the last day of such Plan Year, such Eligible
Participant shall be credited as of the last day of the calendar month in which his
employment terminated with a Base Compensation Accrual equal to 6% of such Eligible
Participant’s Base Compensation for the period in such Plan Year during which he
was employed as an Eligible Participant.

	 	 	 

	Interest Credits
Accruals
	 	A-8. As of the last day of each Plan Year beginning on and after January 1, 2002
and prior to the Plan Year containing his Annuity Starting Date for his Portable
Retirement Benefit, a Participant (whether or not he is then an Eligible
Participant or then employed) who has a Portable Retirement Benefit accrual as of
the end of such Plan Year shall be credited with an “Interest Credit Accrual” equal
to the then value of his Portable Retirement Benefit as of the end of such Plan
Year (excluding the Base Compensation Accruals for such Plan Year) multiplied by
the Interest Crediting Rate for such Plan Year. For the Plan Year including an
Eligible Participant’s Annuity Starting Date for his Portable Retirement Benefit, a
Participant (whether or not he is then an Eligible Participant or then employed)
shall be credited as of his Annuity Starting Date with an Interest Credit Accrual
equal to (i) the then value of his Portable Retirement Benefit as of his Annuity
Starting Date (excluding the Base Compensation Accruals for such Plan Year),
multiplied by (ii) the Interest Crediting Rate for the Plan Year including his
Annuity Starting Date, multiplied by (iii) a fraction, the numerator of which is
the number of days in such Plan Year that have elapsed as of such Annuity Starting
Date, and the denominator of which is 365. No Interest Credit Accruals shall be
credited for a Participant for any period from and after his Annuity Starting Date.







 


73









 





	 	 	 
	Portable Retirement

Benefit
	 	A-9. A Participant’s “Portable Retirement Benefit” under the Plan as of any
determination date shall be the then sum of all accruals credited as of such
determination date pursuant to Sections A-7 and A-8. For purposes of the Plan, a
Participant’s Portable Retirement Benefit shall be considered to be his “Accrued
Benefit.”

	 	 	 

	Vested Interest
	 	A-10. A Participant who terminates employment with the Employer on or after his
Normal Retirement Date or by reason of death or disability shall have a 100% Vested
Interest in his Portable Retirement Benefit. An individual is disabled if such
individual has been determined to be disabled by the Social Security Administration
and receiving Social Security disability benefits. Any other Participant shall
have a Vested Interest in his Portable Retirement Benefit based upon his years of
Vesting Service determined pursuant to this Appendix rather than pursuant to the
Plan. For purposes of this Appendix, a Participant’s Vested Interest shall be
determined based upon the following schedule:





	 	 	For a Participant with an Hour of Service on or after January 1, 2008:







	 	 	 	 	 
	Years of Vesting Service	 	Vested Interest	 
	 
	 	 	 	 
	Less than 1 year
	 	 	0	%
	1 year
	 	 	33	%
	2 years
	 	 	67	%
	3 years or more
	 	 	100	%






	 	 	 
	 	 	An individual shall be credited with Vesting Service for purposes of determining
his Vested Interest in his Portable Retirement Benefit in an amount equal to his
aggregate Periods of Service (including Periods of Service completed prior to
January I, 2001) whether or not such Periods of Service are completed
consecutively. Notwithstanding the foregoing, (i) 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, and (ii) 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.







 


74









 





	 	 	 
	 	 	A Disabled Sithe Member shall have a 100% Vested Interest in his Portable
Retirement Benefit under the Plan.





	 	 	Any individual who is an employee of Sithe as of the Effective Date shall be
credited with “Vesting Service” to the Plan for the period preceding such date in
an amount equal to Years of Vesting Service, if any, credited to such individual
under the Sithe Plan immediately prior to the Effective Date.

	 	 	 

	Benefits
	 	A-11. An Eligible Participant who terminates employment with the Employer and all
Controlled Entities other than by reason of death shall be entitled to receive a
Plan benefit which is the Actuarial Equivalent (determined in accordance with
Section A-13) of his Vested Interest in his Portable Retirement Benefit. Upon the
death of a Participant before his Annuity Starting Date, his Surviving Spouse (as
defined below) or other beneficiary designated in the manner prescribed by the
Committee shall be entitled to a death benefit that is the Actuarial Equivalent of
the deceased Participant’s Portable Retirement Benefit Upon the death of a
Participant on or after his Annuity Starting Date, whether or not payment of his
benefit has actually begun, the only benefit payable pursuant to this Appendix will
be the benefit, if any, provided for his Surviving Spouse or other beneficiary
pursuant to the form of benefit he was receiving or about to receive under this
Appendix.

	 	 	 

	 	 	If a deceased Participant who either (i) is not survived by a Surviving Spouse or
(ii) has elected (with spousal consent) not to have his death benefit paid in the
standard survivor annuity form set forth in this subsection, does not have a valid
beneficiary designation on file with the Committee at the time of his death, the
designated beneficiary or beneficiaries to receive such Participant’s death benefit
shall be as follows:

	 	 	 

	 	 	(1) If a Participant leaves a Surviving Spouse, his designated beneficiary shall
be such Surviving Spouse;

	 	 	 

	 	 	(2) If a Participant leaves no Surviving Spouse, his designated beneficiary shall
be (A) such Participant’s executor (or administrator of the Participant’s estate)
paid for the benefit of such Participant’s estate or (B) his heirs at law if there
is no administration of such Participant’s estate.

	 	 	 

	 	 	A Participant’s “Surviving Spouse” shall be the spouse to whom the Participant was
married on his Annuity Starting Date or, if the Participant dies prior to his
Annuity Starting Date, the spouse to whom he was married on his date of death.







 


75









 





	 	 	 
	Annuity Starting Date
	 	A-12. The Annuity Starting Date for the Portable Retirement Benefit of a
Participant shall be the first day of any month selected by the Participant (or, in
the case of the death of the Participant, by his Surviving Spouse or other
beneficiary) following his termination of employment with the Employer and all
Controlled Entities; provided that any Annuity Starting Date and any Annuity
Starting Date election shall comply with the time, consent and cash-out rules of
Sections 8.1(f), 8.2 and 8.6 of the Plan. Notwithstanding any provision in this
Appendix to the contrary, the involuntary cash-out provisions of Section 8.6 of the
Plan shall not apply to a Participant’s Portable Retirement Benefit during the
period commencing on December 13, 2001, and ending on June 30, 2002. From and after
July 1, 2002, the involuntary cash-out provisions of Section 8.6 of the Plan shall
apply to Portable Retirement Benefits (including with respect to a Participant who
terminated employment prior to such date).

	 	 	 

	Actuarial Equivalence
	 	A-13. For purposes of this Appendix, for determining Actuarial Equivalence: (i) in
determining the monthly payment amount derived by converting a Portable Retirement
Benefit into a single life annuity, the Applicable Interest Rate and the Applicable
Mortality Table shall be utilized; (ii) in determining Actuarial Equivalence for
converting a single life annuity to a joint and surviving spouse annuity under
Section A-14, the actuarial assumptions set forth in Section 1.1(e) of the Plan
shall be utilized; and (iii) in determining Actuarial Equivalence for converting a
Portable Retirement Benefit into an optional form of payment described in Section
A-20(i), the 1983 Group Annuity Mortality Table, assuming the Eligible Sithe
Participant (as such term is defined in Section A-20) is male and the contingent
annuitant is female, and interest at a rate of 7 1/2% compounded annually shall be
utilized.

	 	 	 

	Form of Retirement
	 	A-14. The Portable Retirement Benefit of a Participant who is Severance and
Disability unmarried on his Annuity Starting Date shall be paid in the form of
Benefits a single life annuity providing monthly payments for the life of such
Participant. The Portable Retirement Benefit of a Participant who is married on his
Annuity Starting Date shall be paid in the form of a joint and surviving spouse
annuity providing monthly payments for the life of the Participant and continuing
monthly payments for the life of his Surviving Spouse equal to 50% of the monthly
amount being paid during the Participant’s life. Any Participant may elect not to
receive his Portable Retirement Benefit in the standard form described above,
whichever is applicable to him, and instead elect, commencing January 1, 2008, the
Qualified Optional Survivor Annuity, or instead elect to have such benefit paid in
the form of a single lump sum cash payment. Any such election shall be subject to
the election and consent rules described in Section 8.4 of the Plan.







 


76









 





	 	 	 
	Form of Death
Benefits
	 	A-15. The standard form of death benefit for a deceased Participant who dies prior
to his Annuity Starting Date and is survived by a Surviving Spouse shall be a
survivor annuity for the life of such Surviving Spouse. If a Participant would
otherwise have the survivor annuity provided by this Section A-15 payable to his
Surviving Spouse in the event of his death, such Participant may elect, by filing
the election form prescribed by the Committee, not to have such survivor annuity
paid. Such election must be made in accordance with the applicable provisions of
Article VIII of the Plan.

	 	 	 

	Cash-outs and
Forfeitures
	 	A-16. Section 6.4(a) of the Plan shall be applied considering lump sum
distributions of Portable Retirement Benefits in the same manner as lump sum
distributions made pursuant to Section 8.6 of the Plan.

	 	 	 

	Reemployment
	 	A-17. (a) (1) In the event a Participant to whom payment of his retirement
benefit under the Plan has commenced is reemployed by an Employer or a Controlled
Entity, whether or not as an Eligible Employee, payment of his retirement benefit
shall not be interrupted or otherwise adversely affected, but shall be subject to
the terms and conditions of this Section A-17.

	 	 	 

	 	 	(2) In the event a Participant is reemployed by an Employer or Controlled Entity,
whether or not as an Eligible Employee, before payment of his retirement benefit
has commenced, his benefit shall not commence during his period of reemployment,
but shall be subject to the terms and conditions of Sections 5.1(d) and 8.2(d) of
the Plan.

	 	 	 

	 	 	(b) If a Participant described in (a) above is reemployed as an Eligible Employee
he shall continue benefit accruals pursuant to the applicable provisions of the
Plan, subject to the modifications required by Section 8.11 of the Plan.

	 	 	 

	Certain Employees
	 	A-18. For purposes of this Appendix, a Participant who became an Eligible
Participant during 2001 as a result of a transfer to employment with an Employer
from employment with Illinois Power Company shall be treated as if he was employed
by an Employer for all of 2001 and as if the compensation he received during such
Plan Year from Illinois Power Company had been paid to him by an Employer.







 


77









 





	 	 	 
	Disabled Participants
	 	A-19. Notwithstanding any provision of this Appendix to the contrary, a
Participant who has been approved for benefits under a long term disability plan
sponsored by the Employer (an “Employer LTD plan”) shall be credited with Base
Compensation Accruals and Vesting Service under the Plan for any period during
which such Participant is receiving such long term disability benefits; provided
however, that any such crediting of Base Compensation Accruals and Vesting Service
shall cease as of the earlier of (a) such Participant’s Annuity Starting Date or
(b) such Participant’s Normal Retirement Date. For purposes of the Base
Compensation Accruals described in the preceding sentence, a Participant’s Base
Compensation pursuant to Section A-5 immediately prior to the disability entitling
him to benefits under an Employer LTD Plan shall be utilized.

	 	 	 

	Certain Sithe
Participants
	 	A-20. This Section A-20 shall apply to each Eligible Participant who is employed
by Sithe Energies Power Services, Inc. (“Sithe Power”) at the Independence Station
located in Oswego, New York on July 1, 2006 and whose Employment Commencement Date
is prior to January 1, 2006 (an “Eligible Sithe Participant”) with respect to
benefits accrued under this Appendix while such Eligible Sithe Participant is
employed by Sithe Power. If an Eligible Sithe Participant’s employment with Sithe
Power is terminated for any reason after July 1, 2006, including a transfer to
another Employer, this Section A-20 shall not apply to any benefits accrued under
this Appendix following such termination, even if the Eligible Participant is
subsequently reemployed by Sithe Power.

