þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Commission | State of | I.R.S. Employer | ||||
Entity | File Number | Incorporation | Identification No. | |||
Dynegy Inc. | 001-33443 | Delaware | 20-5653152 | |||
Dynegy Holdings Inc. | 000-29311 | Delaware | 94-3248415 | |||
1000 Louisiana, Suite 5800 | ||||||
Houston, Texas | ||||||
(Address of principal | 77002 | |||||
executive offices) | (Zip Code) |
Title of each class | Name of each exchange on which registered | |
Dynegys Class A common stock, $0.01 par value | New York Stock Exchange |
Title of each class | Name of each exchange on which registered | |
None | None |
Dynegy Inc.
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Yes þ No o | |
Dynegy Holdings Inc.
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Yes o No þ |
Dynegy Inc.
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Yes o No þ | |
Dynegy Holdings Inc.
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Yes o No þ |
Dynegy Inc.
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Yes þ No o | |
Dynegy Holdings Inc.
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Yes þ No o |
Dynegy Inc.
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Dynegy Holdings Inc.
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þ |
Large accelerated filer | Accelerated filer | Non-accelerated filer | Smaller reporting company | |||||
Dynegy Inc.
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þ | o | o | o | ||||
Dynegy Holdings Inc.
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o | o | þ | o |
Dynegy Inc.
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Dynegy Holdings Inc.
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safe and cost-efficient plant operations, with a focus on having our plants available
and in the market when it is economical to do so;
a diverse commercial strategy that includes short-, medium- and long-term sales of
electric energy, capacity and ancillary services, and seeks to strike a balance between
contracting for near/intermediate term stability of earnings and cash flows while
maintaining merchant length to capitalize on expected increases in commodity prices in the
longer term; and
pursuit of plant expansions and growth opportunities that enhance our portfolio with
acceptable rates of return and are accretive to stockholder value.
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Total Net
Generating Capacity
Primary
Dispatch
Facility
(MW)(1)
Fuel Type
Type
Location
Region
1,800
Coal
Baseload
Baldwin, IL
MISO
1,200
Gas
Intermediate
Minooka, IL
PJM
580
Gas
Intermediate
Ontelaunee Township, PA
PJM
228
Oil
Peaking
Havana, IL
MISO
441
Coal
Baseload
Havana, IL
MISO
293
Coal
Baseload
Hennepin, IL
MISO
63
Gas
Peaking
Oglesby, IL
MISO
89
Gas
Peaking
Stallings, IL
MISO
188
Gas
Peaking
Tilton, IL
MISO
164
Coal/Gas
Baseload
Oakwood, IL
MISO
12
Oil
Peaking
Oakwood, IL
MISO
119
Gas
Peaking
Alton, IL
MISO
446
Coal
Baseload
Alton, IL
MISO
330
Gas
Peaking
East Dundee, IL
PJM
960
Gas
Peaking
Louisa, KY
PJM
776
Gas
Peaking
Carson City, MI
MISO
576
Gas
Peaking
Oldham County, KY
SERC
8,265
1,020
Gas
Intermediate
Monterrey County, CA
CAISO
1,509
Gas
Peaking
Monterrey County, CA
CAISO
650
Gas
Peaking
Morro Bay, CA
CAISO
706
Gas/Oil
Peaking
Chula Vista, CA
CAISO
165
Oil
Peaking
Oakland, CA
CAISO
585
Gas
Intermediate
Arlington, AZ
Southwest
558
Gas
Intermediate
Golden Valley, AZ
WAPA
539
Gas
Peaking
Heard County, GA
SERC
43
Gas
Baseload
Las Vegas, NV
WECC
5,775
1,064
Gas
Intermediate
Scriba, NY
NYISO
1,185
Gas/Oil
Peaking
Newburgh, NY
NYISO
527
Gas
Intermediate
Bridgeport, CT
ISO-NE
540
Gas
Intermediate
Veazie, ME
ISO-NE
123
Gas/Oil
Peaking
Newburgh, NY
NYISO
370
Coal/Gas
Baseload
Newburgh, NY
NYISO
3,809
17,849
(1)
Unit capacity values are based on winter capacity.
(2)
Does not include 28 MW of capacity for unit 3, which is not available during cold weather
because of winterization requirements.
(3)
Represents units 3 and 4 generating capacity. Units 1 and 2, with a combined net generating
capacity of 352 MW, are currently in lay-up status and out of operation.
(4)
On February 25, 2009, we entered into an agreement to sell our interest in the Heard County power generation
facility to Oglethorpe Power Corporation. Subject to regulatory approval, the transaction is expected to close in early 2009.
Please read Note 4Dispositions, Contract Terminations and Discontinued OperationsDispositions and Contract TerminationsHeard
County for further discussion.
(5)
We own a 50 percent interest in this facility. Total output capacity of this facility is 85
MW.
(6)
We lease the Roseton facility and units 3 and 4 of the Danskammer facility pursuant to a
leveraged lease arrangement that is further described in Item 7. Managements Discussion and
Analysis of Financial Condition and Results of OperationsLiquidity and Capital
ResourcesDisclosure of Contractual Obligations and Contingent Financial
CommitmentsOff-Balance Sheet ArrangementsDNE Leveraged Lease.
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2009
2010
2011
2012
(in millions)
$
245
$
215
$
165
$
45
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22
23
24
25
26
27
28
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beliefs about commodity pricing and generation volumes;
beliefs regarding the current economic downturn, its trajectory and its impacts;
sufficiency of, access to and costs associated with coal, fuel oil and natural gas
inventories and transportation;
beliefs and assumptions about market competition, generation capacity and regional
supply and demand characteristics of the wholesale power generation market;
beliefs associated with Dynegys market capitalization and its impact on goodwill;
strategies to capture opportunities presented by changes in commodity prices and to
manage our exposure to energy price volatility;
beliefs and assumptions about weather and general economic conditions;
expectations regarding environmental matters, including costs of compliance,
availability and adequacy of emission credits, and the impact of ongoing proceedings and
potential regulations, including those relating to climate change;
projected operating or financial results, including anticipated cash flows from
operations, revenues and profitability;
beliefs and assumptions regarding the current financial crisis and its impact on our
liquidity needs and on the credit markets generally and our access thereto;
beliefs and assumptions relating to liquidity and capital resources generally;
beliefs and expectations regarding financing, development and timing of the Sandy
Creek and Plum Point projects;
expectations regarding capital expenditures, interest expense and other payments;
our focus on safety and our ability to efficiently operate our assets so as to
maximize our revenue generating opportunities and operating margins;
beliefs about the outcome of legal, regulatory, administrative and legislative
matters;
expectations and estimates regarding capital and maintenance expenditures, including
the Consent Decree and its associated costs; and
efforts to position our power generation business for future growth and pursuing and
executing acquisition, disposition or combination opportunities.
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the current and continuing economic downturn, the existence and effectiveness of
demand-side management and conservation efforts and the extent to which they impact
electricity demand;
regulatory constraints on pricing (current or future);
fuel price volatility; and
increased competition or price pressure driven by generation from renewable sources.
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make it difficult to satisfy our financial obligations;
limit our ability to obtain additional financing;
limit our financial flexibility in planning for and reacting to business and
industry changes;
impact the evaluation of our creditworthiness by counterparties to commercial
agreements and affect the level of collateral we are required to post under such
agreements;
place us at a competitive disadvantage compared to less leveraged companies;
impact our ability to participate in industry consolidation; and
increase our vulnerability to general adverse economic and industry conditions.
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general economic and capital market conditions, including the timing and magnitude
of market recovery;
covenants in our existing debt and credit agreements;
investor confidence in us and the regional wholesale power markets;
our financial performance and the financial performance of our subsidiaries;
our levels of debt;
our requirements for posting collateral under various commercial agreements;
our credit ratings;
our cash flow; and
our long-term business prospects.
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the ability to nominate up to three directors to Dynegys board of directors based
on its percentage ownership interest in Dynegy; and
the requirement that Dynegy not pursue any of the following actions if all
directors nominated by the LS Control Group present at the relevant board meeting vote
against such action:
any amendment of Dynegys amended and restated certificate of incorporation
or amended and restated bylaws;
any merger or consolidation of Dynegy and certain dispositions of Dynegys
assets or businesses, certain acquisitions, binding capital commitments,
guarantees and investments and certain joint ventures with an aggregate value
in excess of a specified amount;
Dynegys payment of dividends or similar distributions;
Dynegys engagement in new lines of business;
Dynegys liquidation or dissolution, or certain bankruptcy-related events
with respect to Dynegy;
Dynegys issuance of any equity securities, with certain exceptions for
issuances of Dynegys Class A common stock;
Dynegys incurrence of any indebtedness in excess of a specified amount;
the hiring, or termination of the employment of, Dynegys Chief Executive
Officer (other than Bruce A. Williamson);
our entry into any agreement or other action that limits the activities of
any holder of Dynegys Class B common stock or any of such holders affiliates;
and
our entry into other material transactions with a value in excess of a
specified amount.
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April 2, 2009;
the date the stockholders party to the Shareholder Agreement cease to own at least
15 percent of the total combined voting power of Dynegys outstanding securities; or
if certain conditions are met, the date a third-party offer is made to acquire more
than 25 percent of Dynegys assets or voting securities.
diversion of our managements attention;
the ability to obtain required regulatory and other approvals;
the need to integrate acquired or combined operations with our operations;
potential loss of key employees;
difficulty in evaluating the power assets, operating costs, infrastructure
requirements, environmental and other liabilities and other factors beyond our
control;
potential lack of operating experience in new geographic/power markets or with
different fuel sources;
an increase in our expenses and working capital requirements; and
the possibility that we may be required to issue a substantial amount of additional
equity or debt securities or assume additional debt in connection with any such
transactions.
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30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
Item 5.
Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
High
Low
$
2.69
$
1.28
$
4.06
$
1.51
8.76
3.20
9.64
8.05
8.26
6.44
$
9.50
$
7.14
10.62
7.86
10.65
9.08
9.58
6.52
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1.
$100 was invested in Dynegy Class A common stock, the S&P 500, the
Peer Group (as defined below) on December 31, 2003;
2.
the returns of each component company in the Peer Group are weighed
based on the market capitalization of such company at the beginning of the
measurement period; and
3.
dividends are reinvested on the ex-dividend dates.
Among Dynegy Inc. The S&P 500 Index
And A Peer Group
*
$100 invested on 12/31/03 in stock & index-including
reinvestment of dividends. Fiscal year ending December 31.
12/03
12/04
12/05
12/06
12/07
12/08
100.00
107.94
113.08
169.16
166.82
46.73
100.00
110.88
116.33
134.70
142.10
89.53
100.00
174.98
177.55
241.73
359.04
151.50
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(d)
Maximum
(c)
Number of
Total Number of
Shares that
Shares Purchased
May Yet Be
(a)
(b)
as Part of
Purchased
Total Number
Average
Publicly
Under the
of Shares
Price Paid
Announced Plans
Plans or
Period
Purchased
per Share
or Programs
Programs
N/A
269
$
3.64
N/A
6,189
$
2.18
N/A
6,458
$
2.24
N/A
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Year Ended December 31,
2008
2007
2006
2005
2004
(in millions, except per share data)
$
3,549
$
3,103
$
1,770
$
2,017
$
2,249
(371
)
(325
)
(217
)
(208
)
(221
)
(47
)
(119
)
(46
)
(78
)
(157
)
(203
)
(196
)
(468
)
(330
)
709
605
105
(832
)
(66
)
(427
)
(384
)
(631
)
(389
)
(453
)
(75
)
(151
)
152
393
158
171
116
(321
)
(800
)
(160
)
3
148
(13
)
895
145
1
(5
)
$
174
$
264
$
(333
)
$
90
$
(15
)
174
264
(342
)
68
(37
)
$
0.20
$
0.15
$
(0.72
)
$
(2.12
)
$
(0.48
)
0.20
0.35
(0.75
)
0.18
(0.10
)
$
0.20
$
0.15
$
(0.72
)
$
(2.12
)
$
(0.48
)
0.20
0.35
(0.75
)
0.18
(0.10
)
840
752
459
387
378
842
754
509
513
504
$
$
$
$
$
$
319
$
341
$
(194
)
$
(30
)
$
5
(102
)
(817
)
358
1,824
262
148
433
(1,342
)
(873
)
(115
)
(17
)
(22
)
(22
)
(640
)
(504
)
(163
)
(315
)
(314
)
December 31,
2008
2007
2006
2005
2004
(in millions)
$
2,803
$
1,663
$
1,989
$
3,706
$
2,728
1,702
999
1,166
2,116
1,802
8,934
9,017
4,951
5,323
6,130
14,213
13,221
7,537
10,126
9,843
6,072
5,939
3,190
4,228
4,332
64
51
68
71
34
400
400
(30
)
23
106
4
5
6
4,515
4,506
2,267
2,140
1,956
(1)
The Merger (April 2, 2007) and the Sithe Energies acquisition (February 1, 2005) were each
accounted for in accordance with the purchase method of accounting and the results of
operations attributable to the acquired businesses are included in our financial statements and operating statistics beginning on the
acquisitions effective date for accounting purposes.
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(2)
The Merger and the Sithe Energies acquisition were each accounted for under the purchase
method of accounting. Accordingly, the purchase price was allocated to the assets acquired
and liabilities assumed based on their estimated fair values as of the effective dates of each
transaction. Please read note (1) above for respective effective dates.
(3)
Discontinued operations include the results of operations from the following businesses:
DMSLP (sold fourth quarter 2005);
Calcasieu power generating facility (sold first quarter 2008); and
CoGen Lyondell power generating facility (sold third quarter 2007).
Year Ended December 31,
2008
2007
2006
2005
2004
(in millions, except per share data)
$
3,549
$
3,103
$
1,770
$
2,017
$
1,447
(371
)
(325
)
(217
)
(208
)
(210
)
(47
)
(119
)
(40
)
(24
)
(157
)
(184
)
(193
)
(375
)
(285
)
709
624
108
(733
)
(202
)
(427
)
(384
)
(579
)
(383
)
(332
)
(123
)
(116
)
125
374
166
205
176
(296
)
(727
)
(247
)
3
148
(12
)
813
143
(5
)
$
208
$
324
$
(308
)
$
81
$
(104
)
$
319
$
368
$
(205
)
$
(24
)
$
(160
)
(87
)
(688
)
357
1,839
(211
)
146
369
(1,235
)
(734
)
289
(626
)
(350
)
(155
)
(169
)
(219
)
December 31,
2008
2007
2006
2005
2004
(in millions)
$
2,780
$
1,614
$
1,828
$
3,457
$
2,192
1,681
999
1,165
2,212
1,773
8,934
9,017
4,951
5,323
6,130
14,174
13,107
8,136
10,580
10,129
6,072
5,939
3,190
4,003
4,107
64
51
68
191
34
(30
)
23
106
4
5
6
4,613
4,597
3,036
3,331
3,085
(1)
The Contributed Entities assets were contributed to DHI contemporaneously with the Merger.
This contribution was accounted for as a transaction between entities under common control.
As such, the assets and liabilities were recorded by DHI at Dynegys historical cost on
Dynegys date of acquisition. Please read Note 3Business Combination and AcquisitionsLS
Assets Contribution for further discussion. Additionally, the Sithe Energies assets were
contributed to DHI on April 2, 2007. This contribution was accounted for as a transaction
between entities under common control. As such, the assets and liabilities were recorded by
DHI at Dynegys historical cost on Dynegys date of acquisition, January 31, 2005. In
addition, DHIs historical financial statements have been adjusted in all periods presented to reflect the contribution as
though DHI had owned these assets beginning January 31, 2005. Please read Note 3Business
Combination and AcquisitionsLS Assets Contribution for further discussion.
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(2)
Discontinued operations include the results of operations from the following businesses:
DMSLP (sold fourth quarter 2005);
Calcasieu power generating facility (sold first quarter 2008); and
CoGen Lyondell power generating facility (sold third quarter 2007).
Prices for power, natural gas, coal and fuel oil, which in turn are largely driven by
supply and demand. Demand for power can vary due to weather and general economic
conditions, among other things. For example, a warm summer or a cold winter typically
increases demand for electricity. Power supplies similarly vary by region and are
impacted significantly by available generating capacity, transmission capacity and
federal and state regulation;
The relationship between prices for power and natural gas and prices for power and
fuel oil, commonly referred to as the spark spread, which impacts the margin we earn on
the electricity we generate. We believe that our coal-fired generating facilities
provide a certain level of predictability of earnings in the near term since our
delivered cost of coal, particularly in the Midwest region, is relatively stable and
positions us for potential increases in earnings and cash flows in an environment where
power prices increase; and
Our ability to enter into commercial transactions to mitigate near term earnings
volatility and our ability to better manage our liquidity requirements resulting from
potential changes in collateral requirements as prices move.
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Transmission constraints, congestion, and other factors that can affect the price
differential between the locations where we deliver generated power and the liquid market
hub;
Our ability to control capital expenditures, which primarily include maintenance,
safety, environmental and reliability projects, and to control other costs through
disciplined management;
Overall electricity demand patterns;
Our ability to optimize our assets by maintaining a high in-market availability,
reliable run-time and safe, efficient operations; and
The cost of compliance with existing and future environmental requirements that are
likely to be more stringent and more comprehensive.
Our ability to maintain sufficient coal inventories, which is dependent upon the
continued performance of the railroads for deliveries of coal in a consistent and timely
manner, and its impact on our ability to serve the critical winter and summer on-peak
loads;
Our requirement for the next four years to utilize a significant amount of cash for
capital expenditures required to comply with the Consent Decree;
Changes in the MISO market design or associated rules; and
Changes in the existing PJM RPM capacity markets or in the bilateral MISO capacity
markets and any resulting effect on future capacity revenues.
Our ability to maintain the necessary permits to continue to operate our Moss Landing
power generation facility with a once-through, seawater cooling system;
Our ability to maintain and operate our plants in a manner that ensures we receive
full capacity payments under our various tolling agreements; and
The economic life of our facilities, which could be adversely impacted by contractual
obligations, regulatory actions or other factors.
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Our ability to maintain sufficient coal and fuel oil inventories, including continued
deliveries of coal in a consistent and timely manner, and maintain access to natural gas,
impacts our ability to serve the critical winter and summer on-peak loads; and
State-driven programs aimed at capping mercury and CO
2
emissions will
impose additional costs on our power generation facilities.
Interest expense, which reflects debt with a weighted-average rate of approximately 7
percent;
General and administrative costs, which will be impacted by, among other things, (i)
staffing levels and associated expenses; (ii) funding requirements under our pension
plans; and (iii) any future corporate-level litigation reserves or settlements; and
Income taxes, which will be impacted by our ability to realize our significant
alternative minimum tax credits.
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Lehman Commercial Paper Inc. (Lehman CP), a lender under our Credit Agreement,
entered bankruptcy proceedings. As a result, our effective availability under the
Credit Agreement may be reduced by $70 million to $1.9 billion;
We recorded a reserve of $3 million as a result of the bankruptcy of LBH. This
reserve represents the uncollateralized portion of our $15 million net position arising
from our outstanding commercial transactions with a subsidiary of LBH;
A large money market fund in which we invested a portion of our cash balance lowered
its share price below $1, subsequently suspended distributions and commenced liquidation.
As a result, we reclassified our $127 million investment from cash equivalents to
short-term investments and recorded a $2 million impairment. We have received
approximately $100 million of distributions as of December 31, 2008; and
A decrease in liquidity in the bilateral markets for forward power sales, resulting in
increased exchange-traded transactions settling through our futures clearing manager that
can potentially result in the need for additional cash collateral postings.
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continue to hold their 40 percent investment in Dynegy;
make an offer to purchase all of the outstanding shares of Dynegys common stock.
Upon such offer, we may either (i) accept the offer or (ii) if requested by the LS
Entities, conduct an auction of Dynegy in which the LS Entities may elect whether or not
to participate; or
freely transfer (i.e. sell) their shares of Dynegys Class B common stock to any
person so long as such transfer would not result in such person owning more than 15
percent of the outstanding shares of Dynegys common stock.
February 20
,
December 31,
December 31,
2009
2008
2007
(in millions)
$
1,080
$
1,080
$
1,150
825
825
825
377
377
425
(1,104
)
(1,135
)
(1,279
)
1,178
1,147
1,121
675
670
292
1,853
1,817
1,413
183
23
36
$
2,036
$
1,840
$
1,449
(1)
Lehman CP filed for protection from creditors under the bankruptcy law in
October 2008, thus potentially reducing the available capacity of the revolving
portion of the Credit Agreement by $70 million. Please read Note 15DebtCredit
Agreement for further discussion. We continue to believe that we maintain
sufficient liquidity despite any such reduction in the available capacity under the
revolving portion of our Credit Agreement.
(2)
We currently have 15 lenders participating in the revolving portion of
our Credit Agreement with commitments ranging from $10 million to $105 million.
Other than the commitment from Lehman CP, we have not experienced, nor do we
currently anticipate, any difficulties in obtaining funding from any of the
remaining lenders at this time. However, we continue to monitor the environment,
and any lack of or delay in funding by a significant member or multiple members of
our banking group could negatively affect our liquidity position.
(3)
Based on managements current forecast of financial performance during 2009, DHIs available liquidity under
the Fifth Amended and Restated Credit Facility may be reduced temporarily in order to remain in compliance with the secured debt
to adjusted EBITDA ratio.
(4)
Under the terms of the Contingent LC Facility, up to $300 million of
capacity can become available, contingent on 2009 forward natural gas prices rising
above $13/MMBtu. Over the course of 2009, the ratio of availability per dollar
increase in natural gas prices will be reduced, on a pro rata monthly basis, to zero
by year-end.
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February 20
,
December 31,
December 31,
2009
2008
2007
(in millions)
$
1,128
$
1,064
$
1,130
189
189
202
$
1,317
$
1,253
$
1,332
$
213
$
118
$
53
1,104
1,135
1,279
$
1,317
$
1,253
$
1,332
(1)
Cash collateral postings exclude the effect of cash inflows and
outflows arising from the daily settlements of our exchange-traded or brokered
commodity futures positions held with our futures clearing manager.
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December 31,
2008
2007
2006
(in millions)
$
530
$
300
$
101
29
17
24
36
47
22
16
15
8
$
611
$
379
$
155
2009
2010
2011
2012
(in millions)
$
245
$
215
$
165
$
45
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Table of Contents
December 31,
December 31,
2008
2007
(in millions)
$
919
$
920
4,945
5,015
5,864
5,935
959
806
6,823
6,741
(700
)
(770
)
13
19
$
6,136
$
5,990
(1)
Includes PPEAs non-recourse project financing of $515 million and tax-exempt bonds of $100 million for its
share of the construction of the Plum Point facility. Although we own a 37 percent
economic interest in PPEA, we consolidate PPEA and its debt, as we are the primary
beneficiary of this VIE. Also includes project financing associated with our
Independence facility. Please read Note 12Variable Interest Entities for further
discussion.
(2)
Represents present value of future lease payments discounted at 10 percent.
(3)
Consists of net premiums on debt of $13 million and $19 million at December
31, 2008 and 2007, respectively.
(4)
Does not include letters of credit.
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Expiration by Period
Less than 1
More than 5
Total
Year
1-3 Years
3-5 Years
Years
(in millions)
$
6,136
$
64
$
643
$
1,586
$
3,843
3,148
419
755
676
1,298
1,196
171
258
355
412
12
2
4
4
2
345
46
95
92
112
193
6
12
12
163
19
1
2
2
14
877
39
142
123
573
80
27
53
41
14
10
6
11
$
12,047
$
789
$
1,974
$
2,856
$
6,428
Table of Contents
A payment of $8.5 million in 2009 related to Illinois rate relief legislation. Please
read Note 19Commitments and ContingenciesIllinois Auction Complaints for further
discussion;
Payments associated with a capacity contract between Independence and Con Edison. The
aggregate payments through the 2014 expiration are approximately $13 million as of
December 31, 2008;
$6 million of reserves recorded in connection with FIN No. 48, Accounting for
Uncertainty in Income Taxes (FIN No. 48). Please read Note 17Income
TaxesUnrecognized Tax Benefits for further discussion;
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Amounts related to a long-term coal agreement to assist in the delivery of coal to our
Danskammer plant in Newburgh, New York. The agreement extends until 2010, and the
minimum aggregate payments through expiration total approximately $7 million as of
December 31, 2008; and
Agreements for the supply of water to our generating facilities.
Expiration by Period
Less than 1
More than 5
Total
Year
1-3 Years
3-5 Years
Years
(in millions)
$
1,135
$
835
$
300
$
$
7
7
$
1,142
$
842
$
300
$
$
(1)
Amounts include outstanding letters of credit.
(2)
Surety bonds are generally on a rolling 12-month basis. The $7 million of surety bonds
are supported by collateral.
Table of Contents
2008
2007
2006
(in millions)
$
50
$
50
$
50
$
144
$
107
$
60
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Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
1,623
$
925
$
1,006
$
(5
)
$
3,549
(584
)
(574
)
(705
)
10
(1,853
)
(205
)
(124
)
(180
)
15
(494
)
(206
)
(101
)
(54
)
(10
)
(371
)
(47
)
(47
)
56
11
15
82
(157
)
(157
)
$
684
$
90
$
67
$
(132
)
$
709
(40
)
(83
)
(123
)
3
5
6
73
87
(427
)
246
(75
)
171
3
$
174
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Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
1,325
$
689
$
1,076
$
13
$
3,103
(482
)
(400
)
(688
)
19
(1,551
)
(193
)
(86
)
(179
)
(4
)
(462
)
(194
)
(73
)
(45
)
(13
)
(325
)
39
4
43
(203
)
(203
)
$
495
$
130
$
164
$
(184
)
$
605
6
(9
)
(3
)
(7
)
56
49
(384
)
267
(151
)
116
148
$
264
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Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
969
$
87
$
609
$
105
$
1,770
(318
)
(66
)
(370
)
(44
)
(798
)
(165
)
(6
)
(160
)
(7
)
(338
)
(168
)
(8
)
(24
)
(17
)
(217
)
(110
)
(9
)
(119
)
3
3
(196
)
(196
)
$
208
$
(2
)
$
55
$
(156
)
$
105
(1
)
(1
)
2
1
9
42
54
(631
)
(473
)
152
(321
)
(13
)
1
$
(333
)
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Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
1,623
$
925
$
1,006
$
(5
)
$
3,549
(584
)
(574
)
(705
)
10
(1,853
)
(205
)
(124
)
(180
)
15
(494
)
(206
)
(101
)
(54
)
(10
)
(371
)
(47
)
(47
)
56
11
15
82
(157
)
(157
)
$
684
$
90
$
67
$
(132
)
$
709
(40
)
(40
)
3
5
6
72
86
(427
)
328
(123
)
205
3
$
208
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Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
1,325
$
689
$
1,076
$
13
$
3,103
(482
)
(400
)
(688
)
19
(1,551
)
(193
)
(86
)
(179
)
(4
)
(462
)
(194
)
(73
)
(45
)
(13
)
(325
)
39
4
43
(184
)
(184
)
$
495
$
130
$
164
$
(165
)
$
624
6
6
(7
)
53
46
(384
)
292
(116
)
176
148
$
324
Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
969
$
87
$
609
$
105
$
1,770
(318
)
(66
)
(370
)
(44
)
(798
)
(165
)
(6
)
(160
)
(7
)
(338
)
(168
)
(8
)
(24
)
(17
)
(217
)
(110
)
(9
)
(119
)
3
3
(193
)
(193
)
$
208
$
(2
)
$
55
$
(153
)
$
108
(1
)
(1
)
2
1
9
39
51
(579
)
(421
)
125
(296
)
(12
)
$
(308
)
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Year Ended December 31,
2008
2007
2006
24.5
25.0
21.5
90
%
93
%
89
%
16
%
19
%
$
67
$
61
$
52
$
66
$
59
$
52
$
84
$
71
$
62
15
17
10
11.2
11.1
0.9
44
%
59
%
$
80
$
67
$
61
$
72
$
62
$
58
$
18
$
16
$
14
$
13
$
13
$
12
7.9
9.4
4.4
91
%
90
%
86
%
25
%
37
%
17
%
$
101
$
84
$
76
$
68
$
64
$
59
$
91
$
78
$
70
$
3
$
12
$
9
$
23
$
23
$
19
$
(37
)
$
(16
)
$
(10
)
$
8.85
$
6.95
$
6.74
(1)
Reflects the percentage of generation available during periods when market
prices are such that these units could be profitably dispatched.
(2)
Reflects actual production as a percentage of available capacity.
(3)
Reflects the average of day-ahead quoted prices for the periods presented and
does not necessarily reflect prices realized by the Company.
(4)
Reflects the simple average of the spark spread available to a 7.0 MMBtu/MWh
heat rate generator selling power at day-ahead prices and buying delivered natural gas
or fuel oil at a daily cash market price and does not reflect spark spreads available
to the Company.
(5)
Includes our ownership percentage in the MWh generated by our GEN-WE investment
in the Black Mountain power generation facility for the years ended December 31, 2008,
2007 and 2006, respectively.
(6)
Excludes approximately 1.8 million MWh and 2.9 million MWh generated by our
CoGen Lyondell power generation facility, which we sold in August 2007, for the years
ended December 31, 2007 and 2006 and less than 0.1 million MWh generated by our
Calcasieu power generation facility, which we sold on March 31, 2008, for the years
ended December 31, 2008, 2007 and 2006.
(7)
Reflects the average of daily quoted prices for the periods presented and does
not reflect costs incurred by the Company.
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Year Ended December 31, 2008
Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
56
$
$
$
$
56
(47
)
(47
)
16
16
15
15
11
11
13
13
24
24
(40
)
(40
)
12
12
$
56
$
(63
)
$
$
67
$
60
(24
)
(24
)
(47
)
(47
)
6
6
$
56
$
(63
)
$
$
2
$
(5
)
(1)
These mark-to-market losses represent our 50 percent share.
(2)
Represents the benefit of adjustments arising from the measurement of temporary
differences.
Year Ended December 31, 2007
Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
$
225
$
$
14
$
239
(17
)
(17
)
(25
)
(25
)
(9
)
39
30
10
10
39
39
31
31
30
30
5
235
97
337
(19
)
(19
)
(20
)
(20
)
$
5
$
235
$
$
58
$
298
(1)
Discontinued operations for GEN-WE includes a gain of $224 million on the sale
of the CoGen Lyondell power generation facility.
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Year Ended December 31, 2006
Power Generation
GEN-MW
GEN-WE
GEN-NE
Other
Total
(in millions)
$
$
$
$
(204
)
$
(204
)
(110
)
(9
)
(119
)
(53
)
(53
)
(36
)
(36
)
(34
)
(34
)
(29
)
(29
)
(53
)
29
(24
)
(110
)
(62
)
(36
)
(291
)
(499
)
(45
)
(45
)
(2
)
(2
)
1
1
$
(110
)
$
(62
)
$
(36
)
$
(337
)
$
(545
)
Mark-to-market gains GEN-MWs results for the year ended December 31, 2008 included
mark-to-market gains of $191 million, compared to $36 million of mark-to-market losses
for the year ended December 31, 2007. Of the $191 million in 2008 mark-to-market gains,
$5 million related to positions that settled in 2008, and the remaining $186 million
related to positions that will settle in 2009 and 2010;
Kendall and Ontelaunee provided results of $109 million for the year ended December
31, 2008 compared to $62 million for the year ended December 31, 2007, exclusive of
mark-to-market amounts
discussed above. The improved results in 2008 are the result of higher energy and
capacity prices in PJM, and twelve months of results in 2008 compared with nine months in
2007, as the assets were acquired April 2, 2007;
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Increased market prices The average quoted on-peak prices in the Cin Hub and PJM
West pricing regions (the liquid market hubs where our forward power sales occurred)
increased from $61 and $71 per MWh, respectively, for the year ended December 31, 2007 to
$67 and $84 per MWh, respectively, for the year ended December 31, 2008;
Additional capacity sales of approximately $35 million, as a result of improved
capacity prices for 2008 compared with 2007; and
In 2007, we recorded a pre-tax charge of $25 million in Cost of sales to support a
rate relief package for Illinois electric consumers.
Decreased volumes In spite of the addition of the Midwest plants acquired through
the Merger on April 2, 2007, generated volumes decreased by 2 percent, from 25 million
MWh for the year ended December 30, 2007, to 24.5 million MWh for the year ended December
31, 2008. The decrease in volumes was primarily driven by forced outages, lower off-peak
volumes due to mild temperatures and transmission congestion as a result of flooding;
Increased fuel costs, due largely to higher natural gas prices; and
Wider basis differentials In 2008, the price differential between the locations
where we deliver generated power and the liquid market hubs where our forward power sales
occurred was wider, in part due to congestion and transmission outages and regional
weather differences, as compared to the same period in the prior year. These wider price
differentials had a negative impact on our results as the price we received for delivered
power at our physical delivery locations did not increase to the same extent as that of
the liquid traded hubs.
Mark-to-market gains GEN-WEs results for the year ended December 31, 2008 included
mark-to-market gains of $51 million, compared to $44 million of mark-to-market gains for
the year ended December 31, 2007. Of the $51 million in 2008 mark-to-market gains, $3
million of losses related to positions that settled in 2008, and the remaining $54
million related to positions that will settle in 2009 and 2010; and
Increased volumes Generated volumes were 11.2 million MWh for the year ended
December 31, 2008, up from 11.1 million MWh for the year ended December 31, 2007. The
volume increase was primarily driven by the West plants acquired on April 2, 2007, which
provided total results, including operating expense, of $177 million for the year ended
December 31, 2008, compared with $156 million for the
same period in 2007, exclusive of mark-to-market amounts discussed above. Results for
2008 were negatively impacted by a forced outage and increased fuel costs due to higher
natural gas prices.
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Decreased spark spreads Although on-peak market power prices in New York Zone A
increased by 7 percent, Zone A spark spreads contracted as fuel prices rose at a greater
rate than power prices;
Decreased volumes In spite of the addition of the Northeast plants acquired through
the Merger on April 2, 2007, generated volumes decreased by 16 percent, from 9.4 million
MWh for the year ended December 31, 2007 to 7.9 million MWh for the year ended December
31, 2008. The volumes added by the new Northeast plants were more than offset by
declines due to decreased spark spreads and reduced dispatch opportunities as compared to
the same period in the prior year;
Decreased results from the Bridgeport and Casco Bay assets, which provided results of
$42 million for the year ended December 31, 2008, compared with $90 million for the year
ended December 31, 2007, exclusive of mark-to-market amounts discussed below. Although
the Bridgeport and Casco Bay assets provided a full year of results in 2008 compared with
nine months in 2007, volumes were down during the key summer months as a result of
compressed spark spreads and reduced dispatch opportunities;
Decreased capacity sales of approximately $15 million, exclusive of the Bridgeport and
Casco Bay results discussed above, as a result of lower capacity prices for 2008 compared
with 2007; and
Increased fuel cost, due largely to higher coal prices for our Danskammer facility.
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Higher volumes Generated volumes increased by 16 percent, up from 21.5 million MWh
for the year ended December 31, 2006 to 25 million MWh for the year ended December 31,
2007;
Increased market prices The average quoted on-peak prices in Cin Hub pricing region
increased from $52 per MWh for the year ended December 31, 2006 to $61 per MWh for the
year ended December 31, 2007;
Improved pricing as a result of the Illinois reverse power procurement auction
Beginning January 1, 2007, we began operating under two new energy product supply
agreements with subsidiaries of Ameren Corporation through our participation in the
Illinois reverse power procurement auction in 2006. Under these new agreements, we
provide up to 1,400 MWh around the clock for prices of approximately $64.77 per
megawatt-hour; and
The addition of the new Midwest plants acquired through the Merger The Kendall and
Ontelaunee plants acquired on April 2, 2007 contributed to the increase in generated
volumes and provided results of $62 million for the year ended December 31, 2007,
exclusive of mark-to-market losses discussed below.
Mark-to-market losses GEN-MWs results for the year ended December 31, 2007
included mark-to-market losses of $36 million related to forward sales, compared to $15
million of mark-to-market gains for the year ended December 31, 2006. Of the $36 million
in 2007 mark-to-market losses, $13 million related to previously recognized
mark-to-market gains that settled in 2007, and the remaining $23 million related to
positions that will settle in 2008 and beyond. Please read Note 6Risk Management
Activities, Derivatives and Financial InstrumentsAccounting for Derivative Instruments
and Hedging ActivitiesCash Flow Hedges for a discussion of our decision to no longer
designate derivative transactions as cash flow hedges beginning with the second quarter
2007; and
A $25 million charge related to the Illinois rate relief package In July 2007, we
entered into agreements with various parties to make payments of up to $25 million in
connection with legislation providing for rate relief for Illinois electric consumers.
During September 2007, we made an initial payment of $7.5 million. During 2007, we
recorded a pre-tax charge of $25 million, included as a cost of sales on our consolidated
statements of operations.
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The addition of the new West plants acquired through the Merger Generated volumes
were 11.1 million MWh for the year ended December 31, 2007, up from 0.9 million MWh for
the year ended December 31, 2006. The volume increase was primarily driven by the new
West plants, which provided total results of $156 million for the year ended December 31,
2007, exclusive of mark-to-market gains discussed below. The volume increase from the
new West plants was slightly offset by a reduction due to the sale of the Rockingham
generation facility in late 2006; and
Mark-to-market gains GEN-WEs results for the year ended December 31, 2007 included
mark-to-market gains of $44 million related to heat rate call-options and forward sales
agreements, compared to zero for the year ended December 31, 2006. Of the $44 million in
2007 mark-to-market gains, $15 million related to risk management liabilities acquired in
the Merger that settled in 2007, and the remaining $29 million related to positions that
will settle in 2008 and beyond. Please read Note 6Risk Management Activities,
Derivatives and Financial InstrumentsAccounting for Derivative Instruments and Hedging
ActivitiesCash Flow Hedges for a discussion of our decision to no longer designate
derivative transactions as cash flow hedges beginning with the second quarter 2007.
Increased market prices and spark spreads On peak market prices in New York Zone G
and Zone A increased by 11 percent and 8 percent, respectively. Spark spreads widened
due to higher power prices. Average market spark spreads increased 33 percent and 21
percent for New York Zone A and Mass Hub, respectively;
Higher volumes, partially driven by the addition of the new Northeast plants acquired
through the Merger Generated volumes increased by 114 percent, up from 4.4 million MWh
for the year ended December 31, 2006 to 9.4 million MWh for the year ended December 31,
2007. The volume increase was partially driven by the new Northeast plants. The
Bridgeport and Casco Bay plants provided total results of $90 million for the year ended
December 31, 2007, exclusive of mark-to-market losses discussed below. The volume
increase was also a result of higher spark spreads and cooler weather in the first
quarter 2007, which led to greater run times than in 2006; and
A fuel oil inventory write-down of approximately $6 million was recorded in the year
ended December 31, 2006.
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Mark-to-market losses GEN-NEs results for the year ended December 31, 2007
included mark-to-market losses of $40 million related to forward sales, compared to
losses of $26 million for the year ended December 31, 2006. Of the $40 million in 2007
mark-to-market losses, $32 million related to risk management assets acquired in the
Merger that settled in 2007. The remaining $8 million related to positions that will
settle in 2008 and beyond. Please read Note 6Risk Management Activities, Derivatives
and Financial InstrumentsAccounting for Derivative Instruments and Hedging
ActivitiesCash Flow Hedges for a discussion of our decision to no longer designate
derivative transactions as cash flow hedges beginning with the second quarter 2007; and
Results were favorably impacted in 2006 by $12 million due to an opportunistic sale of
emissions credits that were not required for near-term operations of our facilities.
Similar sales of $10 million occurred in 2007.
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2009
2010
2011
2012
(in millions)
$
$
215
$
165
$
45
Weighted Average
Planning Year
Net Capacity
Capacity Price
(in MWs)
($ per MW-day)
885
112
2,240
123
(1)
2,057
174
2,061
110
(1)
Calculated as the weighted average of 1,723 MWs at $102 per MW-day for RTO and 517 MWs at $191 per MW-day for MAAC+APS.
Table of Contents
Revenue Recognition and Valuation of Risk Management Assets and Liabilities;
Valuation of Tangible and Intangible Assets;
Accounting for Contingencies, Guarantees and Indemnifications;
Accounting for Asset Retirement Obligations;
Accounting for Variable Interest Entities;
Accounting for Income Taxes; and
Valuation of Pension and Other Post-Retirement Plans Assets and Liabilities.
Table of Contents
Level 1 Quoted prices are available in active markets for identical assets or
liabilities as of the reporting date. Active markets are those in which transactions for
the asset or liability occur in sufficient frequency and volume to provide pricing
information on an ongoing basis. Level 1 primarily consists of financial instruments
such as listed equities.
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Level 2 Pricing inputs are other than quoted prices in active markets included in
Level 1, which are either directly or indirectly observable as of the reporting date.
Level 2 includes those financial instruments that are valued using models or other
valuation methodologies. These models are primarily industry-standard models that
consider various assumptions, including quoted forward prices for commodities, time
value, volatility factors, and current market and contractual prices for the underlying
instruments, as well as other relevant economic measures. Substantially all of these
assumptions are observable in the marketplace throughout the full term of the instrument,
can be derived from observable data or are supported by observable levels at which
transactions are executed in the marketplace. Instruments in this category include
non-exchange-traded derivatives such as over the counter forwards, options and repurchase
agreements.
Level 3 Pricing inputs include significant inputs that are generally less
observable from objective sources. These inputs may be used with internally developed
methodologies that result in managements best estimate of fair value. Level 3
instruments include those that may be more structured or otherwise tailored to our needs.
At each balance sheet date, we perform an analysis of all instruments subject to SFAS
No. 157 and include in Level 3 all of those whose fair value is based on significant
unobservable inputs.
significant underperformance relative to historical or projected future operating
results;
significant changes in the manner of our use of the assets or the strategy for our
overall business;
significant negative industry or economic trends; and
significant declines in stock value for a sustained period.
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(i)
Our market capitalization has been below book value for a relatively short
period of time, which coincides with unprecedented volatility in the broader financial
markets, as well as significant volatility in our industry.
Table of Contents
(ii)
Our share price was negatively impacted in the third and fourth quarters of
2008 by the sale of shares by hedge funds and lack of buying by institutional
investors.
(iii)
Lastly, our share price does not reflect a control premium.
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Impact on PBO,
Impact
December 31,
on 2009
2008
Expense
(in millions)
$
(14
)
$
(2
)
15
2
(1
)
1
As of and for the
Year Ended
December 31, 2008
(in millions)
$
(100
)
145
135
(210
)
$
(30
)
(1)
Our modeling methodology has been consistently applied.
(2)
This amount consists of changes in value associated with fair value and cash flow
hedges on debt.
Table of Contents
Total
2009
2010
2011
2012
2013
Thereafter
(in millions)
$
(30
)
$
144
$
19
$
(15
)
$
(12
)
$
(13
)
$
(153
)
(113
)
158
23
(19
)
(16
)
(16
)
(243
)
(1)
Mark-to-market reflects the fair value of our net risk-management position, which considers
time value, credit, price and other reserves necessary to determine fair value. Cash flows
have been segregated between periods based on the delivery date required in the individual
contracts.
(2)
Cash flow reflects undiscounted cash inflows and outflows by contract based on the tenor of
individual contract position for the remaining periods. These anticipated undiscounted cash
flows have not been adjusted for counterparty credit or other reserves. These amounts exclude
the cash flows associated with certain derivative instruments designated as hedges.
Total
2009
2010
2011
2012
2013
Thereafter
(in millions)
$
(90
)
$
104
$
5
$
(16
)
$
(13
)
$
(14
)
$
(156
)
60
40
14
1
1
1
3
$
(30
)
$
144
$
19
$
(15
)
$
(12
)
$
(13
)
$
(153
)
(1)
Price inputs obtained from actively traded, liquid markets for commodities.
(2)
The market quotations and prices based on models categorization differs from the SFAS No. 157
categories of Level 1, Level 2 and Level 3 due to the application of the different
methodologies. Please read Note 6Risk Management Activities, Derivatives and Financial
InstrumentsFair Value Measurements for further discussion.
Table of Contents
manage and hedge our fixed-price purchase and sales commitments;
reduce our exposure to the volatility of cash market prices; and
hedge our fuel requirements for our generating facilities.
commodity price risks result from exposures to changes in spot prices, forward prices
and volatilities in commodities, such as electricity, natural gas, coal, fuel oil,
emissions and other similar products; and
interest rate risks primarily result from exposures to changes in the level, slope and
curvature of the yield curve and the volatility of interest rates.
Table of Contents
December 31,
December 31,
2008
2007
(in millions)
$
21
$
24
$
29
$
35
$
42
$
20
Non-
Investment
Investment
Grade
Grade
Quality
Quality
Total
(in millions)
$
198
$
$
198
4
2
6
$
202
$
2
$
204
Table of Contents
December 31,
December 31,
2008
2007
$
471
$
310
5.32
5.32
$
25
$
25
5.70
5.70
$
231
$
231
5.35
5.35
$
206
$
206
5.28
5.28
(1)
Interest rate swap contracts related to our investment in the Plum Point Project.
Table of Contents
(i)
pertain to the maintenance of records that, in reasonable detail, accurately and
fairly reflect the transactions and dispositions of our assets;
(ii)
provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with GAAP, and that receipts and
expenditures of our company are being made only in accordance with authorizations of our
management and directors; and
(iii)
provide reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use or disposition of our assets that could have a material
effect on the financial statements.
Table of Contents
84
85
Table of Contents
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
Number of securities
remaining available for
Number of securities
Weighted-average
future issuance under
to be issued upon
exercise price of
equity compensation
exercise of outstanding
outstanding options,
plans (excluding
options, warrants and
warrants and rights
securities reflected in
Plan Category
rights (a)
(b)
column (a)) (c)
5,963,988
$
12.20
10,949,552
2,852,574
$
11.38
1,931,762
8,816,562
$
11.93
12,881,314
(1)
The plans that were not approved by Dynegys security holders are as follows:
Extant Inc. 401(K) Plan, Dynegy 2001 Non-Executive Stock Incentive Plan and Dynegy UK
Plan. Please read Note 20Capital StockStock Award Plans for a brief description of
Dynegys equity compensation plans, including these plans.
Table of Contents
86
87
88
89
90
91
92
93
94
95
96
97
98
1.
Financial StatementsOur consolidated financial statements are incorporated
under Item 8. of this report.
2.
Financial Statement SchedulesFinancial Statement Schedules are incorporated
under Item 8. of this report.
3.
ExhibitsThe following instruments and documents are included as exhibits to
this report. All management contracts or compensation plans or arrangements set forth
in such list are marked with a .
Exhibit
Number
Description
2.1
2.2
3.1
3.2
3.3
3.4
4.1
Table of Contents
Exhibit
Number
Description
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
Table of Contents
Exhibit
Number
Description
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
Table of Contents
Exhibit
Number
Description
4.19
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
Table of Contents
Exhibit
Number
Description
10.10
10.11
10.12
10.13
**10.14
10.15
10.16
10.17
**10.18
Table of Contents
Exhibit
Number
Description
10.19
10.20
10.21
**10.22
10.23
10.24
10.25
10.26
10.27
10.28
10.29
Table of Contents
Exhibit
Number
Description
10.30
10.31
**10.32
**10.33
**10.34
**10.35
10.36
10.37
10.38
10.39
**10.40
**10.41
**10.42
10.43
10.44
Table of Contents
Exhibit
Number
Description
10.45
10.46
10.47
10.48
10.49
10.50
10.51
10.52
10.53
10.54
**10.55
**10.56
Table of Contents
Exhibit
Number
Description
10.57
10.58
10.59
10.60
10.61
10.62
10.63
10.64
10.65
10.66
10.67
10.68
**10.69
**10.70
Table of Contents
Exhibit
Number
Description
**10.71
**10.72
**10.73
**10.74
**10.75
10.76
**10.77
**10.78
**10.79
**10.80
10.81
10.82
10.83
10.84
10.85
Table of Contents
Exhibit
Number
Description
10.86
10.87
10.88
10.89
10.90
10.91
10.92
10.93
10.94
10.95
10.96
**10.97
Table of Contents
Exhibit
Number
Description
**10.98
**10.99
10.100
10.101
**10.102
**10.103
**10.104
**10.105
**10.106
**10.107
10.108
10.109
10.110
10.111
14.1
Table of Contents
Exhibit
Number
Description
16.1
**21.1
21.2
**23.1
**23.2
**23.3
**23.4
**31.1
**31.1
(a)
**31.2
**31.2
(a)
32.1
32.1
(a)
32.2
32.2
(a)
**
Filed herewith
Pursuant to Securities and Exchange Commission Release No. 33-8238, this
certification will be treated as accompanying this report and not filed as part of
such report for purposes of Section 18 of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, or otherwise subject to the liability of Section 18 of the
Exchange Act, and this certification will not be deemed to be incorporated by reference
into any filing under the Securities Act of 1933, as amended, or the Exchange Act.
Management contract or compensation plan.
Table of Contents
99
100
F-1
DYNEGY INC.
Date: February 26, 2009
By:
/s/ B
ruce A. Williamson
Bruce A. Williamson
Chairman of the Board, President and
Chief Executive Officer
Chairman of the Board,
President and Chief
Executive Officer
(Principal Executive
Officer)
February 26, 2009
Executive Vice
President, Chief
Financial Officer and
Treasurer (Principal
Financial Officer)
February 26, 2009
Senior Vice President
and Controller
(Principal Accounting
Officer)
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Director
February 26, 2009
Table of Contents
DYNEGY HOLDINGS INC.
Date: February 26, 2009
By:
/s/
Bruce A. Williamson
Bruce A. Williamson
President and Chief Executive Officer
President and Chief
Executive Officer
(Principal Executive
Officer)
February 26, 2009
Executive Vice
President, Chief
Financial Officer,
Treasurer and Director
(Principal Financial
Officer)
February 26, 2009
Senior Vice President
and Controller
(Principal Accounting
Officer)
February 26, 2009
Director
February 26, 2009
/s/
Lynn A. Lednicky
Director
February 26, 2009
Table of Contents
Page
F-2
F-5
F-7
F-8
F-9
F-10
F-11
F-12
F-13
F-14
F-15
F-16
F-17
F-88
F-92
F-93
Table of Contents
F-2
Dynegy Inc.
February 26, 2009
Table of Contents
F-3
Dynegy Inc.
February 26, 2009
Table of Contents
F-4
Houston, Texas
February 27, 2007, except for the effects of
discontinued operations described in Note 4, as to
which the date is May 14, 2007 for Calcasieu and
February 28, 2008 for CoGen Lyondell, and except for
the change in reportable segments described in Note
22, as to which the date is February 26, 2009.
Table of Contents
F-5
Dynegy Holdings Inc.
February 26, 2009
Table of Contents
F-6
March 16, 2007, except for the effects of discontinued
operations described in Note 4, as to which the date
is May 14, 2007 for Calcasieu and August 16, 2007 for
CoGen Lyondell, except for the effects of the transfer
of entities under common control described in Note 3,
as to which the date is August 16, 2007, and except
for the change in reportable segments described in
Note 22, as to which the date is February 26, 2009.
Table of Contents
December 31, | December 31, | |||||||
2008 | 2007 | |||||||
ASSETS
|
||||||||
Current Assets
|
||||||||
Cash and cash equivalents
|
$ | 693 | $ | 328 | ||||
Restricted cash and investments
|
87 | 104 | ||||||
Short-term investments
|
25 | | ||||||
Accounts receivable, net of allowance for doubtful accounts of $22 and $20, respectively
|
340 | 426 | ||||||
Accounts receivable, affiliates
|
1 | 1 | ||||||
Inventory
|
184 | 199 | ||||||
Assets from risk-management activities
|
1,263 | 358 | ||||||
Deferred income taxes
|
6 | 45 | ||||||
Prepayments and other current assets
|
204 | 145 | ||||||
Assets held for sale (Note 4)
|
| 57 | ||||||
|
||||||||
Total Current Assets
|
2,803 | 1,663 | ||||||
|
||||||||
Property, Plant and Equipment
|
10,869 | 10,689 | ||||||
Accumulated depreciation
|
(1,935 | ) | (1,672 | ) | ||||
|
||||||||
Property, Plant and Equipment, Net
|
8,934 | 9,017 | ||||||
Other Assets
|
||||||||
Unconsolidated investments
|
15 | 79 | ||||||
Restricted cash and investments
|
1,158 | 1,221 | ||||||
Assets from risk-management activities
|
114 | 55 | ||||||
Goodwill
|
433 | 438 | ||||||
Intangible assets
|
437 | 497 | ||||||
Deferred income taxes
|
| 6 | ||||||
Accounts receivable, affiliates
|
4 | | ||||||
Other long-term assets
|
315 | 245 | ||||||
|
||||||||
Total Assets
|
$ | 14,213 | $ | 13,221 | ||||
|
||||||||
LIABILITIES AND STOCKHOLDERS EQUITY
|
||||||||
Current Liabilities
|
||||||||
Accounts payable
|
$ | 303 | $ | 292 | ||||
Accrued interest
|
56 | 56 | ||||||
Accrued liabilities and other current liabilities
|
160 | 201 | ||||||
Liabilities from risk-management activities
|
1,119 | 397 | ||||||
Notes payable and current portion of long-term debt
|
64 | 51 | ||||||
Liabilities held for sale (Note 4)
|
| 2 | ||||||
|
||||||||
Total Current Liabilities
|
1,702 | 999 | ||||||
|
||||||||
Long-term debt
|
5,872 | 5,739 | ||||||
Long-term debt to affiliates
|
200 | 200 | ||||||
|
||||||||
Long-Term Debt
|
6,072 | 5,939 | ||||||
Other Liabilities
|
||||||||
Liabilities from risk-management activities
|
288 | 116 | ||||||
Deferred income taxes
|
1,166 | 1,250 | ||||||
Other long-term liabilities
|
500 | 388 | ||||||
|
||||||||
Total Liabilities
|
9,728 | 8,692 | ||||||
|
||||||||
Minority Interest
|
(30 | ) | 23 | |||||
Commitments and Contingencies (Note 19)
|
||||||||
Stockholders Equity
|
||||||||
Class A Common Stock, $0.01 par value, 2,100,000,000 shares authorized at December 31, 2008 and December 31, 2007;
505,821,277 shares and 502,819,794 shares issued and outstanding at December 31, 2008 and December 31, 2007,
respectively
|
5 | 5 | ||||||
Class B Common Stock, $0.01 par value, 850,000,000 shares authorized at December 31, 2008 and December 31, 2007;
340,000,000 shares issued and outstanding at December 31, 2008 and December 31, 2007, respectively
|
3 | 3 | ||||||
Additional paid-in capital
|
6,485 | 6,463 | ||||||
Subscriptions receivable
|
(2 | ) | (5 | ) | ||||
Accumulated other comprehensive loss, net of tax
|
(215 | ) | (25 | ) | ||||
Accumulated deficit
|
(1,690 | ) | (1,864 | ) | ||||
Treasury stock, at cost, 2,568,286 shares and 2,449,259 shares at December 31, 2008 and December 31, 2007, respectively
|
(71 | ) | (71 | ) | ||||
|
||||||||
Total Stockholders Equity
|
4,515 | 4,506 | ||||||
|
||||||||
Total Liabilities and Stockholders Equity
|
$ | 14,213 | $ | 13,221 | ||||
|
F-7
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Revenues
|
$ | 3,549 | $ | 3,103 | $ | 1,770 | ||||||
Cost of sales
|
(1,853 | ) | (1,551 | ) | (798 | ) | ||||||
Operating and maintenance expense, exclusive of depreciation shown separately below
|
(494 | ) | (462 | ) | (338 | ) | ||||||
Depreciation and amortization expense
|
(371 | ) | (325 | ) | (217 | ) | ||||||
Impairment and other charges
|
(47 | ) | | (119 | ) | |||||||
Gain on sale of assets, net
|
82 | 43 | 3 | |||||||||
General and administrative expenses
|
(157 | ) | (203 | ) | (196 | ) | ||||||
|
||||||||||||
Operating income
|
709 | 605 | 105 | |||||||||
Losses from unconsolidated investments
|
(123 | ) | (3 | ) | (1 | ) | ||||||
Interest expense
|
(427 | ) | (384 | ) | (382 | ) | ||||||
Debt conversion costs
|
| | (249 | ) | ||||||||
Other income and expense, net
|
84 | 56 | 54 | |||||||||
Minority interest income (expense)
|
3 | (7 | ) | | ||||||||
|
||||||||||||
Income (loss) from continuing operations before income taxes
|
246 | 267 | (473 | ) | ||||||||
Income tax (expense) benefit
|
(75 | ) | (151 | ) | 152 | |||||||
|
||||||||||||
Income (loss) from continuing operations
|
171 | 116 | (321 | ) | ||||||||
Income (loss) from discontinued operations, net of tax (expense) benefit of $(1),
$(91) and $10, respectively (Note 4)
|
3 | 148 | (13 | ) | ||||||||
|
||||||||||||
Income (loss) before cumulative effect of change in accounting principles
|
174 | 264 | (334 | ) | ||||||||
Cumulative effect of change in accounting principles, net of tax benefit (expense)
of zero, zero and zero, respectively (Note 2)
|
| | 1 | |||||||||
|
||||||||||||
Net income (loss)
|
174 | 264 | (333 | ) | ||||||||
Less: preferred stock dividends (Note 16)
|
| | 9 | |||||||||
|
||||||||||||
Net income (loss) applicable to common stockholders
|
$ | 174 | $ | 264 | $ | (342 | ) | |||||
|
||||||||||||
Earnings (Loss) Per Share (Note 18):
|
||||||||||||
Basic earnings (loss) per share:
|
||||||||||||
Earnings (loss) from continuing operations
|
$ | 0.20 | $ | 0.15 | $ | (0.72 | ) | |||||
Income (loss) from discontinued operations
|
| 0.20 | (0.03 | ) | ||||||||
Cumulative effect of change in accounting principles
|
| | | |||||||||
|
||||||||||||
Basic earnings (loss) per share
|
$ | 0.20 | $ | 0.35 | $ | (0.75 | ) | |||||
|
||||||||||||
Diluted earnings (loss) per share:
|
||||||||||||
Earnings (loss) from continuing operations
|
$ | 0.20 | $ | 0.15 | $ | (0.72 | ) | |||||
Income (loss) from discontinued operations
|
| 0.20 | (0.03 | ) | ||||||||
Cumulative effect of change in accounting principles
|
| | | |||||||||
|
||||||||||||
Diluted earnings (loss) per share
|
$ | 0.20 | $ | 0.35 | $ | (0.75 | ) | |||||
|
||||||||||||
Basic shares outstanding
|
840 | 752 | 459 | |||||||||
Diluted shares outstanding
|
842 | 754 | 509 |
F-8
F-9
Accumulated | ||||||||||||||||||||||||||||
Additional | Other | |||||||||||||||||||||||||||
Common | Paid-In | Subscriptions | Comprehensive | Accumulated | Treasury | |||||||||||||||||||||||
Stock | Capital | Receivable | Income (Loss) | Deficit | Stock | Total | ||||||||||||||||||||||
December 31, 2005
|
$ | 3,955 | $ | 51 | $ | (8 | ) | $ | 4 | $ | (1,793 | ) | $ | (69 | ) | $ | 2,140 | |||||||||||
Net loss
|
| | | | (333 | ) | | (333 | ) | |||||||||||||||||||
Other comprehensive income, net of
tax
|
| | | 98 | | | 98 | |||||||||||||||||||||
Adjustment to initially apply SFAS
No. 158, net of tax benefit of $21
|
| | | (35 | ) | | | (35 | ) | |||||||||||||||||||
Options exercised
|
5 | (5 | ) | | | | | | ||||||||||||||||||||
Dividends and other distributions
|
| | | | (9 | ) | | (9 | ) | |||||||||||||||||||
401(k) plan and profit sharing stock
|
3 | | | | | | 3 | |||||||||||||||||||||
Options and restricted stock granted
|
| 8 | | | | | 8 | |||||||||||||||||||||
Equity issuance (Note 20)
|
185 | (7 | ) | | | | | 178 | ||||||||||||||||||||
Equity conversion (Note 20)
|
225 | (8 | ) | | | | | 217 | ||||||||||||||||||||
|
||||||||||||||||||||||||||||
December 31, 2006
|
$ | 4,373 | $ | 39 | $ | (8 | ) | $ | 67 | $ | (2,135 | ) | $ | (69 | ) | $ | 2,267 | |||||||||||
Net income
|
| | | | 264 | | 264 | |||||||||||||||||||||
Other comprehensive loss, net of tax
|
| | | (92 | ) | | | (92 | ) | |||||||||||||||||||
Adjustment to initially apply FIN
No. 48
|
| | | | 7 | | 7 | |||||||||||||||||||||
Subscriptions receivable
|
| | 3 | | | | 3 | |||||||||||||||||||||
Options exercised
|
1 | 2 | | | | (2 | ) | 1 | ||||||||||||||||||||
401(k) plan and profit sharing stock
|
1 | 3 | | | | | 4 | |||||||||||||||||||||
Options and restricted stock granted
|
| 19 | | | | | 19 | |||||||||||||||||||||
Equity issuance-LS Power (Note 3)
|
3 | 2,030 | | | | | 2,033 | |||||||||||||||||||||
Conversion from Illinois entity to
Delaware entity (Note 20)
|
(4,370 | ) | 4,370 | | | | | | ||||||||||||||||||||
|
||||||||||||||||||||||||||||
December 31, 2007
|
$ | 8 | $ | 6,463 | $ | (5 | ) | $ | (25 | ) | $ | (1,864 | ) | $ | (71 | ) | $ | 4,506 | ||||||||||
Net income
|
| | | | 174 | | 174 | |||||||||||||||||||||
Other comprehensive loss, net of tax
|
| | | (190 | ) | | | (190 | ) | |||||||||||||||||||
Subscriptions receivable
|
| | 3 | | | | 3 | |||||||||||||||||||||
Options exercised
|
| 2 | | | | | 2 | |||||||||||||||||||||
401(k) plan and profit sharing stock
|
| 5 | | | | | 5 | |||||||||||||||||||||
Options and restricted stock granted
|
| 15 | | | | | 15 | |||||||||||||||||||||
|
||||||||||||||||||||||||||||
December 31, 2008
|
$ | 8 | $ | 6,485 | $ | (2 | ) | $ | (215 | ) | $ | (1,690 | ) | $ | (71 | ) | $ | 4,515 | ||||||||||
|
F-10
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Net income (loss)
|
$ | 174 | $ | 264 | $ | (333 | ) | |||||
Cash flow hedging activities, net:
|
||||||||||||
Unrealized mark-to-market gains (losses) arising during period, net
|
(142 | ) | (95 | ) | 95 | |||||||
Reclassification of mark-to-market (gains) losses to earnings, net
|
10 | (25 | ) | (17 | ) | |||||||
Deferred losses on cash flow hedges, net
|
(4 | ) | | | ||||||||
|
||||||||||||
Changes in cash flow hedging activities, net (net of tax benefit (expense) of
$60, $69 and $(46), respectively)
|
(136 | ) | (120 | ) | 78 | |||||||
Allocation to minority interest
|
50 | 5 | | |||||||||
|
||||||||||||
Total cash flow hedging activities
|
(86 | ) | (115 | ) | 78 | |||||||
Foreign currency translation adjustments
|
(27 | ) | 4 | (1 | ) | |||||||
Minimum pension liability (net of tax expense $5)
|
| | 10 | |||||||||
Actuarial gain (loss) and amortization of unrecognized prior service cost (net of tax
benefit (expense) of $29 and $(9), respectively)
|
(41 | ) | 18 | | ||||||||
Unrealized gain (loss) on securities, net:
|
||||||||||||
Unrealized gain (loss) on securities
|
(3 | ) | 6 | 11 | ||||||||
Reclassification adjustments for gains realized in net income (loss)
|
(9 | ) | (5 | ) | | |||||||
|
||||||||||||
Unrealized gains (losses) on securities, net (net of tax benefit (expense) of
$8, $(1), and $(7), respectively)
|
(12 | ) | 1 | 11 | ||||||||
Unconsolidated investment other comprehensive loss, net (net of tax benefit of $17)
|
(24 | ) | | | ||||||||
|
||||||||||||
Other comprehensive income (loss), net of tax
|
(190 | ) | (92 | ) | 98 | |||||||
|
||||||||||||
Comprehensive income (loss)
|
$ | (16 | ) | $ | 172 | $ | (235 | ) | ||||
|
F-11
December 31, | December 31, | |||||||
2008 | 2007 | |||||||
ASSETS
|
||||||||
Current Assets
|
||||||||
Cash and cash equivalents
|
$ | 670 | $ | 292 | ||||
Restricted cash and investments
|
87 | 104 | ||||||
Short-term investments
|
24 | | ||||||
Accounts receivable, net of allowance for doubtful accounts of $20 and $15, respectively
|
343 | 428 | ||||||
Accounts receivable, affiliates
|
1 | 1 | ||||||
Inventory
|
184 | 199 | ||||||
Assets from risk-management activities
|
1,263 | 358 | ||||||
Deferred income taxes
|
4 | 30 | ||||||
Prepayments and other current assets
|
204 | 145 | ||||||
Assets held for sale (Note 4)
|
| 57 | ||||||
|
||||||||
Total Current Assets
|
2,780 | 1,614 | ||||||
|
||||||||
Property, Plant and Equipment
|
10,869 | 10,689 | ||||||
Accumulated depreciation
|
(1,935 | ) | (1,672 | ) | ||||
|
||||||||
Property, Plant and Equipment, Net
|
8,934 | 9,017 | ||||||
Other Assets
|
||||||||
Unconsolidated investments
|
| 18 | ||||||
Restricted cash and investments
|
1,158 | 1,221 | ||||||
Assets from risk-management activities
|
114 | 55 | ||||||
Goodwill
|
433 | 438 | ||||||
Intangible assets
|
437 | 497 | ||||||
Deferred income taxes
|
| 6 | ||||||
Accounts receivable, affiliates
|
4 | | ||||||
Other long-term assets
|
314 | 241 | ||||||
|
||||||||
Total Assets
|
$ | 14,174 | $ | 13,107 | ||||
|
||||||||
LIABILITIES AND STOCKHOLDERS EQUITY
|
||||||||
Current Liabilities
|
||||||||
Accounts payable
|
$ | 284 | $ | 291 | ||||
Accrued interest
|
56 | 56 | ||||||
Accrued liabilities and other current liabilities
|
157 | 202 | ||||||
Liabilities from risk-management activities
|
1,119 | 397 | ||||||
Notes payable and current portion of long-term debt
|
64 | 51 | ||||||
Deferred income taxes
|
1 | | ||||||
Liabilities held for sale (Note 4)
|
| 2 | ||||||
|
||||||||
Total Current Liabilities
|
1,681 | 999 | ||||||
|
||||||||
Long-term debt
|
5,872 | 5,739 | ||||||
Long-term debt to affiliates
|
200 | 200 | ||||||
|
||||||||
Long-Term Debt
|
6,072 | 5,939 | ||||||
Other Liabilities
|
||||||||
Liabilities from risk-management activities
|
288 | 116 | ||||||
Deferred income taxes
|
1,052 | 1,052 | ||||||
Other long-term liabilities
|
498 | 381 | ||||||
|
||||||||
Total Liabilities
|
9,591 | 8,487 | ||||||
|
||||||||
Minority Interest
|
(30 | ) | 23 | |||||
Commitments and Contingencies (Note 19)
|
||||||||
Stockholders Equity
|
||||||||
Capital Stock, $1 par value, 1,000 shares authorized at December 31, 2008 and December 31, 2007, respectively
|
| | ||||||
Additional paid-in capital
|
5,684 | 5,684 | ||||||
Affiliate receivable
|
(827 | ) | (825 | ) | ||||
Accumulated other comprehensive loss, net of tax
|
(215 | ) | (25 | ) | ||||
Accumulated deficit
|
(29 | ) | (237 | ) | ||||
|
||||||||
Total Stockholders Equity
|
4,613 | 4,597 | ||||||
|
||||||||
Total Liabilities and Stockholders Equity
|
$ | 14,174 | $ | 13,107 | ||||
|
F-12
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Revenues
|
$ | 3,549 | $ | 3,103 | $ | 1,770 | ||||||
Cost of sales
|
(1,853 | ) | (1,551 | ) | (798 | ) | ||||||
Operating and maintenance expense, exclusive of depreciation shown separately below
|
(494 | ) | (462 | ) | (338 | ) | ||||||
Depreciation and amortization expense
|
(371 | ) | (325 | ) | (217 | ) | ||||||
Impairment and other charges
|
(47 | ) | | (119 | ) | |||||||
Gain on sale of assets
|
82 | 43 | 3 | |||||||||
General and administrative expenses
|
(157 | ) | (184 | ) | (193 | ) | ||||||
|
||||||||||||
Operating income
|
709 | 624 | 108 | |||||||||
Earnings (losses) from unconsolidated investments
|
(40 | ) | 6 | (1 | ) | |||||||
Interest expense
|
(427 | ) | (384 | ) | (375 | ) | ||||||
Debt conversion costs
|
| | (204 | ) | ||||||||
Other income and expense, net
|
83 | 53 | 51 | |||||||||
Minority interest income (expense)
|
3 | (7 | ) | | ||||||||
|
||||||||||||
Income (loss) from continuing operations before income taxes
|
328 | 292 | (421 | ) | ||||||||
Income tax (expense) benefit
|
(123 | ) | (116 | ) | 125 | |||||||
|
||||||||||||
Income (loss) from continuing operations
|
205 | 176 | (296 | ) | ||||||||
Income (loss) from discontinued operations, net of tax (expense) benefit of $(1),
$(92) and $12, respectively (Note 4)
|
3 | 148 | (12 | ) | ||||||||
|
||||||||||||
Net income (loss)
|
$ | 208 | $ | 324 | $ | (308 | ) | |||||
|
F-13
F-14
Accumulated | ||||||||||||||||||||
Additional | Other | |||||||||||||||||||
Paid-In | Affiliate | Comprehensive | Accumulated | |||||||||||||||||
Capital | Receivable | Income (Loss) | Deficit | Total | ||||||||||||||||
December 31, 2005
|
$ | 3,593 | $ | | $ | 4 | $ | (266 | ) | $ | 3,331 | |||||||||
Net loss
|
| | | (308 | ) | (308 | ) | |||||||||||||
Other comprehensive income, net of tax
|
| | 98 | | 98 | |||||||||||||||
Adjustment to initially apply SFAS No.