	 	 	 

	 	 	(a) Optional Forms of Payment. In lieu of the standard Qualified Optional
Survivor Annuity and optional lump sum forms of payment for Portable Retirement
Benefits described in Section A-14, an Eligible Sithe Participant shall be entitled
to elect, subject to the election and consent rules described in Section 8.2 of the
Plan, one of the following optional forms of payment, commencing at age fifty-five
(55) (or, if later, the first day of the month following the month in which the
Eligible Sithe Participant becomes entitled to receive his Portable Retirement
Benefit under Section A-11), each of which shall be an Actuarial Equivalence
conversion of the Eligible Sithe Participant’s Portable Retirement Benefit in
accordance with conversion tables prepared by the Plan’s actuary:

	 	 	 

	 	 	(1) A single life annuity providing monthly payments for the life of an Eligible
Sithe Participant; or

	 	 	 

	 	 	(2) A joint and survivor annuity providing monthly payments for the life of the
Eligible Sithe Participant and continuing monthly payments for the life of the
beneficiary designated by the Eligible Sithe Participant in the manner prescribed
by the Committee equal to 30%, 40%, 50%, 75% or 100%, as elected by the Eligible
Sithe Participant, of the monthly amount being paid during the Eligible Sithe
Participant’s life. In the event that the designated beneficiary predeceases the
Eligible Sithe Participant while the Eligible Sithe Participant is receiving
monthly annuity payments, the Eligible Sithe Participant’s monthly annuity payments
shall increase to the amount he would have received if he had originally received
his Portable Retirement Benefit in the form described in Section A-20(a)(1).







 


78









 





	 	 	 
	 	 	(b) Early Retirement Benefits. An Eligible Sithe Participant who first becomes
entitled to receive a distribution of his Portable Retirement Benefit under Section
A-11 prior to his Normal Retirement Date, but on or after the first day of the
month following the month in which he has both attained age fifty-five (55) and
completed ten (10) years of vesting service determined under the Dynegy Northwest
Generation, Inc. Retirement Income Plan (his “Earliest Retirement Date”) may elect
to receive such Portable Retirement Benefit either in the standard form of payment
described in Section A-14 other than a lump sum or in an optional form of payment
described in Section A-20(a) commencing on the first day of any month coincident
with or following his Earliest Retirement Date and preceding his Normal Retirement
Date. Such benefit shall be determined with no reduction for early payment by
projecting interest credits to age sixty-five (65) at the Interest Crediting Rate
in effect at the commencement of payments in accordance with conversion tables
prepared by the actuary.

	 	 	 

	 	 	Further, an Eligible Sithe Participant who becomes entitled to receive a
distribution of his Portable Retirement Benefit under Section A-11 prior to his
Earliest Retirement Date may elect to receive such Portable Retirement Benefit
either in the standard form of payment described in Section A-14 other than a lump
sum or in an optional form of payment described in Section A-20(a) commencing on
the first day of any month coincident with or following his Early Retirement Date
and preceding his Normal Retirement Date. Such benefit shall be determined by
projecting interest credits to age sixty-five (65) at the Interest Crediting Rate
in effect at the commencement of payments in accordance with conversion tables
prepared by the actuary with a reduction for early payment of 1/180 for each of the
first sixty (60) months and 1/360 for each of the next sixty (60) months by which
such Eligible Sithe Participant’s Annuity Starting Date precedes his Normal
Retirement Date.







	 	 	 
	 	 	(c) Social Security Supplement. If an Eligible Sithe Participant’s Social
Security Retirement Age occurs after the first of the month in which such Eligible
Sithe Participant attains age sixty-five (65) and the Eligible Sithe Participant
terminates employment after attaining both age fifty-nine (59) and his Earliest
Retirement Date, such Eligible Sithe Participant can become eligible for a Social
Security Supplement by electing to receive his Portable Retirement Benefit either
in the standard form of payment described in Section A-14 other than a lump sum or
in an optional form of payment described in Section A-20(a) commencing prior to his
Social Security Retirement Age. The monthly amount of the Social Security
Supplement shall be equal to eighty percent (80%) of the primary monthly Social
Security benefit that the Committee estimates the Eligible Sithe Participant will
be entitled to receive at Social Security Retirement Age; Social Security
supplements shall be payable no earlier than the month in which an Eligible Sithe
Participant attains sixty (60) years of age. Social Security supplements shall be
payable through the month in which the Participant attains his Social Security
Retirement Age; however, in no event shall more than 24 monthly Social Security
supplement payments be made. For purposes of this Section A-20(c), “Social Security
Retirement Age” means the following age which relates to an Eligible Sithe
Participant’s year of birth:

	 	 	 








 


79









 





	 	 	 	 	 
	Year of Birth	 	Social Security Retirement Age	 
	 
	 	 	 	 
	Before 1938
	 	65 years
	 
	 	 	 	 
	1938-1954
	 	66 years
	 
	 	 	 	 
	After 1954
	 	67 years






	 	 	 
	 	 	(d) Certain Death Benefits. If (1) an Eligible Sithe Participant dies prior to
his Annuity Starting Date and a death benefit under Section A-11 is payable to his
Surviving Spouse, (2) the Eligible Sithe Participant had completed at least five
(5) years of vesting service as determined under the Dynegy Northwest Generation,
Inc. Retirement Income Plan on the date of his death, (3) the Annuity Starting Date
for the death benefit selected by the Eligible Sithe Participant’s Surviving Spouse
is coincident with or following the date that would have been the Eligible Sithe
Participant’s Earliest Retirement Date if he had survived, and (4) the Eligible
Sithe Participant’s Surviving Spouse does not elect to receive the death benefit in
a single lump sum cash payment, the survivor annuity payable to such Eligible Sithe
Participant’s Surviving Spouse shall be determined with no reduction for early
payment and each monthly payment thereof shall not be less than the amount that
would have been payable to the Eligible Sithe Participant pursuant to Section
A-20(a)(1) based on his Portable Retirement Benefit on the date of his death.

	 	 	 

	 	 	(e) Certain Disability Benefits. An Eligible Sithe Participant who is eligible to
be credited with Base Compensation Accruals and Vesting Service under Section A-19
may elect to receive his Portable Retirement Benefit either in the standard form of
payment described in Section A-14 other than a lump sum or in an optional form of
payment described in Section A-20(a), commencing on the first day of any month
following the month in which he attains sixty (60) years of age and preceding his
Normal Retirement Date. Such annuity shall be determined with no reduction for
early payment by projecting interest credits to age sixty-five (65) at the Interest
Crediting Rate in effect at the commencement of payments in accordance with
conversion tables prepared by the actuary.







 


80










 





APPENDIX B




Merger of DMS Plan




Effective December 31, 2006, the Dynegy Midstream Services Retirement Plan (“DMS Plan”) is
merged into the Dynegy Inc. Retirement Plan, with the benefit structure and related provisions of
the DMS Plan continued as a separate benefit structure and related provisions under the Plan
through the incorporation of the DMS Plan as modified by the provisions of this Appendix.



This Appendix and the provisions of the DMS Plan incorporated herein by reference, and as
modified by this Appendix, are applicable only to eligible Disabled DMS Participants and DMS
Participants. All provisions which appear in the Plan, including any other applicable Appendix,
shall apply to Disabled DMS Participants and DMS Participants in the same manner as applicable to
other Participants except insofar as they may be inconsistent with or in conflict with the
provisions of this Appendix and the provisions of the DMS Plan incorporated herein by reference and
as modified by this Appendix.



1. Definitions and Construction. For the purposes of this Appendix, capitalized terms
shall have the meanings set forth in Article I of the Plan and such definitions shall, unless the
context and/or usage of such terms clearly dictate otherwise, supersede any similar or inconsistent
terms that appear in the body of the DMS Plan or the Plan which would otherwise be applicable to a
Disabled DMS Participant or a DMS Participant. To the extent a capitalized term used herein is not
defined in Article I of the Plan (or context and/or usage dictate an alternate meaning), such term
shall have the meaning set forth in this Appendix or in the DMS Plan.



Notwithstanding the previous paragraph, for purposes of this Appendix, the following terms
shall be defined as follows:



1.1 “Disabled DMS Participant” means a person who, on September 12, 2005 and December
31, 2006 was Disabled and accruing credit for Accrual Service and Compensation in accordance with
the provisions of the DMS Plan as a Disabled Employee, all as conclusively set forth in the Plan
Records.



1.2 “DMS Participant” means a person, other than a Disabled DMS Participant, who, on
December 31, 2006, had an Accrued Benefit under the DMS Plan or was receiving Pension payments from
the DMS Plan and, on such date, became a DMS Participant under the Plan pursuant to the merger of
the DMS Plan into the Plan and the provisions of this Appendix.



1.3 “Plan Records” means the information concerning all pertinent matters pertaining
to determining the Accrued Benefit, rights, entitlements and Pension of each Disabled DMS
Participant and each DMS Participant and their respective Eligible Surviving Spouses, alternate
payees and beneficiaries under the terms of the DMS Plan, as modified by this Appendix E, as set
forth in specific records maintained for all such matters at the direction of the Committee. The
Committee’s decision, in its sole discretion, with respect to any and all matters set forth in the
Plan Records shall be conclusive and binding on all persons for all purposes.


 


81









 





2. Merger of DMS Plan and Incorporation by Reference. Except as otherwise provided in
this Appendix, the provisions of the DMS Plan are incorporated herein by reference in their
entirety to the extent necessary to provide the benefit structure and preserve the protected
benefits, rights and features of the DMS Plan for each DMS Participant and each Disabled DMS
Participant under this Appendix. Only the provisions incorporated herein by reference from the DMS
Plan and the provisions of this Appendix shall be applicable to determine the benefits, rights and
features preserved and newly created for Disabled DMS Participants or DMS Participants upon the
merger of the DMS Plan into the Plan. The provisions of Articles I, II, Ill, VIII (with respect to
the claims procedures provisions of Section 8.16), IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, and
XVIII of the Plan concerning plan administration, limitations on benefits, fiduciary provisions,
amendment and termination authority, top-heavy status and trust fund and trustee matters shall be
fully applicable upon the merger of the DMS Plan into the Plan without regard to provisions
concerning similar matters in the DMS Plan. The provisions of the Plan, however, such as Articles I
(to the extent required by context), IV, V, VI, VII, VIII (with the exception of the claims
procedures provisions of Section 8.16), and any Appendices (other than this Appendix), shall not
apply to a Disabled DMS Participant or a DMS Participant to the extent such provisions of the Plan
or Appendices are in conflict with or duplicative of similar provisions set forth in the DMS Plan
and this Appendix.



3. Participation. Participation under the DMS Plan and this Appendix is absolutely
limited to Disabled DMS Participants and DMS Participants and solely to the period during which any
portion of their respective Accrued Benefits remains undistributed under the provisions of the DMS
Plan and this Appendix.



4. Accrual Service. The Accrual Service of each Disabled DMS Participant and each DMS
Participant shall be conclusively established as set forth in the Plan Records. No DMS Participant
shall be credited with any Accrual Service with respect to any period commencing after October 31,
2005. A Disabled DMS Participant shall be credited with Accrual Service with respect to the DMS
Plan during periods he is entitled to disability benefit payments under the Long-Term Disability
Plan and prior to his Annuity Starting Date, all as conclusively set forth in the Plan Records.



5. Retirement Benefits. The Retirement benefits provided for a Disabled DMS
Participant and a DMS Participant shall be determined solely in accordance with the DMS Plan and
this Appendix provided as follows:




5.1 Normal Retirement.




(a) A Disabled DMS Participant and a DMS Participant whose employment is terminated and
whose retirement benefit payment commences as of his Normal Retirement Date shall be
entitled to receive a retirement benefit, payable at the time and in the form provided in
Section 8 of this Appendix, that is the Actuarial Equivalent of a Pension commencing on his
Annuity Starting Date, each monthly payment of such Pension being equal to (1), (2) or (3)
below, whichever is greatest:



(1) One-twelfth of 1.5% of his monthly Compensation received or deemed received each
month that he is credited with Accrual Service as conclusively set forth in the Plan
Records;




 


82









 







(2) 1.275% of his Average Monthly Compensation up to an amount equal to the Average
Monthly Covered Compensation, multiplied by his full years (plus a fraction of a year for
any additional completed months) of Accrual Service, plus 1.5% of his Average Monthly
Compensation in excess of the Average Monthly Covered Compensation, multiplied by his full
years (plus a fraction of a year for any additional completed months) of Accrual Service not
in excess of thirty-five years as conclusively set forth in the Plan Records; or




(3) $40 multiplied by his full years (plus a fraction of a year for any additional
completed months) of Accrual Service as conclusively set forth in the Plan Records.




(b) Late Retirement.




(1) The Committee shall furnish any Disabled DMS Participant and any DMS Participant
whose employment continues beyond his Normal Retirement Date (or resumes after his Normal
Retirement Date, but prior to commencement of the payment of his retirement benefit) with
the notification described in Department of Labor Regulation Section 2530.203-3. Upon such
participant’s subsequent termination of employment, his retirement benefit payable pursuant
to Appendix Section 8 shall be increased to the extent required, if at all, under such
regulations as provided in Appendix Subsection 5.1(b)(2) below to avoid the effecting of a
prohibited forfeiture of benefits by reason of the suspension of benefits during such DMS
Participant’s post Normal Retirement Date employment.




(2) A participant described in Appendix Subsection 5.1(b)(1) above shall be entitled to
a retirement benefit determined as the greater of:




(A) his retirement benefit based on his retirement benefit determined pursuant to
Appendix Section 5.1 through the date of his subsequent termination of employment; or




(B) the Actuarial Equivalent of his Accrued Benefit payable at his Normal Retirement
Date.




(3) Further, such participant’s retirement benefit payable pursuant to Appendix
Subsection 5.1(b) shall be increased to the extent required, if at all, under Code Section
401(a)(9)(C)(iii) in the event his employment or reemployment continues after April of the
year immediately following the year he attains age seventy and one-half.


 


83









 





5.2 Early Retirement. A Disabled DMS Participant and a DMS Participant whose Severance
from Service Date occurred (or occurs) on or after age fifty-five and whose retirement benefit
payment commences on or after his Early Retirement Date and prior to his Normal Retirement Date
shall be entitled to receive a retirement benefit, payable at the time and in the
form provided in Section 8 of this Appendix, that is the Actuarial Equivalent of a Pension
commencing on such participant’s Annuity Starting Date, each monthly payment of such Pension being
computed in the manner provided in Appendix Subsection 5.1(a) considering his Average Monthly
Compensation, the Average Monthly Covered Compensation, and his Accrual Service determined as of
his Severance from Service Date; provided, however, that in the event that such participant
entitled to a benefit pursuant to this Appendix Section 5.2 has less than five years of Vesting
Service, each monthly payment of such Pension shall be based solely on the amount computed in the
manner provided in Appendix Subsection 5.1(a)(1) above. In all cases, each monthly payment of the
retirement benefit provided by this Appendix Section 5.2 shall be reduced by a percentage for each
year (and a proportionately lesser percentage for any period less than a year) by which the
commencement of such participant’s benefit precedes his Normal Retirement Date by more than three
years as follows:




(a) For the fourth and fifth years prior to such participant’s Normal Retirement Date,
the percentage reduction shall be 5% for each such year; and




(b) For the sixth through tenth years prior to such participant’s Normal Retirement
Date, the percentage reduction shall be 4% for each such year.



5.3 Reduction in Plan Benefits. Any provisions of the Plan to the contrary
notwithstanding, the benefit otherwise payable under the DMS Plan to any Disabled DMS Participant
or DMS Participant (including, without limitation, under Sections 5, 6 and 7 of this Appendix)
shall be reduced by the Actuarial Equivalent of the annuity benefit, if any, paid or payable to
such participant from the Retirement Plan of Oxy USA Inc. (including any annuity which may have
been purchased for such participant in connection with the termination of the Retirement Plan of
Cities Service Oil and Gas Corporation) all as conclusively set forth in the Plan Records.




6. Severance Benefits and Determination of Vested Interest.



6.1 No Benefits Unless Herein Set Forth. Except as set forth in this Appendix Section
6, for any reason other than Retirement described in Appendix Section 5 above or death, a Disabled
DMS Participant and a DMS Participant shall acquire no right to any benefit from the Plan or the
Trust Fund.




6.2 Severance Benefit.




(a) Subject to Appendix Subsection 6.2(b), each Disabled DMS Participant or DMS
Participant whose employment terminated for any reason other than Retirement described in
Appendix Section 5 above or death shall be entitled to receive a retirement benefit, payable
at the time and in the form provided in Section 8 of this Appendix that is the Actuarial
Equivalent of a Pension commencing on the participant’s Annuity Starting Date, each monthly
payment of such Pension being equal to the product of such participant’s Vested Interest
multiplied by the amount computed in the manner provided in Appendix Section 5.1(a)
considering his Average Monthly Compensation, the Average Monthly Covered Compensation, and
his Accrual Service at his Severance from Service Date; provided, however, that if such
participant has a Vested Interest solely by reason of
having attained age fifty-five while in employment with a former employer under the DMS Plan
or by reason of having been determined to be disabled while in such employment, each monthly
payment of such Pension shall be based solely on the amount computed in the manner provided
in Appendix Section 5.1(a)(1).


 


84









 






(b) A Disabled DMS Participant or DMS Participant who is entitled to a benefit pursuant
to Appendix Subsection 6.2(a) above who incurred or incurs a Severance from Service Date
prior to his Normal Retirement Date may, by request to the Committee, commence his benefit
as of the first day of the month coinciding with or next following his fifty-fifth birthday,
or as of the first day of any subsequent month which precedes or coincides with his Normal
Retirement Date, provided, that such request must be received by the Committee not less than
thirty days prior to the proposed date of commencement of the benefit (unless such period of
notice is waived by the Committee in its discretion). The value of such participant’s
severance benefit shall be the Actuarial Equivalent of his Pension commencing on the first
day of the month so requested, each monthly payment of such Pension being computed in the
manner provided in Appendix Subsection 5.2(a) above, but actuarially reduced to reflect such
participant’s younger age and the earlier commencement of payments.




(c) A Disabled DMS Participant’s or a DMS Participant’s Vested Interest shall be
determined by such participant’s full years of Vesting Service in accordance with the
following schedule:



	 	 	 	 	 
	Full Years of Vesting Service	 	Vested Interest	 
	Less than 5 years
	 	 	0	%
	5 years or more
	 	 	100	%







Provided, however each DMS Participant who was in the employ of Dynegy Midstream Services,
Limited Partnership on October 31, 2005 and was not fully-vested in his Severance Benefit
prior to such date became 100% vested as of such date.




6.3 Vesting Service.




(a) For the period preceding January 1, 2002, subject to the provisions of Appendix
Subsection 6.3(d) below, an individual was credited with Vesting Service in an amount equal
to all Service credited to him for vesting purposes under the Plan as it existed on December
31, 2001.




(b) On and after January 1, 2002, subject to the remainder of this Appendix Section
6.3, an individual was credited with Vesting Service in an amount equal to his aggregate
Periods of Service, whether or not such Periods of Service were completed consecutively.




(c) In the case of an individual who terminated his Service and subsequently resumes
his Service, if his Reemployment Commencement Date was or 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 Appendix Section 6.3(b) above.


 


85









 






(d) In the case of an individual who terminates his Service at a time when he had a 0%
Vested Interest, and who then incurs a Period of Severance that equals or exceeds five
years, such individual’s Period of Service completed prior to his Severance from Service
Date shall be disregarded in determining his years of Vesting Service.




(e) Notwithstanding the foregoing provisions of this Appendix Section 6.3, each
Disabled DMS Participant and each DMS Participant is 100% vested in his Accrued Benefit and
his credited period of Vesting Service is conclusively set forth in the Plan Records.




7. Death Benefits.




7.1 Before Annuity Starting Date.




(a) Except as provided in Appendix Subsections 7.1(b) and (c) below, no benefits shall
be paid pursuant to the provisions of the DMS Plan or this Appendix with respect to any
Disabled DMS Participant or DMS Participant who dies prior to his Annuity Starting Date.




(b) A married Disabled DMS participant or a married DMS Participant with an Eligible
Surviving Spouse shall have a survivor annuity paid to his Eligible Surviving Spouse in the
event such participant dies before his Annuity Starting Date under any of the circumstances
described in clauses (1), (2), (3), or (4) below. The survivor annuity provided by this
Appendix Subsection 7.1(b) shall be a single life annuity consisting of monthly payments for
the life of the Eligible Surviving Spouse determined as follows:




(1) If such participant dies while in employment with the Employer or a Controlled
Entity on or after his Early Retirement Date, a monthly benefit equal to one-half of the
amount of the monthly benefit to which such participant would have been entitled if such
participant had entered into Retirement as of his date of death and had immediately begun
receiving his benefit pursuant to Subsection 5.1(a) or Section 5.2 of this Appendix, as
applicable, as of such date in the form of a Pension;




(2) If such participant dies following his Severance from Service Date that occurred on
or after his Early Retirement Date, a monthly benefit equal to one-half of the amount of the
monthly benefit to which the participant would have been entitled if such participant had
immediately begun receiving his benefit pursuant to Section 6.2 of this Appendix as of the
first day of the month next fallowing his date of death in the form of a Pension;




(3) If such participant has five or more years of Vesting Service and dies while in
employment with the Employer or a Controlled Entity after the month in which he attained age
fifty but prior to his Early Retirement Date, a benefit equal to one-half of the amount of
the monthly benefit to which the participant would have been entitled if such participant
had survived to his Early Retirement Date, had entered into Retirement as of such date, and
had immediately begun receiving his benefit pursuant to Section 5.2 of this Appendix as of
such date in the form of a Pension (based on his actual
Accrual Service, his Average Monthly Compensation, and the Average Monthly Covered
Compensation as of his date of death); or


 


86









 






(4) If such Disabled DMS Participant or DMS Participant dies with a Vested Interest
either while in employment with the Employer or a Controlled Entity or after his Severance
from Service Date and prior to the first day of the Plan Year in which he would have
attained age thirty-five, a monthly benefit equal to one-half of the monthly benefit to
which the participant would have been entitled if such participant had survived to his Early
Retirement Date, had entered into Retirement on such date, and had immediately begun
receiving his benefit pursuant to Section 5.2 as of such date in the form of a Pension
(based on his actual Accrual Service, his Average Monthly Compensation, and the Average
Monthly Covered Compensation as of his date of death).




Payment of the survivor annuity provided by this Appendix Subsection 7.1(b) shall begin
as of the first day of the month next following the participant’s date of death with respect
to a survivor annuity determined pursuant to clause (1), (2) or (3) above and as of the date
the participant would have attained his Early Retirement Date with respect to a survivor
annuity determined pursuant to clause (4) above, and in any such case shall end as of the
first day of the month in which the death of the Eligible Surviving Spouse occurs.
Notwithstanding the foregoing, in the absence of consent by such participant’s Eligible
Surviving Spouse, payment of such survivor annuity may not begin prior to the date such
participant would have reached his Normal Retirement Date.




(c) Subject to the further provisions of this Appendix Subsection 7.1(c), a married
Disabled DMS Participant or a married DMS Participant with an Eligible Surviving Spouse
shall, unless he elects otherwise as provided below, have a survivor annuity paid to his
Eligible Surviving Spouse in the event such participant dies with a Vested Interest before
his Annuity Starting Date under any of the circumstances described in clauses (1) or (2)
below. The survivor annuity provided by this Appendix Subsection 7.1(c) shall be a single
life annuity for the life of the Eligible Surviving Spouse and shall consist of monthly
payments determined as follows:




(1) If such participant dies while in employment with the Employer or a Controlled
Entity on or after the first day of the Plan Year in which he attained or would have
attained age thirty-five but prior to the first day of the month next following the month in
which such participant attained or would have attained age fifty, a monthly benefit equal to
one-half of the monthly benefit to which the participant would have received had such
deceased participant terminated his employment on the date of his death, survived until his
Early Retirement Date, had immediately begun receiving his benefit pursuant to Section 6.2
of this Appendix in the form of the joint and survivor annuity described in Section 8.3 of
this Appendix on such date, and had died on the day after such date; or


 


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(2) If such participant dies while not in employment with the Employer or a Controlled
Entity, his Severance from Service Date occurred prior to his Early Retirement Date, and his
date of death is on or after the first day of the Plan Year in which he attained or would
have attained age thirty-five but prior to his Normal
Retirement Date, a monthly benefit equal to one-half of the monthly benefit to which the
participant would have received had such deceased participant terminated his employment on
the date of his death, survived until the later of his Early Retirement Date or the first
day of the month next following his date of death, had immediately begun receiving his
benefit pursuant to Section 6.2 of this Appendix in the form of the joint and survivor
annuity described in Section 8.3 of this Appendix on the later of such dates, and had died
on the later of such dates.