158, net of tax benefit of $21
|
| | (35 | ) | | (35 | ) | |||||||||||||
Dividends to affiliates
|
(50 | ) | | | | (50 | ) | |||||||||||||
|
||||||||||||||||||||
December 31, 2006
|
$ | 3,543 | $ | | $ | 67 | $ | (574 | ) | $ | 3,036 | |||||||||
Net income
|
| | | 324 | 324 | |||||||||||||||
Other comprehensive loss, net of tax
|
| | (92 | ) | | (92 | ) | |||||||||||||
Adjustment to initially apply FIN No. 48
|
| | | 13 | 13 | |||||||||||||||
Contribution of Contributed Entities
and Sandy Creek to DHI
|
2,483 | | | | 2,483 | |||||||||||||||
Reclassification of affiliate receivable
|
| (825 | ) | | | (825 | ) | |||||||||||||
Dividends to affiliates
|
(342 | ) | | | | (342 | ) | |||||||||||||
|
||||||||||||||||||||
December 31, 2007
|
$ | 5,684 | $ | (825 | ) | $ | (25 | ) | $ | (237 | ) | $ | 4,597 | |||||||
Net income
|
| | | 208 | 208 | |||||||||||||||
Other comprehensive loss, net of tax
|
| | (190 | ) | | (190 | ) | |||||||||||||
Affiliate activity
|
| (2 | ) | | | (2 | ) | |||||||||||||
|
||||||||||||||||||||
December 31, 2008
|
$ | 5,684 | $ | (827 | ) | $ | (215 | ) | $ | (29 | ) | $ | 4,613 | |||||||
|
F-15
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Net income (loss)
|
$ | 208 | $ | 324 | $ | (308 | ) | |||||
Cash flow hedging activities, net:
|
||||||||||||
Unrealized mark-to-market gains (losses) arising during period, net
|
(142 | ) | (95 | ) | 95 | |||||||
Reclassification of mark-to-market (gains) losses to earnings, net
|
10 | (25 | ) | (17 | ) | |||||||
Deferred losses on cash flow hedges, net
|
(4 | ) | | | ||||||||
|
||||||||||||
Changes in cash flow hedging activities, net (net of tax benefit (expense) of
$60, $69 and $(46), respectively)
|
(136 | ) | (120 | ) | 78 | |||||||
Allocation to minority interest
|
50 | 5 | | |||||||||
|
||||||||||||
Total cash flow hedging activities
|
(86 | ) | (115 | ) | 78 | |||||||
Foreign currency translation adjustments
|
(27 | ) | 4 | (1 | ) | |||||||
Minimum pension liability (net of tax expense of $5)
|
| | 10 | |||||||||
Actuarial gain (loss) and amortization of unrecognized prior service cost (net of tax
benefit (expense) of $29 and $(9), respectively)
|
(41 | ) | 18 | | ||||||||
Unrealized gain (loss) on securities, net:
|
||||||||||||
Unrealized gain (loss) on securities
|
(3 | ) | 6 | 11 | ||||||||
Reclassification adjustments for gains realized in net income (loss)
|
(9 | ) | (5 | ) | | |||||||
|
||||||||||||
Unrealized losses on securities, net (net of tax benefit (expense) of $8,
$(1), and $(7), respectively)
|
(12 | ) | 1 | 11 | ||||||||
Unconsolidated investment other comprehensive loss, net (net of tax benefit of $17)
|
(24 | ) | | | ||||||||
|
||||||||||||
Other comprehensive income (loss), net of tax
|
(190 | ) | (92 | ) | 98 | |||||||
|
||||||||||||
Comprehensive income (loss)
|
$ | 18 | $ | 232 | $ | (210 | ) | |||||
|
F-16
F-17
Range of | ||||
Asset Group | Years | |||
Power generation facilities
|
20 to 40 | |||
Buildings and improvements
|
10 to 39 | |||
Office and miscellaneous equipment
|
3 to 20 |
F-18
F-19
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Beginning of year
|
$ | 107 | $ | 56 | $ | 56 | ||||||
New AROs (1)
|
| | 6 | |||||||||
Accretion expense
|
10 | 8 | 6 | |||||||||
Acquisition of the Contributed Entities
|
| 43 | | |||||||||
Revision of previous estimate (2)
|
10 | | (12 | ) | ||||||||
|
||||||||||||
End of year
|
$ | 127 | $ | 107 | $ | 56 | ||||||
|
(1) | During 2006, we recorded additional AROs in the amount of $6 million related to our obligation to remediate a landfill located at our Danskammer generating facility. There were no additional AROs, other than those acquired from LS Contributed Entities, recorded or settled during 2008, 2007 or 2006. | |
(2) | During 2008, we revised our ARO obligation upward by $10 million based on revised estimates of the cost to dismantle the South Bay facility. During 2006, we revised our ARO obligation downward by $12 million based on revised estimates of the costs to remediate ash ponds at certain of our coal fired generating facilities. |
F-20
F-21
| Level 1 Quoted prices are available in active markets for identical assets or liabilities as of the reporting date. Active markets are those in which transactions for the asset or liability occur in sufficient frequency and volume to provide pricing information on an ongoing basis. Level 1 primarily consists of financial instruments such as exchange-traded derivatives, listed equities and U.S. government treasury securities. |
| Level 2 Pricing inputs are other than quoted prices in active markets included in Level 1, which are either directly or indirectly observable as of the reporting date. Level 2 includes those financial instruments that are valued using models or other valuation methodologies. These models are primarily industry-standard models that consider various assumptions, including quoted forward prices for commodities, time value, volatility factors, and current market and contractual prices for the underlying instruments, as well as other relevant economic measures. Substantially all of these assumptions are observable in the marketplace throughout the full term of the instrument, can be derived from observable data or are supported by observable levels at which transactions are executed in the marketplace. Instruments in this category include non-exchange-traded derivatives such as over the counter forwards, options and repurchase agreements. |
| Level 3 Pricing inputs include significant inputs that are generally less observable from objective sources. These inputs may be used with internally developed methodologies that result in managements best estimate of fair value. Level 3 instruments include those that may be more structured or otherwise tailored to our needs as well as financial transmission rights. At each balance sheet date, we perform an analysis of all instruments subject to SFAS No. 157 and include in Level 3 all of those whose fair value is based on significant unobservable inputs. |
F-22
F-23
F-24
F-25
F-26
Cash
|
$ | 16 | ||
Restricted cash and investments (including $37 million current)
|
91 | |||
Accounts receivable
|
52 | |||
Inventory
|
37 | |||
Assets from risk management activities (including $11 million current)
|
37 | |||
Prepaids and other current assets
|
12 | |||
Property, plant and equipment
|
4,223 | |||
Intangible assets (including $9 million current)
|
224 | |||
Goodwill
|
486 | |||
Unconsolidated investments
|
83 | |||
Other
|
35 | |||
|
||||
Total assets acquired
|
$ | 5,296 | ||
|
||||
Current liabilities and accrued liabilities
|
$ | (92 | ) | |
Liabilities from risk management activities (including $14 million current)
|
(75 | ) | ||
Long-term debt (including $32 million current)
|
(1,898 | ) | ||
Deferred income taxes
|
(627 | ) | ||
Other
|
(96 | ) | ||
Minority interest
|
22 | |||
|
||||
Total liabilities and minority interest assumed
|
$ | (2,766 | ) | |
|
||||
Net assets acquired
|
$ | 2,530 | ||
|
F-27
Twelve Months Ended | Twelve Months Ended | |||||||||||||||
December 31, 2007 | December 31, 2006 | |||||||||||||||
Pro Forma | Pro Forma | |||||||||||||||
Actual | (Unaudited) | Actual | (Unaudited) | |||||||||||||
(in millions) | ||||||||||||||||
Revenue
|
$ | 3,103 | $ | 3,392 | $ | 1,770 | $ | 2,739 | ||||||||
Income (loss) before cumulative
effect of change in accounting
principal
|
264 | 216 | (334 | ) | (354 | ) | ||||||||||
Net income (loss) applicable to
common stockholders
|
264 | 216 | (342 | ) | (362 | ) | ||||||||||
|
||||||||||||||||
Basic earnings (loss) per share
before cumulative effect of
accounting change
|
$ | 0.35 | $ | 0.29 | $ | (0.75 | ) | $ | (0.45 | ) | ||||||
Diluted earnings (loss) per
share before cumulative effect
of accounting change
|
0.35 | 0.29 | (0.75 | ) | (0.45 | ) | ||||||||||
Basic earnings (loss) per share
|
0.35 | 0.29 | (0.75 | ) | (0.45 | ) | ||||||||||
Diluted earnings (loss) per share
|
0.35 | 0.29 | (0.75 | ) | (0.45 | ) |
F-28
Twelve Months Ended | Twelve Months Ended | |||||||||||||||
December 31, 2007 | December 31, 2006 | |||||||||||||||
Pro Forma | Pro Form | |||||||||||||||
Actual | (Unaudited) | Actual | (Unaudited) | |||||||||||||
(in millions) | ||||||||||||||||
Revenue
|
$ | 3,103 | $ | 3,392 | $ | 1,770 | $ | 2,739 | ||||||||
Net income (loss)
|
324 | 279 | (308 | ) | (319 | ) |
F-29
F-30
GEN-WE | CRM | DGC | NGL | Total | ||||||||||||||||
(in millions) | ||||||||||||||||||||
2008
|
||||||||||||||||||||
Income from operations before taxes
|
$ | | $ | | $ | | $ | 4 | $ | 4 | ||||||||||
Income from operations after taxes
|
| | | 3 | 3 | |||||||||||||||
2007
|
||||||||||||||||||||
Revenues
|
$ | 307 | $ | | $ | | $ | | $ | 307 | ||||||||||
Income from operations before taxes
|
1 | 15 | (1 | ) | | 15 | ||||||||||||||
Income (loss) from operations after taxes
|
1 | 15 | | 11 | 27 | |||||||||||||||
Gain on sale before taxes
|
224 | | | | 224 | |||||||||||||||
Gain on sale after taxes
|
121 | | | | 121 | |||||||||||||||
2006
|
||||||||||||||||||||
Revenues
|
$ | 247 | $ | | $ | | $ | | $ | 247 | ||||||||||
Income (loss) from operations before taxes
|
(53 | ) | 23 | 1 | 6 | (23 | ) | |||||||||||||
Income (loss) from operations after taxes
|
(37 | ) | 19 | 1 | 4 | (13 | ) |
F-31
GEN-WE | CRM | NGL | Total | |||||||||||||
(in millions) | ||||||||||||||||
2008
|
||||||||||||||||
Income from operations before taxes
|
$ | | $ | | $ | 4 | $ | 4 | ||||||||
Income from operations after taxes
|
| | 3 | 3 | ||||||||||||
2007
|
||||||||||||||||
Revenues
|
$ | 307 | $ | | $ | | $ | 307 | ||||||||
Income from operations before taxes
|
1 | 15 | | 16 | ||||||||||||
Income (loss) from operations after taxes
|
1 | 15 | 11 | 27 | ||||||||||||
Gain on sale before taxes
|
224 | | | 224 | ||||||||||||
Gain on sale after taxes
|
121 | | | 121 | ||||||||||||
2006
|
||||||||||||||||
Revenues
|
$ | 247 | $ | | $ | | $ | 247 | ||||||||
Income (loss) from operations before taxes
|
(53 | ) | 23 | 6 | (24 | ) | ||||||||||
Income (loss) from operations after taxes
|
(37 | ) | 21 | 4 | (12 | ) |
F-32
December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Carrying | Fair | Carrying | Fair | |||||||||||||
Amount | Value | Amount | Value | |||||||||||||
(in millions) | ||||||||||||||||
Interest rate derivatives designated as cash flow
accounting hedges
|
$ | (238 | ) | $ | (238 | ) | $ | (34 | ) | $ | (34 | ) | ||||
Interest rate derivatives designated as fair value
accounting hedges
|
3 | 3 | 2 | 2 | ||||||||||||
Interest rate derivatives not designated as
accounting hedges
|
(2 | ) | (2 | ) | (2 | ) | (2 | ) | ||||||||
Commodity-based derivative contracts not
designated as accounting hedges
|
207 | 207 | (66 | ) | (66 | ) | ||||||||||
|
||||||||||||||||
|
||||||||||||||||
Net liabilities from risk management activities (1)
|
$ | (30 | ) | $ | (30 | ) | $ | (100 | ) | $ | (100 | ) | ||||
|
(1) | Included in both current and non-current assets and liabilities on the consolidated balance sheets. |
F-33
Fair Value as of December 31, 2008 | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
(in millions) | ||||||||||||||||
Assets:
|
||||||||||||||||
Assets from commodity risk
management activities
|
$ | | $ | 1,282 | $ | 73 | $ | 1,355 | ||||||||
Assets from interest rate swaps
|
| 22 | | 22 | ||||||||||||
OtherDHI (1)
|
| 24 | | 24 | ||||||||||||
|
||||||||||||||||
TotalDHI
|
| 1,328 | 73 | 1,401 | ||||||||||||
OtherDynegy (1)
|
| 1 | | 1 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
TotalDynegy
|
$ | | $ | 1,329 | $ | 73 | $ | 1,402 | ||||||||
|
||||||||||||||||
|
||||||||||||||||
Liabilities:
|
||||||||||||||||
Liabilities from commodity risk
management activities
|
$ | | $ | 1,134 | $ | 13 | $ | 1,147 | ||||||||
Liabilities from interest rate swaps
|
| 260 | | 260 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
TotalDynegy and DHI
|
$ | | $ | 1,394 | $ | 13 | $ | 1,407 | ||||||||
|
(1) | Other represents available for sale securities. |
F-34
Twelve Months Ended | ||||
December 31, 2008 | ||||
(in millions) | ||||
Balance at December 31, 2007
|
$ | (16 | ) | |
Realized and unrealized gains, net
|
105 | |||
Purchases, issuances and settlements
|
(28 | ) | ||
Transfers out of Level 3
|
(1 | ) | ||
|
||||
|
||||
Balance at December 31, 2008
|
$ | 60 | ||
|
||||
|
||||
Change in unrealized gains, net, relating to
instruments still held as of December 31, 2008
|
$ | 85 | ||
|
F-35
Year Ended December 31, | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Cash flow hedging activities, net
|
$ | (125 | ) | $ | (39 | ) | ||
Foreign currency translation adjustment (1)
|
| 27 | ||||||
Unrecognized prior service cost and actuarial loss
|
(66 | ) | (25 | ) | ||||
Available for sale securities
|
| 12 | ||||||
Accumulated other comprehensive lossunconsolidated investments
|
(24 | ) | | |||||
|
||||||||
|
||||||||
Accumulated other comprehensive loss, net of tax
|
$ | (215 | ) | $ | (25 | ) | ||
|
(1) | In 2008, upon substantial liquidation of a foreign entity, we recognized $24 million of pre-tax income related to translation gains that had accumulated in stockholders equity. This income is included in Other income (expense), net in our consolidated statements of operations. |
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Interest paid (net of amount capitalized)
|
$ | 413 | $ | 393 | $ | 405 | ||||||
|
||||||||||||
|
||||||||||||
Taxes paid, net
|
$ | 23 | $ | 48 | $ | 9 | ||||||
|
||||||||||||
|
||||||||||||
Detail of businesses acquired:
|
||||||||||||
Current assets and other
|
$ | | $ | 174 | $ | 14 | ||||||
Fair value of non-current assets
|
| 5,122 | 13 | |||||||||
Liabilities assumed, including deferred taxes
|
| (2,766 | ) | 18 | ||||||||
Non-cash consideration (1)
|
| (2,378 | ) | | ||||||||
Cash balance acquired
|
| (16 | ) | (5 | ) | |||||||
|
||||||||||||
|
||||||||||||
Cash paid, net of cash acquired (2)
|
$ | | $ | 136 | $ | 40 | ||||||
|
||||||||||||
Other non-cash investing and financing activity:
|
||||||||||||
Non-cash capital expenditures (3)
|
$ | 57 | $ | 13 | $ | | ||||||
Conversion of Convertible Subordinated Debentures
due 2023 (Note 15) (4)
|
| | 225 | |||||||||
Sithe Subordinated Debt exchange, net (Note 15) (5)
|
| | 122 | |||||||||
Addition of a capital lease (6)
|
| | 6 | |||||||||
Marketable securities (7)
|
| | 18 |
|
||
(1) | Includes (i) 340 million shares of the Class B common stock of Dynegy valued at $5.98 per share; (ii) a promissory note in the aggregate principal amount of $275 million, and (iii) an additional $70 million of the Griffith Debt. Please read Note 3 Business Combinations and AcquisitionsLS Power Business Combination for further information. |
F-36
(2) | Includes transaction costs associated with the Merger of approximately $44 million and $8 million for the years ended December 31, 2007 and 2006, respectively. | |
(3) | For the years ended December 31, 2008 and 2007, we had non-cash capital expenditures of approximately $57 million and $13 million, respectively. These expenditures related primarily to our interest in the Plum Point power generation facility and capital expenditures related to the Consent Decree. Please read Note 12Variable Interest EntitiesPPEA Holding Company LLC for further discussion of Plum Point and Note 19Commitment and Contingencies for further discussion of the Consent Decree. | |
(4) | In May 2006, Dynegy converted all $225 million of its outstanding 4.75 percent Convertible Subordinated Debentures due 2023 into shares of its Class A common stock (the Convertible Debenture Exchange). In this transaction, Dynegy issued an aggregate of 54,598,369 shares of our Class A common stock and paid the debenture holders an aggregate of approximately $47 million in premiums and accrued and unpaid interest using cash on hand. Please read Note 15DebtConvertible Subordinated Debentures due 2023 for further information. | |
(5) | In July 2006, we executed an exchange of approximately $419 million principal amount of the subordinated debt of Independence, together with all claims for accrued and unpaid interest thereon, for approximately $297 million principal amount of our 8.375 percent Senior Unsecured Notes due 2016. Please read Note 15DebtSithe Senior Notes for further information. | |
(6) | In January 2006, we entered into an obligation under a capital lease related to a coal loading facility, which is used in the transportation of coal to our Vermilion generating facility. Pursuant to our agreement with the lessor, we are obligated for minimum payments in the aggregate amount of $14 million over the ten-year term of the lease. | |
(7) | In November 2006, the New York Mercantile Exchange completed its initial public offering. We had two membership seats on the NYMEX, and therefore, we received 90,000 NYMEX shares for each membership seat. |
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Interest paid (net of amount capitalized)
|
$ | 413 | $ | 393 | $ | 402 | ||||||
|
||||||||||||
|
||||||||||||
Taxes paid, net
|
$ | 18 | $ | 35 | $ | | ||||||
|
||||||||||||
|
||||||||||||
Detail of businesses acquired:
|
||||||||||||
Current assets and other
|
$ | | $ | | $ | 14 | ||||||
Fair value of non-current assets
|
| | 13 | |||||||||
Liabilities assumed, including deferred taxes
|
| | 18 | |||||||||
Cash balance acquired
|
| | (5 | ) | ||||||||
|
||||||||||||
|
||||||||||||
Cash paid, net of cash acquired
|
$ | | $ | | $ | 40 | ||||||
|
||||||||||||
Other non-cash investing and financing activity:
|
||||||||||||
Non-cash capital expenditures (1)
|
$ | 57 | $ | 13 | $ | | ||||||
Contribution of the Contributed Entities from
Dynegy to DHI (2)
|
| 2,467 | | |||||||||
Contribution of Sithe from Dynegy to DHI (3)
|
| | | |||||||||
Contribution of Sandy Creek from Dynegy to DHI (4)
|
| 16 | | |||||||||
Sithe Subordinated Debt exchange, net (Note 15) (5)
|
| | 122 | |||||||||
Addition of a capital lease (6)
|
| | 6 | |||||||||
Marketable securities (7)
|
| | 18 |
(1) | For the years ended December 31, 2008 and 2007, we had non-cash capital expenditures of approximately $57 million and $13 million, respectively. These expenditures related primarily to our interest in the Plum Point power generation facility and capital expenditures related to the Consent Decree. Please read Note 12Variable Interest EntitiesPPEA Holding Company LLC for further discussion of Plum Point and Note 19Commitment and Contingencies for further discussion of the Consent Decree. |
F-37
(2) | In April 2007, Dynegy contributed to DHI its interest in the Contributed Entities. The contribution was accounted for as a transaction between entities under common control in a manner similar to a pooling of interests whereby the assets and liabilities were transferred at historical cost. Please read Note 3 Business Combinations and AcquisitionsLS Assets Contribution for further information. | |
(3) | In April 2007, Dynegy contributed to DHI its interest in New York Holdings. This contribution was accounted for as a transaction between entities under common control in a manner similar to a pooling of interests whereby the assets and liabilities were transferred at historical cost. Please read Note 3 Business Combinations and AcquisitionsSithe Assets Contribution for further information. | |
(4) | In August 2007, Dynegy contributed to DHI its interest in SCH. This contribution was accounted for as a transaction between entities under common control in a manner similar to a pooling of interests whereby the assets and liabilities were transferred at historical cost. Please read Note 12Variable Interest EntitiesSandy Creek for further information. | |
(5) | In July 2006, DHI executed an exchange of approximately $419 million principal amount of the subordinated debt of Independence, together with all claims for accrued and unpaid interest thereon, for approximately $297 million principal amount of DHIs 8.375 percent Senior Unsecured Notes due 2016. Please read Note 15DebtSithe Senior Notes for further information. | |
(6) | In January 2006, we entered into an obligation under a capital lease related to a coal loading facility, which is used in the transportation of coal to our Vermilion generating facility. Pursuant to our agreement with the lessor, we are obligated for minimum payments in the aggregate amount of $14 million over the ten-year term of the lease. | |
(7) | In November 2006, the New York Mercantile Exchange completed its initial public offering. We had two membership seats on the NYMEX, and therefore, we received 90,000 NYMEX shares for each membership seat. |
December 31, | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Materials and supplies
|
$ | 76 | $ | 72 | ||||
Coal
|
57 | 70 | ||||||
Fuel oil
|
29 | 40 | ||||||
Emissions allowances
|
18 | 11 | ||||||
Natural gas storage
|
4 | 6 | ||||||
|
||||||||
|
||||||||
|
$ | 184 | $ | 199 | ||||
|
F-38
December 31, | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Generation assets:
|
||||||||
GEN-MW
|
$ | 6,825 | $ | 6,642 | ||||
GEN-WE
|
2,390 | 2,393 | ||||||
GEN-NE
|
1,501 | 1,464 | ||||||
IT systems and other
|
153 | 190 | ||||||
|
||||||||
|
||||||||
|
10,869 | 10,689 | ||||||
Accumulated depreciation
|
(1,935 | ) | (1,672 | ) | ||||
|
||||||||
|
||||||||
|
$ | 8,934 | $ | 9,017 | ||||
|
December 31, | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Equity affiliates:
|
||||||||
Sandy Creek Services
|
$ | | $ | | ||||
Sandy Creek Holdings LLC
|
(75) | (1) | 18 | |||||
Black Mountain
|
| | ||||||
|
||||||||
|
||||||||
Total unconsolidated investmentsDHI
|
(75 | ) | 18 | |||||
DLS Power Holdings and DLS Power Development
|
15 | 61 | ||||||
|
||||||||
|
||||||||
Total unconsolidated investmentsDynegy
|
$ | (60 | ) | $ | 79 | |||
|
(1) | Included in Other long-term liabilities on the consolidated balance sheets. |
F-39
December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Total | Equity Share | Total | Equity Share | |||||||||||||
(in millions) | ||||||||||||||||
Current assets
|
$ | 6 | $ | 3 | $ | 6 | $ | 3 | ||||||||
Non-current assets
|
384 | 192 | 262 | 131 | ||||||||||||
Current liabilities
|
32 | 16 | 14 | 7 | ||||||||||||
Non-current liabilities
|
536 | 268 | 280 | 140 | ||||||||||||
Revenues
|
| | | | ||||||||||||
Operating income
|
36 | 18 | 26 | 13 | ||||||||||||
Net income (loss)
|
(80 | ) | (40 | ) | 16 | 8 |
December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Total | Equity Share | Total | Equity Share | |||||||||||||
(in millions) | ||||||||||||||||
Current assets
|
$ | 4 | $ | 2 | $ | 2 | $ | 1 | ||||||||
Non-current assets
|
10 | 5 | 4 | 2 | ||||||||||||
Current liabilities
|
4 | 2 | 4 | 2 | ||||||||||||
Non-current liabilities
|
2 | 1 | 2 | 1 | ||||||||||||
Revenues
|
| | | | ||||||||||||
Operating loss
|
(23 | ) | (12 | ) | (19 | ) | (9 | ) | ||||||||
Net loss
|
(23 | ) | (12 | ) | (19 | ) | (9 | ) |
F-40
F-41
F-42
As of and For the Year | ||||||||
Ended | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Current assets
|
$ | 1 | $ | 16 | ||||
Property, plant and equipment, net
|
507 | 308 | ||||||
Intangible asset
|
193 | 193 | ||||||
Other non-current asset
|
29 | 40 | ||||||
Total assets
|
730 | 557 | ||||||
Current liabilities
|
19 | 20 | ||||||
Long-term debt
|
615 | 418 | ||||||
Non-current liabilities
|
244 | 42 | ||||||
Minority interest
|
(30 | ) | 23 | |||||
Operating loss
|
(1 | ) | (1 | ) | ||||
Net loss
|
(3 | ) | (1 | ) |
F-43
F-44
GEN-MW | GEN-WE | GEN-NE | Total | |||||||||||||
(in millions) | ||||||||||||||||
December 31, 2006
|
$ | | $ | | $ | | $ | | ||||||||
Acquisition of the Contributed Entities
|
81 | 308 | 97 | 486 | ||||||||||||
Sale of CoGen Lyondell
|
| (48 | ) | | (48 | ) | ||||||||||
|
||||||||||||||||
December 31, 2007
|
$ | 81 | $ | 260 | $ | 97 | $ | 438 | ||||||||
Sale of Rolling Hills
|
(5 | ) | | | (5 | ) | ||||||||||
|
||||||||||||||||
December 31, 2008
|
$ | 76 | $ | 260 | $ | 97 | $ | 433 | ||||||||
|
F-45
LS Power | Sithe | Rocky Road | Total | |||||||||||||
(in millions) | ||||||||||||||||
December 31, 2005
|
$ | | $ | 442 | $ | | $ | 442 | ||||||||
Acquisition of Rocky Road
|
| | 29 | 29 | ||||||||||||
Amortization expense
|
| (59 | ) | (7 | ) | (66 | ) | |||||||||
|
||||||||||||||||
December 31, 2006
|
$ | | $ | 383 | $ | 22 | $ | 405 | ||||||||
Acquisition of the Contributed Entities
|
224 | | | 224 | ||||||||||||
Amortization expense
|
(8 | ) | (50 | ) | (9 | ) | (67 | ) | ||||||||
|
||||||||||||||||
December 31, 2007
|
$ | 216 | $ | 333 | $ | 13 | $ | 562 | ||||||||
Amortization expense
|
(7 | ) | (49 | ) | (9 | ) | (65 | ) | ||||||||
|
||||||||||||||||
December 31, 2008
|
$ | 209 | $ | 284 | $ | 4 | $ | 497 | ||||||||
|
F-46
December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Carrying | Fair | Carrying | Fair | |||||||||||||
Amount | Value | Amount | Value | |||||||||||||
(in millions) | ||||||||||||||||
Term Loan B, due 2013
|
$ | 69 | $ | 52 | $ | 70 | $ | 70 | ||||||||
Term Facility, floating rate due 2013
|
850 | 639 | 850 | 850 | ||||||||||||
Senior Notes and Debentures:
|
||||||||||||||||
6.875 percent due 2011
|
502 | 427 | 502 | 483 | ||||||||||||
8.75 percent due 2012
|
501 | 426 | 501 | 506 | ||||||||||||
7.5 percent due 2015
|
550 | 388 | 550 | 514 | ||||||||||||
8.375 percent due 2016
|
1,047 | 742 | 1,047 | 1,022 | ||||||||||||
7.125 percent due 2018
|
173 | 110 | 173 | 155 | ||||||||||||
7.75 percent due 2019
|
1,100 | 762 | 1,100 | 1,011 | ||||||||||||
7.625 percent due 2026
|
172 | 93 | 172 | 149 | ||||||||||||
Subordinated Debentures payable to affiliates, 8.316 percent, due 2027
|
200 | 83 | 200 | 173 | ||||||||||||
Sithe Senior Notes, 9.0 percent due 2013
|
344 | 328 | 388 | 416 | ||||||||||||
Plum Point Credit Agreement Facility, floating rate due 2010
|
515 | 365 | 318 | 318 | ||||||||||||
Plum Point Tax Exempt Bonds, floating rate due 2036
|
100 | 100 | 100 | 100 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
|
6,123 | 5,971 | ||||||||||||||
Unamortized premium on debt, net
|
13 | 19 | ||||||||||||||
|
||||||||||||||||
|
||||||||||||||||
|
6,136 | 5,990 | ||||||||||||||
|
||||||||||||||||
Less: Amounts due within one year, including non-cash amortization of
basis adjustments
|
64 | 51 | ||||||||||||||
|
||||||||||||||||
|
||||||||||||||||
Total Long-Term Debt
|
$ | 6,072 | $ | 5,939 | ||||||||||||
|
F-47
F-48
F-49
Face | Premium | Fair | ||||||||||
Value | Discount | Value | ||||||||||
(in millions) | ||||||||||||
Generation Facilities First Lien Term Loans due 2013
|
$ | 919 | $ | 1 | $ | 920 | ||||||
Generation Facilities Second Lien Term Loans due 2014
|
150 | 1 | 151 | |||||||||
Kendall First Lien Term Loan due 2013
|
396 | (5 | ) | 391 | ||||||||
Ontelaunee First Lien Term Loan due 2009
|
100 | (1 | ) | 99 | ||||||||
Ontelaunee Second Lien Credit Agreement due 2009
|
50 | 1 | 51 | |||||||||
|
||||||||||||
Total debt repaid with proceeds from unsecured offering
|
$ | 1,615 | $ | (3 | ) | $ | 1,612 | |||||
|
F-50
Face | Premium | |||||||||||
Value | (Discount) | Fair Value | ||||||||||
(in millions) | ||||||||||||
Subordinated Debt, 7.0 percent due 2034
|
$ | 419 | $ | (167 | ) | $ | 252 | |||||
Senior Notes, 8.5 percent due 2007
|
91 | 3 | 94 | |||||||||
Senior Notes, 9.0 percent due 2013
|
409 | 42 | 451 | |||||||||
|
||||||||||||
Total Independence Debt
|
$ | 919 | $ | (122 | ) | $ | 797 | |||||
|
F-51
F-52
December 31, | December 31, | |||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Credit facility (1)
|
$ | 850 | $ | 850 | ||||
Sithe Energy (2)
|
41 | 41 | ||||||
Plum Point (3)
|
29 | 54 | ||||||
GEN Finance (4)
|
50 | 57 | ||||||
Sandy Creek (5)
|
275 | 323 | ||||||
|
||||||||
Total restricted cash and investments
|
$ | 1,245 | $ | 1,325 | ||||
|
(1) | Includes cash posted to support the letter of credit component of our credit facility. We are required to post cash collateral in an amount equal to 103 percent of outstanding letters of credit. | |
(2) | Includes amounts related to the terms of the indenture governing the Sithe Senior Debt, which among other things, prohibit cash distributions by Independence to its affiliates, including us, unless certain project reserve accounts are funded to specified levels and the required debt service coverage ratio is met. | |
(3) | Includes proceeds from the Tax Exempt Bonds. These funds are used to finance PPEAs undivided interest in various sewage and solid waste collection and disposal facilities which are under construction. Funds will be drawn from the restricted accounts as necessary for the construction of these facilities. | |
(4) | Includes amounts restricted under the terms of a security and deposit agreement associated with a collateral agreement and commodity hedges entered into by GEN Finance. | |
(5) | Includes amounts related to our funding commitment related to the Sandy Creek Project. Please read Note 12Variable Interest EntitiesSandy Creek. |
F-53
F-54
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Income (loss) from
continuing operations
before income taxes:
|
||||||||||||
Domestic
|
$ | 218 | $ | 273 | $ | (478 | ) | |||||
Foreign
|
28 | (6 | ) | 5 | ||||||||
|
||||||||||||
|
$ | 246 | $ | 267 | $ | (473 | ) | |||||
|
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Current tax expense:
|
||||||||||||
Domestic
|
$ | (5 | ) | $ | (22 | ) | $ | (3 | ) | |||
Foreign
|
| | (2 | ) | ||||||||
Deferred tax benefit (expense):
|
||||||||||||
Domestic
|
(66 | ) | (132 | ) | 148 | |||||||
Foreign
|
(4 | ) | 3 | 9 | ||||||||
|
||||||||||||
Income tax (expense) benefit
|
$ | (75 | ) | $ | (151 | ) | $ | 152 | ||||
|
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Expected tax (expense) benefit at U.S. statutory rate (35%)
|
$ | (86 | ) | $ | (94 | ) | $ | 166 | ||||
State taxes (1)
|
| (55 | ) | 32 | ||||||||
Foreign taxes
|
| 5 | (12 | ) | ||||||||
Permanent differences
|
7 | (2 | ) | 3 | ||||||||
Valuation allowance
|
(6 | ) | | (4 | ) | |||||||
IRS and state audits and settlements
|
| (3 | ) | (38 | ) | |||||||
Other (2)
|
10 | (2 | ) | 5 | ||||||||
|
||||||||||||
Income tax (expense) benefit
|
$ | (75 | ) | $ | (151 | ) | $ | 152 | ||||
|
(1) | Includes a benefit of $18 million and expense of $21 million for the years ended December 31, 2008 and 2007, respectively, related to adjustments arising from measurement of temporary differences. | |
(2) | Includes a benefit of $8 million for the year ended December 31, 2008 arising from the conversion of a foreign tax credit to a deduction. |
F-55
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Income (loss) from
continuing operations
before income taxes:
|
||||||||||||
Domestic
|
$ | 300 | $ | 298 | $ | (426 | ) | |||||
Foreign
|
28 | (6 | ) | 5 | ||||||||
|
||||||||||||
|
$ | 328 | $ | 292 | $ | (421 | ) | |||||
|
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Current tax benefit (expense):
|
||||||||||||
Domestic
|
$ | (3 | ) | $ | (11 | ) | $ | (1 | ) | |||
Foreign
|
| | (2 | ) | ||||||||
Deferred tax benefit (expense):
|
||||||||||||
Domestic
|
(116 | ) | (108 | ) | 119 | |||||||
Foreign
|
(4 | ) | 3 | 9 | ||||||||
|
||||||||||||
Income tax (expense) benefit
|
$ | (123 | ) | $ | (116 | ) | $ | 125 | ||||
|
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Expected tax benefit at U.S. statutory rate (35%)
|
$ | (115 | ) | $ | (102 | ) | $ | 147 | ||||
State taxes (1)
|
(14 | ) | (21 | ) | 17 | |||||||
Foreign taxes
|
| 5 | (12 | ) | ||||||||
Permanent Differences
|
7 | (2 | ) | 5 | ||||||||
Valuation allowance
|
(6 | ) | | (4 | ) | |||||||
IRS and state audits and settlements
|
| 8 | (38 | ) | ||||||||
Other (2)
|
5 | (4 | ) | 10 | ||||||||
|
||||||||||||
Income tax (expense) benefit
|
$ | (123 | ) | $ | (116 | ) | $ | 125 | ||||
|
(1) | Includes a benefit of $12 million and expense of $19 million for the years ended December 31, 2008 and 2007, respectively, related to adjustments arising from measurement of temporary differences. | |
(2) | Includes a benefit of $8 million for the year ended December 31, 2008 arising from the conversion of a foreign tax credit to a deduction. |
F-56
Dynegy | DHI | |||||||||||||||
Year ended December 31, | Year ended December 31, | |||||||||||||||
2008 | 2007 | 2008 | 2007 | |||||||||||||
(in millions) | ||||||||||||||||
Deferred tax assets:
|
||||||||||||||||
Current:
|
||||||||||||||||
Reserves (legal, environmental and other)
|
$ | | $ | 28 | $ | | $ | 28 | ||||||||
NOL carryforwards
|
13 | 58 | 12 | 48 | ||||||||||||
Miscellaneous book/tax recognition differences
|
4 | | 4 | | ||||||||||||
|
||||||||||||||||
Subtotal
|
17 | 86 | 16 | 76 | ||||||||||||
Less: valuation allowance
|
(5 | ) | (18 | ) | (5 | ) | (16 | ) | ||||||||
|
||||||||||||||||
Total current deferred tax assets
|
12 | 68 | 11 | 60 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
Non-current:
|
||||||||||||||||
NOL carryforwards
|
35 | 97 | 35 | 86 | ||||||||||||
AMT credit carryforwards
|
271 | 262 | | | ||||||||||||
Capital loss carryforward
|
10 | 17 | 10 | 17 | ||||||||||||
Foreign tax credits
|
| 24 | | 21 | ||||||||||||
Reserves (legal, environmental and other)
|
42 | 53 | 42 | 53 | ||||||||||||
Other comprehensive income
|
146 | 30 | 146 | 30 | ||||||||||||
Miscellaneous book/tax recognition
differences
|
71 | 30 | 47 | 26 | ||||||||||||
|
||||||||||||||||
Subtotal
|
575 | 513 | 280 | 233 | ||||||||||||
Less: valuation allowance
|
(32 | ) | (44 | ) | (32 | ) | (43 | ) | ||||||||
|
||||||||||||||||
Total non-current deferred tax assets
|
543 | 469 | 248 | 190 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
Deferred tax liabilities:
|
||||||||||||||||
Current:
|
||||||||||||||||
Reserves (legal, environmental and other)
|
6 | | 8 | | ||||||||||||
Miscellaneous book/tax recognition
differences
|
| 23 | | 30 | ||||||||||||
|
||||||||||||||||
Total current deferred tax liabilities
|
6 | 23 | 8 | 30 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
Non-current:
|
||||||||||||||||
Depreciation and other property differences
|
1,620 | 1,640 | 1,207 | 1,184 | ||||||||||||
Power contract
|
89 | 75 | 93 | 54 | ||||||||||||
|
||||||||||||||||
Total non-current deferred tax
liabilities
|
1,709 | 1,715 | 1,300 | 1,238 | ||||||||||||
|
||||||||||||||||
Net deferred tax liability
|
$ | 1,160 | $ | 1,201 | $ | 1,049 | $ | 1,018 | ||||||||
|
F-57
F-58
Foreign NOL | ||||||||||||||||||||
Carryforwards | ||||||||||||||||||||
Capital Loss | Foreign Tax | State NOL | and Deferred | |||||||||||||||||
Carryforwards | Credits | Carryforwards | Tax Assets | Total | ||||||||||||||||
(in millions) | ||||||||||||||||||||
Balance as of December 31, 2005
|
$ | (17 | ) | $ | (23 | ) | $ | (17 | ) | $ | (13 | ) | $ | (70 | ) | |||||
Changes in valuation allowanceSithe
subordinated debt exchange
|
| | 5 | | 5 | |||||||||||||||
Changes in valuation
allowancecontinuing operations
|
| | (10 | ) | 13 | 3 | ||||||||||||||
Changes in valuation
allowancediscontinued operations
|
| | (7 | ) | | (7 | ) | |||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2006
|
(17 | ) | (23 | ) | (29 | ) | | (69 | ) | |||||||||||
Changes in valuation
allowancecontinuing operations
|
| | 6 | | 6 | |||||||||||||||
Changes in valuation
allowancediscontinued operations
|
| (1 | ) | 2 | | 1 | ||||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2007
|
(17 | ) | (24 | ) | (21 | ) | | (62 | ) | |||||||||||
Changes in valuation
allowancecontinuing operations
|
| 8 | (2 | ) | (4 | ) | 2 | |||||||||||||
Other release
|
7 | 16 | | | 23 | |||||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2008
|
$ | (10 | ) | $ | | $ | (23 | ) | $ | (4 | ) | $ | (37 | ) | ||||||
|
Foreign NOL | ||||||||||||||||||||
Carryforwards | ||||||||||||||||||||
Capital Loss | Foreign Tax | State NOL | and Deferred | |||||||||||||||||
Carryforwards | Credits | Carryforwards | Tax Assets | Total | ||||||||||||||||
(in millions) | ||||||||||||||||||||
Balance as of December 31, 2005
|
$ | (17 | ) | $ | (5 | ) | $ | (17 | ) | $ | (13 | ) | $ | (52 | ) | |||||
Changes in valuation allowanceSithe
subordinated debt exchange
|
| | 5 | | 5 | |||||||||||||||
Changes in valuation
allowancecontinuing operations
|
| (15 | ) | (10 | ) | 13 | (12 | ) | ||||||||||||
Changes in valuation
allowancediscontinued operations
|
| | (7 | ) | | (7 | ) | |||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2006
|
(17 | ) | (20 | ) | (29 | ) | | (66 | ) | |||||||||||
Changes in valuation
allowancecontinuing operations
|
| | 6 | | 6 | |||||||||||||||
Changes in valuation
allowancediscontinued operations
|
| (1 | ) | 2 | | 1 | ||||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2007
|
(17 | ) | (21 | ) | (21 | ) | | (59 | ) | |||||||||||
Changes in valuation
allowancecontinuing operations
|
| 8 | (2 | ) | (4 | ) | 2 | |||||||||||||
Other release
|
7 | 13 | | | 20 | |||||||||||||||
|
||||||||||||||||||||
Balance as of December 31, 2008
|
$ | (10 | ) | $ | | $ | (23 | ) | $ | (4 | ) | $ | (37 | ) | ||||||
|
F-59
Dynegy | DHI | |||||||
(in millions) | ||||||||
Balance at January 1, 2007
|
$ | 111 | $ | 77 | ||||
Additions based on tax positions related to the current year
|
1 | 1 | ||||||
Additions based on tax positions related to the prior year
|
11 | 1 | ||||||
Reductions based on tax positions related to the prior year
|
(47 | ) | (46 | ) | ||||
Settlements
|
(43 | ) | (25 | ) | ||||
|
||||||||
Balance at December 31, 2007
|
$ | 33 | $ | 8 | ||||
Additions based on tax positions related to the prior year
|
2 | 2 | ||||||
Reductions based on tax positions related to the prior year
|
(3 | ) | (3 | ) | ||||
|
||||||||
Balance at December 31, 2008
|
$ | 32 | $ | 7 | ||||
|
F-60
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
(in millions, except per share amounts) | ||||||||||||
Income (loss) from continuing operations
|
$ | 171 | $ | 116 | $ | (321 | ) | |||||
Convertible preferred stock dividends
|
| | (9 | ) | ||||||||
|
||||||||||||
Income (loss) from continuing operations for basic
earnings (loss) per share
|
171 | 116 | (330 | ) | ||||||||
Effect of dilutive securities:
|
||||||||||||
Interest on convertible subordinated debentures
|
| | 3 | |||||||||
Dividends on Series C convertible preferred stock
|
| | 9 | |||||||||
|
||||||||||||
Income (loss) from continuing operations for diluted
earnings (loss) per share
|
$ | 171 | $ | 116 | $ | (318 | ) | |||||
|
||||||||||||
|
||||||||||||
Basic weighted-average shares
|
840 | 752 | 459 | |||||||||
Effect of dilutive securities:
|
||||||||||||
Stock options
|
2 | 2 | 2 | |||||||||
Convertible subordinated debentures
|
| | 20 | |||||||||
Series C convertible preferred stock
|
| | 28 | |||||||||
|
||||||||||||
Diluted weighted-average shares
|
842 | 754 | 509 | |||||||||
|
||||||||||||
|
||||||||||||
Earnings (loss) per share from continuing operations:
|
||||||||||||
Basic
|
$ | 0.20 | $ | 0.15 | $ | (0.72 | ) | |||||
|
||||||||||||
Diluted (1)
|
$ | 0.20 | $ | 0.15 | $ | (0.72 | ) | |||||
|