Payment of the survivor annuity provided by this Appendix Subsection 7.1(c) shall begin
as of the later of (1) the participant’s Early Retirement Date, or (2) the first day of the
month next following the participant’s date of death, and shall in each case end as of the
first day of the month in which the death of the Eligible Surviving Spouse occurs.
Notwithstanding the foregoing, in the absence of consent by such participant’s Eligible
Surviving Spouse, payment of such survivor annuity may not begin prior to the date such
participant would have reached his Normal Retirement Date.




(d) Notwithstanding anything to the contrary herein, the benefits provided under this
Section shall be subject to the applicable notice, election, and consent requirements under
the Plan.



7.2 After Annuity Starting Date. With respect to any Disabled DMS Participant or DMS
Participant who dies on or after his Annuity Starting Date, whether or not payment of his benefit
has actually begun, the only benefit payable pursuant to the DMS Plan and this Appendix, if any,
shall be that provided for his beneficiary pursuant to the form of benefit he was receiving or had
properly and timely elected to receive in accordance with Section 8 of this Appendix.



7.3 Cash-Out of Death Benefit. If a Disabled DMS Participant or a DMS Participant dies
prior to his Annuity Starting Date, his Eligible Surviving Spouse is entitled to a death benefit
pursuant to this Appendix Section 7 and the Actuarially Equivalent present value of such death
benefit is not in excess of $1,000, such present value shall be paid to such Eligible Surviving
Spouse in a lump sum payment in lieu of any other benefit herein provided and without regard to the
spousal consent requirement of Appendix Section 7.1 above. Any such payment shall be made as soon
as administratively feasible following the participant’s date of death.




8. Time and Form of Benefit Payments.



8.1 Time of Payment of Benefits. Payment of benefits under the DMS Plan and this
Appendix to a Disabled DMS Participant and a DMS Participant (other than death benefits payable
pursuant to Section 7 of this Appendix) shall commence as of such participant’s Annuity Starting
Date, determined as follows, but the first payment shall be made no earlier than the expiration of
the election period described in Appendix Subsection 8.2(c) below.




(a) With respect to any such participant who is to receive his normal retirement
benefit pursuant to Subsection 5.1(a) of this Appendix, such participant’s Annuity Starting
Date shall be the date of such participant’s Normal Retirement Date.


 


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(b) With respect to any participant who is to receive his early retirement benefit
pursuant to Section 5.2 of this Appendix, such participant’s Annuity Starting Date shall be
such participant’s Early Retirement Date or the first day of any month thereafter and prior
to his Normal Retirement Date.




(c) With respect to any such participant who is to receive his severance retirement
benefit pursuant to Subsection 6.2(a) of this Appendix, such participant’s Annuity Starting
Date shall be his Normal Retirement Date or the first day of the month next following his
termination of employment, if later.




(d) With respect to any such participant who is to receive early commencement of his
severance benefit pursuant to Subsection 62(b) of this Appendix, such participant’s Annuity
Starting Date shall be the first day of the month so requested.




(e) Notwithstanding the foregoing, with respect to any benefit payable pursuant to the
provisions of Section 8.7 of this Appendix, the Annuity Starting Date shall be the date
determined by the Committee which shall be as soon as administratively feasible following
the date of the participant’s termination of employment.




8.2 Restrictions on Time of Payment of Benefits.




(a) Plan provisions to the contrary notwithstanding, the Annuity Starting Date of a
Disabled DMS Participant or a DMS Participant shall not occur in a manner that would violate
the applicable timing, notice, consent, or minimum distribution requirements of Article VIII
of the Plan.




(b) Payment of a death benefit pursuant to Section 7 of this Appendix must commence no
later than the time mandated under Article VIII of the Plan.




(c) Subject to the provisions of this Appendix, a participant’s Annuity Starting Date
shall not occur while the participant is employed by the Employer or any Controlled Entity.




(d) Sections 8.1 and 8.2(a) of this Appendix notwithstanding, a participant, other than
a Disabled DMS Participant or DMS Participant whose Actuarially Equivalent present value of
his Vested Interest in his Accrued Benefit is not in excess of $1,000, must file a claim for
benefits in the manner prescribed by the Committee before payment of his benefits will
commence. In the event that the requirement in the preceding sentence delays the
commencement of payment of a participant’s benefits to a date after his Normal Retirement
Date, such participant’s benefit shall not be less than the Actuarial Equivalent of his
Accrued Benefit payable at his Normal Retirement Date.



8.3 Standard Form of Benefit for Participants. For purposes of Section 5 or 6 of this
Appendix, the standard form of benefit for any Disabled DMS Participant and any DMS Participant who
is married on his Annuity Starting Date shall be a joint and survivor annuity. Such joint and
survivor annuity shall be an annuity which is payable for the life of the participant with a
survivor annuity for the life of the participant’s Eligible Surviving Spouse that shall be one-half
of the amount of the annuity payable during the joint lives of the participant and the
Eligible Surviving Spouse. The standard form of benefit for any participant who is not married
on his Annuity Starting Date shall be the Pension described in Section 5 or 6 of this Appendix,
whichever is applicable to such participant.


 


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8.4 Election Concerning Form of Benefit. Any participant who would otherwise receive
the standard form of benefit described in Section 8.3 or, effective January 1, 2008, the Qualified
Optional Survivor Annuity described in the Plan, may elect not to take his benefit in such forms by
properly executing and filing the benefit election form prescribed by the Committee during the
Election Period described in the Plan as a qualified election.



8.5 Alternative Forms of Benefit. For purposes of Section 5 or 6 of this Appendix, the
benefit for any participant who has elected pursuant to Appendix Section 8.4 not to receive his
benefit in the standard form set forth in Appendix Section 8.3 shall be paid in one of the
following alternative forms to be selected by such participant or, in the absence of such
selection, by the Committee prior to his Annuity Starting Date; provided, however, that the period
and method of payment of any such form shall be in compliance with the provisions of Code Section
401(a)(9) and applicable Treasury Regulations thereunder:




(a) A single life annuity for the life of such participant.




(b) An annuity for the joint lives of the participant and any joint annuitant
designated by the participant in accordance with Appendix Section 8.9, with a survivor
annuity (with monthly payments under such survivor annuity equal to 1%, 50%, 75% or 100%, as
specified by the participant in his election of this option, of the monthly benefit payable
during the joint lives of the participant and the joint annuitant) to the joint annuitant
for such joint annuitant’s remaining lifetime.




(c) An annuity for a ten year term certain and continuous for the life of such
participant if he survives such term certain or, in the event of such Disabled DMS
Participant’s or DMS Participant’s death before the end of such term certain, continuing to
the end of such term certain to his designated beneficiary as provided in Appendix Section
8.9. Upon the death of a beneficiary who is receiving payments in this annuity form, in the
event that there is no other living beneficiary, the Actuarially Equivalent present value of
any remaining term certain payments, if any, shall be paid as soon as administratively
feasible, in one lump sum cash payment, to the executor or administrator of such beneficiary
or to his heirs at law if there is no administration of such beneficiary’s estate. In the
event that the Committee determines that the life expectancies of a participant and his
designated beneficiary do not exceed ten years, such participant’s election to receive his
benefit in this annuity form shall not be effective.



8.6 Level Income Option. If payment of a participant’s benefit commences prior to the
earliest age as of which such participant will become eligible for an Old-Age Insurance Benefit
under the Social Security Act, at the request of the participant the amount of the payments of his
benefit may be adjusted so that an increased amount will be paid prior to such age and a reduced
amount thereafter; the purpose of this adjustment is to enable the participant to receive from the
DMS Plan and under the Social Security Act an aggregate income in
approximately a level amount for life. Such adjusted payments shall be the Actuarial
Equivalent of the benefit otherwise payable to such participant.


 


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8.7 Cash-Out of Accrued Benefit. If a participant terminates his employment with the
Employer and all Controlled Entities and the Actuarial Equivalent present value of his Vested
Interest in his Accrued Benefit is not in excess of $1,000, such present value shall be paid to
such terminated participant in lieu of any other benefit herein provided and without regard to the
election, and consent requirements of the Plan and this Appendix. Any such payment shall be made as
soon as administratively feasible following such participant’s termination of employment The
provisions of this Appendix Section 8.7 shall not be applicable to a participant following his
Annuity Starting Date.



8.8 Restoration of Reduction for Joint and Survivor Annuity. If a participant is
receiving his benefit in the form of a joint and survivor annuity pursuant to Section 8.3 or
Subsection 8.5(b) of this Appendix and such participant’s spouse is the joint annuitant under such
joint and survivor annuity, a portion of the reduction in such participant’s benefit attributable
to such benefit being payable in the form of a joint and survivor annuity (as compared to the
benefit that would have been payable if the participant had elected to receive his Plan benefit in
the form of a Pension) shall be restored if such participant’s spouse dies during the first through
fifth years following such participant’s Annuity Starting Date. The portion of such reduction to be
restored shall be (i) 100% if such participant’s spouse dies during the first year following such
participant’s Annuity Starting Date, (ii) 80% if such participant’s spouse dies during the second
year following such participant’s Annuity Starting Date, (iii) 60% if such participant’s spouse
dies during the third year following such participant’s Annuity Starting Date, (iv) 40% if such
participant’s spouse dies during the fourth year following such participant’s Annuity Starting
Date, and (v) 20% if such participant’s spouse dies during the fifth year following such
participant’s Annuity Starting Date.




8.9 Beneficiaries and Joint Annuitants.




(a) Subject to the restrictions of Appendix Subsection 8.4, each participant shall have
the right to designate the beneficiary, beneficiaries, or joint annuitant to receive any
continuing payments in the event such participant’s benefit is payable in a form whereby
payments could continue beyond such participant’s death. Each such designation shall be made
on the form prescribed by the Committee and shall be filed with the Committee. Any such
designation may be changed at any time by such participant by execution of a new designation
form and filing such form with the Committee except that a joint annuitant cannot be changed
after a participant’s Annuity Starting Date.


 


91









 






(b) If no such designation of beneficiary for a benefit payable in a form containing a
term certain 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, then the
designated beneficiary or beneficiaries to receive such continuing payments for the
remainder of such term certain shall be as follows:




(1) If a participant leaves a surviving spouse, any such continuing payments shall be
paid to such surviving spouse;




(2) If a participant leaves no surviving spouse, any such continuing payments shall be
paid to such participant’s executor or administrator or to his heirs-at-law if there is no
administration of such participant’s estate.




(c) If a participant’s designated joint annuitant dies before the participant’s Annuity
Starting Date, such participants election of a form of benefit for the joint lives of the
participant and such joint annuitant shall be canceled automatically and such participant’s
benefit shall be paid in the form of the standard benefit set forth in Appendix Section 8.3
above, unless a new election of an alternative form of benefit is made in accordance with
the provisions of Appendix Section 8.4 above. The death of a joint annuitant following a
participant’s Annuity Starting Date shall not affect a participant’s benefit election
(except to the extent provided in Appendix Section 8.8 above) or permit such participant to
revoke such election.




8.10 Reemployment of Participants.




(a) In the event a Disabled DMS Participant or DMS Participant to whom payment of his
retirement benefit under the DMS Plan has commenced is reemployed by an Employer or a
Controlled Entity, payment of his retirement benefit shall not be interrupted or otherwise
adversely affected.




(b) In the event a Disabled DMS Participant or a DMS Participant is reemployed by an
Employer or Controlled Entity before payment of his retirement benefit has commenced, his
benefit shall not commence during his period of reemployment, but shall be subject to the
terms and conditions of Appendix Sections 5.1 and 8.2.




(c) In the event a Disabled DMS Participant is reemployed by the Employer as an
Eligible Employee, any additional accruals, if any, with respect to his Accrued Benefit
shall be pursuant to the provisions of Appendix Section 5. However, in the event a Disabled
DMS Participant is reemployed as an eligible employee by another Controlled Entity which is
an “Employer” under the Dynegy Inc. Retirement Plan, any additional accruals, if any, with
respect to his period of reemployment shall be pursuant to the Dynegy Inc. Retirement Plan.




(d) In the event a DMS Participant is reemployed as an eligible employee by the
Employer or by a Controlled Entity which is a “Employer” under the Dynegy Inc. Retirement
Plan, any additional accruals, if any, with respect to his period of reemployment shall be
pursuant to the Dynegy Inc. Retirement Plan.



8.11 Actuarial Equivalency. With respect to any benefit payable pursuant to the DMS
Plan and this Appendix, whichever form of payment is selected, the value of such benefit shall be
the Actuarial Equivalent of the Pension to which the particular participant is entitled.


 


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APPENDIX C




Merger of DMG Plan




Effective December 31, 2007, the Dynegy Midwest Generation, Inc. Retirement Income Plan for
Employees Covered Under a Collective Bargaining Agreement (“DMG Plan”) is merged into the Dynegy
Inc. Retirement Plan, with the benefit structure and related provisions of the DMG Plan continued
as a separate benefit structure and related provisions under the Plan, through the incorporation of
the DMG Plan as modified by the provisions of this Appendix.



Except as otherwise provided in this Appendix, the provisions of the DMG Plan are incorporated
herein by reference in their entirety to the extent necessary to provide the benefit structure and
preserve the protected benefits, rights and features of the DMS Plan for each DMG Participant under
this Appendix. Only the provisions incorporated herein by reference from the DMG Plan and the
provisions of this Appendix shall be applicable to determine the benefits, rights and features
preserved and newly created for DMG Participants upon the merger of the DMG Plan into the Plan. The
provisions of Articles I, II, Ill, VIII (with respect to the claims procedures provisions of
Section 8.15), IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, and XVIII of the Plan concerning plan
administration, limitations on benefits, fiduciary provisions, amendment and termination authority,
top-heavy status and trust fund and trustee matters shall be fully applicable upon the merger of
the DMG Plan into the Plan without regard to provisions concerning similar matters in the DMS Plan.
The provisions of the Plan, however, such as Articles I (to the extent required by context), IV, V,
VI, VII, VIII (with the exception of the claims procedures provisions of Section 8.15), and any
Appendices (other than this Appendix), shall not apply to a DMG Participant to the extent such
provisions of the Plan or Appendices are in conflict with or duplicative of similar provisions set
forth in the DMS Plan and this Appendix.



This Appendix and the provisions of the DMG Plan incorporated herein by reference, and as
modified by this Appendix, are applicable only to eligible DMG Participants. All provisions which
appear in the Plan, including any other applicable Appendix, shall apply to DMG Participants in the
same manner as applicable to other Participants except insofar as they may be inconsistent with or
in conflict with the provisions of this Appendix and the provisions of the DMG Plan incorporated
herein by reference, and as modified by this Appendix.



1. Definitions and Construction. For purposes of this Appendix, capitalized terms
shall have the meanings set forth in Article I of the Plan, and such definitions shall, unless the
context and/or usage of such terms clearly dictate otherwise, supersede any similar or inconsistent
terms that appear in the body of the Plan or the DMG Plan that would otherwise be applicable to a
DMG Participant. To the extent a capitalized term used herein is not defined in Article I of the
Plan (or context and/or usage dictate an alternate meaning), such term shall have the meaning set
forth in this Appendix or in the DMG Plan.



Notwithstanding the previous paragraph, for purposes of this Appendix, the following terms
shall be defined as follows:



1.1 “DMG Participant” means a person who on December 31, 2007 had an Accrued Benefit
under the DMG Plan or was receiving a benefit under the DMG Plan and, on such date,
became a DMG Participant under the Plan pursuant to the merger of the DMG Plan into the Plan
and the provisions of this Appendix, and each individual who has met the eligibility requirements
for participation as set forth in the DMG Plan or this Appendix.


 


93









 





1.2 “Plan Records” means the information concerning all pertinent matters pertaining
to determining the Accrued Benefit, rights, entitlements and Pension of each DMG Participant,
Eligible Surviving Spouse, alternate payee and beneficiary under the terms of the DMG Plan, as
modified by this Appendix, as set forth in specific records maintained for all such matters at the
direction of the Committee. The Committee’s decision, in its sole discretion, with respect to any
and all matters set forth in the Plan Records shall be conclusive and binding on all persons for
all purposes.




2. Participation.



2.1 Eligibility. Each Eligible Employee shall become a DMG Participant upon the Entry
Date coincident with or next following the date on which such Eligible Employee has completed one
year of Participation Service. Notwithstanding the foregoing:




(a) An Eligible Employee who was a DMG Participant as of December 31, 2007 shall remain
a DMG Participant as of January 1, 2008;




(b) An Eligible Employee who was a Participant in the DMG Plan prior to a termination
of employment shall remain a DMG Participant upon his reemployment as an Eligible Employee;




(c) An Employee who has completed one year of Participation Service but who has not
become a Participant in the DMG Plan because he was not an Eligible Employee shall become a
DMG Participant in the Plan and this Appendix from and after January 1, 2008 upon the later
of (i) the date he becomes an Eligible Employee as a result of a change in his employment
status or (ii) the first Entry Date upon which he would have become a DMG Participant if he
had been an Eligible Employee;




(d) An Eligible Employee who had met the service requirements of this Appendix to
become a DMG Participant in the DMG Plan but who terminated employment prior to the Entry
Date upon which he would have become a DMG Participant shall become a DMG Participant upon
the later of (i) the date of his reemployment or (ii) the Entry Date upon which he would
have become a DMG Participant if he had not terminated employment; and




(e) Except as otherwise provided in the Plan, a DMG Participant who ceases to be an
Eligible Employee but remains an Employee shall continue to be a DMG Participant but, on and
after the date he ceases to be an Eligible Employee, he shall no longer accrue additional
benefits under this Appendix unless and until he shall again become an Eligible Employee.



Except as otherwise provided in the Plan, a DMG Participant who ceases to be an Eligible
Employee but remains an Employee shall continue to be a DMG Participant but, on and
after the date he ceases to be an Eligible Employee, he shall no longer accrue additional
benefits hereunder unless and until he shall again become an Eligible Employee.


 


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2.2 Participation Service. An individual completes one year of Participation Service
on the last day of the Employment Year during which he completes 1,000 Hours of Service.



2.3 Transferred Employees. If an employee of the Employer or a Controlled Entity (a)
ceases to satisfy the eligibility requirements of the Salaried Plan because he transfers into an
employment classification as a member of a group of employees to which the DMG Plan has been
extended and continues to be extended through a currently effective collective bargaining agreement
between his employer and the collective bargaining representative of the group of employees of
which he is a member, (b) continues to be employed by the Employer or a Controlled Entity, and (c)
coincident with his cessation of eligibility for the Salaried Plan, satisfies the eligibility
requirements of this Appendix, he shall cease to be a participant in the Salaried Plan and shall be
a DMG Participant in the DMG Plan, subject to the terms and conditions of the DMG Plan and this
Appendix.



2.4 Disabled DMG Participants. Notwithstanding any provision of the DMG Plan to the
contrary, a DMG Participant who has been approved for benefits under a long term disability plan
sponsored by the Employer (an “Employer LTD Plan”) shall be credited with Payroll Period Benefit
Credits (as defined in this Appendix) and Vesting Service under the DMG Plan for any period during
which such DMG Participant is receiving such long term disability benefits; provided however, that
any such crediting shall cease as of the earlier of (a) such DMG Participant’s Annuity Starting
Date or (b) such DMG Participant’s Normal Retirement Date. For purposes of the accruals described
in the preceding sentence, a DMG Participant’s Payroll Period Benefit Credit pursuant to this
Appendix F immediately prior to the disability entitling him to benefits under an Employer LTD Plan
shall be utilized.




3. Retirement Benefits.




3.1 Normal Retirement.




(a) From and after January 2, 1994, subject to (b), (c), and (d) below, a DMG
Participant whose employment with the Employer and all Controlled Entities is terminated,
for a reason other than death, on or after his Normal Retirement Date shall be entitled to
receive a retirement benefit, payable at the time and in the form provided in Article VII of
the DMG Plan and this Appendix, that is based upon a Pension commencing on the DMG
Participant’s Annuity Starting Date, each monthly payment of such Pension being equal to
one-twelfth of the amount of the DMG Participant’s Career Benefit Credit. For purposes of
this Paragraph, “Career Benefit Credit” shall mean the sum of the DMG Participant’s Payroll
Period Benefit Credits earned over the DMG Participant’s period of employment after January
1, 1994 and while an Eligible Employee and a Participant in the Plan. For purposes of this
Paragraph, the DMG Participant’s “Payroll Period Benefit Credit” shall mean an amount equal
to the DMG Participant’s regular hourly rate of pay for the payroll period for which the
benefit credit is then being determined and for the position to which the DMG Participant is
normally assigned multiplied by the number of regularly scheduled hours for such position
for such payroll period multiplied by 2.2%. Overtime,


 


95









 






temporary  upgrades to higher paying positions, and
other extra compensation shall not be taken into account in determining a DMG Participant’s
Payroll Period Benefit Credit. Notwithstanding the foregoing provisions of this Section, if
a DMG Participant is scheduled to work a 12-hour shift (the “Shift”), the
regularly-scheduled overtime for the Shift shall be taken into account in determining a DMG
Participant’s Payroll Period Benefit Credit, and is calculated by multiplying the DMG
Participant’s straight time hourly rate of pay by the number of regularly-scheduled overtime
hours for the shift for which the DMG Participant is paid. A DMG Participant’s Payroll
Period Benefit Credit shall not be reduced to take into account any period of unpaid absence
during the payroll period for which such Payroll Period Benefit Credit is being determined;
provided, however, that if a DMG Participant is absent without pay for the entire payroll
period for which such Payroll Period Benefit Credit is being determined, the amount of
Payroll Period Benefit Credit earned by the DMG Participant for such payroll period shall be
zero.




(b) Notwithstanding anything to the contrary in Section 3.1(a) above, for the period
preceding January 2, 1994, the value of the Accrued Benefit for such period of each DMG
Participant who was employed by the Company or a Controlled Entity on January 1, 1994, shall
be determined under the terms of the DMG Plan as in effect immediately prior to the
Effective Date (pursuant to which the DMG Participant’s Accrued Benefit was determined as
the greater of certain benefits provided under the DMG Plan or the benefit formula provided
in the Salaried Plan). The benefit accruals described in Section 3.1(a) above are in
addition to the benefit accrual, if any, provided to a DMG Participant under this Paragraph.




(c) Notwithstanding anything to the contrary in Section 3.1(a) above:




(1) Effective during the period beginning on January 1, 1998 and ending on June 30,
2002, for any DMG Participant who performs an Hour of Service on or after January 1, 1998,
the DMG Participant’s Payroll Period Benefit Credits during such period shall be determined
pursuant to Section 3.1(a) above by using a 2.4% multiplier, rather than the 2.2% multiplier
specified therein; and




(2) Effective during the period beginning on July 1, 2002 and ending on June 30, 2005,
for any DMG Participant who performs an Hour of Service on or after July 1, 2002, the DMG
Participant’s Payroll Period Benefit Credits during such period shall be determined pursuant
to Section 3.1(a) above by using a 2.4% multiplier, rather than the 2.2% multiplier
specified therein.




Additional benefit accruals for DMG Participants will be determined on and after July
1, 2005 in accordance with Section 3.1(a) above.




(d) If a Participant becomes a DMG Participant in the DMG Plan pursuant to the
provisions of Section 2.3 above, then his Career Benefit Credit under the DMG Plan shall be
increased by including the payroll periods taken into account under the Salaried Plan for
benefit accrual purposes prior to such transfer and his regular rate of pay during such
payroll periods. Contrary DMG Plan provisions notwithstanding, in no event shall
the Accrued Benefit of any Participant who has become a DMG Participant in the DMG Plan in
accordance with Section 2.3 above be less than the accrued benefit to which such Participant
would have been entitled under the Salaried Plan as of the date of the transfer specified in
Section 2.3.


 


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(e) Late Retirement.




(1) The Committee shall furnish any DMG Participant whose employment with the Employer
or any Controlled Entity continues beyond his Normal Retirement Date (or resumes his
employment after his Normal Retirement Date, but prior to commencement of the payment of his
retirement benefit) with the notification described in Department of Labor Regulation
Section 2530.203-3. Upon such DMG Participant’s subsequent termination of employment, his
retirement benefit payable pursuant to this Appendix shall be increased to the extent
required, if at all, under such regulations as provided in Paragraph (2) below to avoid the
effecting of a prohibited forfeiture of benefits by reason of the suspension of benefits
during such DMG Participant’s post Normal Retirement Date employment.