(1) | When an entity has a net loss from continuing operations adjusted for preferred dividends, SFAS No. 128, Earnings per Share, prohibits the inclusion of potential common shares in the computation of diluted per-share amounts. Accordingly, we have utilized the basic shares outstanding amount to calculate both basic and diluted loss per share for the year ended December 31, 2006. |
F-61
| In February 2007, the Tennessee state court dismissed a class action on defendants motion. Plaintiffs appealed and in November 2007, the case was argued to the appellate court. In October 2008, the appellate court reversed the dismissal and remanded the case for further proceedings. In December 2008, the defendants applied for leave to appeal the appellate court decision to the Tennessee Supreme Court. | ||
| In February 2008, the United States District Court in Las Vegas, Nevada granted defendants motion for summary judgment in a Colorado class action, which had been transferred to Nevada through the multi-district litigation management process, thereby dismissing the case and all of plaintiffs claims. Plaintiffs moved for reconsideration and the court ordered additional briefing on plaintiffs declaratory judgment claims. In January 2009, the court dismissed plaintiffs remaining declaratory judgment claims. The decision is subject to appeal. | ||
| The remaining six cases, three of which seek class certification, are also pending in Nevada federal court. Five of the cases were transferred through the multi-district litigation management process from other states, including Kansas, Wisconsin, Missouri and Illinois. All of the cases contain similar claims that individually and in conjunction with other energy companies, we engaged in an illegal scheme to inflate natural gas prices by providing false information to natural gas index publications. The complaints rely heavily on prior FERC and CFTC investigations into and reports concerning index manipulation in the energy industry. The lawsuits seek actual and punitive damages, restitution and/or expenses, and are currently in the discovery phase. |
F-62
| Danskammer SPDES Permit In January 2005, the New York State Department of Environmental Conservation (NYSDEC) issued a Draft SPDES Permit renewal for the Danskammer plant. Three environmental groups sought to impose a permit requirement that the Danskammer plant install a closed cycle cooling system. A formal evidentiary hearing was held and the revised Danskammer SPDES Permit was issued on June 1, 2006 with conditions generally favorable to us. While the revised Danskammer SPDES Permit does not require installation of a closed cycle cooling system, it does require aquatic organism mortality reductions resulting from NYSDECs determination of BTA requirements under its regulations. The petitioners appealed and on September 19, 2008, the Appellate Division issued its Memorandum and Judgment confirming the determination of NYSDEC in issuing the revised Danskammer SPDES Permit and dismissed the appeal. Both the Third Department and the New York Court of Appeals have denied petitions for leave to appeal. | ||
| Roseton SPDES Permit In April 2005, the NYSDEC issued a Draft SPDES Permit renewal for the Roseton plant. The Draft Roseton SPDES Permit would require the facility to actively manage its water intake to substantially reduce mortality of aquatic organisms. In July 2005, a public hearing was held to receive comments on the Draft Roseton SPDES Permit. Three environmental organizations filed petitions for party status in the permit renewal proceeding. The petitioners are seeking to impose a permit requirement that the Roseton plant install a closed cycle cooling system. In September 2006, the administrative law judge issued a ruling admitting the petitioners to party status and setting forth the issues to be adjudicated in the permit renewal hearing. Various holdings in the ruling have been appealed to the Commissioner of NYSDEC by the petitioners, NYSDEC staff and us. We expect that the adjudicatory hearing on the Draft Roseton SPDES Permit will begin in 2009. We believe that the petitioners claims lack merit and we plan to oppose those claims vigorously. |
F-63
| Moss Landing NPDES Permit The California Regional Water Quality Control Board (Water Board) issued an NPDES permit for the Moss Landing Power Plant in 2000 in connection with modernization of the plant. A local environmental group sought review of the permit contending that the once through seawater-cooling system at Moss Landing should be replaced with a closed cycle cooling system to meet the BTA requirements. Following an initial remand from the courts, the Water Board affirmed its BTA finding. The Water Boards decision was affirmed by the Superior Court in 2004 and by the Court of Appeals in 2007. The petitioners filed a Petition for Review by the Supreme Court of California, which was granted in March 2008, with further action deferred pending disposition of petitions for certiorari in the U.S. Supreme Court regarding the Phase II Rule. We believe that petitioners claims lack merit and we plan to oppose those claims vigorously. |
F-64
F-65
F-66
| the holders of Class B common stock vote as a separate class for the election of up to three of Dynegys directors, while the holders of Class A common stock vote as a separate class for the remaining directors; |
| any amendment to the provisions of Dynegys Amended and Restated Certificate of Incorporation addressing the voting rights of holders of Class A and Class B common stock or to Section 7 of Article III or Article X of its Bylaws requires the affirmative vote of a majority of the outstanding shares of Class B common stock voting as a separate class, and the affirmative vote of a majority of the shares of common stock, voting together as a single class, except that no such stockholder approval is required with respect to an amendment to Section 7 of Article III or Article X of Dynegys Amended and Restated Bylaws if such amendment is approved by a majority of the Class B Directors present at a meeting where such amendment is considered and by a majority of all Dynegy directors; and |
| any agreement of merger or consolidation if a party to such agreement is a member of the LS Control Group or an affiliate of such group requires the affirmative vote of a majority of the shares of Class A common stock outstanding, voting as a separate class, and the affirmative vote of a majority of all shares of common stock outstanding, voting together as a single class. |
F-67
Class B Common Stock | Class B Common Stock | |||||||||||||||||||||||
Class A Common Stock | held by CUSA | held by LS Power | ||||||||||||||||||||||
Shares | Amount | Shares | Amount | Shares | Amount | |||||||||||||||||||
(in millions) | ||||||||||||||||||||||||
December 31, 2005
|
305 | $ | 2,949 | 97 | $ | 1,006 | | $ | | |||||||||||||||
Options exercised
|
3 | 5 | | | | | ||||||||||||||||||
401(k) plan and profit sharing
|
1 | 3 | | | | | ||||||||||||||||||
Equity issuance
|
40 | 185 | | | | | ||||||||||||||||||
Equity conversion
|
54 | 225 | | | | | ||||||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
December 31, 2006
|
403 | $ | 3,367 | 97 | $ | 1,006 | | $ | | |||||||||||||||
Options exercised
|
2 | 1 | | | | | ||||||||||||||||||
401(k) plan and profit sharing
|
1 | 1 | | | | | ||||||||||||||||||
LS Power Business Combination:
|
||||||||||||||||||||||||
Conversion of Chevron Class B
shares to Class A shares
|
97 | 1,006 | (97 | ) | (1,006 | ) | | | ||||||||||||||||
Conversion from Illinois entity to
Delaware entity
|
| (4,370 | ) | | | | | |||||||||||||||||
Issuance of LS Power Class B shares
|
| | | | 340 | 3 | ||||||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
December 31, 2007
|
503 | $ | 5 | | $ | | 340 | $ | 3 | |||||||||||||||
Options exercised
|
2 | | | | | | ||||||||||||||||||
401(k) plan and profit sharing
|
1 | | | | | | ||||||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
December 31, 2008
|
506 | $ | 5 | | $ | | 340 | $ | 3 | |||||||||||||||
|
| NGC Plan. Created early in Dynegys history and revised prior to Dynegy becoming a publicly traded company in 1996, this plan provided for the issuance of 13,651,802 authorized shares, had a 10-year term, and expired in May 2006. All option grants are vested. |
| Employee Equity Plan. This plan is the only plan under which Dynegy granted options below the fair market value of its Class A common stock on the date of grant. This plan provided for the issuance of 20,358,802 authorized shares and expired in May 2002. Grants under this plan vested on the fifth anniversary from the date of the grant. All option grants are vested. |
| Illinova Plan. Adopted by Illinova prior to the merger with Dynegy, this plan provided for the issuance of 3,000,000 authorized shares and expired upon the merger date in February 2000. All option grants are vested. |
| Extant Plan. Adopted by Extant prior to its acquisition by Dynegy, this plan provided for the issuance of 202,577 authorized shares and expired in September 2000. Grants from this plan vested at 25 percent per year. All option grants are vested. |
| UK Plan. This plan provided for the issuance of 276,000 authorized shares and has been terminated. All option grants are vested. |
F-68
| Dynegy 1999 Long-Term Incentive Plan (LTIP). This annual compensation plan provides for the issuance of 6,900,000 authorized shares, has a 10-year term and expires in 2009. All option grants are vested. |
| Dynegy 2000 LTIP. This annual compensation plan, created for all employees upon Illinovas merger with us, provides for the issuance of 10,000,000 authorized shares, has a 10-year term and expires in June 2009. Grants from this plan vest in equal annual installments over a three-year period. |
| Dynegy 2001 Non-Executive LTIP. This plan is a broad-based plan and provides for the issuance of 10,000,000 authorized shares, has a ten-year term and expires in September 2011. Grants from this plan vest in equal annual installments over a three-year period. |
| Dynegy 2002 LTIP. This annual compensation plan provides for the issuance of 10,000,000 authorized shares, has a 10-year term and expires in May 2012. Grants from this plan vest in equal annual installments over a three-year period. |
F-69
Year Ended December 31, | ||||||||||||||||||||||||
2008 | 2007 | 2006 | ||||||||||||||||||||||
Weighted | Weighted | Weighted | ||||||||||||||||||||||
Average | Average | Average | ||||||||||||||||||||||
Exercise | Exercise | Exercise | ||||||||||||||||||||||
Options | Price | Options | Price | Options | Price | |||||||||||||||||||
(options in thousands) | ||||||||||||||||||||||||
Outstanding at beginning of period
|
8,420 | $ | 12.60 | 7,361 | $ | 12.63 | 9,314 | $ | 12.66 | |||||||||||||||
Granted
|
1,565 | $ | 7.48 | 2,136 | $ | 9.67 | 3,268 | $ | 4.88 | |||||||||||||||
Exercised
|
(555 | ) | $ | 4.03 | (872 | ) | $ | 4.29 | (1,560 | ) | $ | 3.46 | ||||||||||||
Cancelled or expired
|
(614 | ) | $ | 16.88 | (205 | ) | $ | 18.60 | (3,661 | ) | $ | 9.68 | ||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Outstanding at end of period
|
8,816 | $ | 11.93 | 8,420 | $ | 12.60 | 7,361 | $ | 12.63 | |||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Vested and unvested expected to vest
|
8,702 | $ | 11.98 | 8,137 | $ | 12.70 | 6,898 | $ | 13.16 | |||||||||||||||
Exercisable at end of period
|
5,878 | $ | 13.64 | 6,305 | $ | 13.59 | 3,774 | $ | 20.07 |
Year Ended December 31, 2008 | ||||||||
Weighted Average Remaining | Aggregate Intrinsic | |||||||
Contractual Life | Value | |||||||
(in years) | (in millions) | |||||||
Outstanding at end of period
|
6.22 | $ | 0.04 | |||||
Vested and unvested expected to vest
|
6.18 | $ | 0.04 | |||||
Exercisable at end of period
|
5.03 | $ | 0.04 |
F-70
Options Outstanding | Options Exercisable | |||||||||||||||||||
Number of | Weighted | Number of | ||||||||||||||||||
Options | Average | Options | ||||||||||||||||||
Outstanding at | Remaining | Weighted | Exercisable at | Weighted | ||||||||||||||||
December 31, | Contractual | Average | December 31, | Average | ||||||||||||||||
Range of Exercise Prices | 2008 | Life (Years) | Exercise Price | 2008 | Exercise Price | |||||||||||||||
(options in thousands) | ||||||||||||||||||||
$1.77$4.48
|
658 | 4.75 | $ | 3.68 | 658 | $ | 3.68 | |||||||||||||
$4.88
|
2,402 | 7.21 | $ | 4.88 | 2,402 | $ | 4.88 | |||||||||||||
$7.02
|
12 | 0.38 | $ | 7.02 | 12 | $ | 7.02 | |||||||||||||
$7.48
|
1,552 | 9.18 | $ | 7.48 | | $ | | |||||||||||||
$8.70
|
9 | 8.70 | $ | 8.70 | 3 | $ | 8.70 | |||||||||||||
$9.67
|
2,070 | 7.87 | $ | 9.67 | 695 | $ | 9.67 | |||||||||||||
$10.17$23.85
|
1,476 | 1.68 | $ | 20.64 | 1,471 | $ | 20.68 | |||||||||||||
$28.47$50.63
|
620 | 1.96 | $ | 44.90 | 620 | $ | 44.90 | |||||||||||||
$52.50
|
5 | 1.70 | $ | 52.50 | 5 | $ | 52.50 | |||||||||||||
$56.98
|
12 | 0.38 | $ | 56.98 | 12 | $ | 56.98 | |||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
|
8,816 | 5,878 | ||||||||||||||||||
|
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
Dividends
|
| | | |||||||||
Expected volatility (historical)
|
45.07 | % | 45.60 | % | 48.8 | % | ||||||
Risk-free interest rate
|
3.80 | % | 4.9 | % | 5.1 | % | ||||||
Expected option life
|
6 Years | 6 Years | 6 Years |
F-71
Year Ended December 31, | ||||||||||||||||
2008 | ||||||||||||||||
Weighted | ||||||||||||||||
Average | ||||||||||||||||
Grant Date | ||||||||||||||||
2008 | Fair Value | 2007 | 2006 | |||||||||||||
(restricted stock shares in thousands) | ||||||||||||||||
Outstanding at beginning of period
|
1,552 | $ | 9.67 | 2,114 | 1,239 | |||||||||||
Granted
|
1,445 | (1) | $ | 7.48 | 1,643 | (2) | 1,311 | (3) | ||||||||
Vested
|
(367 | ) | $ | 9.53 | (2,113 | ) | (251 | ) | ||||||||
Cancelled or expired
|
(85 | ) | $ | 8.69 | (92 | ) | (185 | ) | ||||||||
|
||||||||||||||||
|
||||||||||||||||
Outstanding at end of period
|
2,545 | $ | 8.48 | 1,552 | 2,114 | |||||||||||
|
(1) | We awarded 1,445,061 shares of restricted stock in March 2008. The closing stock price was $7.48 on the date of the award. | |
(2) | We awarded 1,639,088 shares, 1,967 shares and 2,299 shares of restricted stock in April 2007, May 2007 and September 2007, respectively. The closing stock prices were $9.67, $10.17 and $8.70, respectively, on the dates of the awards. | |
(3) | We awarded 1,311,149 shares of restricted stock in March 2006. The closing stock price was $4.88 on the date of the award. |
| Dynegy Inc. 401(k) Savings Plan. This plan and the related trust fund are established and maintained for the exclusive benefit of participating employees in the United States. Generally, all employees of designated Dynegy subsidiaries are eligible to participate in the plan. Employee pre-tax and Roth contributions to the plan are matched by the company at 100 percent, up to a maximum of five percent of base pay, subject to IRS limitations. Vesting in company contributions is based on years of service at 25 percent per full year of service. However, effective January 1, 2009, generally, vesting in company contributions is based on years of service at 50 percent per full year of service. The Plan also allows for a discretionary contribution to eligible employee accounts for each plan year, subject to the sole discretion of the Compensation and Human Resources Committee of the Board of Directors. Matching and discretionary contributions, if any, are allocated in the form of units in the Dynegy common stock fund. During the years ended December 31, 2008, 2007 and 2006, we issued approximately 0.8 million, 0.3 million and 0.3 million shares, respectively, of Dynegys Class A common stock in the form of matching contributions to fund the plan. No discretionary contributions were made for any of the years in the three-year period ended December 31, 2008. |
F-72
| Dynegy Midwest Generation, Inc. 401(K) Savings Plan (formerly the Illinois Power Company Incentive Savings Plan) and Dynegy Midwest Generation, Inc. 401(K) Savings Plan for Employees Covered Under a Collective Bargaining Agreement (formerly the Illinois Power Company Incentive Savings Plan for Employees Covered Under A Collective Bargaining Agreement). We match 50 percent of employee pre-tax and Roth contributions to the plans, up to a maximum of 6 percent of compensation, subject to IRS limitations. Employees are immediately 100 percent vested in all contributions. The Plan also provides for an annual discretionary contribution to eligible employee accounts for a plan year, subject to the sole discretion of the Compensation and Human Resources Committee of the Board of Directors. Matching contributions and discretionary contributions, if any, to the plans are initially allocated in the form of units in the Dynegy common stock fund. During the years ended December 31, 2008, 2007 and 2006, we issued 0.3 million, 0.1 million and 0.2 million shares, respectively, of Dynegys Class A common stock in the form of matching contributions to the plans. No discretionary contributions were made for any of the years in the three-year period ended December 31, 2008. |
| Dynegy Northeast Generation, Inc. Savings Incentive Plan. Under this plan we match 50 percent of employee pre-tax contributions up to six percent of base salary for union employees and 50 percent of employee contributions up to eight percent of base salary for non-union employees, in each case subject to IRS limitations. Employees are immediately 100 percent vested in our contributions. Matching contributions to this plan are made in cash and invested according to the employees investment discretion. |
F-73
Pension Benefits | Other Benefits | |||||||||||||||
2008 | 2007 | 2008 | 2007 | |||||||||||||
(in millions) | ||||||||||||||||
Projected benefit obligation, beginning of the year
|
$ | 182 | $ | 182 | $ | 58 | $ | 61 | ||||||||
Service cost
|
11 | 10 | 3 | 3 | ||||||||||||
Interest cost
|
11 | 10 | 4 | 4 | ||||||||||||
Actuarial (gain) loss
|
17 | (15 | ) | (2 | ) | (9 | ) | |||||||||
Benefits paid
|
(4 | ) | (5 | ) | (1 | ) | (1 | ) | ||||||||
Plan amendments
|
| | (1 | ) | | |||||||||||
|
||||||||||||||||
Projected benefit obligation, end of the year
|
$ | 217 | $ | 182 | $ | 61 | $ | 58 | ||||||||
|
||||||||||||||||
|
||||||||||||||||
Fair value of plan assets, beginning of the year
|
$ | 154 | $ | 135 | $ | | $ | | ||||||||
Actual return on plan assets
|
(44 | ) | 10 | | | |||||||||||
Employer contributions
|
29 | 14 | 1 | 1 | ||||||||||||
Benefits paid
|
(4 | ) | (5 | ) | (1 | ) | (1 | ) | ||||||||
|
||||||||||||||||
Fair value of plan assets, end of the year
|
$ | 135 | $ | 154 | $ | | $ | | ||||||||
|
||||||||||||||||
|
||||||||||||||||
Funded status
|
$ | (82 | ) | $ | (28 | ) | $ | (61 | ) | $ | (58 | ) |
December 31, | ||||||||
2008 | 2007 | |||||||
(in millions) | ||||||||
Projected benefit obligation
|
$ | 217 | $ | 143 | ||||
Accumulated benefit obligation
|
187 | 125 | ||||||
Fair value of plan assets
|
135 | 120 |
2008 | 2007 | 2006 | ||||||||||
(in millions) | ||||||||||||
Change in minimum liability included in other
comprehensive income (loss) (net of tax
benefit (expense) of zero, zero million and
($5) million, respectively)
|
$ | | $ | | $ | 10 |
F-74
Year Ended December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Pension | Other | Pension | Other | |||||||||||||
Benefits | Benefits | Benefits | Benefits | |||||||||||||
(in millions) | ||||||||||||||||
Prior service cost
|
$ | 5 | $ | (1 | ) | $ | 6 | $ | | |||||||
Actuarial loss
|
95 | 11 | 22 | 13 | ||||||||||||
|
||||||||||||||||
|
||||||||||||||||
Net amount recognized
|
$ | 100 | $ | 10 | $ | 28 | $ | 13 | ||||||||
|
Year Ended December 31, | ||||||||||||||||
2008 | 2007 | |||||||||||||||
Pension | Other | Pension | Other | |||||||||||||
Benefits | Benefits | Benefits | Benefits | |||||||||||||
(in millions) | ||||||||||||||||
Current liabilities
|
$ | | $ | (1 | ) | $ | | $ | (1 | ) | ||||||
Noncurrent liabilities
|
(82 | ) | (60 | ) | (28 | ) | (57 | ) | ||||||||
|
||||||||||||||||
|
||||||||||||||||
Net amount recognized
|
$ | (82 | ) | $ | (61 | ) | $ | (28 | ) | $ | (58 | ) | ||||
|
Pension Benefits | Other Benefits | |||||||||||||||||||||||
2008 | 2007 | 2006 | 2008 | 2007 | 2006 | |||||||||||||||||||
(in millions) | ||||||||||||||||||||||||
Service cost benefits earned during period
|
$ | 11 | $ | 10 | $ | 9 | $ | 3 | $ | 3 | $ | 3 | ||||||||||||
Interest cost on projected benefit obligation
|
11 | 10 | 10 | 3 | 4 | 3 | ||||||||||||||||||
Expected return on plan assets
|
(13 | ) | (11 | ) | (10 | ) | | | | |||||||||||||||
Amortization of prior service costs
|
1 | 1 | 1 | | | | ||||||||||||||||||
Recognized net actuarial loss
|
| 1 | 3 | 1 | 1 | 1 | ||||||||||||||||||
|
||||||||||||||||||||||||
Net periodic benefit cost
|
$ | 10 | $ | 11 | $ | 13 | $ | 7 | $ | 8 | $ | 7 | ||||||||||||
Additional cost due to curtailment
|
| | 3 | | | | ||||||||||||||||||
|
||||||||||||||||||||||||
Total net periodic benefit cost
|
$ | 10 | $ | 11 | $ | 16 | $ | 7 | $ | 8 | $ | 7 | ||||||||||||
|
F-75
Pension Benefits | Other Benefits | |||||||||||||||
December 31, | December 31, | |||||||||||||||
2008 | 2007 | 2008 | 2007 | |||||||||||||
Discount rate (1)
|
6.12 | % | 6.46 | % | 5.93 | % | 6.48 | % | ||||||||
Rate of compensation increase
|
4.50 | % | 4.50 | % | 4.50 | % | 4.50 | % |
(1) | We utilized a yield curve approach to determine the discount. Projected benefit payments for the plans were matched against the discount rates in the yield curve. |
Pension Benefits | Other Benefits | |||||||||||||||||||||||
Year Ended December 31, | Year Ended December 31, | |||||||||||||||||||||||
2008 | 2007 | 2006 | 2008 | 2007 | 2006 | |||||||||||||||||||
Discount rate
|
6.46 | % | 5.87 | % | 5.52 | % | 6.48 | % | 5.90 | % | 5.53 | % | ||||||||||||
Expected return on plan assets
|
8.25 | % | 8.25 | % | 8.25 | % | N/A | N/A | N/A | |||||||||||||||
Rate of compensation increase
|
4.50 | % | 4.50 | % | 4.50 | % | 4.50 | % | 4.50 | % | 4.50 | % |
December 31, | ||||||||
2008 | 2007 | |||||||
Health care cost trend rate assumed for next year
|
7.83 | % | 8.99 | % | ||||
Ultimate trend rate
|
4.90 | % | 5.00 | % | ||||
Year that the rate reaches the ultimate trend rate
|
2060 | 2016 |
Increase | Decrease | |||||||
(in millions) | ||||||||
Aggregate impact on service cost and interest cost
|
$ | 1 | $ | (1 | ) | |||
Impact on accumulated post-retirement benefit obligation
|
$ | 11 | $ | (9 | ) |
F-76
December 31, | ||||||||
2008 | 2007 | |||||||
Equity securities
|
65 | % | 64 | % | ||||
Debt securities
|
35 | % | 36 | % | ||||
|
||||||||
Total
|
100 | % | 100 | % | ||||
|
Pension Benefits | Other Benefits | |||||||
(in millions) | ||||||||
2009
|
$ | 10 | $ | 1 | ||||
2010
|
10 | 2 | ||||||
2011
|
10 | 2 | ||||||
2012
|
10 | 2 | ||||||
2013
|
11 | 3 | ||||||
2014 2018
|
78 | 19 |
F-77
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 1,623 | $ | 925 | $ | 890 | $ | (5 | ) | $ | 3,433 | |||||||||
Other
|
| | 116 | | 116 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 1,623 | $ | 925 | $ | 1,006 | $ | (5 | ) | $ | 3,549 | |||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (206 | ) | $ | (101 | ) | $ | (54 | ) | $ | (10 | ) | $ | (371 | ) | |||||
Impairment and other charges
|
| (47 | ) | | | (47 | ) | |||||||||||||
Operating income (loss)
|
$ | 684 | $ | 90 | $ | 67 | $ | (132 | ) | $ | 709 | |||||||||
Losses from unconsolidated
investments
|
| (40 | ) | | (83 | ) | (123 | ) | ||||||||||||
Other items, net
|
3 | 5 | 6 | 73 | 87 | |||||||||||||||
Interest expense
|
(427 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations before taxes
|
246 | |||||||||||||||||||
Income tax expense
|
(75 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations
|
171 | |||||||||||||||||||
Income from discontinued
operations, net of taxes
|
3 | |||||||||||||||||||
|
||||||||||||||||||||
Net income
|
$ | 174 | ||||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 6,763 | $ | 3,410 | $ | 2,534 | $ | 1,494 | $ | 14,201 | ||||||||||
Other
|
| | 5 | 7 | 12 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 6,763 | $ | 3,410 | $ | 2,539 | $ | 1,501 | $ | 14,213 | ||||||||||
|
||||||||||||||||||||
Unconsolidated investments
|
$ | | $ | | $ | | $ | 15 | $ | 15 | ||||||||||
Capital expenditures and
investments in unconsolidated
affiliates
|
$ | (530 | ) | $ | (29 | ) | $ | (36 | ) | $ | (32 | ) | $ | (627 | ) |
F-78
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 1,325 | $ | 689 | $ | 920 | $ | 12 | $ | 2,946 | ||||||||||
Other
|
| | 156 | 1 | 157 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 1,325 | $ | 689 | $ | 1,076 | $ | 13 | $ | 3,103 | ||||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (194 | ) | $ | (73 | ) | $ | (45 | ) | $ | (13 | ) | $ | (325 | ) | |||||
|
||||||||||||||||||||
Operating income (loss)
|
$ | 495 | $ | 130 | $ | 164 | $ | (184 | ) | $ | 605 | |||||||||
Earnings (losses) from
unconsolidated investments
|
| 6 | | (9 | ) | (3 | ) | |||||||||||||
Other items, net
|
(7 | ) | | | 56 | 49 | ||||||||||||||
Interest expense
|
(384 | ) | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
|
||||||||||||||||||||
operations before taxes
|
267 | |||||||||||||||||||
Income tax expense
|
(151 | ) | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations
|
116 | |||||||||||||||||||
Income from discontinued
operations, net of taxes
|
148 | |||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Net income
|
$ | 264 | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 6,507 | $ | 3,251 | $ | 2,352 | $ | 1,075 | $ | 13,185 | ||||||||||
Other
|
| 5 | 12 | 19 | 36 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 6,507 | $ | 3,256 | $ | 2,364 | $ | 1,094 | $ | 13,221 | ||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Unconsolidated investments
|
$ | | $ | 18 | $ | | $ | 61 | $ | 79 | ||||||||||
|
||||||||||||||||||||
Capital expenditures and
investments in unconsolidated
affiliate
|
$ | (300 | ) | $ | (17 | ) | $ | (47 | ) | $ | (25 | ) | $ | (389 | ) |
F-79
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 969 | $ | 87 | $ | 501 | $ | 66 | $ | 1,623 | ||||||||||
Other
|
| | 129 | 18 | 147 | |||||||||||||||
|
||||||||||||||||||||
|
969 | 87 | 630 | 84 | 1,770 | |||||||||||||||
Intersegment revenues
|
| | (21 | ) | 21 | | ||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 969 | $ | 87 | $ | 609 | $ | 105 | $ | 1,770 | ||||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (168 | ) | $ | (8 | ) | $ | (24 | ) | $ | (17 | ) | $ | (217 | ) | |||||
Impairment and other charges
|
(110 | ) | (9 | ) | | | (119 | ) | ||||||||||||
|
||||||||||||||||||||
Operating income (loss)
|
$ | 208 | $ | (2 | ) | $ | 55 | $ | (156 | ) | $ | 105 | ||||||||
Losses from unconsolidated
investments
|
| (1 | ) | | | (1 | ) | |||||||||||||
Other items, net
|
2 | 1 | 9 | 42 | 54 | |||||||||||||||
Interest expense and debt
conversion costs
|
(631 | ) | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Loss from continuing
operations before taxes
|
(473 | ) | ||||||||||||||||||
Income tax benefit
|
152 | |||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Loss from continuing operations
|
(321 | ) | ||||||||||||||||||
Loss from discontinued
operations, net of taxes
|
(13 | ) | ||||||||||||||||||
Cumulative effect of change in
accounting principle, net of
taxes
|
1 | |||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Net loss
|
$ | (333 | ) | |||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 5,036 | $ | 440 | $ | 1,373 | $ | 490 | $ | 7,339 | ||||||||||
Other
|
| 5 | 13 | 180 | 198 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 5,036 | $ | 445 | $ | 1,386 | $ | 670 | $ | 7,537 | ||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Capital expenditures
|
$ | (101 | ) | $ | (24 | ) | $ | (22 | ) | $ | (8 | ) | $ | (155 | ) |
F-80
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 1,623 | $ | 925 | $ | 890 | $ | (5 | ) | $ | 3,433 | |||||||||
Other
|
| | 116 | | 116 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 1,623 | $ | 925 | $ | 1,006 | $ | (5 | ) | $ | 3,549 | |||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (206 | ) | $ | (101 | ) | $ | (54 | ) | $ | (10 | ) | $ | (371 | ) | |||||
Impairment and other charges
|
| (47 | ) | | | (47 | ) | |||||||||||||
Operating income (loss)
|
$ | 684 | $ | 90 | $ | 67 | $ | (132 | ) | $ | 709 | |||||||||
Losses from unconsolidated
investments
|
| (40 | ) | | | (40 | ) | |||||||||||||
Other items, net
|
3 | 5 | 6 | 72 | 86 | |||||||||||||||
Interest expense
|
(427 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations before taxes
|
328 | |||||||||||||||||||
Income tax expense
|
(123 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations
|
205 | |||||||||||||||||||
Income from discontinued
operations, net of taxes
|
3 | |||||||||||||||||||
|
||||||||||||||||||||
Net income
|
$ | 208 | ||||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 6,763 | $ | 3,410 | $ | 2,534 | $ | 1,455 | $ | 14,162 | ||||||||||
Other
|
| | 5 | 7 | 12 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 6,763 | $ | 3,410 | $ | 2,539 | $ | 1,462 | $ | 14,174 | ||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Capital expenditures
|
$ | (530 | ) | $ | (29 | ) | $ | (36 | ) | $ | (16 | ) | $ | (611 | ) |
F-81
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 1,325 | $ | 689 | $ | 920 | $ | 12 | $ | 2,946 | ||||||||||
Other
|
| | 156 | 1 | 157 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 1,325 | $ | 689 | $ | 1,076 | $ | 13 | $ | 3,103 | ||||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (194 | ) | $ | (73 | ) | $ | (45 | ) | $ | (13 | ) | $ | (325 | ) | |||||
Operating income (loss)
|
$ | 495 | $ | 130 | $ | 164 | $ | (165 | ) | $ | 624 | |||||||||
Earnings from unconsolidated
investments
|
| 6 | | | 6 | |||||||||||||||
Other items, net
|
(7 | ) | | | 53 | 46 | ||||||||||||||
Interest expense
|
(384 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations before taxes
|
292 | |||||||||||||||||||
Income tax expense
|
(116 | ) | ||||||||||||||||||
|
||||||||||||||||||||
Income from continuing
operations
|
176 | |||||||||||||||||||
Income from discontinued
operations, net of taxes
|
148 | |||||||||||||||||||
|
||||||||||||||||||||
Net income
|
$ | 324 | ||||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 6,507 | $ | 3,256 | $ | 2,352 | $ | 973 | $ | 13,088 | ||||||||||
Other
|
| | 12 | 7 | 19 | |||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 6,507 | $ | 3,256 | $ | 2,364 | $ | 980 | $ | 13,107 | ||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Unconsolidated investments
|
$ | | $ | 18 | $ | | $ | | $ | 18 | ||||||||||
Capital expenditures
|
$ | (300 | ) | $ | (17 | ) | $ | (47 | ) | $ | (15 | ) | $ | (379 | ) |
F-82
Power Generation | ||||||||||||||||||||
GEN-MW | GEN-WE | GEN-NE | Other | Total | ||||||||||||||||
Unaffiliated revenues:
|
||||||||||||||||||||
Domestic
|
$ | 969 | $ | 87 | $ | 501 | $ | 66 | $ | 1,623 | ||||||||||
Other
|
| | 129 | 18 | 147 | |||||||||||||||
|
||||||||||||||||||||
|
969 | 87 | 630 | 84 | 1,770 | |||||||||||||||
Intersegment revenues
|
| | (21 | ) | 21 | | ||||||||||||||
|
||||||||||||||||||||
Total revenues
|
$ | 969 | $ | 87 | $ | 609 | $ | 105 | $ | 1,770 | ||||||||||
|
||||||||||||||||||||
Depreciation and amortization
|
$ | (168 | ) | $ | (8 | ) | $ | (24 | ) | $ | (17 | ) | $ | (217 | ) | |||||
Impairment and other charges
|
(110 | ) | (9 | ) | | | (119 | ) | ||||||||||||
|
||||||||||||||||||||
Operating income (loss)
|
$ | 208 | $ | (2 | ) | $ | 55 | $ | (153 | ) | $ | 108 | ||||||||
Losses from unconsolidated
investments
|
| (1 | ) | | | (1 | ) | |||||||||||||
Other items, net
|
2 | 1 | 9 | 39 | 51 | |||||||||||||||
Interest expense and debt
conversion costs
|
(579 | ) | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Loss from continuing
operations before taxes
|
(421 | ) | ||||||||||||||||||
Income tax benefit
|
125 | |||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Loss from continuing operations
|
(296 | ) | ||||||||||||||||||
Loss from discontinued
operations, net of taxes
|
(12 | ) | ||||||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Net loss
|
$ | (308 | ) | |||||||||||||||||
|
||||||||||||||||||||
Identifiable assets:
|
||||||||||||||||||||
Domestic
|
$ | 5,038 | $ | 440 | $ | 1,373 | $ | 1,215 | $ | 8,066 | ||||||||||
Other
|
| | 13 | 57 | 70 | |||||||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Total
|
$ | 5,038 | $ | 440 | $ | 1,386 | $ | 1,272 | $ | 8,136 | ||||||||||
|
||||||||||||||||||||
|
||||||||||||||||||||
Capital expenditures
|
$ | (101 | ) | $ | (24 | ) | $ | (22 | ) | $ | (8 | ) | $ | (155 | ) |
F-83
Quarter Ended | ||||||||||||||||
March | June | September | December | |||||||||||||
2008 | 2008 | 2008 | 2008 | |||||||||||||
(in millions, except per share data) | ||||||||||||||||
Revenues
|
$ | 545 | $ | 323 | $ | 1,886 | $ | 795 | ||||||||
Operating income (loss)
|
(150 | ) | (364 | ) | 1,116 | 107 | ||||||||||
Net income (loss) before
cumulative effect of
change in accounting
principles
|
(152 | ) | (272 | ) | 605 | (1) | (7 | )(2) | ||||||||
Net income (loss)
|
(152 | ) | (272 | ) | 605 | (1) | (7 | )(2) | ||||||||
Net income (loss) per share
|
$ | (0.18 | ) | $ | (0.32 | ) | $ | 0.72 | (1) | $ | (0.01 | )(2) |
(1) | Includes a gain on the sale of the Rolling Hills power generation facility of $56 million. Please read Note 4Dispositions, Contract Terminations and Discontinued OperationsDispositions and Contract TerminationsRolling Hills for further information. | |
(2) | Includes an impairment of our Heard County power generation facility of $47 million. Please read Note 5Impairment ChargesAsset Impairments for further information. Includes a loss on the dissolution of DLS Power Development of $47 million and an impairment of our investment in DLS Power Development of $24 million. Please read Note 12Variable Interest EntitiesDLS Power Holdings and DLS Power Development for further information. Also includes translation gains related to the substantial liquidation of a foreign entity of $24 million. |
Quarter Ended | ||||||||||||||||
March | June | September | December | |||||||||||||
2007 | 2007 | 2007 | 2007 | |||||||||||||
(in millions, except per share data) | ||||||||||||||||
Revenues
|
$ | 505 | $ | 828 | $ | 1,046 | $ | 724 | ||||||||
Operating income
|
81 | 182 | 247 | 95 | ||||||||||||
Net income (loss) before
cumulative effect of
change in accounting
principles
|
14 | 76 | (1) | 220 | (2) | (46 | ) | |||||||||
Net income (loss)
|
14 | 76 | (1) | 220 | (2) | (46 | )(3) | |||||||||
Net income (loss) per
share before cumulative
effect of change in
accounting principles
|
$ | 0.03 | $ | 0.09 | (1) | $ | 0.26 | (2) | $ | (0.06 | )(3) | |||||
Net income (loss) per share
|
$ | 0.03 | $ | 0.09 | (1) | $ | 0.26 | (2) | $ | (0.06 | )(3) |
(1) | Includes a gain related to a change in the fair value of interest rate swaps, net of minority interest of $30 million and a gain related to the settlement of the Kendall tolling arrangement of $31 million. | |
(2) | Includes a gain on the sale of the CoGen Lyondell power generation facility of $210 million. Please read Note 4Dispositions, Contract Terminations and Discontinued OperationsGEN-WE Discontinued OperationsCoGen Lyondell for further information. | |
(3) | Includes tax expense resulting from an increase in Dynegys estimated state tax rate of approximately $50 million. Also includes a gain related to the sale of a portion of our interest in the Plum Point Project of $39 million. |
F-84
Quarter Ended | ||||||||||||||||
March | June | September | December | |||||||||||||
2008 | 2008 | 2008 | 2008 | |||||||||||||
(in millions, except per share data) | ||||||||||||||||
Revenues
|
$ | 545 | $ | 323 | $ | 1,886 | $ | 795 | ||||||||
Operating income (loss)
|
(150 | ) | (364 | ) | 1,116 | 107 | ||||||||||
Net income (loss)
before cumulative
effect of change in
accounting principles
|
(153 | ) | (269 | ) | 606 | (1) | 24 | (2) | ||||||||
Net income (loss)
|
(153 | ) | (269 | ) | 606 | (1) | 24 | (2) |
(1) | Includes a gain on the sale of the Rolling Hills power generation facility of $56 million. Please read Note 4Dispositions, Contract Terminations and Discontinued OperationsDispositions and Contract TerminationsRolling Hills for further information. | |
(2) | Includes an impairment of our Heard County power generation facility of $47 million. Please read Note 5Impairment ChargesAsset Impairments for further information. Includes translation gains related to the substantial liquidation of a foreign entity of $24 million. |
Quarter Ended | ||||||||||||||||
March | June | September | December | |||||||||||||
2007 | 2007 | 2007 | 2007 | |||||||||||||
(in millions, except per share data) | ||||||||||||||||
Revenues
|
$ | 505 | $ | 828 | $ | 1,046 | $ | 724 | ||||||||
Operating income
|
98 | 184 | 247 | 95 | ||||||||||||
Net income (loss)
before cumulative
effect of change in
accounting
principles
|
22 | 90 | (1) | 222 | (2) | (10 | )(3) | |||||||||
Net income (loss)
|
22 | 90 | (1) | 222 | (2) | (10 | )(3) |
(1) | Includes a gain related to a change in the fair value of interest rate swaps, net of minority interest of $30 million and a gain related to the settlement of the Kendall tolling arrangement of $31 million. | |
(2) | Includes a gain on the sale of the CoGen Lyondell power generation facility of $210 million. Please read Note 4Dispositions, Contract Terminations and Discontinued OperationsGEN-WE Discontinued OperationsCoGen Lyondell for further information. | |
(3) | Includes tax expense resulting from an increase in DHIs estimated state tax rate of approximately $25 million. Also includes a gain related to the sale of a portion of our interest in the Plum Point Project of $39 million. |
F-85
ANPR |
Advanced Notice of proposed rulemaking
|
|
APB |
Accounting Principles Board
|
|
APIC |
Additional paid-in-capital
|
|
ARB |
Accounting Research Bulletin
|
|
ARO |
Asset retirement obligation
|
|
BACT |
Best Available Control Technology (air)
|
|
BART |
Best Available Retrofit Technology
|
|
BTA |
Best technology available (water intake)
|
|
CAA |
Clean Air Act
|
|
CAIR |
Clean Air Interstate Rule
|
|
CAMR |
Clean Air Mercury Rule
|
|
CAISO |
The California Independent System Operator
|
|
CAVR |
The Clean Air Visibility Rule
|
|
CERCLA |
The Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended
|
|
CO 2 |
Carbon dioxide
|
|
COSO |
Committee of Sponsoring Organizations of the Treadway Commission
|
|
CRA |
Canada Revenue Authority
|
|
CRM |
Our customer risk management business segment
|
|
DHI |
Dynegy Holdings Inc., Dynegys primary financing subsidiary
|
|
DMG |
Dynegy Midwest Generation
|
|
DMSLP |
Dynegy Midstream Services L.P.