(2) A DMG Participant described in Paragraph (e)(1) above shall be entitled to a
retirement benefit equal to the greater of:




(A) His Accrued Benefit determined pursuant to the applicable provisions of the Plan
through the date of his subsequent termination of employment; or




(B) The Actuarial Equivalent of his Accrued Benefit payable at his Normal Retirement
Date.




(3) Further, such DMG Participant’s retirement benefit payable pursuant to this
Appendix shall be increased to the extent required, if at all, under Code Section
401(a)(9)(C)(iii) in the event his employment or reemployment continues after April 1 of the
year immediately following the year he attains age seventy and one-half.




3.2 Early Retirement.




(a) A DMG Participant whose employment with the Employer and all Controlled Entities is
terminated, for a reason other than death, on or after his Early Retirement Date and prior
to his Normal Retirement Date, shall be entitled to receive a retirement benefit, payable at
the time and in the form provided in this Appendix that is based upon a Pension commencing
on the DMG Participant’s Annuity Starting Date, each monthly payment of such Pension being
computed in the manner provided in this Appendix considering his Career Benefit Credit to
the date of his termination of employment.




 


97









 




(b) A DMG Participant entitled to a benefit pursuant to Paragraph (a) may, by request
to the Committee in the form prescribed by the Committee, commence his benefit as of the
first day of the month coinciding with or next following the date of his Retirement, or as
of the first day of any subsequent month which precedes his Normal Retirement Date,
provided, that such request must be received by the Committee not less
than thirty days prior to the proposed date of commencement of the benefit (unless such
thirty days’ notice is waived by the Committee in its discretion), and the value thereof
shall be based upon a Pension commencing on the date so requested, each monthly payment of
such Pension being computed in the manner provided in Paragraph (a) above, provided that if
the DMG Participant’s Annuity Starting Date precedes the DMG Participant’s sixty-second
birthday, his retirement benefit shall be multiplied by the appropriate factor from the
following table:



	 	 	 	 	 
	Age at	 	 	 
	Annuity	 	Early Retirement	 
	Starting Date	 	Factors	 
	 
	 	 	 	 
	62
	 	 	1.00	 
	 
	 	 	 	 
	61
	 	 	.96	 
	 
	 	 	 	 
	60
	 	 	.92	 
	 
	 	 	 	 
	59
	 	 	.82	 
	 
	 	 	 	 
	58
	 	 	.76	 
	 
	 	 	 	 
	57
	 	 	.70	 
	 
	 	 	 	 
	56
	 	 	.64	 
	 
	 	 	 	 
	55
	 	 	.58	 







If a DMG Participant’s Annuity Starting Date does not coincide with his date of birth,
the appropriate factor with respect to the table above shall be determined by interpolation.
In no event shall a DMG Participant’s retirement income determined in accordance with this
Appendix be less than the amount of early retirement income payable to such DMG Participant
as of December 31, 1993.




(c) Notwithstanding any provision of the DMG Plan to the contrary, but solely for the
purpose of determining a DMG Participant’s eligibility to receive a benefit pursuant to
Section 3.2(a) above, and not for purposes of determining a DMG Participant’s Accrued
Benefit, a DMG Participant who was a DMG Participant immediately prior to December 15, 1999
will be treated as though he is employed by the Employer during any period that he is
employed by Amergen or any Amergen Affiliate on and after December 15, 1999; provided,
however, that the foregoing provisions of this sentence shall apply only with respect to
benefits payable following the DMG Participant’s termination of employment with Amergen or
any Amergen Affiliate; and provided further, however, that the amount of the retirement
benefit determined pursuant to Section 3.1(a) above shall be determined utilizing the DMG
Participant’s Career Benefit Credit as of the date the DMG Participant’s employment with the
Employer and all Controlled Entities terminated (and not as of his Early Retirement Date).


 


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4. Severance Benefits and Determination of Vested Interest.



4.1 No Benefits Unless Herein Set Forth. Except as set forth herein, upon termination
of employment of a DMG Participant for any reason other than Retirement or death, such DMG
Participant shall acquire no right to any benefit from the Plan or the Fund.




4.2 Severance Benefit.




(a) Each DMG Participant whose employment is terminated for any reason other than
Retirement or death shall be entitled to receive a retirement benefit, payable at the time
and in the form provided in the Plan and this Appendix that is based upon a Pension
commencing on the DMG Participant’s Annuity Starting Date, each monthly payment of such
Pension being equal to the product of such DMG Participant’s Vested Interest multiplied by
the amount computed in the manner provided in this Appendix, considering his Career Benefit
Credit to the date of his termination of employment.




(b) A DMG Participant who is entitled to a benefit pursuant to Paragraph (a) may, by
request to the Committee in the form prescribed by the Committee, commence his benefit as of
the first day of the month coinciding with or next following his fifty-fifth birthday, or as
of the first day of any subsequent month which precedes his Normal Retirement Date;
provided, that such request must be received by the Committee not less than 30 days nor more
than 180 days prior to the proposed date of commencement of the benefit (unless such notice
is waived by the Committee in its discretion). The value of such DMG Participant’s severance
benefit shall be based upon a Pension commencing on the first day of the month so requested,
each monthly payment of such Pension being computed in the manner provided in Paragraph (a)
above, but multiplied by the appropriate factor from the following table:



	 	 	 	 	 
	Duration in Years of Interval	 	 	 
	Between Annuity Starting Date	 	 	 
	and Normal Retirement Date	 	Reduction Factor	 
	 
	 	 	 	 
	0
	 	 	1.000	 
	1
	 	 	.914	 
	2
	 	 	.839	 
	3
	 	 	.771	 
	4
	 	 	.712	 
	5
	 	 	.659	 
	6
	 	 	.611	 
	7
	 	 	.570	 
	8
	 	 	.531	 
	9
	 	 	.497	 
	10
	 	 	.466	 





 


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The reduction factor with respect to the table above for a DMG Participant whose
Annuity Starting Date occurs on a date that is a fractional number of years prior to his
Normal Retirement Date shall be determined by interpolation. Notwithstanding the foregoing
provisions of this Section 4.2(b), if a DMG Participant who is entitled to a
benefit pursuant to this Paragraph terminates his employment with the Employer and all
Controlled Entities within eighteen months after the effective date of the Dynegy
Transaction, and such DMG Participant has attained the age of fifty and has completed ten or
more years of Vesting Service on or prior to the date of such termination of employment,
then such DMG Participant may, by request to the Committee in the form prescribed by the
Committee, commence his benefit as of the first day of the month coinciding with his
fifty-fifth birthday, or as of the first day of any subsequent month that precedes his
Normal Retirement Date, provided that such request is received by the Committee not less
than 30 days nor more than 180 days before the selected date of commencement (unless such
notice is waived by the Committee in its discretion); provided, however, that the amount of
such benefit payable as of a date after his attainment of age 55 but prior to his attainment
of age 62, shall be computed in the manner provided in Section 3.1 of this Appendix, using
the DMG Participant’s Career Benefit Credit as of the date he terminated employment with the
Employer and all Controlled Entities and reduced to reflect early commencement in accordance
with the provisions of Section 3.2(b) above and not in accordance with the immediately
foregoing provision of this Section; and further provided, however, that the amount of such
benefit payable as of date on or after his attainment of age 62 shall be computed in the
manner provided in Section 3.1 of this Appendix, using the DMG Participant’s Career Benefit
Credit as of the date he terminated employment with the Employer and all Controlled
Entities, and shall not be reduced to reflect early commencement.




For purposes of this Appendix, “Dynegy Transaction” shall mean the transactions
contemplated in that certain Agreement and Plan of Merger dated as of June 14, 1999, by and
among Illinova Corporation, Energy Convergence Holding Company, Energy Convergence
Acquisition Corporation, Dynegy Acquisition Corporation, and the Company, as amended. The
effective date of the Dynegy Transaction was February 1, 2000.




(c) A DMG Participant’s Vested Interest shall be determined by such DMG Participant’s
full years of Vesting Service in accordance with the following schedule:



	 	 	 	 	 
	Full Years of Vesting Service	 	Vested Interest	 
	 
	 	 	 	 
	Less than 5 years
	 	 	0	%
	5 years or more
	 	 	100	%







(d) Paragraph (c) above notwithstanding, a DMG Participant shall have a 100% Vested
Interest upon attainment of his Early Retirement Date while employed by the Employer or a
Controlled Entity.




4.3 Vesting Service.




(a) For Employment Years beginning prior to December 1, 2001, subject to the remaining
provisions of this Section, an individual shall be credited with Vesting Service in an
amount equal to all service credited to him for vesting purposes for such
years under the terms of the DMG Plan as it existed on the day prior to December 1, 2001.


 


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(b) For Employment Years beginning on or after December 1, 2001, subject to the
remaining provisions of this Section, an individual shall be credited with one year of
Vesting Service for each Employment Year for which he is credited with 1,000 or more Hours
of Service.




(c) In the case of an individual who terminates employment at a time when he has a 0%
Vested Interest in his Accrued Benefit and who then incurs a number of consecutive One-Year
Breaks-in-Service that equals or exceeds the greater of five years or his aggregate number
of years of Vesting Service completed before such One-Year Breaks-in-Service, such
individual’s years of Vesting Service completed before such One-Year Breaks-in-Service shall
be disregarded in determining his years of Vesting Service.




(d) In the case of an individual who incurs a One Year Break-in-Service after December
31, 1975 at a time when he has a 100% Vested Interest in his Accrued Benefit, years of
Vesting Service completed prior to such One-Year Break-in-Service shall be added to years of
Vesting Service with which the individual is credited after such One-Year Break-in-Service.




(e) An individual who is on an uncompensated leave of absence duly authorized in
accordance with customary personnel practices and policies of the Employer uniformly applied
by it shall be credited with Vesting Service for the period of authorized leave if he
returns to work with an Employer or a Controlled Entity immediately upon the expiration of
such period.




(f) If the employment of a DMG Participant shall have been terminated prior to January
1, 1976 and he shall have been reemployed thereafter (whether before or after such date),
his period of prior employment shall be included in his Vesting Service only if, and to the
extent, provided in the DMG Plan as in effect on December 31, 1975.




(g) An individual shall not be credited with more than one year of Vesting Service in
any Employment Year.




(h) An individual who completes more than 500 but less than 1,000 Hours of Service in
an Employment Year shall not accrue any Vesting Service during such year but also shall not
incur a One-Year Break-in-Service.




(i) Notwithstanding any provision in the Plan to the contrary, for purposes of
determining a DMG Participant’s Vesting Service, an individual who was a DMG Participant
immediately prior to December 15, 1999 and who became employed by Amergen or any Amergen
Affiliate on such date shall be credited with Vesting Service in accordance with the terms
of the DMG Plan for all periods of employment with Amergen or any Amergen Affiliate on and
after December 15, 1999 as if such individual’s employer were an Employer under the DMG Plan
during such period.


 


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4.4 Cash-Outs and Forfeitures.




(a) If a DMG Participant terminates employment with the Employer and has a 0% Vested
Interest or receives a lump sum cash-out distribution pursuant to this Appendix, such DMG
Participant’s Career Benefit Credit prior to such termination shall be disregarded and such
DMG Participant’s nonvested Accrued Benefit shall become a forfeiture as of the date of such
distribution (or as of the date of termination of employment if the DMG Participant has a 0%
Vested Interest with such DMG Participant being considered to have received a distribution
of zero dollars on the date of his termination of employment).




(b) Paragraph (a) above notwithstanding, if such terminated DMG Participant is
subsequently reemployed by the Employer or a Controlled Entity and the DMG Participant had a
0% Vested Interest at the time of his termination, the Career Benefit Credit that was
disregarded and the forfeiture that occurred pursuant to Paragraph (a) above shall be
restored if the DMG Participant has not incurred a number of consecutive One-Year
Breaks-in-Service that exceeds the greater of five years or his aggregate number of years of
Vesting Service completed before such One-Year Breaks-in-Service. Such restoration shall
occur on the date of the DMG Participant’s reemployment, unless such date occurs after one
or more One-Year Breaks-in-Service, in which case the restoration shall occur upon the DMG
Participant’s completion of one year of Vesting Service after such One-Year
Breaks-in-Service.




5. Death Benefits.




5.1 Before Annuity Starting Date.




(a) Except as provided in Paragraphs (b), (c), (d), (e), and (f) below and in Section
5.3 of this Appendix, no benefits shall be paid pursuant to the DMG Plan and this Appendix
with respect to any DMG Participant who dies prior to his Annuity Starting Date.