|
|
DMT |
Dynegy Marketing and Trade
|
|
DNE |
Dynegy Northeast Generation
|
|
DPM |
Dynegy Power Marketing Inc
|
|
EAB |
The Environmental Appeals Board of the U.S. Environmental Protection Agency
|
|
EBITDA |
Earnings before interest, taxes, depreciation and amortization
|
|
EITF |
Emerging Issues Task Force
|
|
ERISA |
The Employee Retirement Income Security Act of 1974, as amended
|
|
EWG |
Exempt Wholesale Generator
|
|
FASB |
Financial Accounting Standards Board
|
|
FCM |
Forward Capacity Market
|
|
FERC |
Federal Energy Regulatory Commission
|
|
FIN |
FASB Interpretation
|
|
FIP |
Federal Implementation Plan
|
|
FSP |
FASB Staff Position
|
|
FTC |
U.S. Federal Trade Commission
|
|
FTR |
Financial Transmission Rights
|
|
GAAP |
Generally Accepted Accounting Principles of the United States of America
|
|
GEN |
Our power generation business
|
|
GEN-MW |
Our power generation businessMidwest segment
|
|
GEN-NE |
Our power generation businessNortheast segment
|
|
GEN-SO |
Our power generation businessSouth segment, which was renamed GEN-WE
|
|
GEN-WE |
Our power generation businessWest segment
|
|
GHG |
Greenhouse gas
|
|
ICAP |
Installed capacity
|
|
ICC |
Illinois Commerce Commission
|
|
IMA |
In-Market Availability
|
|
IRS |
Internal Revenue Service
|
|
ISO |
Independent System Operator
|
|
ISO-NE |
Independent System OperatorNew England
|
|
LBH |
Lehman Brothers Holdings Inc.
|
F-86
LMP |
Locational Marginal Pricing
|
|
LNG |
Liquefied natural gas
|
|
LPG |
Liquefied petroleum gas
|
|
MACT |
Maximum Available Control Technology
|
|
MISO |
Midwest Independent Transmission System Operator
|
|
MGGA |
Midwest Greenhouse Gas Accord
|
|
MGGRP |
Midwestern Greenhouse Reduction Program
|
|
MMBtu |
Millions of British thermal units
|
|
MRTU |
Market Redesign and Technology Upgrade
|
|
MW |
Megawatts
|
|
MWh |
Megawatt hour
|
|
NERC |
North American Electric Reliability Council
|
|
NGL |
Our natural gas liquids business segment
|
|
NOL |
Net operating loss
|
|
NO x |
Nitrogen oxide
|
|
NYISO |
New York Independent System Operator
|
|
NYDEC |
New York Department of Environmental Conservation
|
|
OCI |
Other Comprehensive Income
|
|
OTC |
Over-the-counter
|
|
PCAOB |
Public Company Accounting Oversight Board (United States)
|
|
PJM |
PJM Interconnection, LLC
|
|
PPA |
Power purchase agreement
|
|
PPEA |
Plum Point Energy Associates
|
|
PRB |
Powder River Basin coal
|
|
PSD |
Prevention of Significant Deterioration
|
|
PURPA |
The Public Utility Regulatory Policies Act of 1978
|
|
QF |
Qualifying Facility
|
|
RCRA |
The Resource Conservation and Recovery Act of 1976, as amended
|
|
RGGI |
Regional Greenhouse Gas Initiative
|
|
RMR |
Reliability Must Run
|
|
RPM |
Reliability Pricing Model
|
|
RTO |
Regional Transmission Organization
|
|
SAB |
SEC Staff Accounting Bulletin
|
|
SCEA |
Sandy Creek Energy Associates, LP
|
|
SCH |
Sandy Creek Holdings, LLC
|
|
SEC |
U.S. Securities and Exchange Commission
|
|
SERC |
Southeastern Electric Reliability Council
|
|
SFAS |
Statement of Financial Accounting Standards
|
|
SIP |
State Implementation Plan
|
|
SO 2 |
Sulfur dioxide
|
|
SPE |
Special Purpose Entity
|
|
SPDES |
State Pollutant Discharge Elimination System
|
|
SPN |
Second Priority Senior Secured Notes
|
|
TARP |
Troubled Assets Relief Program
|
|
TCEQ |
Texas Commission on Environmental Quality
|
|
U.S. EPA |
United States Environmental Protection Agency
|
|
VaR |
Value at Risk
|
|
VIE |
Variable Interest Entity
|
|
VLGC |
Very large gas carrier
|
|
WAPA |
Western Area Power Administration
|
|
WCI |
Western Climate Initiative
|
|
WECC |
Western Electricity Coordinating Council
|
F-87
F-88
Year Ended December 31, | ||||||||||||
2008 | 2007 | 2006 | ||||||||||
|
||||||||||||
Operating loss
|
$ | | $ | | $ | | ||||||
Earnings (losses) from unconsolidated investments
|
249 | 503 | (452 | ) | ||||||||
Interest expense
|
| | (6 | ) | ||||||||
Debt conversion costs
|
| | (46 | ) | ||||||||
Other income and expense, net
|
1 | 3 | 9 | |||||||||
|
||||||||||||
|
||||||||||||
Income (loss) before income taxes
|
250 | 506 | (495 | ) | ||||||||
Income tax (expense) benefit
|
(76 | ) | (242 | ) | 162 | |||||||
|
||||||||||||
|
||||||||||||
Net income (loss)
|
174 | 264 | (333 | ) | ||||||||
Less: preferred stock dividends
|
| | 9 | |||||||||
|
||||||||||||
|
||||||||||||
Net income (loss) applicable to common stockholders
|
$ | 174 | $ | 264 | $ | (342 | ) | |||||
|
F-89
F-90
F-91
Balance at | Charged to | |||||||||||||||||||
Beginning of | Costs and | Charged to | Balance at End | |||||||||||||||||
Period | Expenses | Other Accounts | Deductions | of Period | ||||||||||||||||
(in millions) | ||||||||||||||||||||
2008
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 20 | $ | 4 | $ | (2 | ) | $ | | $ | 22 | |||||||||
Allowance for risk-management assets (1)
|
11 | | (11 | ) | | | ||||||||||||||
Deferred tax asset valuation allowance
|
62 | (2 | ) | | (23 | )(6) | 37 | |||||||||||||
|
||||||||||||||||||||
2007
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 48 | $ | (3 | ) | $ | (21 | )(5) | $ | (4 | ) | $ | 20 | |||||||
Allowance for risk-management assets (1)
|
| 11 | | | 11 | |||||||||||||||
Deferred tax asset valuation allowance
|
69 | (6 | ) | (1 | ) | | 62 | |||||||||||||
|
||||||||||||||||||||
2006
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 103 | $ | (35 | )(2) | $ | 43 | (3) | $ | (63 | )(4) | $ | 48 | |||||||
Allowance for risk-management assets (1)
|
10 | | | (10 | ) | | ||||||||||||||
Deferred tax asset valuation allowance
|
70 | 17 | | (18 | ) | 69 |
(1) | Changes in price and credit reserves related to risk-management assets are offset in the net mark-to-market income accounts reported in revenues. In connection with adopting SFAS No. 157, Fair Value Measurement on January 1, 2008, our price and credit reserves related to risk management assets were no longer considered allowances as they are included in the fair value measurement of our derivative contracts. | |
(2) | Primarily represents the reversal of previously reserved receivables associated with a foreign entity. Dynegy revised its estimate of the uncollectible portion of these receivables. The charges are included in bad debt expense or discontinued operations, depending on the nature of the underlying receivable, and are reflected on our consolidated statements of operations. | |
(3) | Primarily represents the establishment of an allowance for doubtful accounts on a foreign entity. | |
(4) | Primarily represents the write-off off an uncollectible receivable associated with a foreign entity, which was previously reserved, as a result of a bankruptcy settlement. As a result, Dynegy reduced its allowance for doubtful accounts and reduced the corresponding accounts receivable. | |
(5) | Primarily represents a partial reversal of the allowance for doubtful accounts on a foreign entity as a result of a bankruptcy settlement, as such amount will be collected. | |
(6) | Primarily represents the release of valuation allowance associated with foreign tax credits, which were previously reserved. |
F-92
Balance at | Charged to | Charged to | ||||||||||||||||||
Beginning of | Costs and | Other | Balance at End | |||||||||||||||||
Period | Expenses | Accounts | Deductions | of Period | ||||||||||||||||
(in millions) | ||||||||||||||||||||
2008
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 15 | $ | 5 | $ | | $ | | $ | 20 | ||||||||||
Allowance for risk-management assets (1)
|
11 | | (11 | ) | | | ||||||||||||||
Deferred tax asset valuation allowance
|
59 | (2 | ) | | (20 | )(6) | 37 | |||||||||||||
|
||||||||||||||||||||
2007
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 48 | $ | (3 | ) | $ | (21 | )(5) | $ | (9 | ) | $ | 15 | |||||||
Allowance for risk-management assets (1)
|
| 11 | | | 11 | |||||||||||||||
Deferred tax asset valuation allowance
|
66 | (6 | ) | (1 | ) | | 59 | |||||||||||||
|
||||||||||||||||||||
2006
|
||||||||||||||||||||
Allowance for doubtful accounts
|
$ | 103 | $ | (35 | )(2) | $ | 43 | (3) | $ | (63 | )(4) | $ | 48 | |||||||
Allowance for risk-management assets (1)
|
10 | | | (10 | ) | | ||||||||||||||
Deferred tax asset valuation allowance
|
52 | 4 | 15 | (5 | ) | 66 |
(1) | Changes in price and credit reserves related to risk-management assets are offset in the net mark-to-market income accounts reported in revenues. In connection with adopting SFAS No. 157, Fair Value Measurements on January 1, 2008, our price and credit reserves related to risk management assets were no longer considered allowances as they are included in the fair value measurement of our derivative contracts. | |
(2) | Primarily represents the reversal of previously reserved receivables associated with a foreign entity. DHI revised its estimate of the uncollectible portion of these receivables. The charges are included in bad debt expense or discontinued operations, depending on the nature of the underlying receivable, and are reflected on our consolidated statements of operations. | |
(3) | Primarily represents the establishment of an allowance for doubtful accounts on a foreign entity. | |
(4) | Primarily represents the write-off off an uncollectible receivable associated with a foreign entity, which was previously reserved, as a result of a bankruptcy settlement. As a result, DHI reduced its allowance for doubtful accounts and reduced the corresponding accounts receivable. | |
(5) | Primarily represents a partial reversal of the allowance for doubtful accounts on a foreign entity as a result of a bankruptcy settlement, as such amount will be collected. | |
(6) | Primarily represents the release of valuation allowance associated with foreign tax credits, which were previously reserved. |
F-93
Exhibit
Number
Description
Dissolution Agreement by and between Dynegy Inc. and LS Power Associates, L.P.,
effective
January 1, 2009.
Amendment No. 3, dated as of February 13, 2009, to the Fifth Amended and Restated
Credit Agreement, dated as of April 2, 2007 , by and among Dynegy Holdings Inc., as
borrower, Dynegy Inc. and Dynegy Illinois Inc., as parent guarantors, the other
guarantors party thereto, the lenders party thereto and various other parties thereto.
First Amendment to Credit Agreement by and among Plum Point Energy Associates, LLC,
as borrower, and the lenders and other parties thereto, effective December 13, 2007.
Dynegy Northeast Generation, Inc. Savings Incentive Plan, as amended and restated,
effective January 1, 2009.
Dynegy Inc. 401(k) Savings Plan, as amended and restated effective January 1, 2009.
Dynegy Midwest Generation, Inc. 401(k) Savings Plan, as amended and restated,
effective as January 1, 2009.
Dynegy Midwest Generation, Inc. 401(k) Savings Plan for Employees Covered under a
Collective Bargaining Agreement, as amended and restated, effective January 1, 2009.
Sithe Pension Account Plan, amended and restated, effective January 1, 2007.
Seventh [First] Amendment to the Sithe Pension Account Plan, as amended, effective
January 1, 2008.
Second Amendment to the Sithe Pension Account Plan, as amended, effective January 1,
2008.
Dynegy Inc. Deferred Compensation Plan for Certain Directors, as amended and
restated, effective January 1, 2008.
Trust under Dynegy Inc. Deferred Compensation Plan for Certain Directors, effective
January 1, 2009.
Dynegy Inc. Retirement Plan, as amended and restated, effective January 1, 2009.
Dynegy Inc. Comprehensive Welfare Benefits Plan, effective January 1, 2002.
First Amendment to the Dynegy Inc. Comprehensive Welfare Benefits Plan, dated
September 29, 2004.
Table of Contents
Exhibit
Number
Description
Second Amendment to the Dynegy Inc. Comprehensive Welfare Benefits Plan, dated
January 1, 2005.
Third Amendment to the Dynegy Inc. Comprehensive Welfare Benefits Plan, dated January
28, 2005.
Fourth Amendment to the Dynegy Inc. Comprehensive Welfare Benefits Plan, dated April
20, 2005.
Fifth Amendment to the Dynegy Inc. Comprehensive Welfare Benefits Plan, dated January
1, 2006.
Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits Plan, dated as of
January 1, 2002.
Amendment One to the Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits
Plan, dated as of April 20, 2005.
Amendment Two to the Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits
Plan, dated as of January 1, 2006.
Dynegy Northeast Generation, Inc. Retirement Income Plan, as amended and restated,
effective January 1, 2009.
Trust AgreementDynegy Northeast Generation Inc. Savings Incentive Plan, dated as of
December 31, 2003 (incorporated by reference to Exhibit.
Amendment to Trust AgreementDynegy Northeast Generation Inc. Savings Incentive Plan,
dated as of January 1, 2006.
Amendment to Trust AgreementDynegy Northeast Generation Inc. Savings Incentive Plan,
dated as of April 2, 2007.
Dynegy Inc. Master Retirement Trust, dated as of December 13, 2001.
Amendment No. One to The Dynegy Inc. Master Retirement Trust, dated as of August 5,
2002.
Amendment No. Two to The Dynegy Inc. Master Retirement Trust, dated as of September
30, 2004.
Amendment No. Three to The Dynegy Inc. Master Retirement Trust, dated as of December
1, 2005.
Amendment No. Four to The Dynegy Inc. Master Retirement Trust, dated as of September
25, 2006.
Table of Contents
Exhibit
Number
Description
Amendment No. Five to The Dynegy Inc. Master Retirement Trust, dated as of April 2,
2007.
Subsidiaries of the Registrant (Dynegy Inc.).
Consent of Ernst & Young LLP (Dynegy Inc.).
Consent of PricewaterhouseCoopers LLP (Dynegy Inc.).
Consent of Ernst & Young LLP (Dynegy Holdings Inc.).
Consent of PricewaterhouseCoopers LLP (Dynegy Holdings Inc.).
Chief Executive Officer Certification Pursuant to Rule 13a-14(a) and 15d-14(a), As
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officer Certification Pursuant to Rule 13a-14(a) and 15d-14(a), As
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to Rule 13a-14(a) and 15d-14(a), As
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to Rule 13a-14(a) and 15d-14(a), As
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officer Certification Pursuant to 18 United States Code Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officer Certification Pursuant to 18 United States Code Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to 18 United States Code Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to 18 United States Code Section 1350,
As Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
**
Filed herewith
Pursuant to Securities and Exchange Commission Release No. 33-8238, this
certification will be treated as accompanying this report and not filed as part of
such report for purposes of Section 18 of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, or otherwise subject to the liability of Section 18 of the
Exchange Act, and this certification will not be deemed to be incorporated by reference
into any filing under the Securities Act of 1933, as amended, or the Exchange Act.
Management contract or compensation plan.
Page | ||||
|
||||
1. Definitions; Rules of Construction
|
1 | |||
|
||||
(a) Definitions
|
1 | |||
(b) Rules of Construction
|
5 | |||
|
||||
2. Agreements
|
6 | |||
|
||||
(a) Transactions
|
6 | |||
(b) Termination of Certain Arrangements
|
6 | |||
(c) Assumed Obligations
|
7 | |||
(d) Consent of Members
|
8 | |||
|
||||
3. Representations and Warranties
|
8 | |||
|
||||
(a) Representations and Warranties of Dynegy
|
8 | |||
(b) Representations and Warranties of LS Power
|
10 | |||
|
||||
4. Post-Effective Date Covenants
|
11 | |||
|
||||
(a) Transition Services
|
11 | |||
(b) Delivery and Retention of Records
|
11 | |||
(c) DLS Companies Termination and Dissolution Matters
|
12 | |||
|
||||
5. Remedies
|
13 | |||
|
||||
(a) Survival of Representations and Warranties
|
13 | |||
(b) Indemnification Provisions for Benefit of the LS Power Group.
|
13 | |||
(c) Indemnification Provisions for Benefit of the Dynegy Group
|
14 | |||
(d) Procedure; Notice
|
14 | |||
(e) Determination of Amount of Loss
|
16 | |||
|
||||
6. Tax Matters
|
16 | |||
|
||||
(a) Post-Dissolution Tax Returns
|
16 | |||
(b) Pre-Dissolution Tax Returns
|
16 | |||
(c) Cooperation on Tax Matters
|
16 | |||
(d) Certain Taxes
|
17 | |||
(e) Confidentiality
|
17 | |||
(f) Control of Proceedings
|
17 | |||
(g) Remittance of Refunds
|
17 | |||
(h) Characterization of Transactions
|
17 |
Page | ||||
7. Miscellaneous
|
17 | |||
|
||||
(a) Public Announcements
|
17 | |||
(b) Waiver of Compliance; Consents
|
18 | |||
(c) Assignment
|
18 | |||
(d) Specific Performance; No Punitive or Consequential Damages
|
18 | |||
(e) Professional Fees and Expenses
|
18 | |||
(f) Third Party Beneficiaries
|
18 | |||
(g) Time
|
18 | |||
(h) Counterparts; Electronic Transmission
|
18 | |||
(i) Headings
|
18 | |||
(j) Notices
|
19 | |||
(k) Governing Law
|
19 | |||
(l) Consent to Jurisdiction, Etc
|
19 | |||
(m) Amendment and Modification
|
20 | |||
(n) Severability
|
20 | |||
(o) Compliance With Laws
|
20 | |||
(p) Further Assurances
|
21 | |||
(q) Incorporation of Exhibits and Schedules
|
21 | |||
(r) Entire Agreement
|
21 | |||
(s) Limitations of Representations and Warranties
|
21 | |||
|
||||
Exhibits and Schedules
|
||||
|
||||
Schedule 1(a): DLS Terminated Agreements
|
||||
Schedule 1(b): Project Entities and Project Assets
|
||||
Schedule 3(b)(iv): Project Obligations and Project Status
|
ii
1. |
Dynegy and LS Power each own a 50% membership interest in each of DLS Power Holdings, LLC, a
Delaware limited liability company (
DLS Holding
s), and DLS Power Development Company, LLC, a
Delaware limited liability company (
DLS Development
and, together with DLS Holdings, the
DLS Companies
).
|
2. |
Dynegy and LS Power intend to wind up and dissolve the DLS Companies in accordance with
Delaware law.
|
3. |
Subject to the terms and conditions of this Agreement, the DLS Companies will distribute all
of their respective assets and terminate all of the DLS Terminated Agreements (as defined
herein), and Dynegy and LS Power will agree to certain transition and support services
arrangements as further described herein.
|
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
|
If to Dynegy: | Dynegy Inc. | ||
|
Attn: General Counsel | |||
|
1000 Louisiana Street | |||
|
Houston, Texas 77002 | |||
|
Facsimile: 713-356-2185 | |||
|
||||
|
If to LS Power: | LS Power Associates, L.P. | ||
|
Attn: General Counsel | |||
|
1700 Broadway | |||
|
35th Floor | |||
|
New York, NY 10019 | |||
|
Facsimile: 212-615-3440 |
19
20
21
DYNEGY INC.
|
||||
By: | /s/ Lynn A. Lednicky | |||
Name: | Lynn A. Lednicky | |||
Title: | President | |||
LS POWER ASSOCIATES, L.P.
|
||||
By: | /s/ John T. King | |||
Name: | John T. King | |||
Title: | Vice President | |||
2
3
2
PLUM POINT ENERGY ASSOCIATES, LLC,
a Delaware limited liability company |
||||
By: | /s/ Stephen A. Furbacher | |||
Name: | Steven A. Furbacher | |||
Title: | President |
AMBAC ASSURANCE CORPORATION
|
||||
By: | /s/ Michael T. Sagges | |||
Name: | Michael T. Sagges | |||
Title: | First Vice President |
3
Page | ||||
I. Definitions and Construction
|
2 | |||
1.1 Definitions
|
2 | |||
1.2 Number and Gender
|
10 | |||
1.3 Headings
|
10 | |||
1.4 Construction
|
10 | |||
|
||||
II. Participation
|
10 | |||
2.1 Eligibility
|
10 | |||
2.2 Participation
|
11 | |||
2.3 Correction for Erroneous Inclusion of Employee
|
11 | |||
|
||||
III. Contributions
|
11 | |||
3.1 Before-Tax Contributions
|
11 | |||
3.2 After-Tax Contributions
|
14 | |||
3.3 Employer Matching Contributions
|
15 | |||
3.4 Employer Discretionary Qualified Matching Contributions
|
15 | |||
3.5 Restrictions on Employer Matching Contributions and After-Tax Contributions
|
16 | |||
3.6 Return of Contributions
|
16 | |||
3.7 Disposition of Excess Deferrals and Excess Contributions
|
17 | |||
3.8 Rollover Contributions
|
19 | |||
|
||||
IV. Allocations and Limitations
|
20 | |||
4.1 Allocation of Contributions
|
20 | |||
4.2 Application of Forfeitures
|
21 | |||
4.3 Valuation of Accounts
|
21 | |||
4.4 Limit on Annual Additions Under Code Section 415:
|
22 | |||
4.5 Recharacterizations
|
22 | |||
|
||||
V. Investment Funds
|
23 | |||
5.1 Investment of Accounts
|
23 | |||
5.2 Pass-Through Voting and Other Rights with Respect to Company Stock
|
23 | |||
|
||||
VI. Retirement Benefits
|
24 | |||
|
||||
VII. Disability Benefits
|
24 | |||
|
||||
VIII. Pre-Retirement Termination Benefits and Determination of Vested Interest
|
24 | |||
8.1 No Benefits Unless Herein Set Forth
|
24 | |||
8.2 Pre-Retirement Severance from Employment Benefit
|
24 | |||
8.3 Determination of Vested Interest
|
25 |
-i-
Page | ||||
|
||||
IX. Death Benefits
|
25 | |||
9.1 Death Benefits
|
25 | |||
9.2 Designation of Beneficiaries
|
25 | |||
|
||||
X. Time and Form of Payment of Benefits
|
26 | |||
10.1 Determination of Benefit Commencement Date
|
26 | |||
10.2 Form of Payment and Payee
|
27 | |||
10.3 Direct Rollover Election
|
27 | |||
10.4 Unclaimed Benefits
|
27 | |||
10.5 Minimum Distribution Requirements
|
28 | |||
|
||||
XI. In-Service Withdrawals
|
32 | |||
11.1 In-Service Withdrawals
|
32 | |||
11.2 Restriction on In-Service Withdrawals
|
34 | |||
|
||||
XII. Loans
|
34 | |||
|
||||
XIII. Administration of the Plan
|
35 | |||
13.1 General Administration of the Plan
|
35 | |||
13.2 Records and Procedures
|
35 | |||
13.3 Meetings
|
36 | |||
13.4 Self-Interest of Participants
|
36 | |||
13.5 Compensation and Bonding
|
36 | |||
13.6 Committee Powers and Duties
|
36 | |||
13.7 Employer to Supply Information
|
37 | |||
13.8 Temporary Restrictions
|
37 | |||
13.9 Idemnification
|
38 | |||
13.10 Claims Procedures
|
38 | |||
|
||||
XIV. Trustee and Administration of Trust Fund
|
42 | |||
14.1 Trust Agreement
|
42 | |||
14.2 Payment of Expenses
|
42 | |||
14.3 Trust Fund Property
|
43 | |||
14.4 Distributions from Participants Accounts
|
43 | |||
14.5 Payments Solely from Trust Fund
|
43 | |||
14.6 No Benefits to the Employer
|
43 | |||
|
||||
XV. Fiduciary Provisions
|
43 | |||
15.1 Article Controls
|
43 | |||
15.2 General Allocation of Fiduciary Duties
|
43 | |||
15.3 Delegation and Allocation of Fiduciary Duties
|
44 | |||
15.4 Investment Manager
|
44 | |||
15.5 Independent Fiduciary
|
44 | |||
|
||||
XVI. Amendments
|
46 | |||
16.1 Right to Amend
|
46 | |||
16.2 Limitation on Amendments
|
46 |
-ii-
Page | ||||
|
||||
XVII. Discontinuance of Contributions, Termination, Partial Termination, and Merger or Consolidation
|
46 | |||
17.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
|
46 | |||
17.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
|
47 | |||
17.3 Merger, Consolidation, or Transfer
|
48 | |||
|
||||
XVIII Participating Employers
|
48 | |||
18.1 Participation and Designation of Other Employers
|
48 | |||
18.2 Single Plan
|
49 | |||
|
||||
XIX. Miscellaneous Provisions
|
49 | |||
19.1 Not Contract of Employment
|
49 | |||
19.2 Spendthrift Clause
|
49 | |||
19.3 Uniformed Services, Employment and Reemployment Rights Act Requirements
|
51 | |||
19.4 Payments to Minors and Incompetents
|
51 | |||
19.5 Acquisition and Holding of Company Stock
|
51 | |||
19.6 Power of Attorney Designations
|
51 | |||
19.7 Participants and Beneficiarys Address
|
51 | |||
19.8 Incorrect Information, Fraud, Concealment, or Error
|
51 | |||
19.9 Severability
|
52 | |||
19.10 Jurisdiction
|
52 | |||
|
||||
XX. Top-Heavy Status
|
52 | |||
20.1 Article Controls
|
52 | |||
20.2 Definitions
|
52 | |||
20.3 Top-Heavy Status
|
53 | |||
20.4 Top-Heavy Contribution
|
54 | |||
20.5 Termination of Top Heavy Status
|
55 | |||
20.6 Effect of Article
|
55 |
-iii-
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DYNEGY INC.
|
||||
By: | ||||
Name: | ||||
Title: |
-55-
-1-
-1-
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-4-
PAGE | ||||
|
||||
I. Definitions and Construction
|
1 | |||
1.1 Definitions
|
1 | |||
1.2 Number and Gender
|
15 | |||
1.3 Headings
|
16 | |||
1.4 Construction
|
16 | |||
|
||||
II. Participation
|
16 | |||
2.1 Eligibility
|
16 | |||
2.2 Participation
|
16 | |||
|
||||
III. Contributions
|
17 | |||
3.1 Before-Tax Contributions
|
17 | |||
3.2 After-Tax Contributions
|
19 | |||
3.3 Employer Matching Contributions
|
20 | |||
3.4 Employer Discretionary Contributions
|
21 | |||
3.5 Employer Discretionary Qualified Matching Contributions
|
21 | |||
3.6 Restrictions on Employer Matching Contributions and After-Tax Contributions
|
22 | |||
3.7 Return of Contributions
|
23 | |||
3.8 Disposition of Excess Deferrals and Excess Contributions
|
23 | |||
3.9 Rollover Contributions
|
25 | |||
|
||||
IV. Allocations and Limitations
|
27 | |||
4.1 Allocation of Contributions
|
27 | |||
4.2 Application of Forfeitures
|
29 | |||
4.3 Valuation of Accounts
|
29 | |||
4.4 Limit on Annual Additions Under Code Section 415
|
29 | |||
4.5 Recharacterizations
|
30 | |||
|
||||
V. Investment of Accounts
|
30 | |||
5.1 Investment of Certain Employer Contributions
|
30 | |||
5.2 Investment of Accounts
|
30 | |||
5.3 VBO Investments
|
31 | |||
5.4 Pass-Through Voting and Other Rights with Respect to Company Stock
|
31 | |||
5.5 Stock Splits and Stock Dividends
|
32 | |||
|
||||
VI. General Benefits and Determination of Vested Interest
|
32 | |||
6.1 No Benefits Unless Herein Set Forth
|
32 | |||
6.2 Retirement Benefits
|
32 | |||
6.3 Pre-Retirement Severance from Employment Benefits
|
32 | |||
6.4 Disability Benefits
|
32 | |||
6.5 Determination of Vested Interest
|
33 | |||
6.6 Crediting of Vesting Service
|
34 |
(i)
PAGE | ||||
|
||||
6.7 Forfeitures of Vesting Service
|
34 | |||
6.8 Forfeitures of Nonvested Account Balance
|
35 | |||
6.9 Restoration of Forfeited Account Balance
|
35 | |||
6.10 Special Formula for Determining Vested Interest for Partial Accounts
|
36 | |||
|
||||
VII. Death Benefits
|
36 | |||
7.1 Death Benefits
|
36 | |||
7.2 Designation of Beneficiaries
|
37 | |||
|
||||
VIII. Payment of Benefits
|
37 | |||
8.1 Determination of Benefit Commencement Date
|
37 | |||
8.2 Minimum Distribution Requirements
|
39 | |||
8.3 Form of Payment and Payee
|
43 | |||
8.4 Direct Rollover Election
|
43 | |||
8.5 Notice of Direct Rollover Distribution
|
44 | |||
8.6 Unclaimed Benefits
|
44 | |||
8.7 Claims Review
|
45 | |||
|
||||
IX. In-Service Withdrawals
|
49 | |||
9.1 In-Service Withdrawals
|
49 | |||
9.2 Restriction on In-Service Withdrawals
|
50 | |||
|
||||
X. Loans
|
51 | |||
|
||||
XI. Administration of the Plan
|
52 | |||
11.1 General Administration of the Plan
|
52 | |||
11.2 Records and Procedures
|
52 | |||
11.3 Meetings
|
52 | |||
11.4 Self-Interest of Members
|
52 | |||
11.5 Compensation and Bonding
|
52 | |||
11.6 Committee Powers and Duties
|
53 | |||
11.7 Employer to Supply Information
|
54 | |||
11.8 Temporary Restrictions
|
54 | |||
11.9 Indemnification
|
54 | |||
|
||||
XII. Trustee and Administration of Trust Fund
|
54 | |||
12.1 Trust Agreement
|
54 | |||
12.2 Payment of Expenses
|
55 | |||
12.3 Trust Fund Property
|
55 | |||
12.4 Distributions from Participants Accounts
|
55 | |||
12.5 Payments Solely from Trust Fund
|
55 | |||
12.6 No Benefits to the Employer
|
55 | |||
|
||||
XIII. Fiduciary Provisions
|
56 | |||
13.1 Article Controls
|
56 | |||
13.2 General Allocation of Fiduciary Duties
|
56 | |||
13.3 Delegation and Allocation of Fiduciary Duties
|
56 |
(ii)
PAGE | ||||
|
||||
13.4 Investment Manager
|
56 | |||
13.5 Independent Fiduciary
|
57 | |||
|
||||
XIV. Amendments
|
58 | |||
14.1 Right to Amend
|
58 | |||
14.2 Limitation on Amendments
|
58 | |||
|
||||
XV. Discontinuance of Contributions, Termination, Partial Termination, and Merger or Consolidation
|
58 | |||
15.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
|
58 | |||
15.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
|
59 | |||
15.3 Merger, Consolidation, or Transfer
|
60 | |||
|
||||
XVI. Participating Employers
|
60 | |||
16.1 Designation of Other Employers
|
60 | |||
16.2 Single Plan
|
61 | |||
|
||||
XVII. Miscellaneous Provisions
|
61 | |||
17.1 Not Contract of Employment
|
61 | |||
17.2 Spendthrift Clause
|
61 | |||
17.3 Uniformed Services Employment and Reemployment Rights Act Requirements
|
63 | |||
17.4 Payments to Minors and Incompetents
|
63 | |||
17.5 Acquisition and Holding of Company Stock
|
63 | |||
17.6 Power of Attorney Designations
|
63 | |||
17.7 Participants and Beneficiarys Address
|
63 | |||
17.8 Incorrect Information, Fraud, Concealment, or Error
|
64 | |||
17.9 Severability
|
64 | |||
17.10 Jurisdiction
|
64 | |||
|
||||
XVIII. Top-Heavy Status
|
64 | |||
18.1 Article Controls
|
64 | |||
18.2 Definitions
|
64 | |||
18.3 Top-Heavy Status
|
66 | |||
18.4 Top-Heavy Contribution
|
66 | |||
18.5 Termination of Top-Heavy Status
|
67 | |||
18.6 Effect of Article
|
67 |
(iii)
1
2
Age of Participant or Former Participant | ||
Fund Name | on April 1, 2005 | |
|
||
Vanguard Target Retirement Income Fund | Ages 65 or older | |
Vanguard Target Retirement 2005 Fund | Ages 60 to 64 | |
Vanguard Target Retirement 2015 Fund | Ages 50 to 59 | |
Vanguard Target Retirement 2025 Fund | Ages 40 to 49 | |
Vanguard Target Retirement 2035 Fund | Ages 30 to 39 | |
Vanguard Target Retirement 2045 Fund | Up to Age 29 |
3
Fund Name | Age of Participant or Former Participant | |
Vanguard Target Retirement Income Fund | Ages 65 or older | |
Vanguard Target Retirement 2005 Fund | Ages 60 to 64 | |
Vanguard Target Retirement 2015 Fund | Ages 50 to 59 | |
Vanguard Target Retirement 2025 Fund | Ages 40 to 49 | |
Vanguard Target Retirement 2035 Fund | Ages 30 to 39 | |
Vanguard Target Retirement 2045 Fund | Up to Age 29 |
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
Years of Vesting Service | Vested Interest | |||
|
||||
Less than 1 year
|
0 | % | ||
1 year
|
50 | % | ||
2 years
|
100 | % |
Years of Vesting Service | Vested Interest | |||
|
||||
Less than 1 year
|
0 | % | ||
1 year
|
25 | % | ||
2 years
|
50 | % | ||
3 years
|
75 | % | ||
4 years or more
|
100 | % |
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
DYNEGY INC.