(b) A married DMG Participant with an Eligible Surviving Spouse shall have a survivor
annuity paid to his Eligible Surviving Spouse in the event such DMG Participant dies (i)
after he attains age fifty but before his Annuity Starting Date and (ii) while employed by
the Employer or a Controlled Entity or while receiving a Company-provided disability
allowance. The survivor annuity provided by this Paragraph shall be a single life annuity
consisting of monthly payments for the life of the Eligible Surviving Spouse in an amount
equal to 50% of the monthly amount that the DMG Participant would have been eligible to
receive under Section 3.2(a) above as if he had retired on the date of his death under
circumstances described in that Section and had elected to receive a benefit for his life
alone, except that no reduction shall be made (A) under Section 3.2(b) to reflect that
payment of his benefits would commence prior to his Normal Retirement Date or (B) to reflect
payment of his Accumulation under Section 5.3 below; provided, however, that if the Eligible
Surviving Spouse is more than ten years younger than the DMG Participant, the amount of the
annuity payable to such Eligible Surviving Spouse shall be reduced by one-half of one
percent thereof for each year in excess of ten
years difference in their ages. Payment of the survivor annuity provided by this Paragraph
shall begin as of the first day of the month coinciding with or next following the later of
the date of the DMG Participant’s death or the date which otherwise would have been the DMG
Participant’s Normal Retirement Date and shall end with the last payment made before the
death of the Eligible Surviving Spouse; provided, however, that the Eligible Surviving
Spouse may elect to have the survivor annuity provided by this Paragraph commence as of the
first day of the month following the DMG Participant’s death.


 


102









 






(c) A married DMG Participant who has received credit for at least one Hour of Service
on or after August 23, 1984, who dies leaving an Eligible Surviving Spouse (i) on or after
August 23, 1984, (ii) while employed by the Employer or a Controlled Entity or while
receiving a Company-provided disability allowance, (iii) at a time when he has a 100% Vested
Interest in his Accrued Benefit under the Plan, (iv) prior to attaining the age of fifty,
and (v) before his Annuity Starting Date shall have a survivor annuity paid to his Eligible
Surviving Spouse. The survivor annuity provided by this Paragraph shall be a single life
annuity consisting of monthly payments for the life of the Eligible Surviving Spouse in an
amount equal to 50% of the monthly amount (or the Actuarial Equivalent of such amount in the
case of a DMG Participant who has an Accumulation at the date of his death) that the DMG
Participant would have been entitled to receive under Section 3.2(a) above (payable in the
form set forth in Section 6.3(a) below, without any reduction to reflect payment of his
Accumulation under Section 5.3 below and reduced as set forth under Section 3.2(b) to
reflect the fact that payments commenced before the DMG Participant’s Normal Retirement
Date), as if the DMG Participant had terminated his employment with the Employer on the date
of his death, survived to his fifty-fifth birthday and then commenced receiving such early
retirement benefit and died on the day after he would have attained age fifty-five. Payment
of the survivor annuity provided by this Paragraph shall begin as of the first day of the
month coinciding with or next following the later of the date of the DMG Participant’s death
or the date which otherwise would have been the DMG Participant’s Normal Retirement Date,
and shall end with the last payment made before the death of the Eligible Surviving Spouse;
provided, however, that the Eligible Surviving Spouse may elect to have the survivor annuity
payable pursuant to this Paragraph commence as of the first day of any month after the DMG
Participant would have attained age 55 and prior to the date that would have been the DMG
Participant’s Normal Retirement Date.




(d) If a DMG Participant’s employment with the Employer and all controlled Entities has
terminated on or after his Early Retirement Date and the DMG Participant subsequently dies
leaving an Eligible Surviving Spouse prior to his Annuity Starting Date, then a survivor
annuity provided by this Paragraph shall be a single life annuity consisting of monthly
payments for the life of the Eligible Surviving Spouse in a monthly amount equal to 50% of
the monthly amount that would have been payable to such Eligible Surviving Spouse if the
Participant had commenced receiving his Accrued Benefit in the form described in Section
6.3(a) below on the first day of the month preceding his death (reduced to reflect as set
forth under Section 3.2(b) above to reflect that payments commence before the DMG
Participant’s Normal Retirement Date). Payment of the survivor annuity provided by this
Paragraph shall begin as of the first day of the month coincident with or next following the
later of the date of the DMG
Participant’s death or the date which otherwise would have been the DMG Participant’s Normal
Retirement Date and shall end with the last payment made before the Eligible Surviving
Spouse’s death; provided, however, that the Eligible Surviving Spouse may elect to have the
survivor annuity payable pursuant to this Paragraph commence as of the first day of any
month after the DMG Participant’s death but prior to the date that would have been the DMG
Participant’s Normal Retirement Date.


 


103









 






(e) A married DMG Participant who has received credit for at least one Hour of Service
on or after August 23, 1984, who (i) terminates employment with the Employer and all
Controlled Entities before his Early Retirement Date and at the time when he has a 100%
Vested Interest in his Accrued Benefit under the Plan, (ii) subsequently dies prior to his
Annuity Starting Date, and (iii) leaves an Eligible Surviving Spouse, shall have a survivor
annuity paid to his Eligible Surviving Spouse. The survivor annuity provided by this
Paragraph shall be a single life annuity consisting of monthly payments for the life of the
Eligible Surviving Spouse. If the DMG Participant dies on or prior to his Early Retirement
Date, the monthly amount of such annuity shall be equal to 50% of the monthly amount that
the DMG Participant would have been eligible to receive under Section 3.2(a) above (payable
in the form set forth in Section 6.3(a) below, and reduced (i) to reflect any withdrawal of
his Accumulation under Section 6.12 below and (ii) as set forth under Section 3.2(b) to
reflect the fact that payments commence before the DMG Participant’s Normal Retirement
Date), as if the DMG Participant had survived to his Early Retirement Date, and then
commenced receiving such early retirement benefit, and died on the day after his Early
Retirement Date. If the DMG Participant dies after his Early Retirement Date, the monthly
amount of such annuity shall be equal to 50% of the monthly amount that the DMG Participant
would have been eligible to receive under Section 3.2(a) above (payable in the form set
forth in Section 6.3(a) below, and reduced (i) to reflect any withdrawal of this
Accumulation under Section 6.12 below and (ii) as set forth under Section 3.2(b) to reflect
the fact that payments commence before the DMG Participant’s Normal Retirement Date), as if
the DMG Participant had retired and commenced receiving such early retirement benefit on the
day before the date of his death. Payment of the survivor annuity provided by this Paragraph
shall commence on the first day of the month coincident with or next following the later of
the date of the DMG Participant’s death or the date which otherwise would have been the DMG
Participant’s Normal Retirement Date and shall end with the last payment made before the
Eligible Surviving Spouse’s death; provided, however, that the Eligible Surviving Spouse may
elect to have the survivor annuity payable pursuant to this Paragraph commence as of the
first day of any month after the DMG Participant would have attained age 55 and prior to the
date that would have been the DMG Participant’s Normal Retirement Date.




(f) Any provisions of the DMG Plan or this Appendix to the contrary notwithstanding, in
the absence of consent by the DMG Participant’s Eligible Surviving Spouse, payment of any
survivor annuity payable to such spouse pursuant to this Section may not begin prior to the
date such DMG Participant would have reached his Normal Retirement Date.


 


104









 





5.2 After Annuity Starting Date. With respect to any DMG Participant who dies on or
after his Annuity Starting Date, whether or not payment of his benefit has actually begun, the only
benefit payable pursuant to the DMG Plan or this Appendix shall be that, if any, provided for his
beneficiary pursuant to the form of benefit he was receiving or about to receive in accordance with
this Appendix.




5.3 Payment of Accumulation.




(a) If a DMG Participant dies before his Annuity Starting Date, his Accumulation will
be paid to his beneficiary designated pursuant to Paragraph (b) below in a single lump sum.
If a DMG Participant dies after his Annuity Starting Date, if he did not withdraw his
Accumulation prior to his death pursuant to Section 6.12, and if payment of his benefits
under the DMG Plan or this Appendix are not to be continued following his death to his
spouse or the contingent annuitant pursuant to Sections 5.1(d), 5.1(e), 6.3(a), or 6.5(a),
the excess, if any, of his Accumulation as of his Annuity Starting Date over the sum of the
benefits paid to him under the DMG Plan or this Appendix as of the date of his death, if
any, shall be paid in a lump sum to the beneficiary designated by the DMG Participant
pursuant to Paragraph (b) below. If a DMG Participant referred to in the preceding sentence
dies after his Annuity Starting Date, upon the death of the second to die of the DMG
Participant and his contingent annuitant or surviving spouse, the excess, if any, of the DMG
Participant’s Accumulation at his Annuity Starting Date over the sum of the benefits paid to
him and his contingent annuitant or spouse shall be paid in a lump sum to the beneficiary
designated by the DMG Participant pursuant to Paragraph (b) below.




(b) Subject to Section 6.2 below, each DMG Participant shall have the right to
designate the beneficiary or beneficiaries to receive any amounts payable under Paragraph
(a) above in the event of the death of the DMG Participant and his contingent annuitant or
surviving spouse, if applicable. Successive designations may be made by the DMG Participant,
and the last designation received by the Committee prior to the death of the DMG Participant
shall be effective and shall revoke all prior designations. If a designated person shall die
before the date for payment pursuant to Paragraph (a) above, then his interest shall
terminate, and, unless otherwise provided in the DMG Participant’s designation, such
interest shall be paid in equal shares to those designated beneficiaries, if any, who are
living on such date for payment. The DMG Participant shall have the right to revoke the
designation of any beneficiary without the consent of the beneficiary. Designations pursuant
to this Paragraph shall be made on the form prescribed by the Committee and shall be filed
with the Committee. If a DMG Participant shall fail to designate a beneficiary for purposes
of this Paragraph, if such designation shall for any reason be illegal or ineffective, or if
no beneficiary designated by the DMG Participant for purposes of this Paragraph shall be
living on the date for payment pursuant to Paragraph (a) above, then the designated
beneficiary to receive the amount payable pursuant to Paragraph (a) shall be: (i) if the DMG
Participant leaves a surviving spouse, any such amount shall be paid to such surviving
spouse; and (ii) if the DMG Participant leaves no surviving spouse, any such amount shall be
paid to such DMG Participant’s executor or administrator or to his heirs-at-law if there is
no administration of such DMG Participant’s estate.


 


105









 





5.4 Cash-Out of Death Benefit. If a DMG Participant dies prior to his Annuity Starting
Date, his surviving spouse or other beneficiary is entitled to a death benefit pursuant to this
Article and the Actuarially Equivalent present value of such death benefit is not in excess of
$1,000, such present value shall be paid to such surviving spouse or other beneficiary in a lump
sum payment in lieu of any other benefit herein provided and without regard to the spousal consent
requirement of Section 5.1(f). Any such payment shall be made as soon as administratively feasible
following the DMG Participant’s date of death.




6. Time and Form of Payment of Benefits.



6.1 Time of Payment of Benefits. Payment of benefits under the Plan to a DMG
Participant (other than death benefits) shall commence as of such DMG Participant’s Annuity
Starting Date, determined as follows, but the first payment shall be made no earlier than the
expiration of the election period described in Section 6.2 below:




(a) Except as provided in Paragraph (f) below, with respect to any DMG Participant who
is to receive his normal retirement benefit pursuant to Section 3.1(a), such DMG
Participant’s Annuity Starting Date shall be the first day of the month coincident with or
next following the date of such DMG Participant’s Retirement.




(b) Except as provided in Paragraph (f) below, with respect to any DMG Participant who
is to receive his early retirement benefit pursuant to Section 3.2(a), such DMG
Participant’s Annuity Starting Date shall be the first day of the month coincident with or
next following his Normal Retirement Date.




(c) Except as provided in Paragraph (f) below, with respect to any DMG Participant who
is to receive early commencement of his early retirement benefit pursuant to Section 3.2(b),
such DMG Participant’s Annuity Starting Date shall be the first day of the month so
requested.




(d) Except as provided in Paragraph (f) below, with respect to any DMG Participant who
is to receive his severance retirement benefit pursuant to Section 4.2(a), such DMG
Participant’s Annuity Starting Date shall be the first day of the month coincident with or
next following his Normal Retirement Date.




(e) Except as provided in Paragraph (f) below, with respect to any DMG Participant who
is to receive early commencement of his severance benefit pursuant to Section 4.2(b), such
DMG Participant’s Annuity Starting Date shall be the first day of the month so requested.




(f) With respect to any benefit payable pursuant to the provisions of Section 6.7, the
Annuity Starting Date shall be the date determined by the Committee which shall be as soon
as administratively feasible following the date of the DMG Participant’s termination of
employment.


 


106









 






6.2 Restrictions on Time of Payment of Benefits.




(a) Plan provisions to the contrary notwithstanding, a DMG Participant’s Annuity
Starting Date shall not occur in a manner that would violate the applicable timing, notice,
consent, or minimum distribution requirements of Article VIII of the Plan.




(b) Payment of a death benefit pursuant to this Appendix must commence no later than
the time mandated under Article VIII of the Plan.




(c) Subject to the provisions of Paragraphs (a), a DMG Participant’s Annuity Starting
Date shall not occur while the DMG Participant is employed by the Employer or any Controlled
Entity.




(d) Section 6.1 and Paragraph (a) above notwithstanding, a DMG Participant, other than
a DMG Participant whose Actuarially Equivalent present value of his Vested Interest in his
Accrued Benefit is not in excess of $1,000, must file a claim for benefits in the manner
prescribed by the Committee before payment of his benefits will commence. In the event that
the requirement in the preceding sentence delays the commencement of payment of a DMG
Participant’s benefits to a date after his Normal Retirement Date, such DMG Participant’s
benefit shall not be less than the Actuarial Equivalent of his Accrued Benefit payable at
his Normal Retirement Date.



6.3 Standard Form of Benefit for DMG Participants. For purposes of this Appendix, the
following standard forms of benefit shall apply:




(a) The standard form of benefit for any DMG Participant who is married on his Annuity
Starting Date shall be an annuity pursuant to which the DMG Participant shall receive the
greater of (1) a joint and survivor annuity which is the Actuarial Equivalent of the Pension
described in paragraph (b) and which is payable for the life of the DMG Participant with a
survivor annuity for the life of the DMG Participant’s spouse that shall be one-half the
amount of the annuity payable during the joint lives of the DMG Participant and the DMG
Participant’s spouse and (2) the Pension determined under Articles III or IV hereof, as
applicable, multiplied by a factor of .9000 reduced by .0050 for each year by which the DMG
Participant’s spouse is more than ten years younger than the DMG Participant, and such
spouse shall receive a benefit equal to one-half of the amount of the annuity payable during
the joint lives of the DMG Participant and such spouse.




(b) The standard form of benefit for any DMG Participant who was not married on his
Annuity Starting Date shall be the Pension described in Articles III or IV, whichever is
applicable to such DMG Participant.



6.4 Election Concerning Form of Benefit. Any DMG Participant who would otherwise
receive the standard form of benefit described in Section 6.3 may elect not to take his benefit in
such form by properly executing and filing the benefit election form prescribed by the Committee
during the Election Period referred to under the Plan and Section 6.2 of this Appendix as a
Qualified Election or, effective as of January 1, 2008, as a Qualified Optional Survivor Annuity.


 


107









 





6.5 Alternative Forms of Benefit. For purposes of Article III or IV, the benefit for
any DMG Participant who has elected pursuant to Section 6.4 not to receive his benefit in the
standard form set forth in Section 6.3 or the Qualified Optional Survivor Annuity shall be paid in
one of the following alternative forms described below selected by such DMG Participant, or, in the
absence of such selection, by the Committee prior to his Annuity Starting Date; provided, however,
that the period and method of payment of such form shall be in compliance with the provisions of
Code Section 401(a)(9) and applicable Treasury Regulations thereunder, as set forth in Article VIII
of the Plan:




(a) Joint and Survivor Option.




(1) Except as otherwise provided in this Paragraph (a), a DMG Participant may elect to
receive an annuity payable for the life of the DMG Participant with a survivor annuity (with
monthly payments under such survivor annuity equal to 1%, 50% 75% or 100%, as specified by
the DMG Participant in his election of this option, of such DMG Participant’s monthly
benefit) to the beneficiary designated by such DMG Participant in accordance with Section
6.11 for such designated beneficiary’s remaining lifetime. The benefit elected under this
clause (i) shall be the Actuarial Equivalent of the Pension referred to in Section 6.3(b).




(2) Notwithstanding the foregoing, a DMG Participant who elects a joint and survivor
annuity pursuant to Section 6.5(a)(1) shall receive a benefit equal to the greater of (A)
the benefit computed under subparagraph (1) above and (B) a benefit in the form described in
Section 6.5(a)(1) that is the Actuarial Equivalent of the benefit computed under Section
6.3(a) (or that would be computed under Section 6.3(a) if the contingent annuitant was the
DMG Participant’s spouse).




(3) Any Plan provision to the contrary notwithstanding, the optional form of payment
described in this Paragraph (a) shall become effective on the DMG Participant’s Annuity
Starting Date, except that such election will be automatically cancelled if either the DMG
Participant or his contingent annuitant dies before such DMG Participant’s Annuity Starting
Date. An election of such optional form cannot be modified or rescinded after the effective
date thereof.




(4) A DMG Participant may not elect an optional form of benefit pursuant to this
Paragraph (a) providing monthly benefits to a contingent annuitant who is other than his
spouse unless the Actuarial Equivalent of the payments expected to be made to the DMG
Participant is more than 50% of the Actuarial Equivalent of the total payments expected to
be made under such optional form. In no event, however, shall the amount of each monthly
payment to a contingent annuitant exceed the amount of each monthly payment made to the DMG
Participant.




(b) Life Annuity. The DMG Participant may elect to receive an annuity payable
for the life of the DMG Participant. The benefit elected under this Paragraph shall be the
Actuarial Equivalent of the Pension referred to in Section 6.3(b). The optional form of
payment described in this Paragraph shall become effective on the DMG Participant’s Annuity
Starting Date, except that such election shall be automatically
cancelled if the DMG Participant dies before such date. An election of such optional form
cannot be modified or rescinded after the effective date thereof.


 


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6.6 Level Income Option. If payment of a DMG Participant’s benefit commences prior to
the earliest age as of which such DMG Participant will become eligible for an Old-Age Insurance
Benefit under the Social Security Act and such DMG Participant’s benefits will be paid in the form
of an annuity, then at the request of the DMG Participant the amount of the payments of his benefit
may be adjusted so that an increased amount will be paid prior to such age and a reduced amount
thereafter; the purpose of this adjustment is to enable the DMG Participant to receive from the
Plan and under the Social Security Act an aggregate income in approximately a level amount for
life. Such adjusted payments shall be the Actuarial Equivalent of the benefit otherwise payable to
such DMG Participant.



6.7 Cash-Out of Accrued Benefit. If a DMG Participant terminates his employment with
the Employer and all Controlled Entities and the Actuarially Equivalent present value of his Vested
Interest in his Accrued Benefit is not in excess of $1,000, then such present value shall be paid
to such terminated DMG Participant in lieu of any other benefit herein provided and without regard
to the election and consent requirements of the Plan and this Appendix. Any such payment shall be
made as soon as administratively feasible following such DMG Participant’s termination of
employment. The provisions of this Section shall not be applicable to a DMG Participant following
his Annuity Starting Date.



6.8 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 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 DMG 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.




6.9 Special Distribution Limitations. See Plan Section 8.8.




6.10 Beneficiaries and Joint Annuitants.




(a) Subject to the restrictions of Section 6.4, each DMG Participant shall have the
right to designate the beneficiary or beneficiaries or joint annuitant to receive any
continuing payments in the event such DMG Participant’s benefit is payable in a form whereby
payments could continue beyond such DMG Participant’s death. Each such designation shall be
separate from the beneficiary designation under this Appendix, and each such designation
shall be made on the form prescribed by the Committee and shall be filed with the Committee.
Any such designation may be changed at any time by such DMG Participant by execution of a
new designation form and filing such form with the
Committee except that a joint annuitant cannot be changed after a DMG Participant’s Annuity
Starting Date.


 


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(b) If a DMG Participant’s designated joint annuitant dies before the DMG Participant’s
Annuity Starting Date, such DMG Participant’s election of a form of benefit for the joint
lives of the DMG Participant and such joint annuitant shall be canceled automatically and
such DMG Participant’s benefit shall be paid in the form of the standard benefit set forth
in Section 6.3, unless a new election of an alternative form of benefit is made in
accordance with the provisions of Section 6.4. The death of a joint annuitant following a
DMG Participant’s Annuity Starting Date shall not affect a DMG Participant’s benefit
election or permit such DMG Participant to revoke such election.




6.11 Reemployment of DMG Participants.




(a) General Rule.




(1) In the event a DMG Participant to whom payment of his retirement benefit under the
DMG Plan or this Appendix has commenced is reemployed by an Employer or a Controlled Entity,
whether or not as an Eligible Employee, payment of his retirement benefit shall not be
interrupted or otherwise adversely affected, but shall be subject to the terms and
conditions of this Section 6.11.




(2) In the event a DMG Participant is reemployed by an Employer or Controlled Entity,
whether or not as an Eligible Employee, before payment of his retirement benefit has
commenced, his benefit shall not commence during his period of reemployment.




(b) If a DMG Participant described in Paragraph (a)(1) above is reemployed as an
Eligible Employee, he shall resume benefit accruals pursuant to the applicable provisions of
the DMG Plan or this Appendix, subject to the modifications required by this Section 6.11.
In this regard, the benefit accrual of such DMG Participant during his reemployment shall be
determined at the end of such period of reemployment to be the excess, if any, of the amount
determined pursuant to the applicable provisions in the Plan over the Actuarial Equivalent
of the DMG Participant’s Accrued Benefit as of his Annuity Starting Date. Any such excess
shall be applied as of the first retirement benefit payment after the DMG Participant’s
period of reemployment to increase such retirement benefit payment and each payment
thereafter in the annuity form in which such DMG Participant’s retirement benefit is being
paid, together with an actuarial adjustment, if necessary, adequate to satisfy the
requirements of Code Section 411(a) and Department of Labor Regulation Section 2530.203-3
concerning the delay in payment of the amount of such increase. In the event such DMG
Participant’s reemployment continues after April 1 of the year immediately following the
year in which he attains age seventy and one-half (701/2), an actuarial adjustment, if
necessary, adequate to satisfy the requirements of Code Section 401(a)(9)(C)(iii) with
respect to the delay in payment of the amount of such increase for periods after such April
1 shall be applied. In no event shall retirement benefit payments made prior to the date of
such DMG Participant’s reemployment or during his period of reemployment be taken into
account with respect to his benefit
accruals or retirement benefits payable after his reemployment or after his subsequent
termination of employment.



6.12 Withdrawal of Accumulation. See Plan Section 8.12.


 


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APPENDIX D



Participating Employers




For Purposes of Plan Articles V, VI, and VII




1. Dynegy Midwest Generation, Inc. — shall be an “Employer” solely for the purpose of providing
benefits under Articles V, VI, and VII of the Plan to Eligible Employees who are salaried non-union
employees with Employment Commencement Dates or Reemployment Commencement Dates with Dynegy Midwest
Generation, Inc. occurring prior to January 1, 2009.



For Purposes of Appendix A




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 Appendix A of the Plan to Eligible Employees who are salaried non-union employees
with Employment Commencement Dates or Reemployment Commencement Dates with Dynegy Midwest
Generation, Inc. occurring on or after January 1, 2009.



4. Dynegy Northeast Generation, Inc. — shall be an “Employer” solely for the purpose of providing
benefits under Appendix A of the Plan to:




(i) Eligible Employees with Employment Commencement Dates and Reemployment Commencement
Dates with Dynegy Northeast Generation, Inc. occurring 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 with Employment Commencement Dates and Reemployment Commencement
Dates with Dynegy Northeast Generation, Inc. occurring on or after January 1, 2009.



5. Dynegy Operating Company




6. Dynegy Power Company




7 Sithe Energies Power Services, Inc.



For Purposes of Appendix B




There are no currently participating Employers for the purpose of providing benefits under Appendix
B.



For Purposes of Appendix C




1. Dynegy Midwest Generation, Inc. — shall be an “Employer” solely for the purpose of providing
benefits under Appendix C of the Plan to Eligible Employees who are union employees.




 


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