|
||||
By: | ||||
Name: | ||||
Title: | ||||
67
1
1
2
3
4
1
1
I. DEFINITIONS AND CONSTRUCTION
|
1 | |||
1.1 Definitions
|
1 | |||
1.2 Number and Gender
|
12 | |||
1.3 Headings
|
12 | |||
1.4 Construction
|
12 | |||
|
||||
II. PARTICIPATION
|
12 | |||
2.1 Eligibility
|
12 | |||
2.2 Transferred Employees
|
13 | |||
|
||||
III. CONTRIBUTIONS
|
13 | |||
3.1 Before-Tax Contributions
|
13 | |||
3.2 After-Tax Contributions
|
16 | |||
3.3 Employer Matching Contributions
|
17 | |||
3.4 Employer Discretionary Contributions
|
18 | |||
3.5 Employer Discretionary Qualified Matching Contributions
|
18 | |||
3.6 Restrictions on Employer Matching Contributions and After-Tax Contributions
|
19 | |||
3.7 Return of Contributions
|
19 | |||
3.8 Disposition of Excess Deferrals and Excess Contributions
|
20 | |||
3.9 Rollover Contributions
|
22 | |||
|
||||
IV. ALLOCATIONS AND LIMITATIONS
|
23 | |||
4.1 Allocation of Contributions to Accounts
|
23 | |||
4.2 Application of Forfeitures
|
25 | |||
4.3 Valuation of Accounts
|
25 | |||
4.4 Limit on Annual Additions Under Section 415
|
25 | |||
4.5 Recharacterizations
|
26 | |||
|
||||
V. INVESTMENT OF ACCOUNTS
|
26 | |||
5.1 Investment of ESOP Subaccounts
|
26 | |||
5.2 Investment of Certain Employer Contributions
|
26 | |||
5.3 Investment of Accounts
|
26 | |||
5.4 VBO Investments
|
27 | |||
5.5 Pass-Through Voting and Other Rights with Respect to Company Stock
|
27 | |||
5.6 Stock Splits and Stock Dividends
|
28 | |||
|
||||
VI. ESOP AND ESOP ALLOCATIONS
|
28 | |||
6.1 Article Controls
|
28 | |||
6.2 Purpose of ESOP
|
28 | |||
6.3 Nature of the ESOP
|
28 | |||
6.4 Requirements as to Exempt Loan
|
28 | |||
6.5 Use of Exempt Loan Proceeds
|
30 | |||
6.6 Loan Repayment Contributions
|
30 | |||
6.7 Release and Allocation of Financed Stock
|
30 |
i
6.8 Investment of Accounts
|
31 | |||
6.9 Dividends
|
31 | |||
6.10 Put Option
|
32 | |||
6.11 Right of First Refusal
|
33 | |||
6.12 Investment of Trust Fund in Company Stock
|
34 | |||
6.13 Company Stock Valuation
|
34 | |||
|
||||
VII. GENERAL BENEFITS
|
34 | |||
7.1 No Benefits Unless Herein Set Forth
|
34 | |||
7.2 Severance from Employment Benefit
|
34 | |||
7.3 Disability Benefit
|
35 | |||
7.4 Vesting of Accounts
|
35 | |||
|
||||
VIII. DEATH BENEFITS
|
35 | |||
8.1 Death Benefits
|
35 | |||
8.2 Designation of Beneficiaries
|
35 | |||
|
||||
IX. PAYMENT OF BENEFITS
|
36 | |||
9.1 Determination of Benefit Commencement Date
|
36 | |||
9.2 Minimum Distribution Requirements
|
37 | |||
9.3 Form of Payment and Payee
|
41 | |||
9.4 Direct Rollover Election
|
41 | |||
9.5 Transfers to Collectively Bargained Plan
|
42 | |||
9.6 Notice of Direct Rollover Distribution
|
42 | |||
9.7 Unclaimed Benefits
|
43 | |||
9.8 Claims Review
|
43 | |||
|
||||
X. IN-SERVICE WITHDRAWALS
|
47 | |||
10.1 In-Service Withdrawals
|
47 | |||
10.2 Restriction on In-Service Withdrawals
|
49 | |||
|
||||
XI. LOANS
|
49 | |||
|
||||
XII. ADMINISTRATION OF THE PLAN
|
50 | |||
12.1 General Administration of the Plan
|
50 | |||
12.2 Records and Procedures
|
50 | |||
12.3 Meetings
|
50 | |||
12.4 Self-Interest of Members
|
50 | |||
12.5 Compensation and Bonding
|
51 | |||
12.6 Committee Powers and Duties
|
51 | |||
12.7 Employer to Supply Information
|
52 | |||
12.8 Temporary Restrictions
|
52 | |||
12.9 Indemnification
|
52 | |||
|
||||
XIII. TRUSTEE AND ADMINISTRATION OF TRUST FUND
|
53 | |||
13.1 Trust Agreement
|
53 | |||
13.2 Payment of Expenses
|
53 | |||
13.3 Trust Fund Property
|
53 | |||
13.4 Distributions from Participants Accounts
|
53 | |||
13.5 Payments Solely from Trust Fund
|
53 | |||
13.6 No Benefits to Company/Employer
|
54 |
ii
XIV. FIDUCIARY PROVISIONS
|
54 | |||
14.1 Article Controls
|
54 | |||
14.2 General Allocation of Fiduciary Duties
|
54 | |||
14.3 Delegation of Fiduciary Duties
|
54 | |||
14.4 Investment Manager
|
54 | |||
14.5 Independent Fiduciary
|
55 | |||
|
||||
XV. AMENDMENTS
|
56 | |||
15.1 Right to Amend
|
56 | |||
15.2 Limitation on Amendments
|
56 | |||
|
||||
XVI. DISCONTINUANCE OF CONTRIBUTIONS, TERMINATION, PARTIAL TERMINATION, AND MERGER OR CONSOLIDATION
|
57 | |||
16.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
|
57 | |||
16.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
|
57 | |||
16.3 Merger, Consolidation, or Transfer
|
58 | |||
|
||||
XVII. PARTICIPATING EMPLOYERS
|
58 | |||
17.1 Designation of Other Employers
|
58 | |||
17.2 Single Plan
|
59 | |||
|
||||
XVIII. MISCELLANEOUS PROVISIONS
|
59 | |||
18.1 Not Contract of Employment
|
59 | |||
18.2 Spendthrift Clause
|
59 | |||
18.3 Uniformed Services Employment and Reemployment Rights Act Requirements
|
61 | |||
18.4 Payments to Minors and Incompetents
|
61 | |||
18.5 Acquisition and Holding of Company Stock
|
61 | |||
18.6 Power of Attorney Designations
|
61 | |||
18.7 Participants and Beneficiarys Addresses
|
61 | |||
18.8 Incorrect Information, Fraud, Concealment, or Error
|
62 | |||
18.9 Severability
|
62 | |||
18.10 Jurisdiction
|
62 | |||
|
||||
XIX. TOP-HEAVY STATUS
|
62 | |||
19.1 Article Controls
|
62 | |||
19.2 Definitions
|
62 | |||
19.3 Top-Heavy Status
|
64 | |||
19.4 Top-Heavy Contribution
|
64 | |||
19.5 Termination of Top-Heavy Status
|
65 | |||
19.6 Effect of Article
|
65 |
iii
1
2
Fund Name | Age of Participant or Former Participant | |
|
||
Vanguard Target Retirement Income Fund | Ages 65 or older | |
Vanguard Target Retirement 2005 Fund | Ages 60 to 64 | |
Vanguard Target Retirement 2015 Fund | Ages 50 to 59 | |
Vanguard Target Retirement 2025 Fund | Ages 40 to 49 | |
Vanguard Target Retirement 2035 Fund | Ages 30 to 39 | |
Vanguard Target Retirement 2045 Fund | Up to Age 29 |
3
Fund Name | Age of Participant or Former Participant | |
Vanguard Target Retirement Income Fund | Ages 65 or older | |
Vanguard Target Retirement 2005 Fund | Ages 60 to 64 | |
Vanguard Target Retirement 2015 Fund | Ages 50 to 59 | |
Vanguard Target Retirement 2025 Fund | Ages 40 to 49 | |
Vanguard Target Retirement 2035 Fund | Ages 30 to 39 | |
Vanguard Target Retirement 2045 Fund | Up to Age 29 |
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
DYNEGY INC.
|
||||||||
|
By: | |||||||
|
Name: |
|
||||||
|
|
|||||||
|
Title: | |||||||
|
|
65
1
1
2
3
PAGE | ||||
|
||||
I. DEFINITIONS AND CONSTRUCTION
|
1 | |||
1.1 Definitions
|
1 | |||
1.2 Number and Gender
|
11 | |||
1.3 Headings
|
11 | |||
1.4 Construction
|
11 | |||
|
||||
II. PARTICIPATION
|
11 | |||
2.1 Eligibility
|
11 | |||
2.2 Transferred Employees
|
12 | |||
|
||||
III. CONTRIBUTIONS
|
12 | |||
3.1 Before-Tax Contributions
|
12 | |||
3.2 After-Tax Contributions
|
15 | |||
3.3 Employer Matching Contributions
|
16 | |||
3.4 Employer Discretionary Contributions
|
17 | |||
3.5 Employer Discretionary Qualified Matching Contributions
|
17 | |||
3.6 Restrictions on Employer Matching Contributions and After-Tax Contributions
|
18 | |||
3.7 Return of Contributions
|
18 | |||
3.8 Disposition of Excess Deferrals and Excess Contributions
|
19 | |||
3.9 Rollover Contributions
|
21 | |||
|
||||
IV. ALLOCATIONS AND LIMITATIONS
|
22 | |||
4.1 Allocation of Contributions to Accounts
|
22 | |||
4.2 Application of Forfeitures
|
24 | |||
4.3 Valuation of Accounts
|
24 | |||
4.4 Limit on Annual Additions Under Section 415
|
24 | |||
4.5 Recharacterizations
|
25 | |||
|
||||
V. INVESTMENT OF ACCOUNTS
|
25 | |||
5.1 Investment of ESOP Subaccounts
|
25 | |||
5.2 Investment of Certain Employer Contributions
|
25 | |||
5.3 Investment of Accounts
|
26 | |||
5.4 VBO Investments
|
26 | |||
5.5 Pass-Through Voting and Other Rights with Respect to Company Stock
|
27 | |||
5.6 Stock Splits and Stock Dividends
|
27 | |||
|
||||
VI. ESOP AND ESOP ALLOCATIONS
|
27 | |||
6.1 Article Controls
|
27 | |||
6.2 Purpose of ESOP
|
27 | |||
6.3 Nature of the ESOP
|
27 | |||
6.4 Requirements as to Exempt Loan
|
28 | |||
6.5 Use of Exempt Loan Proceeds
|
29 |
i
PAGE | ||||
|
||||
6.6 Loan Repayment Contributions
|
29 | |||
6.7 Release and Allocation of Financed Stock
|
29 | |||
6.8 Investment of Accounts
|
30 | |||
6.9 Dividends
|
31 | |||
6.10 Put Option
|
31 | |||
6.11 Right of First Refusal
|
32 | |||
6.12 Investment of Trust Fund in Company Stock
|
33 | |||
6.13 Company Stock Valuation
|
33 | |||
|
||||
VII. GENERAL BENEFITS
|
34 | |||
7.1 No Benefits Unless Herein Set Forth
|
34 | |||
7.2 Severance from Employment Benefit
|
34 | |||
7.3 Disability Benefit
|
34 | |||
7.4 Vesting of Accounts
|
34 | |||
|
||||
VIII. DEATH BENEFITS
|
34 | |||
8.1 Death Benefits
|
34 | |||
8.2 Designation of Beneficiaries
|
34 | |||
|
||||
IX. PAYMENT OF BENEFITS
|
35 | |||
9.1 Determination of Benefit Commencement Date
|
35 | |||
9.2 Minimum Distribution Requirements
|
36 | |||
9.3 Form of Payment and Payee
|
40 | |||
9.4 Direct Rollover Election
|
41 | |||
9.5 Transfers to Salaried Plan
|
41 | |||
9.6 Notice of Direct Rollover Distribution
|
42 | |||
9.7 Unclaimed Benefits
|
42 | |||
9.8 Claims Review
|
42 | |||
|
||||
X. IN-SERVICE WITHDRAWALS
|
46 | |||
10.1 In-Service Withdrawals
|
46 | |||
10.2 Restriction on In-Service Withdrawals
|
48 | |||
|
||||
XI. LOANS
|
49 | |||
|
||||
XII. ADMINISTRATION OF THE PLAN
|
49 | |||
12.1 General Administration of the Plan
|
49 | |||
12.2 Records and Procedures
|
49 | |||
12.3 Meetings
|
50 | |||
12.4 Self-Interest of Members
|
50 | |||
12.5 Compensation and Bonding
|
50 | |||
12.6 Committee Powers and Duties
|
50 | |||
12.7 Employer to Supply Information
|
51 | |||
12.8 Temporary Restrictions
|
52 | |||
12.9 Indemnification
|
52 |
ii
PAGE | ||||
|
||||
XIII. TRUSTEE AND ADMINISTRATION OF TRUST FUND
|
52 | |||
13.1 Trust Agreement
|
52 | |||
13.2 Payment of Expenses
|
52 | |||
13.3 Trust Fund Property
|
53 | |||
13.4 Distributions from Participants Accounts
|
53 | |||
13.5 Payments Solely front Trust Fund
|
53 | |||
13.6 No Benefits to Company/Employer
|
53 | |||
|
||||
XIV. FIDUCIARY PROVISIONS
|
53 | |||
14.1 Article Controls
|
53 | |||
14.2 General Allocation of Fiduciary Duties
|
53 | |||
14.3 Delegation of Fiduciary Duties
|
54 | |||
14.4 Investment Manager
|
54 | |||
14.5 Independent Fiduciary
|
54 | |||
|
||||
XV. AMENDMENTS
|
55 | |||
15.1 Right to Amend
|
55 | |||
15.2 Limitation on Amendments
|
56 | |||
|
||||
XVI. DISCONTINUANCE OF CONTRIBUTIONS, TERMINATION, PARTIAL TERMINATION, AND MERGER OR CONSOLIDATION
|
56 | |||
16.1 Right to Discontinue Contributions, Terminate, or Partially Terminate
|
56 | |||
16.2 Procedure in the Event of Discontinuance of Contributions, Termination,
or Partial Termination
|
56 | |||
16.3 Merger, Consolidation, or Transfer
|
57 | |||
|
||||
XVII. PARTICIPATING EMPLOYERS
|
57 | |||
17.1 Designation of Other Employers
|
57 | |||
17.2 Single Plan
|
58 | |||
|
||||
XVIII. MISCELLANEOUS PROVISIONS
|
58 | |||
18.1 Not Contract of Employment
|
58 | |||
18.2 Spendthrift Clause
|
59 | |||
18.3 Uniformed Services Employment and Reemployment Rights Act Requirements
|
60 | |||
18.4 Payments to Minors and Incompetents
|
60 | |||
18.5 Acquisition and Holding of Company Stock
|
61 | |||
18.6 Power of Attorney Designations
|
61 | |||
18.7 Participants and Beneficiarys Addresses
|
61 | |||
18.8 Incorrect Information, Fraud, Concealment, or Error
|
61 | |||
18.9 Severability
|
61 | |||
18.10 Jurisdiction
|
61 | |||
|
||||
Appendix A: Participating Employers
|
||||
|
||||
Appendix B: Loan Policy
|
iii
1
Age of Participant or Former | ||
Fund Name | Participant | |
Vanguard Target Retirement
Income Fund
|
Ages 65 or older | |
Vanguard Target Retirement
2005 Fund
|
Ages 60 to 64 | |
Vanguard Target Retirement
2015 Fund
|
Ages 50 to 59 | |
Vanguard Target Retirement
2025 Fund
|
Ages 40 to 49 | |
Vanguard Target Retirement
2035 Fund
|
Ages 30 to 39 | |
Vanguard Target Retirement
2045 Fund
|
Up to Age 29 |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
By: | ||||
Name: | ||||
Title: |
61
1
1
2
3
Exhibit 10.40
PAGE | ||||
|
||||
PREAMBLE
|
1 | |||
|
||||
ARTICLE 1 DEFINITIONS
|
3 | |||
|
||||
1.1 Accrued Benefit
|
3 | |||
1.2 Actuarial Equivalent or Actuarial Equivalence
|
3 | |||
1.3 Affiliated Company or Affiliate
|
4 | |||
1.4 Applicable Interest Rate
|
4 | |||
1.5 Authorized Leave of Absence
|
4 | |||
1.6 Beneficiary
|
4 | |||
1.7 Board or Board of Directors
|
4 | |||
1.8 Cash Balance Account
|
4 | |||
1.9 Code
|
5 | |||
1.10 Company
|
5 | |||
1.11 Compensation
|
5 | |||
1.12 Disability
|
6 | |||
1.13 Effective Date
|
6 | |||
1.14 Eligible Employee
|
6 | |||
1.15 Employee
|
6 | |||
1.16 Employment Date
|
6 | |||
1.17 Enrolled Actuary
|
6 | |||
1.18 ERISA
|
6 | |||
1.19 Fiduciary
|
6 | |||
1.20 Fund
|
6 | |||
1.21 Hour of Service
|
7 | |||
1.21A Insurance Company
|
7 | |||
1.22 Interest Credit(s)
|
8 | |||
1.23 Member
|
8 | |||
1.24 Non-Appendix B Member
|
8 | |||
1.25 Normal Retirement Date
|
8 | |||
1.26 Opening Balance
|
8 | |||
1.27 Parental Absence
|
8 | |||
1.28 Participating Company
|
8 | |||
1.29 Pay Credit
|
8 | |||
1.30 Payment Date
|
8 | |||
1.31 Plan
|
9 | |||
1.32 Plan A
|
9 | |||
1.33 Plan B
|
9 | |||
1.34 Plan Administrator
|
9 | |||
1.35 Plan Year
|
9 | |||
1.36 Reemployment or Reemployment Date
|
9 | |||
1.37 Retirement Benefit
|
9 |
i
PAGE | ||||
|
||||
1.38 Spouse
|
9 | |||
1.39 Termination Date
|
9 | |||
1.40 Trust
|
9 | |||
1.41 Trust Agreement
|
10 | |||
1.42 Trustee
|
10 | |||
1.43 Union Member
|
10 | |||
|
||||
ARTICLE 2 PARTICIPATION AND SERVICE
|
10 | |||
|
||||
2.1 Eligibility Requirements
|
10 | |||
2.2 Special One-Time Election
|
10 | |||
2.3 Service
|
11 | |||
|
||||
ARTICLE 3 CASH BALANCE ACCOUNT
|
12 | |||
|
||||
3.1 In General
|
12 | |||
3.2 Opening Balance
|
12 | |||
3.3 Pay Credits
|
12 | |||
3.4 Interest Credits
|
13 | |||
3.5 Cash Balance Account
|
13 | |||
3.6 Reemployment of Members
|
13 | |||
|
||||
ARTICLE 4 PAYMENTS
|
14 | |||
|
||||
4.1 Payment Dates
|
14 | |||
4.2 Forms of Payment
|
15 | |||
4.3 Election Procedures
|
17 | |||
4.4 Effect of Death on Forms of Payment
|
22 | |||
4.5 Payment on Members Behalf
|
22 | |||
4.6 Unclaimed Benefits
|
23 | |||
4.7 Maximum Benefit Limitation
|
23 | |||
4.8 Minimum Distribution Requirements
|
24 | |||
|
||||
ARTICLE 5 PRE-DISTRIBUTION DEATH BENEFITS
|
29 | |||
|
||||
5.1 General Provisions
|
29 | |||
5.2 Payment
|
29 | |||
|
||||
ARTICLE 6 DISABILITY
|
30 | |||
|
||||
6.1 Disability
|
30 | |||
6.2 Disability Election
|
30 | |||
6.3 Cessation
|
30 |
ii
PAGE | ||||
|
||||
ARTICLE 7 VESTING
|
30 | |||
|
||||
ARTICLE 8 BENEFICIARIES
|
31 | |||
|
||||
8.1 Beneficiary Designation
|
31 | |||
8.2 Death of Beneficiary
|
31 | |||
|
||||
ARTICLE 9 FUNDING AND CONTRIBUTIONS
|
31 | |||
|
||||
9.1 Establishment of the Funds
|
31 | |||
9.2 Company Contributions
|
31 | |||
9.3 Return of Company Contributions
|
32 | |||
9.4 Forfeitures and Other Gains
|
32 | |||
9.5 Expenses
|
32 | |||
9.6 Actuarial Valuations
|
32 | |||
|
||||
ARTICLE 10 ADMINISTRATION
|
33 | |||
|
||||
10.1 Delineation of Fiduciary Responsibilities
|
33 | |||
10.2 Appointment of the Members of the Administrative Committee
|
34 | |||
10.3 Organization and Operation of the Administrative Committee
|
34 | |||
10.4 Powers and Duties of the Plan Administrator
|
35 | |||
10.5 Accounts and Records
|
35 | |||
10.6 Employment of Specialists
|
36 | |||
10.7 Claims and Review Procedures
|
36 | |||
10.8 Standard of Conduct
|
37 | |||
10.9 Indemnification
|
37 | |||
10.10 Compensation of Administrative Committee Members
|
37 | |||
10.11 Actions to be Uniform
|
37 | |||
10.12 Effect of Interpretation or Determination
|
37 | |||
10.13 Withholding of Tax
|
37 | |||
|
||||
ARTICLE 11 AMENDMENT AND TERMINATION
|
38 | |||
|
||||
11.1 Right to Amend
|
38 | |||
11.2 Right to Terminate
|
38 | |||
11.3 Amendments or Termination Affecting Union Members
|
38 | |||
11.4 Nonforfeitable Benefits
|
38 | |||
11.5 Satisfaction of Liabilities
|
39 | |||
|
||||
ARTICLE 12 GENERAL PROVISIONS
|
39 | |||
|
||||
12.1 Rights to Benefits
|
39 | |||
12.2 Company Rights
|
39 | |||
12.3 Construction
|
39 | |||
12.4 Titles
|
40 |
iii
PAGE | ||||
|
||||
12.5 Impossibility of Action
|
40 | |||
12.6 Separability
|
40 | |||
12.7 Merger or Consolidation of Plan
|
40 | |||
12.8 Latest Commencement of Benefits
|
40 | |||
12.9 Veterans Reemployment Rights
|
41 | |||
12.10 Separate Plans and Assets
|
41 | |||
|
||||
ARTICLE 13 TOP HEAVY
|
41 | |||
|
||||
13.1 Purpose and Applicability
|
41 | |||
13.2 Special Vesting
|
42 | |||
13.3 Minimum Benefits
|
42 | |||
13.4 Definitions
|
43 | |||
13.5 Adjustment to Benefit Limitations
|
45 | |||
|
||||
APPENDIX A SPECIAL PROVISIONS FOR FORMER GPU REPRESENTED
EMPLOYEES
|
46 | |||
|
||||
ARTICLE A1 PURPOSE AND APPLICABILITY
|
46 | |||
|
||||
A1.1 Purpose and Applicability
|
46 | |||
A1.2 Participating Company
|
47 | |||
A1.3 Plan Assets
|
47 | |||
|
||||
ARTICLE A2 JERSEY PLAN COVERED GROUP PROVISIONS
|
47 | |||
|
||||
A2.1 Jersey Plan Eligible Employee
|
47 | |||
A2.2 Creditable Service
|
47 | |||
A2.3 Vesting Service
|
48 | |||
A2.4 Creditable Service for Determination of Basic Annuity
|
48 | |||
A2.5 Service for All Other Purposes
|
48 | |||
A2.6 Basic Earnings
|
48 | |||
A2.7 Inapplicable Jersey Plan Provisions
|
48 | |||
|
||||
ARTICLE A3 METROPOLITAN PLAN COVERED GROUP PROVISIONS
|
49 | |||
|
||||
A3.1 Metropolitan Plan Eligible Employee
|
49 | |||
A3.2 Creditable Service
|
49 | |||
A3.3 Vesting Service
|
49 | |||
A3.4 Creditable Service for Determination of Basic Annuity
|
50 | |||
A3.5 Service for All Other Purposes
|
50 | |||
A3.6 Basic Earnings
|
50 | |||
A3.7 Inapplicable Metropolitan Plan Provisions
|
50 |
iv
PAGE | ||||
|
||||
ARTICLE A4 PENELEC PLAN COVERED GROUP PROVISIONS
|
51 | |||
|
||||
A4.1 Penelec Plan Eligible Employee
|
51 | |||
A4.2 Creditable Service
|
51 | |||
A4.3 Vesting Service
|
51 | |||
A4.4 Creditable Service for Determination of Basic Annuity
|
52 | |||
A4.5 Service for All Other Purposes
|
52 | |||
A4.6 Basic Earnings
|
52 | |||
A4.7 Inapplicable Penelec Plan Provisions
|
52 | |||
|
||||
APPENDIX B MODIFIED TRADITIONAL PENSION PLAN FOR CERTAIN UNION
MEMBERS
|
53 | |||
|
||||
ARTICLE B1 INTRODUCTION
|
53 | |||
|
||||
ARTICLE B2 DEFINITIONS OTHER THAN SERVICE DEFINITIONS
|
54 | |||
|
||||
B2.1 Accumulated Member Contributions
|
54 | |||
B2.2 Accrued Benefit
|
54 | |||
B2.3 Actuarial Equivalent
|
55 | |||
B2.4 Annuity Starting Date
|
55 | |||
B2.5 Base Pay
|
55 | |||
B2.6 BECO Retirement Plan
|
56 | |||
B2.7 Beneficiary
|
56 | |||
B2.8 Contingent Annuitant
|
56 | |||
B2.9 Effective Date
|
56 | |||
B2.10 Eligible Employee
|
56 | |||
B2.11 Employee
|
56 | |||
B2.12 Final Average Pay
|
57 | |||
B2.13 Lump-sum Equivalent
|
57 | |||
B2.14 Member
|
57 | |||
B2.15 Plan
|
57 | |||
B2.16 Plan Year
|
57 | |||
B2.17 Retirement Date
|
57 | |||
B2.18 Surviving Spouse
|
57 | |||
|
||||
ARTICLE B3 SERVICE DEFINITIONS
|
58 | |||
|
||||
B3.1 Employment Commencement Date
|
58 | |||
B3.2 Break in Service
|
58 | |||
B3.3 Substantial Break
|
58 | |||
B3.4 Year of Eligibility Service
|
59 | |||
B3.5 Year of Vesting Service
|
59 | |||
B3.6 Years of Benefit Service
|
60 | |||
B3.7 Fully Vested
|
60 | |||
B3.8 Service Bridging
|
60 |
v
PAGE | ||||
|
||||
ARTICLE B4 ELIGIBILITY FOR MEMBERSHIP
|
60 | |||
|
||||
B4.1 Eligibility
|
60 | |||
B4.2 Membership Following a Break in Service
|
60 | |||
|
||||
ARTICLE B5 CONTRIBUTIONS TO THE FUND
|
61 | |||
|
||||
B5.1 Continuation of Member Contributions
|
61 | |||
B5.2 Withdrawal of Accumulated Member Contributions
|
61 | |||
B5.3 Forfeitures and Other Gains
|
62 | |||
|
||||
ARTICLE B6 RETIREMENT DATES
|
62 | |||
|
||||
B6.1 Normal Retirement Date
|
62 | |||
B6.2 Early Retirement Date
|
62 | |||
B6.3 Disability Retirement Date
|
63 | |||
B6.4 Late Retirement Date
|
63 | |||
|
||||
ARTICLE B7 NORMAL FORM AND AMOUNT OF RETIREMENT BENEFITS
|
64 | |||
|
||||
B7.1 Formula Retirement Benefit
|
64 | |||
B7.2 Normal Form of Retirement Benefit for Single Members
|
66 | |||
B7.3 Normal Form of Retirement Benefit for Married Members
|
66 | |||
B7.4 Normal or Late Retirement Benefit
|
66 | |||
B7.5 Deferred Early Retirement Benefit
|
66 | |||
B7.6 Reduced Early Retirement Benefit
|
66 | |||
B7.7 Temporary Supplemental Benefit for Certain Early Retirees
|
68 | |||
B7.8 Disability Retirement Benefit
|
68 | |||
B7.9 Retirement Benefit After Reemployment Following a Break in Service
|
68 | |||
|
||||
ARTICLE B8 OPTIONAL FORMS OF RETIREMENT BENEFIT
|
69 | |||
|
||||
B8.1 Options and Elections
|
69 | |||
B8.2 Amount of Retirement Benefit
|
71 | |||
|
||||
ARTICLE B9 DEATH PRIOR TO ANNUITY STARTING DATE
|
72 | |||
|
||||
B9.1 Preretirement Surviving Spouse Benefit
|
72 | |||
B9.2 Return of Accumulated Member Contributions
|
73 | |||
B9.3 Termination of Membership
|
74 |
vi
PAGE | ||||
|
||||
ARTICLE B10 DEATH ON OR AFTER ANNUITY STARTING DATE
|
74 | |||
|
||||
B10.1 No Optional Form of Retirement Benefit in Effect
|
74 | |||
B10.2 Optional or Normal Form of Retirement Benefit For Married Member in Effect
|
74 | |||
B10.3 Termination of Membership
|
74 | |||
|
||||
ARTICLE B11 VESTING
|
75 | |||
|
||||
B11.1 Deferred Vested Retirement Benefit
|
75 | |||
B11.2 Reduced Earlier Vested Retirement Benefit
|
75 | |||
B11.3 No Reduction of Vesting
|
76 | |||
B11.4 Withdrawal of Accumulated Member Contributions by Vested Member
|
76 |
vii
1
2
1.1 |
Accrued Benefit
means the value of a Members Cash Balance Account as of any
determination date with actual Interest Credits thereon until Normal Retirement
Date and payable as a single lump sum on such Members Normal Retirement Date. If a Member
continues as an Eligible Employee after Normal Retirement Date, the Accrued Benefit is equal
to the value of the Cash Balance Account immediately payable in a single lump sum. A
Members Accrued Benefit shall never be less valuable than it was on December 31, 2000 under
the terms of Plan B in effect on such date. Notwithstanding anything to the contrary in
this Section 1.1, for purposes of determining a Members Accrued Benefit, such Members
Accrued Benefit shall be determined immediately prior to the closing (the Closing) of the
transactions contemplated by that certain Stock Purchase Agreement dated as of November 1,
2004, by and among Exelon SHC, Inc., Exelon New England Power Marketing, L.P., ExRes SHC,
Inc., and Dynegy New York Holdings, Inc. A Member shall not be credited with any additional
Pay Credits under Section 3.3 (or Section 6.1) on or after the Closing and shall only be
credited with Interest Credits under Section 3.4 until the Payment Date of such Members
Accrued Benefit.
|
1.2 |
Actuarial Equivalent
or
Actuarial Equivalence
means a benefit of
equivalent value to another benefit, determined on the following bases:
|
(a) |
for conversion of a single life annuity to an optional annuity form of payment
under Section 4.2, the following:
|
(i) |
Interest: 7.0% per year
|
(ii) |
Mortality: 1983 Unisex Group Annuity Mortality Table
|
(b) |
for conversion of a Members Cash Balance Account to a single life annuity
under Section 4.2: the mortality table specified from time to time under Code
Section 417(e)(3), or regulations thereunder, and the Applicable Interest
Rate described in Section 1.4.
|
(c) |
For purposes of determining a Union Members Opening Balance under Section 3.2,
the interest rate specified under Code Section 417(e)(3) as in effect for March, 2000
and the mortality table specified under Code Section 417(e)(3).
|
(d) |
for all other purposes, mortality and interest as shown in (b) above.
|
3
1.3 |
Affiliated
Company
or
Affiliate
means (a) any corporation (other than the
Company) that is a member of a controlled group of corporations (as defined in section 414(b)
of the Code) with the Company, (b) any trade or business (other than the Company), whether or
not incorporated, that is under common control (as defined in section 414(c) of the Code) with
the Company, and (c) any organization (other than the Company) that is a member of an
affiliated service group (as defined in section 414(m) of the Code) of which the Company is
also a member or that is otherwise required to be aggregated with the Company under the
regulations under section 414(o) of the Code. Notwithstanding the foregoing, the term
Affiliated Company shall not include any such corporation, trade or business, or
organization prior to the date on which such corporation, trade or business, or organization
satisfies the affiliation tests of (a), (b), or (c) above. Solely for purposes of Section 4.7
of the Plan, section 414(b) and section 414(c) of the Code will be considered modified by
section 415(h) of the Code.
|
1.4 |
Applicable Interest Rate
means the interest rate specified under Code Section
417(e)(3) as in effect for the November preceding the start of the Plan Year in which the
payment is made. In the case of payments that commence in calendar year 2000, such rate will
be the rate in effect for November 1999.
|
1.5 |
Authorized Leave of Absence
means any absence authorized by the
Participating Company under its standard personnel practices, provided that all persons under
similar circumstances are treated alike in the granting of such Authorized Leave of Absence,
and provided further that the Member returns or retires within the period specified in the
Authorized Leave of Absence. An absence due to service in the Armed Forces of the United
States shall be considered an Authorized Leave of Absence provided that the Employee
complies with all of the requirements of Federal law in order to be entitled to reemployment
and provided further that the Employee returns to employment with the Company or an Affiliated
Company within the period provided by such law.
|
1.6 |
Beneficiary
means the person or persons entitled under Article 9 to receive any benefit
payable hereunder on or after the Members death, other than any benefit payable to a Spouse
pursuant to Section 4.2(a) or to a surviving Spouse pursuant to Section 5.1.
|
1.7 |
Board
or
Board of Directors
means the Board of Directors of the Company.
|
1.8 |
Cash Balance Account
means the notional account described in Section 3.1 and
maintained for each Member pursuant to Section 3.5.
|
4
1.9 |
Code
means the Internal Revenue Code of 1986, as amended from time to time. Reference to
any section or subsection of the Code includes reference to any comparable or succeeding
provisions of any legislation which amends, supplements or replaces such section or
subsection.
|
1.10 |
Company
|
(a) |
For purposes of applying this document (including Appendix B) to Union Members
who participate in Plan B, Company means Sithe New England Power Services,
Inc.; and
|
(b) |
For purposes of applying this document to all Members not covered by subsection
(a) above and who participate in Plan A, Company means Sithe Energies, Inc.
|
1.11 |
Compensation
means the base wages received by a Member by a Participating Company
in a calendar quarter and all base wage pre-tax contributions for such calendar quarter made
at the Members voluntary election to a qualified cash or deferred arrangement as defined in
Code Section 401(k), a cafeteria plan meeting the requirements of Code Section 125, or any
other salary reduction program authorized under the Code and sponsored by a Participating
Company.
|
(a) |
any amount in excess of $200,000, as adjusted for cost-of-living increases in
accordance with Code Section 401(a)(17)(B). The cost-of-living adjustment
in effect for a calendar year applies to annual Compensation for the Plan Year that
begins with such calendar year.
|
(b) |
overtime pay, bonuses, and commission;
|
(c) |
the value of any stock options;
|
||
(d) |
severance pay of any kind;
|
(e) |
any form of special pay other than what is specifically described above; and
|
(f) |
any long term disability (LTD) payments made directly by a Participating
Company or under a plan sponsored by such employer.
|
For purposes of determining a Members Compensation for the calendar quarter beginning on
January 1, 2005, only such Members Compensation received for the period beginning on and
after January 1, 2005 and ending immediately prior to the Closing shall be taken into
account. A Members Compensation for any period beginning on or after the Closing shall be disregarded for purposes of this Section
1.11.
|
5
1.12 |
Disability
means a physical or mental incapacity that actually entitles a Member to
benefits under the group long-term disability (LTD) plan sponsored by a Participating Company.
|
1.13 |
Effective Date
means January 1, 2007, except as otherwise specified herein or as required by law.
|
1.14 |
Eligible Employee
means an Employee who meets the eligibility requirements of
Article 2.
|
1.15 |
Employee
means an employee of the Company or an Affiliated Company. However, the term does
not include any person whose services are performed pursuant to a contract with such person
that purports to treat the individual as an independent contractor even if such individual is
later determined (by judicial action or otherwise) to have been a common law employee of the
Company or an Affiliated Company rather than an independent contractor.
|
1.16 |
Employment Date
means shall mean the first day on which an Employee is credited
with an Hour of Service.
|
1.17 |
Enrolled Actuary
means an individual or firm of actuaries, who shall be
independent of the Company, selected from time to time by the Plan
Administrator, who meets the standards and qualifications established by the Joint Board for
the Enrollment of Actuaries, or a firm of actuaries which has on staff such individual
actuary, to perform all necessary actuarial services in connection with the operation of the
Plan.
|
1.18 |
ERISA
means the Employee Retirement Income Security Act of 1974, as the same may be amended
from time to time, and as interpreted by the regulations, rulings and cases promulgated or
decided thereunder.
|
1.19 |
Fiduciary
means any person who exercises any discretionary authority or discretionary
control respecting the management of the Plan, assets held under the Plan, or disposition of
Plan assets; who renders investment advice for a fee or other compensation, direct or
indirect, with respect to assets held under the Plan or has any authority or responsibility to
do so; or who has any discretionary authority or discretionary responsibility in the
administration of the Plan. Any person who exercises authority or has responsibility of a
fiduciary nature as described above shall be considered a Fiduciary under the Plan.
|
1.20 |
Fund
means the cash and other investments of the Plan, and income attributable
thereto, held and administered by the Trustee(s) in accordance with the Trust Agreement(s) and/or by the Insurance Company in accordance with any group annuity
contracts.
|
6
1.21 |
Hour of Service
means:
|
(a) |
each hour for which an individual is directly or indirectly paid, or entitled
to payment, by the Company or an Affiliate for the performance of duties during a
computation period, such hours to be credited to him for the computation period or
period in which the duties are performed;
|
(b) |
each hour for which back pay, irrespective of mitigation of damages, has been either
awarded or agreed to by the Company or an Affiliate, with such hours to be credited to the
individual for the computation period or periods to which the award or agreement pertains
rather than the computation period in which the award, agreement or payment is made. The
same Hours of Service shall not be credited both under paragraphs (a) or (c) of this
Section, as the case may be, and under this paragraph (b); and
|
(c) |
each hour for which the individual is directly or indirectly paid, or entitled
to payment, by the Company or an Affiliate on account of a period of time during which
no duties are performed (irrespective of whether the employment relationship has
terminated) due to vacation, holiday, illness, incapacity (including disability),
layoff, jury duty, military duty or leave of absence. For purposes of this paragraph
(c), an Employee shall not be credited with Hours of Service on account of payments
made or due (i) under a plan maintained solely for the purpose of complying with
applicable workmens compensation or unemployment compensation or disability insurance
laws or (ii) which solely reimburse an Employee for medical or medically related
expenses incurred by the Employee. For purposes of this paragraph (c), the number of
Hours of Service to be credited to an Employee shall be determined in
accordance with Department of Labor Regulations Sections 2530.200b-2(b)
and 2530.200b-2(c).
|
1.21A |
Insurance Company
means any legal reserve life insurance company which has issued one or
more group annuity contracts to the Company or the Trustee for the purpose of funding all or
a part of the benefits due under the Plan.
|
7
1.22 |
Interest Credit(s)
means the interest amounts credited to a Members Cash
Balance Account pursuant to Section 3.4.
|
1.23 |
Member
means any Eligible Employee who is currently participating in the Plan in accordance
with Article 2 or any former Eligible Employee who continues to be entitled to a benefit under
the Plan.
|
1.24 |
Non-Appendix B Member
means any Union Member who does not accrue any benefit under
Appendix B and
|
(a) |
who is hired by a Participating Company on or after January 1, 2001; or
|
(b) |
who is or becomes employed at the Mystic 8/9 facility or the Fore River
facility on or after January 1, 2001; or
|
(c) |
who elected to participate under the cash balance provisions of the Plan
pursuant to Section 2.2(a).
|
1.25 |
Normal Retirement Date
means the Members 65
th
birthday.
|
1.26 |
Opening Balance
means those amounts credited to the Cash Balance Accounts
of certain Eligible Employees as provided in Section 3.2.
|
1.27 |
Parental Absence
means an Employees absence from work which has commenced for
any of the following reasons:
|
(a) |
the pregnancy of the Employee;
|
||
(b) |
the birth of the Employees child;
|
||
(c) |
the adoption of a child by the Employee; or
|
(d) |
the need to care for the Employees child immediately following its birth or adoption.
|
1.28 |
Participating Company
means the Company and any Affiliated Company that adopts this
Plan with the Companys permission.
|
1.29 |
Pay Credit
means the notional amounts credited to a Members Cash Balance Account pursuant
to Section 3.3.
|
1.30 |
Payment Date
means:
|
(a) |
the first day of the first period for which a benefit is payable to the
Member under the Plan as an annuity, (or to the Spouse or Beneficiary in the case of
death before retirement benefits commence), or
|
8
(b) |
in the case of a benefit payable in the form of a lump sum, the first day on
which all events have occurred (including completion of required application forms)
which entitle the Member, Spouse, or Beneficiary to such benefit.
|
1.31 |
Plan
means this entire Sithe Stable Pension Account Plan document unless the context
clearly indicates reference to Plan A or Plan B.
|
1.32 |
Plan A
means the provisions of this Sithe Stable Pension Account Plan document as
applicable to Eligible Employees other than Union Members, as from time to time amended,
subject to the requirements of Sections 9.1 and 12.10 of the Plan.
|
1.33 |
Plan B
, also known as the Sithe Union Employees Pension Plan, means the provisions of this
document which provide benefits to certain Union Employees as described in Appendix B and to
other Union Employees as described in the provisions of the Sithe Stable Pension Account,
subject to the requirements of Sections 9.1 and 12.10 of the
Plan. Prior to January 1, 2001,
Plan B was named the Sithe Energies Group Pension Plan.
|
1.34 |
Plan
Administrator
means the Dynegy Inc. Benefit Plans Committee.
|
|
1.35 |
Plan Year
means the calendar year.
|
|
1.36 |
Reemployment or Reemployment Date
means the first day on which an Employee completes an Hour of Service after a Termination Date.
|
|
1.37 |
Retirement Benefit
means either:
|
(a) |
a lump sum payment made pursuant to Section 4.2(b)(iii), or
|
||
(b) |
monthly annuity payments.
|
1.38 |
Spouse
means the person to whom a Member is legally married on his Payment Date, or if
benefit payments have not commenced prior to date of death, the person to whom the Member was
legally married on the date of his death.
|
1.39 |
Termination Date
means the later of the date an Employee is discharged, dies,
retires, or voluntarily quits employment, or is otherwise deemed to be terminated from
employment with the Company and all Affiliated Companies according to the applicable
Participating Companys standard personnel practice.
|
1.40 |
Trust
means the trust established pursuant to the Trust Agreement.
|
9
1.41 |
Trust Agreement
means the written agreements, one or more, between the
Company and the Trustee(s) in connection with the Plan, as such agreements may be in
existence or amended from time to time.
|
1.42 |
Trustee
means such individual(s), corporate entity, or financial institution as shall have
entered into the Trust Agreement with the Company and any successor thereto.
|
1.43 |
Union Member
means an Employee whose employment is governed by the terms of a
collective bargaining agreement between the Company and the Utility Workers Union of America,
AFL-CIO and Local 369, Utility Workers Union of America, AFL-CIO.
|
2.1 |
Eligibility Requirements
. An Eligible Employee is each Employee who:
|
(a) |
is employed by a Participating Company;
|
||
(b) |
is not a leased employee as defined in Code Section 414(n)(2); and
|
||
(c) |
is not a Union Member accruing benefits under Appendix B.
|
(d) |
Notwithstanding anything to the contrary in this Section 2.1, no Employee or
Eligible Employee shall become a Member in the Plan on or after the Closing.
|
2.2 |
Special One-Time Election
.
|
(a) |
Union Members who on December 31, 2000 are both (1) employed by a
Participating Company and (2) are age 45 or older shall have a one-time opportunity to
elect in writing the retirement provisions under which they choose to be covered. Such
Union Members shall have a choice between participating in the cash balance provisions
described in the main body of this document (the Sithe Stable Pension Account)
or the modified traditional pension plan provisions described in Appendix B.
|
(b) |
Notwithstanding the above, any Union Member who is or becomes employed at
the Mystic 8/9 facility or the Fore River facility on or after January 1, 2001 shall
automatically be covered by the cash balance provisions described in the body of this
document and cease to be covered under the provisions of Appendix B.
|
(c) |
Irrespective of whether a Union Member is covered by the cash balance
provisions or the modified traditional pension provisions, all benefits for
Union Members are provided exclusively under Plan B and the assets related
thereto.
|
10
2.3 |
Service.
|
(a) |
Break in Service
means, in the case of any Employee, a Plan Year in
which the Employee has 500 or fewer Hours of Service, but not including any such Plan
Year before the one in which he ceases to be an Employee. Solely for purposes of
determining whether a Break in Service has occurred, there shall be credited to the
Employee as Hours of Service each hour not otherwise creditable under Section 1.21
during a Parental Absence;
provided,
that:
|
(i) |
Any Hour of Service credited hereunder with respect to an
absence shall be credited (A) only in the Plan Year in which the absence
begins, if the Employee would be prevented from incurring a Break in Service
in such Year solely because of Hours of Service credited hereunder for such
absence, or (B) in any other case, in the immediately following Plan Year;
|
(ii) |
No Hours of Service shall be credited hereunder unless the
Employee furnishes the Plan Administrator with such information as the Plan
Administrator may reasonably require (in such form and at such time as the
Plan Administrator may reasonably require) establishing (A) that the absence
from work is an absence described hereunder and (B) the number of days for
which the absence lasted.
|
(iii) |
In no event shall more than 501 Hours of Service be credited
to an Employee hereunder for any one absence by reason of pregnancy or the
placement of any one child.
|
(b) |
Substantial Break
means, in the case of any Employee or Member who
does not have a nonforfeitable right to any portion of his Accrued Benefit, a number of
consecutive Breaks in Service which equals or exceeds five.
|
(c) |
Year of Vesting Service
means a Plan Year during which an Employee
has at least 1,000 Hours of Service, subject to the following special rules:
|
(i) |
In the case of a Member who incurs a Substantial Break, Years
of Vesting Service prior to such Break will be disregarded.
|
(ii) |
In the event a Member has a Break in Service and thereafter
again becomes an Employee and a Member without having incurred a Substantial
Break, his Years of Vesting Service prior to his Break in Service shall be
restored to him.
|
11
3.1 |
In General
. A notional account (hereinafter referred to as the Cash Balance Account)
shall be established and maintained for each Member who has been credited with at least 1,000
Hours of Service during a Plan Year. A Members Cash Balance Account shall consist of the sum
of (a) an Opening Balance, if any, determined in accordance with Section 3.2, (b) Pay Credits
determined in accordance with Section 3.3 and (c) Interest Credits determined in accordance
with Section 3.4.
|
3.2 |
Opening Balance
. The Cash Balance Account of each Union Member who participated in
the Sithe Energies Group Pension Plan immediately prior to January 1, 2001 and who is covered
by the provisions of this Plan on January 1, 2001, excluding any Union Member who makes the
election described in Section 2.2 of the Plan to accrue a benefit under Appendix B, shall be
credited with an Opening Balance as of January 1, 2001. The Opening Balance shall be equal to
the single sum Actuarial Equivalent value of the Members December 31, 2000 accrued benefit
under the Sithe Energies Group Pension Plan, calculated on the basis of the Members attained
age in years and completed months as of December 31, 2000 including the value of any early
retirement subsidy for which the Member would have qualified under Plan B had he retired on
December 31, 2000.
|
3.3 |
Pay Credits
.
|
(a) |
Except as provided under (b) and (c) below, as of the last day of each
calendar quarter, a Pay Credit shall be credited to the Cash Balance Account of each
Member who received Compensation during such quarter calendar. The Pay Credit
shall be equal to 3% of the Members Compensation for such calendar
quarter.
|
(b) |
Except as provided in (c) below, the Pay Credit described in (a) above shall
be rescinded if the Member is not credited with at least 1,000 Hours of Service for
the Plan Year in which the calendar quarter Pay Credit is made.
|
(c) |
2005 Plan Year
. Notwithstanding subsections (a) and (b) above, solely
for the Plan Year beginning on January 1, 2005 (the 2005 Plan Year), the Pay Credit
described in (a) above shall be credited immediately prior to the Closing to the Cash
Balance Account of each Member who received Compensation during for the 2005 Plan
Year. Such Pay Credit shall be rescinded if the Member is not credited with at least
1/12 of 1,000 Hours of Service for each full month in the period beginning on January
1, 2005 and ending immediately prior to the Closing.
|
12
3.4 |
Interest Credits
.
|
(a) |
Except as provided under (b) below, Interest Credits shall be equal to a
percentage of the Members Cash Balance Account as of the first day of a calendar
quarter and shall be added to each Members Cash Balance Account as of the last day of
such quarter. However, for any year in which payment of the Members Cash Balance
Account is made in any form, simple interest shall be credited on the amount of the
Members Cash Balance Account as of the first day of the quarter for the period from
the first day of such quarter to the expected Payment Date. In no event will Interest
Credits continue after benefits have commenced.
|
(b) |
If the Members Pay Credit is rescinded pursuant to Section 3.3(b), the
Interest Credit related thereto described in (a) above shall also be rescinded.
|
(c) |
Except as provided in (d) below, the annual rate of interest used to determine
the Interest Credit for a Plan Year shall be the annual average of the yield on
one-year constant maturity Treasury Bill rates in the preceding Plan Year (as published
in the Federal Reserve Statistical Release) plus 1%. This annual rate shall be
converted to a quarterly equivalent for purposes of the quarterly crediting of
interest.
|
(d) |
For purposes of determining a Members Accrued Benefit, Interest Credits will
be projected for future periods using the interest rate under this Section in effect at
the time the projection is made.
|
3.5 |
Cash Balance Account
. As of any date the value of a Members Cash Balance Account
shall be equal to the sum of the Opening Balance, if any, and Pay Credits and the Interest
Credits made to such Members Cash Balance Account.
|
3.6 |
Reemployment of Members
. In the event a Member to whom payment of his retirement
benefit under the Plan has commenced is reemployed by the Company or any Affiliated
Company, payment of his retirement benefit shall not be interrupted or otherwise adversely
affected. In the event a Member is reemployed by the Company or any Affiliated Company
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 Section 4.1.
|
13
4.1 |
Payment Dates
. Subject to the limitations in Section 4.7, the Plan will pay vested
benefits under the Plan on the Payment Date and in the form of payment elected by the Member
under Section 4.2. However, if the lump sum cash-out amount under Section 4.2(b)(iii) is not
more than $1,000, the Plan Administrator will automatically distribute such amount as soon as
practicable after the Members Termination Date, and the Member may not elect an annuity form
of payment.
|
(a) |
The Plan Administrator shall furnish any Member whose employment with the
Company or any Affiliated Company 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 29 CFR
§ 2530.203-3. Upon such Members subsequent termination of employment, his
retirement benefit payable pursuant to Article IV shall be increased to the extent
required, if at all, under such regulations as provided in subsection (b) below to
avoid the effecting of a prohibited forfeiture of benefits by reason of the suspension
of benefits during such Members post Normal Retirement Date employment.
|
(b) |
A Member described in subsection (a) above shall be entitled to a retirement
benefit equal to the greater of:
|
(i) |
his Accrued Benefit determined pursuant to Section 1.1
through the date of his subsequent termination of employment; or
|
(ii) |
the Actuarial Equivalent of his Accrued Benefit payable at
his Normal Retirement Date.
|
(c) |
Further, such Members retirement benefit payable pursuant to this
Section 4.1 shall be increased to the extent required, if at all, under Section
401(a)(9)(C)(iii) of the Code in the event his employment or reemployment continues after April of the year immediately following the year he attains age seventy and one-half.
|
(d) |
In the event that Member elects a Payment Date after his Normal Retirement
Date, such Members benefit shall not be less than the Actuarial Equivalent of his
Accrued Benefit payable at his Normal Retirement Date.
|
14
4.2 |
Forms of Payment
.
|
(a) |
Normal Form
. The normal form of benefit payable to an unmarried Member
will be the single life annuity described in subsection (b)(i) below. The normal form
of benefit payable to a Member who has a Spouse on his selected Payment Date will be
the qualified joint and survivor annuity which is the 50 percent joint and survivor
annuity with the Spouse as the Beneficiary as described in subsection (b)(ii) below.
|
(b) |
Optional Forms
. Subject to the election procedures and other rules and
restrictions in this Article 4 and to the special, additional forms of payment for
certain Union Members under Section 4.3(c), a Member may elect one of the optional
forms of payment described in this subsection (b). The value of each of the annuity
forms of payment under subsection (ii) is the Actuarial Equivalent of the benefit that
would be payable to the Member as a single life annuity under subsection (i) below.
|
(i) |
Single Life Annuity
. The single life annuity is a
monthly benefit beginning on the Members selected Payment Date and payable
throughout his lifetime, ending with the last payment due on the first day of
the month in which his death occurs. The single life annuity amount shall be
equal to the Actuarial Equivalent of the Members vested Cash Balance Account
based on the Members age at the Payment Date. Notwithstanding the foregoing,
the single life annuity for a Union Member as of any Payment Date shall never
be less than such Union Members accrued benefit under Plan B as of December
31, 2000 reduced for early payment by using the Members age at the Payment
Date and the provisions of Plan B in effect on December 31, 2000.
|
(ii) |
Joint and Survivor Annuity
. The joint and survivor
annuity is a reduced monthly benefit beginning on the Members Payment Date and
payable throughout his lifetime, with either 50 percent or 100 percent, as
elected by the Member, of that monthly amount continuing for life to his
surviving Beneficiary, beginning on the first day of the month following the
month in which the Members death occurs. The joint and survivor annuity is the
Actuarial Equivalent of the single life annuity.
|
(iii) |
Lump Sum Cash-out
.
|
(A) |
Form
. The lump sum cash-out is a
single payment of a Members entire vested interest in the Plan.
|
15
(B) |
Amount
. As of any Payment Date, the lump sum cash-out value of the Members
Plan benefit is the value of such Members vested Cash Balance Account as of
such Payment Date. However, if greater than the Members Cash Balance Account, the amount
of such lump sum shall be equal to the greater of the lump sum Actuarial Equivalent of a
Union Members: (1) immediate single life annuity based on the Members December 31, 2000
accrued benefit under Plan B reduced for early commencement on the Payment Date, or (2)
the Members single life annuity payable at age 65 based on the Members December 31, 2000
accrued benefit under Plan B. Both (1) and (2) shall be developed using the interest and
mortality assumptions in effect under Plan Section 1.2(b) for the Plan Year in which the
Payment Date occurs, the Union Members age as of the Payment Date and the terms of Plan B
in effect on December 31, 2000 (except for the aforementioned interest and mortality
assumptions). Notwithstanding the immediately preceding sentence, for Payment Dates
occurring in the 12-month period ending on December 31, 2001, the Applicable Interest Rate
in effect under Plan B on December 31, 2000 shall be used to determine the lump sum if
such rate produces a greater lump sum amount.
|
(C) |
Over $1,000
. If the amount determined under (B) above is greater than $1,000, the
Member may elect to receive the lump sum cash-out only if his Spouse consents to that form of
distribution as required under Section 4.3. The Plan will simultaneously offer to the Member
all annuity forms of payment. A Member may not split his distribution between an annuity and a
lump sum cash-out.
|
(D) |
Not Over $1,000
. If the amount determined under (B) above is not over $1,000, the
Plan Administrator will automatically make a lump sum cash-out payment to the Member as soon
as practicable after his Termination Date without the Members consent.
|
(E) |
Nonvested Member
. Regardless of the amount determined under (B) above, the Plan
Administrator will treat each Member who is not fully vested in his Plan benefit as having
received a constructive cash-out of his entire non-vested Plan benefit as of his Termination
Date, and if he resumes Employment before he incurs a five consecutive Breaks in Service will
treat him has having repaid his constructive cash-out as of his Reemployment Date.
|
16
(F) |
Direct Rollover of Lump Sum Payments
. A Member who is
eligible to receive a lump sum cash-out may instruct the Plan
Administrator to roll over all or part of his lump sum payment to an
eligible retirement plan. An eligible retirement plan is an
individual retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section 408(b), an
annuity plan described in Code Section 403(a), a qualified trust
described in Code Section 401(a), and, effective for distributions
made after December 31, 2001, an annuity contract described in Code
Section 403(b) and an eligible plan under Code Section 457(b) which
is maintained by a state or political subdivision of a state and
which agrees to separately account for 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).
|
(c) |
Special Optional Payment Forms for Certain Union
Members.
In lieu of one of the payment forms described in Section 4.2(b),
Union Members who have an Opening Balance may select an optional form of
payment described in Appendix B, Section B8.1. Each optional form shall be the
Actuarial Equivalent of the single life annuity otherwise payable to such Union
Member, but in no event less valuable than the individuals accrued benefit at
December 31, 2000 under the terms and conditions of the Sithe Energies Group
Pension Plan on such date.
|
4.3 |
Election Procedures
.
|
(a) | (1) |
Except as provided in subsections (a)(2) and (a)(3) below, within
the period of time commencing ninety (90) days, and ending thirty (30) days,
prior to his Payment Date, the Plan Administrator shall give each Member a
written notice that Plan benefits thereafter payable will be in the form of a
joint and survivor annuity under Section 4.2(a) in the case of a married
Member unless the Member 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 Member 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
4.2(a) 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 Members 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 Members 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,
his right to defer his Payment Date; and (vii) if applicable, his right to a direct
rollover pursuant to Section 4.2(b)(iii)(F).
|
17
(2) |
In the event the written notice described in subsection (a)(1) above is provided to a Member
before his Payment Date but less than thirty (30) days prior to such date, such Member (with
the consent of his Spouse, if he is married) may elect, on a properly completed election form
provided by the Plan Administrator, to waive the minimum thirty (30) day notice period
described in subsection (a)(1) above, provided the following conditions are met:
|
(A) |
The Plan Administrator provides descriptive information to
the Member 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 Member is permitted to revoke an election made pursuant to (A)
above at least until the Payment 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 subsection (a)(1) above is provided to the
Member and distribution in accordance with such election does not commence prior to
the expiration of such seven (7)-day period; and
|
(C) |
The Members Payment Date is after the date such written notice is provided
to the Member.
|
18
(3) |
In accordance with the conditions and requirements of this subsection (a)(3) and of Code
Section 417(a)(7) and the Treasury Regulations promulgated thereunder, a Member 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 a Payment Date affirmatively elected by a Member which is on or
before the date the written notice described in subsection (a)(1) above is provided to the
Member,
|
(A) |
A Member shall be eligible to elect a RASD only if the
following requirements and conditions are met:
|
(i) |
The Member has requested the written notice described in
subsection (a)(1) above prior to his Payment Date and, solely due to
administrative delay, such written notice is provided to the Member on or
after his Payment Date;
|
(ii) |
The Members retirement benefit payments have not
commenced;
|
(iii) |
The Members elected RASD is not prior to the date of
his termination of employment;
|
(iv) |
The Members 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 Members Payment 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
a Payment Date after the date the written notice described in subsection
(a)(1) above is provided to the Member;
|
19
(v) |
Any distribution (including appropriate interest
adjustments) based on the RASD must satisfy the requirements of Section
415 of the Code if the date
the distribution is to commence is substituted for the Payment Date for all
purposes, including for purposes of determining the Applicable Interest Rate
and the applicable mortality table described in Section 1.2 of the Plan;
provided, however, satisfaction of such requirement is not required in the case
of a distribution in the form of an annuity described in Section 4.2 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 Section 417(e)(3) of the Code 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 described in Section 1.2 of the
Plan 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.
|
(B) |
The future payments of retirement benefits to the Member must be the same as the future
payments of retirement benefit which would have been paid to the Member if such payments had
actually commenced on the RASD and the Member 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 subsection (a)(1) above must generally be provided to the
Member not less than thirty (30) days nor more than ninety (90) days prior to the date of the
first payment pursuant to the Members 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 subsection (a)(2) above would be
satisfied when such date is substituted for the Payment Date in applying the requirements of
such subsection other than the requirements described in the final sentence of such subsection; and, provided, further, that, except in a case due solely to administrative delay, the date of such first payment shall be not more than ninety (90) days after such written notice is provided to the Member.
|
20
(4) |
For purposes of this Section 4.3(a), 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 subsection
(a)(2) and (a)(3) above, the ninety (90) day period ending on the
Members Payment Date.
|
(B) |
The term Qualified Election shall mean an election to waive
the applicable standard form of annuity. The Members election must be in
writing and, if he is married, must be consented to by his Spouse. The Spouses
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 Member establishes to the satisfaction of the Plan
Administrator 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 Member is legally separated or has been
abandoned (within the meaning of applicable law) and the Member has a court
order to such effect, Spousal consent is not required. Any consent necessary
under this subsection (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 Member 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.
|
21
(b) |
Any Member who would otherwise receive the standard form of benefit described in Section 4.2
may elect not to take his benefit in such form by properly executing and filing the benefit
election form prescribed by the
Plan Administrator during the Election Period described in Section 4.3(a)(4)(A) as
a Qualified Election as described in Section 4.3(a)(4)(B). The Member who has a
Spouse may elect to receive either the 50 percent or 100 percent joint and survivor
annuity with his Spouse as his Beneficiary, and he will not be required to have his
Spouses consent to make this election.
|
4.4 |
Effect of Death on Forms of Payment
.
|
(a) |
Death of Spouse or Beneficiary Before Benefits Begin
. If the Member
elects a payment form with a survivor benefit and his designated Beneficiary
dies under such form of payment before his Payment Date, the survivor form of payment
will not become effective and he will instead receive his retirement benefit in the
normal form under Section 4.2(a) unless he properly elects another form before his
Payment Date and his Spouse consents, if required.
|
(b) |
Death of Member Before Benefits Begin
. If the Member elects any form of
payment with a survivor benefit and he dies before his Payment Date, his Spouse or
other Beneficiary will not be entitled to any benefits under any such form. However,
the pre-distribution death benefit described under Article 5 shall be payable.
|
(c) |
Death of Spouse or Beneficiary After Benefits Begin
. If the Members
benefit has begun in any form with a survivor benefit and his Spouse or other
Beneficiary dies before he does, he will continue to receive his benefit in the same
form.
|
(d) |
Death of Member After Benefits Begin
. If the Member dies after his
benefits have begun, no death benefit will be payable except to the extent provided
under the form of annuity he was receiving.
|
(a) |
Payment to the Members Representative
. If the Member is incompetent
to handle his affairs on his Payment Date or thereafter, or cannot be located after
reasonable effort, the Plan Administrator, in its discretion, may make payments to his
court-appointed personal representative, or if none is appointed the Plan
Administrator may in its discretion make payments to his next-of-kin.
|
(b) |
Payment to Minor or Incompetent Beneficiaries
. In the event the
deceased Members Beneficiary is a minor, or is legally incompetent, or cannot be
located, the Plan Administrator may, in its discretion, make payment to the
court-appointed guardian or representative of such beneficiary, or to a trust
established for the benefit of such Beneficiary, as applicable.
|
22
(c) |
Judicial Determination
. In the event the Plan Administrator considers
it necessary, it may have a court of applicable jurisdiction determine to whom
payments should be made.
|
4.6 |
Unclaimed Benefits
. In the event the Plan Administrator cannot locate any person
entitled to receive the Members vested Plan Benefit, with reasonable effort and after a
period of five years, his interest will be canceled. However, the Members interest will be
reinstated within 60 days after he is located, as required under Treasury Regulations Section
1.401(a)-14(d) or any other applicable law. The Plan Administrator will pay any required
retroactive payment in a single sum without adjustment for interest.
|
4.7 |
Maximum Benefit Limitation
.
|
(a) |
General Limitation
. Notwithstanding any other provision of the Plan,
neither a Members Retirement Benefits under the Plan nor his own contributions
shall, in any limitation year, be in an amount which would cause the applicable
limitations under section 415 of the Code, which limitations are hereby incorporated by
reference, to be exceeded. With respect to limitation years beginning prior to January
1, 2000, if the Plan Administrator shall so elect, a Members defined contribution plan
fraction under section 415(e) of the Code shall be determined in accordance with the
special transition rule set forth in section 415(e) (6) of the Code. For purposes of
this Section and section 415 of the Code, limitation year means the calendar year.
|
(b) |
Reduction in contributions or benefits
. In the event any reduction of
the Members benefits are required to satisfy the limitations of section 415(b) of the
Code, the amount of the necessary reduction shall be applied in equal proportions
against his annual benefit under this Plan and under each other defined benefit plan
(if any) maintained by the Company or an Affiliated Company. For limitation years
beginning prior to January 1, 2000, in the event the Members benefits would cause the
limitations of section 415(e) of the Code to be exceeded, the Members annual benefit
under this Plan and under each other defined benefit plan (if any) maintained by the
Company or Affiliated Company shall be reduced in equal proportions (insofar as
practicable) until such limitations have been satisfied and then, if such
reduction is insufficient to satisfy such limitations, the Members annual
addition under any defined contribution plan maintained by the Company or an Affiliated
Company shall be reduced until such limitations have been satisfied. In the event any
reduction in a Members annual additions are required in order to satisfy the
limitations of section 415(c) of the Code, such reduction shall be made first in any
other, defined contribution plan maintained by the Company, and thereafter to the extent necessary in Member contributions under this Plan.
|
23
(c) |
Actuarial Equivalencies In the event that payment is made in any form other
than a life annuity or qualified 50% joint and survivor annuity, the determination as
to whether the limitations of this Section 4.7 have been satisfied shall be made, in
accordance with regulations prescribed by the Secretary of the Treasury, by adjusting
such benefit so that it is equivalent to the benefit payable in the form of a life
annuity or a qualified 50% joint and survivor annuity. Such adjustment shall be made
on the basis of the interest rate and mortality table (or other tabular factor)
specified in Section 1.2.
|
4.8 |
Minimum Distribution Requirements
.
|
(a) |
General Rules
|
(i) |
Effective Date
. The provisions of this Section 4.8
will apply for purposes of determining required minimum distributions for
calendar years beginning with the 2003 calendar year.
|
(ii) |
Precedence
. The requirements of this Section 4.8 will
take precedence over any inconsistent provisions of the Plan.
|
(iii) |
Requirements of Treasury Regulations Incorporated
. All
distributions required under this Section 4.8 will be determined and made
in accordance with the Treasury regulations under Code
Section 401(a)(9).
|
(b) |
Time and Manner of Distribution
.
|
(i) |
Required Beginning Date
. The Members entire interest
will be distributed, or begin to be distributed, to the Member no later than
the Members required beginning date.
|
(ii) |
Death of Member Before Distributions Begin
. If the
Member dies before distributions begin, the Members entire interest will be
distributed, or begin to be distributed, no later than as follows:
|
(A) |
If the Members surviving Spouse is the
Members sole designated Beneficiary, distributions to the surviving
Spouse will begin by December 31 of the calendar year immediately
following the calendar year in which the Member died, or by December 31
of the calendar year in which the Member would have attained age 70
1/2, if later.
|
(B) |
If the Members surviving Spouse is not the Members sole designated
Beneficiary, then distributions to the designated Beneficiary will begin by
December 31 of the calendar year immediately following the calendar year
in which the Member died.
|
24
(C) |
If there is no designated Beneficiary as of September 30 of the year following
the year of the Members death, the Members entire interest will be distributed by
December 31 of the calendar year containing the fifth anniversary of the Members
death.
|
(D) |
If the Members surviving Spouse is the Members sole designated Beneficiary
and the surviving Spouse dies after the Member but before distributions to the
surviving Spouse begin, this Paragraph (b)(ii), other than Paragraph (b)(ii)(A) will
apply as if the surviving Spouse were the Member.
|
(iii) |
Form of Distribution
. Unless the Members interest is distributed in the form of an
annuity purchased from an insurance company or in a single sum on or before the required
beginning date, as of the first distribution calendar year distributions will be made in
accordance with Paragraphs (c), (d) and (e) of this Section 4.8. If the Members interest is
distributed in the form of an annuity purchased from an insurance company, distributions
thereunder will be made in accordance with the requirements of Code Section 401(4)(9) and the
Treasury regulations. Any part of the Members interest which is in the form of an individual
account described in Section 414(k) of the Code will be distributed in a manner satisfying the
requirements of Code Section 401(a)(9) and the Treasury regulations that apply to individual
accounts.
|
25
(c) |
Determination of Amounts to be Distributed Each Year
.
|
(i) |
General Annuity Requirements
. If the Members interest is paid in
the form of annuity distributions under the Plan, payments under the annuity will
satisfy the following requirements:
|
(A) |
the annuity distributions will be paid in periodic payments
made at intervals not longer than one year;
|
(B) |
the distribution period will be over a life (or lives) or
over a period certain not longer than the period described in Paragraphs
(d) or (e);
|
(C) |
once payments have begun over a period certain, the period
certain will not be changed even if the period certain is shorter than the
maximum permitted;
|
(D) |
payments will either be nonincreasing or increase only as follows:
|
(1) |
by an annual percentage increase that
does not exceed the annual percentage increase in a cost-of-living
index that is based on prices of all items and issued by the Bureau
of Labor Statistics;
|
(2) |
to the extent of the reduction in the
amount of the Members payments to provide for a survivor benefit
upon death, but only if the Beneficiary whose life was being used
to determine the distribution period described in Paragraph (d)
dies or is no longer the Members Beneficiary pursuant to a
qualified domestic relations order within the meaning of Code
Section 414(p);
|
(3) |
to pay increased benefits that result from
a plan amendment.
|
(ii) |
Amount Required to be Distributed by Required Beginning Date
. The
amount that must be distributed on or before the Members required beginning date
(or, if the Member dies before distributions begin, the date distributions are
required to begin under Paragraph (b)(ii)(A) or (B)) is the payment that is required
for one payment interval. The second payment need not be made until the end of the
next payment interval even if that payment interval ends in the next calendar year.
Payment intervals are the periods for which payments are received, e.g., bi-monthly,
monthly, semi-annually, or annually. All of the Members benefit accruals as of the last day of
the first distribution calendar year will be included in the calculation of the
amount of the annuity payments for payment intervals ending on or after the
Members required beginning date.
|
26
(iii) |
Additional Accruals After First Distribution Calendar Year
. Any
additional benefits accruing to the Member in a calendar year after the first
distribution calendar year will be distributed beginning with the first payment
interval ending in the calendar year immediately following the calendar year in
which such amount accrues.
|
(d) |
Requirements for Annuity Distributions That Commence During Members Lifetime
.
|
(i) |
Joint Life Annuities Where the Beneficiary Is Not the Members
Spouse
. If the Members interest is being distributed in the form of a joint and
survivor annuity for the joint lives of the Member and a nonspouse Beneficiary,
annuity payments to be made on or after the Members required beginning date to the
designated Beneficiary after the Members death must not at any time exceed the
applicable percentage of the annuity payment for such period that would have been
payable to the Member using the table set forth in Q&A-2 of Section 1.401(a)(9)-6T of
the Treasury regulations. If the form of distribution combines a joint and survivor
annuity for the joint lives of the Member and a nonspouse Beneficiary and a period
certain annuity, the requirement in the preceding sentence will apply to annuity
payments to be made to the designated Beneficiary after the expiration of the period
certain.
|
(ii) |
Period Certain Annuities
. Unless the Members Spouse is the sole
designated Beneficiary and the form of distribution is a period certain and no life
annuity, the period certain for an annuity distribution commencing during the Members
lifetime may not exceed the applicable distribution period for the Member under the
Uniform Lifetime Table set forth in Section 1.401(a)(9)-9 of the Treasury regulations
for the calendar year that contains the annuity starting date. If the annuity starting
date precedes the year in which the Member reaches age 70, the applicable distribution
period for the Member is the distribution period for age 70 under the Uniform Lifetime
Table set forth in Section 1.401(a)(9)-9 of the Treasury regulations plus the excess
of 70 over the age of the Member as of the Members birthday in the year that contains
the annuity starting date. If the Members Spouse is the Members sole designated
Beneficiary and the form of distribution is a period certain and no life annuity, the
period certain may not exceed the longer of the Members applicable distribution
period, as determined under
Paragraph (d)(ii), or the joint life and last survivor expectancy of the Member
and the Members Spouse as determined under the Joint and Last Survivor Table set
forth in Section 1.401(a)(9)-9 of the Treasury regulations, using the Members
and Spouses attained ages as of the Members and Spouses birthdays in the
calendar year that contains the annuity starting date.
|
27
(e) |
Requirements For Minimum Distributions Where Member Dies Before Date Distributions
Begin
.
|
(i) |
Member Survived by Designated Beneficiary
. If the Member dies
before the date distribution of his interest begins and there is a designated
Beneficiary, the Members entire interest will be distributed, beginning no later
than the time described in Paragraph (b)(ii)(A) or (B), over the life of the
designated Beneficiary or over a period certain not exceeding:
|
(A) |
unless the annuity starting date is before the first
distribution calendar year, the life expectancy of the
designated Beneficiary determined using the Beneficiarys age as of the
Beneficiarys birthday in the calendar year immediately following the
calendar year of the Members death; or
|
(B) |
if the annuity starting date is before the first distribution
calendar year, the life expectancy of the designated Beneficiary
determined using the Beneficiarys age as of the Beneficiarys birthday in the
calendar year that contains the annuity starting date.
|
(ii) |
No Designated Beneficiary
. If the Member dies before the date
distributions begin and there is no designated Beneficiary as of September 30 of the
year following the year of the Members death, distribution of the Members entire
interest will be completed by December 31 of the calendar year containing the fifth
anniversary of the Members death.
|
(iii) |
Death of Surviving Spouse Before Distributions to Surviving Spouse
Begin
. If the Member dies before the date distribution of his interest begins,
the Members surviving Spouse is the Members sole designated Beneficiary, and the
surviving Spouse dies before distributions to the surviving Spouse begin, this
Paragraph (e) will apply as if the surviving Spouse were the Member, except that the
time by which distributions must begin will be determined without regard to Paragraph
(b)(ii)(A).
|
28
(f) |
Definitions
.
|
(i) |
Designated Beneficiary
. The individual who is
designated as the Beneficiary under Section 1.6 of the Plan and is the
designated Beneficiary under Code Section 401(a)(9) and Section 1.401(a)(9)-1,
Q&A-4,
of the Treasury regulations.
|
(ii) |
Distribution Calendar Year
. A calendar year for which a
minimum distribution is required. For distributions beginning before the
Members death, the first distribution calendar year is the calendar year
immediately preceding the calendar year which contains the Members required
beginning date. For distributions beginning after the Members death, the first
distribution calendar year is the calendar year in which distributions are
required to begin pursuant to Paragraph (b).
|
(iii) |
Life expectancy
. Life expectancy as computed by use of
the Single Life Table in Section 1.401(a)(9)-9 of the Treasury regulations.
|
(iv) |
Required beginning date
. The applicable date specified
in Section 12.8(b) of the Plan.
|
5.1 |
General Provisions
. If a Member dies before his Payment Date occurs, 100% of his Cash
Balance Account will be payable to the Members Beneficiary. If a Member is married on the
date of his death before his Payment Date, his Spouse shall be his automatic sole Beneficiary
unless the Member elects otherwise and the Spouse consents in writing in the manner described
under Section 4.3. If a Member is not married on his date of death and has not elected a
Beneficiary, his estate shall automatically be his sole Beneficiary.
|
5.2 |
Payment
. If the Cash Balance Account is not greater than $1,000 or if the Beneficiary
is not the Spouse, the Plan Administrator will automatically pay the Members entire Cash
Balance Account in a lump sum payment as soon as practicable after the Members death. If the
Cash Balance Account is greater than $1,000, the Members surviving Spouse Beneficiary may
elect to receive a lump sum or a single life annuity. Single life annuity payments shall be
for the Spouses lifetime only and shall be determined by converting the Members Cash Balance
Account to a single life annuity payable to the Spouse in the manner described under
Section 4.2(b)(i)
using the Spouses age at the Payment Date for such Spouse.
|
29
6.1 |
Disability
. If a Non-Appendix B Member incurs a Disability, Pay Credits under Section
3.3 will continue (at the rate last in effect before the Disability) until the earlier of (a)
the Members elected Payment Date or (b) the end of the calendar quarter in which payments
under the Participating Companys long-term disability plan cease for any reason.
|
6.2 |
Disability Election
. A Non-Appendix B Member who has incurred a Disability may elect
to receive his vested Accrued Benefit at any time after he is no longer deemed to be an
Employee of the Company or any Affiliated Company under the standard personnel practices of
the applicable Participating Company.
|
6.3 |
Cessation
. Notwithstanding anything to the contrary in this Article
6, a Non-Appendix B Member who has incurred a Disability shall not receive
continued Pay Credits with respect to the periods beginning on or after the Closing.
|
7.1
|
(a) |
For each Year of Vesting Service a Non-Appendix B Member shall vest 33-1/3% in his
Accrued Benefit. A Non-Appendix B Member shall have a nonforfeitable right to his entire
Accrued Benefit after completing three Years of Vesting Service.
|
(b) |
Notwithstanding the above, a Non-Appendix B Member shall have a fully
vested, nonforfeitable interest in his Accrued Benefit upon the earliest of:
|
(i) |
full vesting under (a) above;
|
(ii) |
his attainment of age 65 (Normal Retirement Age)
while an Employee; or
|
(iii) |
his death while an Employee.
|
30
(c) |
Notwithstanding subsections (a) and (b) above, effective immediately prior to the
Closing, a Non-Appendix B Member shall have a fully vested, nonforfeitable right to his
Accrued Benefit. Notwithstanding subsections (a) and (b) above, effective immediately prior
to the Closing (as defined in the Plans Fourth Amendment), a Member who is employed by a
Participating Company immediately prior to the Closing shall have a fully vested,
nonforfeitable right to his Accrued Benefit.
|
8.1 |
Beneficiary Designation
. Each Member may designate the Beneficiary (including any
co-beneficiary or contingent beneficiary) to whom any benefits, which are payable to a
Beneficiary and which are provided hereunder upon or after the Members death, shall be paid.
The Member may change his Beneficiary from time to time, before or after his retirement. Any
designation or change of Beneficiary shall be subject to the provisions of Section 4.3 and
shall be made by filing written notice thereof with the Plan Administrator in such form as it
shall prescribe.
|
8.2 |
Death of Beneficiary
. In the event of the death of any Beneficiary prior to that of
the Member, the interest of such Beneficiary shall vest in the Member by whom he was
designated. If there is no designated Beneficiary living at the time when any death benefit
hereunder would be payable to the Beneficiary, such death benefit shall be payable to the
Members estate. Any such payment shall fully discharge the liability of the Plan,
the Fund, the Company, the Plan Administrator, the Trustee and the Insurance
Company.
|
9.1 |
Establishment of the Funds
. Separate Funds shall be established by the
Company for benefits under Plan A and Plan B. Each of the respective Funds shall hold all
contributions made by the Company and earnings and other income attributable thereto for the
related plan. All benefits payable under Plan A shall be exclusively disbursed from the
related Plan A Fund. All benefits payable to Union Members shall be disbursed from the Fund
related to Plan B.
|
9.2 |
Company Contributions
. The Plan Administrator shall establish and maintain a funding
policy based on periodic actuarial valuations and reports, which policy shall require
contributions at least sufficient to satisfy the minimum funding standards of ERISA and the
Code. The Company shall make contributions to the Plan at such times and in such amounts as
may be required by or appropriate
under the Plans funding policy. All contributions by the Company are conditioned upon
their deductibility under section 404 of the Code.
|
31
9.3 |
Return of Company Contributions
. Anything herein to the
contrary notwithstanding, a contribution or a portion of a contribution made to the Fund by
the Company may be returned to the Company under any of the following conditions:
|
(a) |
In the case of a contribution which is made by reason of a good faith mistake
of fact, the contribution or portion of the contribution so made may be returned to the
Company within one year after the payment thereof.
|
(b) |
In the event that a deduction for any contribution or portion thereof is
disallowed under section 404 of the Code, such contribution or such portion thereof, as
the case may be, may be returned to the Company within one year after the disallowance
of the deduction.
|
(c) |
In the case of a contribution made in good faith and conditioned upon the
initial qualification of the Plan under section 401(a) of the Code, but the
Plan is determined not to be so qualified, such contribution, or portion
thereof, may be returned to the Company within one year after the Plan is
deemed not to be so qualified.
|
9.4 |
Forfeitures and Other Gains
. Gains arising from any forfeiture of the interest in the
Fund of any Member because of death, severance of employment or any other reason shall be
applied to reduce the amount of Company contributions and not to increase the benefits
otherwise payable under the Plan.
|
9.5 |
Expenses
. The expenses of administering Plan A or Plan B, including but not limited
to, the fees and expenses of the Trustee as set forth in the applicable Trust Agreements, the
fees and expenses of any Insurance Company for group annuity contracts, the fees and expenses
of any actuary and of any counsel or other persons employed by the Company or its delegates in
the administration of such plan, and including the premiums for plan termination insurance
purchased by the Plan Administrator from the Pension Benefit Guaranty Corporation, shall to
the extent permitted by law and as directed by the Company, be paid by and from the respective
Fund. To the extent not paid from a Fund, such expenses shall be paid by the Company and may
be reimbursed to the Company from the appropriate Fund. Notwithstanding the above, the cost
to obtain a statement showing the value of a terminated Members vested Accrued Benefits,
other than the statement provided with respect to the Members Termination Date and the annual
statements thereafter, will be charged to such Member.
|
9.6 |
Actuarial Valuations
. All actuarial valuations of Plan A and Plan B shall be made by
or under the supervision of an actuary retained or employed by the Company (or its delegate)
who is enrolled by the Joint Board for the Enrollment of Actuaries
established under ERISA and shall be made upon such assumed rates of interest, mortality,
and other actuarial components and according to such methods of computation as the actuary,
after consultation with the Company (or its delegate), may determine to be proper and
reasonable.
|
32
10.1 |
Delineation of Fiduciary Responsibilities
. The fiduciaries with respect to Plan A
and Plan B shall be the Company (and its delegate), the Plan Administrator and the respective
Trustees and, to the extent required by ERISA, any Insurance Company. The responsibilities of
the fiduciaries shall be allocated as provided herein, and each such fiduciary shall have
only those responsibilities and obligations that are specifically imposed upon it by the
Plan, Trust Agreement or any group annuity contract. Except as otherwise provided by law,
each of the fiduciaries shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under the Plan, and shall not be responsible for any
act or failure to act of any other fiduciary.
|
(a) |
Except as provided in Section 11.1, the Company shall have the sole power to
amend and terminate Plan A and Plan B, the sole responsibility to make contributions to
each Fund as provided in Article 9 and such other powers and duties as are herein
specifically provided.
|
(b) |
The Trustee shall have the sole responsibility for the administration of the
Trust and, to the extent not delegated to one or more investment managers (within the
meaning of section 3(38) of ERISA) or some other named fiduciary (including, but
not limited to, the Board or Plan Administrator, the management and control of
the assets of the Fund which it receives and invests in accordance with the terms of
the Trust Agreement.
|
(c) |
An Insurance Company shall have the sole responsibility for the
administration of any group annuity contract and the management and control of the
assets of the Fund which it receives and invests in accordance with the terms of
the group annuity contract.
|
(d) |
The Company (or its delegate) shall have the sole responsibility to appoint and
remove the Trustee and any successor trustee, and enter into and from time to time
amend the Trust Agreement; to appoint or remove the Plan Administrator and review the
operation and performance of such Plan Administrators; and to establish or alter the
funding and investment policy guidelines for the Plan;
|
33
(e) |
The Plan Administrator shall have the sole responsibility to monitor the
performance and operations of the Trustee, any Insurance Company and
any investment manager; to implement the funding and investment policy guidelines
established by the Company (or its delegate); to advise the Company (or its
delegate) with respect to the appointment or removal of the Trustee and the
continuation or alteration of the investment and funding policy guidelines of Plan A
and Plan B; to appoint, remove, or allocate the assets of the Fund among one or more
investment managers (within the meaning of section 3(38) of ERISA) or Insurance
Companies in accordance with the funding and investment policy guidelines
established by the Company (or its delegate) and the terms of the Trust Agreement;
and to exercise such other powers and duties with respect to the assets of each Fund
as are delegated to the Plan Administrator under the terms of the Trust Agreement or
as are otherwise necessary or appropriate to carry out its responsibilities
described above.
|
(f) |
Except as otherwise specifically provided herein or in the Trust Agreement or
in a group annuity contract, the general administration of Plan A and Plan B and the
responsibility for carrying out its provisions shall be vested solely in the Plan
Administrator. In addition, the Plan Administrator shall have such powers and
responsibilities as are hereinafter specifically provided.
|
10.2 |
Appointment of the Members of the Administrative Committee
. The Company may appoint
a committee (hereafter referred to as the Administrative Committee) to
administer the Plan which shall consist of one or more individuals as appointed from time
to time by the Company (or its delegate). The membership of the Administrative
Committee may include individuals who are not covered by Plan A or Plan B. The Company (or its
delegate) may remove any member of the Administrative Committee at any time in its sole
discretion, and any member may resign by delivering to the Company (or its delegate) his
written resignation, effective upon its delivery or at any later date specified therein. The
remaining member or members of the Administrative Committee shall continue to act until any
vacancy in the membership of such committee is filled by action of the Company (or its
delegate).
|
10.3 |
Organization and Operation of the Administrative Committee
. If established, the
Administrative Committee shall appoint from among its members a chairman. The chairman, when
present, shall preside at meetings of the Administrative Committee. In his absence, those
present will choose one of their members to act as chairman. The Administrative Committee
shall appoint a secretary, who shall keep the minutes of the meetings and perform such other
duties as may be assigned to him by the Administrative Committee. The secretary may, but need
not, be a member of the Administrative Committee or a Member of the Plan. The Administrative
Committee shall act either at any meetings or through a writing without such a meeting by an
agreement of the majority of the members of the Administrative Committee then in office, and
the action of such majority shall have the same effect for all purposes as if assented to by
all members of that
Administrative Committee. Any member of the Administrative Committee who is a Member of the
Plan shall not vote on any question relating exclusively to himself. The Administrative
Committee may authorize one or more of its members to execute documents on behalf of that
Administrative Committee.
Any act which the Plan, the Trust Agreement or a group annuity contract authorizes or requires the Administrative Committee to do may be specifically delegated in writing to one or more members of that Administrative Committee. |
34
10.4 |
Powers and Duties of the Plan Administrator
. The Plan Administrator shall control the
management, operation and administration of the Plan. The powers and duties of the Plan
Administrator shall include but not be limited to the following:
|
(a) |
Construe and interpret Plan A and Plan B in accordance with uniform rules and
regulations consistently applied to all Members.
|
(b) |
Decide the eligibility of any persons to be covered under Plan A or Plan B, in
accordance with the provisions of each such plan.
|
(c) |
Determine the right of any person to a Retirement Benefit, in accordance with
the provisions of Plan A or Plan B.
|
(d) |
Prescribe procedures to be followed by Members in filing applications for
Retirement Benefits.
|
(e) |
Issue instructions to the Trustee or Insurance Company in connection with all
Retirement Benefits which are to be paid in accordance with the provisions of Plan A and
Plan B.
|
(f) |
Require from the Company and Employees such information as is necessary
to properly administer Plan A and Plan B.
|
(g) |
Furnish to the Company (or its delegate) appropriate periodic reports covering
the administration of Plan A and Plan B.
|
(h) |
Receive and review periodic accounting of benefit payments made by the
Trustee and/or Insurance Company.
|
10.5 |
Accounts and Records
. The Company (or its delegate) shall maintain records showing
the separate fiscal operations of Plan A and Plan B and shall keep in convenient form such
data as may be necessary for periodic actuarial valuations of the costs, liabilities, and
experience gains and losses of each such plan.
The Company (or its delegate) shall prepare annually a report showing in detail the separate assets and liabilities of Plan A and Plan B and giving a brief account of the operation of the Plan for the past year. Such report shall be submitted to the Board and shall be filed in the office of the secretary of the Board. |
35
10.6 |
Employment of Specialists
. The Company (or its delegate) shall have the authority to
employ advisors such as attorneys (who may but need not be attorneys to the Company) or such
other persons as it deems necessary or desirable to provide advice and services to it.
|
10.7 |
Claims and Review Procedures
.
|
(a) |
Claims procedure
. If any person believes he is being denied any rights
or benefits under the Plan, such person may file a claim in writing with the Plan
Administrator. If any such claim is wholly or partially denied, the Plan Administrator
will notify such person of its decision in writing. Such notification will contain
(i) specific reasons for the denial, (ii) specific reference to pertinent plan
provisions, (iii) a description of any additional material or information necessary for
such person to perfect such claim and an explanation of why such material or
information is necessary and (iv) information as to the steps to be taken if the person
wishes to submit a request for review. Such notification will be given within 90 days
after the claim is received by the Plan Administrator (or within 180 days, if special
circumstances require an extension of time for processing the claim, and if written
notice of such extension and circumstances is given to person within the initial 90 day
period). If such notification is not given within such period, the claim will be
considered denied as of the last day of such period and such person may request a
review of his claim.
|
(b) |
Review procedure
. Within 60 days after the date on which a person
receives written notice of a denied claim (or, if applicable, within 60 days after the
date on which such denial is considered to have occurred) such person (or his duly
authorized representative) may (i) file a written request with the Plan Administrator
for a review of his denied claim and of pertinent documents and (ii) submit written
issues and comments to the Plan Administrator. The Plan Administrator will notify such
person of its decision in writing. Such notification will be written in a manner
calculated to be understood by such person and will contain specific reasons for the
decision as well as specific references to pertinent Plan provisions. The decision on
review will be made within 60 days after the request for review is received by the
Plan Administrator (or within 120 days, if special circumstances require an extension
of time for processing the request, such as an election by the Plan Administrator to
hold a hearing, and if written notice of such extension and circumstances is given to
such person within the initial 60 day period). If the decision on review is not made
within such period, the claim will be considered denied.
|
(c) |
Notwithstanding the foregoing, the Plan shall comply with any subsequent claims
and appeals regulations to the extent required by law. Effective January 1, 2002,
the Plans procedure for denial of claims and for any appeal of such denial for
benefits under the plan shall be set forth in a separate document or in the Summary
Plan Description for this Plan. Such procedures shall comply with ERISA Section 503
and attendant regulations thereunder to the extent required by law.
|
36
10.8 |
Standard of Conduct
. Each fiduciary with respect to the Plan shall discharge his
duties to the Plan solely in the interest of Plan Members, surviving Spouses, and
Beneficiaries, with the care, skill, prudence and diligence under the circumstances 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 and in accordance with provisions of
the Plan, to the extent such provisions are consistent with ERISA.
|
10.9 |
Indemnification
. The Company shall indemnify and hold harmless the Plan
Administrator including each member of the Administrative Committee, if established,
from any and all claims, losses, damages, expenses (including reasonable counsel fees approved
by the Company), and liability (including any reasonable amount paid in settlement with the
Companys approval), arising from any act or omissions of such member, except when the same is
judicially determined to be due to the willful misconduct of such member.
|
10.10 |
Compensation of Administrative Committee Members
. The members of the Administrative
Committee shall serve without compensation with respect to their position on the
Administrative Committee. All reasonable expenses of the Administrative Committee shall be
paid for by the Company.
|
10.11 |
Actions to be Uniform
. Any discretionary actions to be taken under Plan A or Plan B
will be nondiscriminatory and uniform with respect to all persons similarly situated.
|
10.12 |
Effect of Interpretation or Determination
. Any interpretation of Plan A or Plan B or
other determination with respect to such plan by the Plan Administrator will be final and
conclusive for all persons in the absence of clear and convincing evidence that the Plan
Administrator acted arbitrarily and capriciously.
|
10.13 |
Withholding of Tax
. Unless the Plan Administrator otherwise directs the Trustee or
the Insurance Company pursuant to the second sentence of this Section, the Plan Administrator
will be responsible for withholding any and all amounts required by the Code and applicable
regulations to be withheld upon distributions from the Plan. The Plan Administrator may elect
to transfer this responsibility to the Trustee or an Insurance Company, whichever is the payor
with respect to the distribution in question, by directing said payor, in the manner
prescribed by applicable law and regulations, to withhold the aforesaid amounts.
|
37
11.1 |
Right to Amend
. Except as provided in Section 11.3, the Company reserves the right at
any time and from time to time to amend Plan A and Plan B by written instrument authorized by
the Board, executed by the Company and delivered to the Administrative Committee; provided,
however, that no amendment shall be made, which would, without written consent of the Trustee,
increase the duties or liabilities of the Trustee; and provided, further, that no
amendment shall adversely affect the amount of any Members Retirement Benefit based on his
Years of Vesting Service and membership in such plan prior to the date of the amendment, or
decrease his accrued benefit (within the meaning of section 411(d)(6) of the Code) as of the
date of the amendment, unless the amendment is necessary or appropriate to enable such plan or
trust to qualify or retain its qualified status under section 401 of the Code and under any
corresponding section of the Code as hereinafter enacted. Notwithstanding the above, the
Administrative Committee may adopt amendments as necessary to bring Plan A and Plan B into
conformity with legal requirements, or to improve the administration hereof,
provided no such amendments cause a substantial adverse financial effect upon the Company
or the Plan. Notwithstanding the foregoing, the Company may delegate its authority to amend
the Plan to the Plan Administrator with respect to amendments that are administrative in
nature.
|
11.2 |
Right to Terminate
. Neither the making of contributions nor the continuance of the
Plan is assumed by the Company as a contractual obligation except as provided in Section 11.3.
The Company reserves the right at any time to suspend its contributions, for such period as
the Board may determine, and reserves the right at any time by action of the Board,
communicated in writing by the Company to the Plan Administrator, the Trustee and an Insurance
Company, to terminate its contributions or to terminate Plan A or Plan B.
|
11.3 |
Amendments or Termination Affecting Union Members
. Notwithstanding the
provisions of this Article 11, no termination, change or amendment to Plan B which affects the
rights and obligations of Union Members, shall be made on or before the expiration date of the
collective bargaining agreement except with the agreement of the Utility Workers Union of
America, AFL-CIO, Local 369.
|
11.4 |
Nonforfeitable Benefits
. In the event Plan A or Plan B shall be terminated, or upon
termination of employment of a group of Members constituting a partial termination of such
plan, each such Members rights shall become nonforfeitable to the extent funded or as
guaranteed by the Pension Benefit Guaranty Corporation.
|
38
11.5 |
Satisfaction of Liabilities
. In the event, at any time, Plan A or Plan B shall be
terminated, the assets of the related Fund, after providing for necessary
expenses, shall be allocated to each covered Member, surviving Spouse, or Beneficiary
entitled to a Retirement Benefit in accordance with and subject to the order of precedence
and rules set forth in section 4044 (a) and (b) of ERISA and the regulations thereunder
issued by the Pension Benefit Guaranty Corporation. If any assets remain in the respective
Fund after all such allocations, such assets shall be returned to the Company. Payment of
such allocations may be accomplished, as determined by the Plan Administrator, by:
|
(a) |
continuance of the Fund; or
|
(b) |
continuance of that portion of the Fund held by the Trustee under the Trust
Agreement or establishment of a new trust fund; or
|
(c) |
continuance of that portion of the Fund held by an Insurance Company under a group
annuity contract or establishment of a new fund (subject to the terms and conditions of the
group annuity contract) under a new group annuity contract; or
|
(d) |
purchase of annuity contracts from an Insurance Company;
|
12.1 |
Rights to Benefits
. No person shall have any right or claim to a benefit under the
Plan beyond that expressly provided by the Plan and then only to the extent of the assets
available in the Fund which may be applied for his benefit in accordance with the Plan unless
guaranteed by the Pension Benefit Guaranty Corporation.
|
12.2 |
Company Rights
. The establishment and maintenance of the Plan shall not be construed
to give any Employee the right to be retained in the service of the Company. The contributions
of the Company to the Fund shall be for the exclusive benefit of Members and persons claiming
through them, and no part of the Fund shall revert to the Company other than such residual
amount as remains in the Fund after termination of the Plan and the satisfaction of all
obligations to all Members and Beneficiaries under the Plan.
|
12.3 |
Construction
. The provisions of this Plan shall be construed, administered and
enforced according to the provisions of ERISA and, to the extent not preempted thereby, the laws of
the State of Delaware.
|
39
12.4 |
Titles
. The titles of the Sections herein are included for convenience of
reference only and shall not be construed as a part of this Plan, nor have any effect upon
the meaning of the provisions hereof. Unless the context requires otherwise, the singular
shall include the plural; the masculine gender shall include the feminine; the feminine
gender shall include the masculine; and such words as herein, hereafter, hereof and
hereunder shall refer to this instrument as a whole and not merely to the subdivision in
which such words appear.
|
12.5 |
Impossibility of Action
. In case it becomes impossible for any fiduciary to perform
any act under this Plan, that act shall be performed which in the judgment of such fiduciary
will most nearly carry out the intent and purposes of this Plan. All parties concerned shall
be bound by any such acts performed under such conditions.
|
12.6 |
Separability
. If any term or provision of this Plan as presently in effect or as
amended from time to time, or the application thereof to any payments or circumstances, shall
to any extent be invalid or unenforceable, the remainder of the Plan, and the application
of such term or provision to payments or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term or provision of the
Plan shall be valid and enforced to the fullest extent permitted by law.
|
12.7 |
Merger or Consolidation of Plan
. Plan A or Plan B shall not merge or consolidate
with, or transfer or segregate its assets or liabilities to, any other plan unless each Member
of such plan would, if the successor plan were then to be terminated, be entitled to a
Retirement Benefit immediately after the merger, consolidation, transfer, or segregation which
is equal to or greater than the Retirement Benefit he would have been entitled to immediately
before the merger, consolidation, transfer or segregation, if Plan A or Plan B had then been
terminated.
|
12.8 |
Latest Commencement of Benefits
. In no case will the payment of benefits to any
Member commence later than the earlier of:
|
(a) |
unless the Member otherwise elects, the sixtieth (60th) day after the
latest of the following:
|
(i) |
the close of the Plan Year in which occurs the date on
which the Member attains age sixty-five (65),
|
(ii) |
the close of the Plan Year in which occurs the tenth (10th) anniversary of the
year in which the Member commenced participation in the Plan or
|
40
(iii) |
the close of the Plan Year in which the Member terminates his
service with the Company, or
|
(b) |
the April 1 of the calendar year following the later of:
|
(i) |
the calendar year in which the Member attains age 70
1
/
2
, or
|
||
(ii) |
the calendar year in which the Member retires.
|
12.9 |
Veterans Reemployment Rights
. Notwithstanding any provision of the Plan to the
contrary, benefits and service credits with respect to qualified military service will be
provided in accordance with Code Section 414(u).
|
12.10 |
Separate Plans and Assets
. Plan B assets (those available to pay benefits that
accrue on behalf of Union Members) shall be available only for such purpose and shall not be
available under any circumstances to pay benefits with respect to any Member who is not a
Union Member. Furthermore, Plan A assets (those available to pay benefits that accrue on
behalf of Members who are not Union Members) shall be available only for such purpose and
shall not be available under any circumstances to pay benefits with respect to any Union
Member. For Trust accounting purposes, all of Plan A assets shall at all times be accounted
for separately from all of Plan B assets in a manner which satisfies Treas. Reg. Sec.
1.414(l)-1(b)(8). Plan A and Plan B shall constitute separate plans.
|
13.1 |
Purpose and Applicability
. The provisions of this Article are intended to comply
with, and all determinations under this Article will be computed in accordance with, section
416 of the Code and the regulations promulgated thereunder, which are specifically
incorporated herein by reference. The provisions of Sections 13.2, 13.3, and 13.4 below shall
not apply with respect to any Employee covered by a collective bargaining agreement as to
which retirement benefits were the subject of good-faith bargaining, unless such agreement
provides for the application of such provisions to such Employees. Accordingly, this Article
only applies to Plan A which does not cover Union Members.
|
41
13.2 |
Special Vesting
. Notwithstanding any other provision of the Plan, other than the
provisions of this Article, each individual who is a Member at any time during a Plan Year
which is a top heavy plan year shall have a fully vested and nonforfeitable interest in not
less than a percentage of his Accrued Benefit as set forth in the following schedule, based on
his completed Years of Vesting Service:
|
13.3 |
Minimum Benefits
. The benefit payable at any time to each Member who is not a key
employee and who completes at least 1,000 Hours of Service in a Plan Year which is a top
heavy plan year, determined as of the end of such Plan Year (and as of the end of any
subsequent Plan Year) and when expressed as an annual benefit payable as a single life
annuity commencing at the Members Normal Retirement Date, shall not be less than the lesser
of
|
(a) |
the product of (i) two percent of the Members high five year compensation and
(ii) the number of his years of service for minimum benefit purposes (excluding any
such year that was not a top heavy plan year), and
|
(b) |
twenty percent of his high five year compensation;
|
42
13.4 |
Definitions
. For purposes of this Article:
|
(a) |
Compensation means the Members wages, salaries, fees
for professional services and other amounts received for personal services
actually rendered in the course of employment with the Company, including amounts (if any)
by which the Members compensation is reduced pursuant to an election under a cash or
deferred arrangement described in section 401(k) of the Code, that is part of a plan
maintained by the Company, or a cafeteria plan maintained by the Company under section 125
of the Code, but does not include any other amounts which are excluded under the
definition of compensation provided in the Treasury Regulations promulgated under section
415 of the Code; provided that compensation for a Plan Year in excess of the amount in
effect for a Plan Year under section 401(a)(17) of the Code) will be disregarded under the
Plan in accordance with the rules under section 401(a)(17) of the Code.
|
(b) |
High five year compensation means the average of the Members annual compensation for those
five consecutive years of service for minimum benefit purposes (or, if the Member has less
than five such years, then for his number of consecutive years of service for minimum benefit
purposes) for which his aggregate compensation is greatest. Any Plan Year which is not a year
of service for minimum benefit purposes shall be ignored in determining whether the Members
years of service for minimum benefit purposes are consecutive.
|
(c) |
Key employee means any Employee or former Employee (including any deceased Employee) who at
any time during the Plan Year that includes the determination date was an officer of the
Company having annual compensation greater than $130,000 (as adjusted under Section 416(i)(1)
of the Code for Plan Years beginning after December 31, 2002), a five-percent owner of the
Company, or a one-percent owner of the Company having annual compensation of more than
$150,000. For this purpose, annual compensation means compensation within the
meaning of Section 415(c)(3) of the Code. The determination of who is a Key
Employee will be made in accordance with Section 416(i)(1) of the Code and the applicable
regulations and other guidance of general applicability issued thereunder.
|
43
(d) |
Top heavy plan year means a Plan Year in which the sum of the present values of the total
accrued benefits of all key employees under the Plan and under each other defined
benefit plan (as of the applicable determination date of each such plan) which is
aggregated with this Plan, plus the sum of the account balances of all key employees under
each defined contribution plan (as of the applicable determination date of each such plan)
which is aggregated with this Plan, exceeds sixty percent of the sum of such amounts for all
Employees or former Employees (other than former key employees but including beneficiaries of
deceased former Employees) under such plans. The following rules shall apply for purposes of
making the foregoing determination:
|
(i) |
The term determination date means, with respect to the initial plan year of a plan,
the last day of such plan year and, with respect to any other plan year of a plan, the
last day of the preceding plan year of such plan. The term applicable determination
date means, with respect to the Plan, the determination date for the Plan Year of
reference and, with respect to any other plan, the determination date for any plan year
of such plan which falls within the same calendar year as the applicable determination
date of the Plan.
|
(ii) |
The present values of accrued benefits or account balances under a plan as of the
determination date shall be increased by the distributions made with respect to the Employee
under the Plan and any plan aggregated with the Plan under Section 416(g)(2) of the Code
during the 1-year period ending on the determination date. The preceding sentence shall also
apply to distributions under a terminated plan which, had it not been terminated, would have
been aggregated with the Plan under Section 416(g)(2)(A)(i) of the Code. In the case of a
distribution made for a reason other than separation from service, death, or disability, this
provision shall be applied by substituting 5-year period for 1-year period. The accrued
benefits and account balances of any individual who has not performed services for the
Company during the 1-year period ending on the determination date shall not be taken into
account. In the case of a defined benefit plan, such valuation date must be the same date as
is employed for computing plan costs for minimum funding purposes, and the determination of
the present value of accrued benefits shall be made on the basis of reasonable interest and
mortality assumptions, including without limitation those used for minimum funding purposes
or for purposes of determining the actuarial equivalence of optional benefits under the plan.
In the case of a defined contribution plan, the value of account balances will be adjusted
for contributions made after the valuation date to the extent required by applicable Treasury
regulations.
|
(iii) |
There shall be aggregated with this Plan: (A) any other plan of the Company or an
Affiliated Company under which at least one key employee participates and which is able to
satisfy the requirements of sections 401(a)(4) and 410 of the Code by reason, at least in
part, of the existence of this Plan, and (B) if at least one key employee is a Member
hereunder, any other plan of the Company or an Affiliated Company (i) in which a key employee
participates or (ii) which enables another such plan (including, but not limited to, the
Plan) to satisfy the requirements of sections 401(a)(4) and 410 of the Code. Any plan of the
Company or an Affiliated Company not required to be aggregated with the Plan may
nevertheless, in the
discretion of the Administrative Committee, be aggregated with the Plan if
the benefits and coverage of all aggregated plans would continue to satisfy
the requirements of sections 401(a)(4) and 410 of the Code.
|
44
(e) |
Year of service for minimum benefit purposes means, with respect to any
Member, each Plan Year in which the Member completes at least 1,000 Hours of Service
except any such year which begins after the last day of the most recent Plan Year
which was a top heavy plan year. For purposes of satisfying the minimum benefit
provisions of Section 416(c)(1) of the Code, in determining years of minimum benefit
service, any service with the Company shall be disregarded to the extent that such
service occurs during a Plan Year when the Plan benefits (within the meaning of
Section 410(b) of the Code) no Key Employee or former Key Employee.
|
13.5 |
Adjustment to Benefit Limitations
. In applying the limitations of Section 4.7 for
any Plan Year which begins prior to January 1, 2000 which is a top heavy plan year, Code
section 415(e)(2)(B) and (3)(B) will be applied by substituting 1.0 for 1.25 wherever
1.25 appears therein unless (a) the Plan and each plan with which the Plan is required to
be aggregated pursuant to the first sentence of Section 13.4.(d)(iii) satisfies the
requirements of section 416(h)(2)(A) of the Code, and (b) such Plan Year would not be a top
heavy plan year if ninety percent were substituted for sixty percent in the first
paragraph of Section 13.4(d).
|
|
SITHE ENERGIES, INC. | |||
|
||||
|
By: |
/s/ [ILLEGIBLE]
|
45
A1.1 |
Purpose and Applicability
. Effective November 24, 1999 (the Closing Date), Sithe
Energies, Inc. acquired the fossil fuel and hydroelectric generating assets of GPU, Inc and
its operating subsidiaries (collectively GPU). As a result of such transaction, certain
operating companies of Sithe Energies, Inc. assumed existing collective bargaining agreements
with certain unions and have agreed to continue to provide pension benefits pursuant to such
collective bargaining agreements and other agreements between and among Sithe Energies, Inc.
and its operating companies, GPU, and the respective unions. Such pension benefits had
previously been provided under the applicable union pension plans sponsored by GPU (GPU
Plans).
|
46
A1.2 |
Participating Company
. Notwithstanding any other section of the Plan to the
contrary, Eligible Employee shall include any Employee of a Participating Company.
Participating Company means the Company and any other Affiliated Company which adopts this
Plan with the approval of the Company. Effective November 24, 1999, solely for purposes of
the Appendix A Portion of the Plan, the Participating Companies shall include Sithe
Pennsylvania Holdings, LLC; Sithe Maryland Holdings, LLC; Sithe New Jersey Holdings, LLC; and
Sithe Northeast Management Company.
|
A1.3 |
Plan Assets
. Notwithstanding anything in the Plan to the contrary, for Trust
accounting purposes, all of the assets subject to the Appendix A Portion of the Plan shall be
part of Plan A and at all times be accounted for separately from all of the Plan B assets in
a manner which satisfies Treas. Reg. Sec. 1.414(l)-l(b)(8).
|
A2.1 |
Jersey Plan Eligible Employee
. Any Eligible Employee of a Participating Company who
is covered under a collective bargaining agreement between Sithe New Jersey Holdings LLC,
Sithe Mid-Atlantic Power Services, Inc. and Local Unions 327, 1289, and 1314 of the
International Brotherhood of Electrical Workers AFL-CIO, is a member of the Jersey Plan
Covered Group. Each Eligible Employee of the Jersey Plan Covered Group shall become an active
Member of the Plan under this Article A2 upon the Closing Date if such individual was an
active participant in the Jersey Plan immediately prior to the Closing Date. Otherwise, such
individual shall become a Member hereunder upon satisfying the eligibility conditions of the
Jersey Plan.
|
A2.2 |
Creditable Service
. In general, Creditable Service under this Plan shall not include
service prior to the Closing Date nor after May 12, 2000. However, for a Jersey Plan Eligible
Employee who was an active participant in the Jersey Plan
immediately prior to the Closing Date, Creditable Service under this Plan will be measured
from the individuals last anniversary date of his or her employment with GPU prior to
November 24, 1999 if such anniversary date is between May
24, 1999 and November 24, 1999 and the individual was not credited with a full year of
benefit service under the Jersey Plan for the last fractional year of employment.
Notwithstanding anything to the contrary, no individual will receive duplicate service
under both the Jersey Plan and this Plan.
|
47
A2.3 |
Vesting Service
. Vesting Service shall be determined in the same manner as provided
in the Jersey Plan. Furthermore, vesting service credited under the Jersey Plan, if any,
shall be recognized as Vesting Service for purposes of this Plan. However, in no event will a
Member receive duplicate vesting service for service credited under both the Jersey Plan and
this Plan.
|
A2.4 |
Creditable Service for Determination of Basic Annuity
. In determining a Members
Basic Annuity, a Members number of years of creditable service credited under the Jersey
Plan, if any, shall be taken into account hereunder solely for the purpose of determining the
appropriate accrual percentage to be multiplied by the Members Basic Earnings.
|
A2.5 |
Service for All Other Purposes
. For purposes of determining eligibility to
participate under this Article, eligibility for an early or normal retirement benefit, or for
any purpose other than as described above, service for such purpose credited to a Member
under the Jersey Plan, if any, shall be taken into account for such purpose under this Plan.
However, in no event will a Member receive duplicate service for service credited under both
the Jersey Plan and this Plan.
|
A2.6 |
Basic Earnings
. For purposes of determining a Members Basic Earnings under this
Plan, earning under the Jersey Plan prior to the Closing Date, if any shall be taken into
account.
|
A2.7 |
Inapplicable Jersey Plan Provisions
. The provisions of the Jersey Plan which are
administrative in nature, do not otherwise relate to determining an individuals benefit,
which relate to employee contributions, or for which there is a substantially similar
provision in this Plan shall not apply hereunder. Accordingly, notwithstanding any provision
herein to the contrary, the following Sections of the Jersey Plan shall not apply hereunder
and are excluded from incorporation in this Plan:
|
48
A3.1 |
Metropolitan Plan Eligible Employee
. Any Eligible Employee of a Participating
Company who is covered under a collective bargaining agreement between Sithe Pennsylvania
Holdings LLC, Sithe Mid-Atlantic Power Services, Inc. and Local Union 777 of the
International Brotherhood of Electrical Workers AFL-CIO, is a member of the Metropolitan Plan
Covered Group. Each Eligible Employee of the Metropolitan Plan Covered Group shall become an
active Member of the Plan under this Article A3 upon the Closing Date if such individual was
an active participant in the Metropolitan Plan immediately prior to the Closing Date.
Otherwise, such individual shall become a Member hereunder upon satisfying the eligibility
conditions of the Metropolitan Plan.
|
A3.2 |
Creditable Service
. In general, Creditable Service under this Plan shall not include
service prior to the Closing Date nor after May 12, 2000. However, for a Metropolitan Plan
Eligible Employee who was an active participant in the Metropolitan Plan immediately prior to
the Closing Date, Creditable Service under this Plan will be measured from the individuals
last anniversary date of his or her employment with GPU prior to November 24, 1999 if such
anniversary date is between May 24, 1999 and November 24, 1999 and the individual was not
credited with a full year of benefit service under the Metropolitan Plan for the last
fractional year of employment. Notwithstanding anything to the contrary, no individual will
receive duplicate service under both the Metropolitan Plan and this Plan.
|
A3.3 |
Vesting Service
. Vesting Service shall be determined in the same manner as provided
in the Metropolitan Plan. Furthermore, vesting service credited under
the Metropolitan Plan, if any, shall be recognized as Vesting Service for purposes of this
Plan. However, in no event will a Member receive duplicate vesting service for service
credited under both the Metropolitan Plan and this Plan.
|
49
A3.4 |
Creditable Service for Determination of Basic Annuity
. In determining a Members
Basic Annuity; a Members number of years of creditable service credited under the
Metropolitan Plan, if any, shall be taken into account hereunder solely for the purpose of
determining the appropriate accrual percentage to be multiplied by the Members Basic
Earnings.
|
A3.5 |
Service for All Other Purposes
. For purposes of determining eligibility to
participate under this Article, eligibility for an early or normal retirement benefit, or for
any purpose other than as described above, service for such purpose credited to a Member
under the Metropolitan Plan, if any, shall, be taken into account for such purpose under this
Plan. However, in no event will a Member receive duplicate service for service credited under
both the Metropolitan Plan and this Plan.
|
A3.6 |
Basic Earnings
. For purposes of determining a Members Basic Earnings under this
Plan, earning under the Metropolitan Plan prior to the Closing Date, if any,
shall be taken into account.
|
A3.7 |
Inapplicable Metropolitan Plan Provisions
. The provisions of the Metropolitan Plan
which are administrative in nature, do not otherwise relate to determining an individuals
benefit, which relate to employee contributions, or for which there is a substantially similar
provision in this Plan shall not apply hereunder. Accordingly, notwithstanding any provision
herein to the contrary, the following Sections of the Metropolitan Plan shall not apply
hereunder and are excluded from incorporation in this Plan:
|
50
A4.1 |
Penelec Plan Eligible Employee
. Any Eligible Employee of a Participating Company who
is covered under a collective bargaining agreement between Sithe Pennsylvania Holdings LLC,
Sithe Maryland Holdings LLC, Sithe Mid-Atlantic Power Services, Inc., Sithe Northeast
Management Company and Local Union 459 of the International Brotherhood of Electrical Workers
AFL-CIO (other than those employees who are employed by Sithe Northeast management Company at
Keystone and Conemaugh assets), is a member of the Penelec Plan Covered Group. Each Eligible
Employee of the Penelec Plan Covered Group shall become an active Member of the Plan under
this Article A4 upon the Closing Date if such individual was an active participant in the
Penelec Plan immediately prior to the Closing Date. Otherwise, such individual shall become a
Member hereunder upon satisfying the eligibility conditions of the Penelec Plan.
|
A4.2 |
Creditable Service
. In general, Creditable Service under this Plan shall not include
service prior to the Closing Date nor after May 12, 2000. However, for a Penelec Plan
Eligible Employee who was an active participant in the Penelec Plan immediately prior to the
Closing Date, Creditable Service under this Plan will be measured from the individuals last
anniversary date of his or her employment with GPU prior to November 24, 1999 if such
anniversary date is between May 24, 1999 and November 24, 1999 and the individual was not
credited with a full year of benefit service under the Penelec Plan for the last fractional
year of employment. Notwithstanding anything to the contrary, no individual will receive
duplicate service under both the Penelec Plan and this Plan.
|
A4.3 |
Vesting Service
. Vesting Service shall be determined in the same manner as provided
in the Penelec Plan. Furthermore, vesting service credited under the Penelec Plan, if any,
shall be recognized as Vesting Service for purposes of this Plan. However, in no event will a
Member receive duplicate vesting service for service credited under both the Penelec Plan and
this Plan.
|
51
A4.4 |
Creditable Service for Determination of Basic Annuity
. In determining a
Members Basic Annuity, a Members number of years of creditable service credited under the
Penelec Plan, if any, shall be taken into account hereunder solely for the purpose of
determining the appropriate accrual percentage to be multiplied by the Members Basic
Earnings.
|
A4.5 |
Service for All Other Purposes
. For purposes of determining eligibility to
participate under this Article, eligibility for an early or normal retirement benefit, or for
any purpose other than as described above, service for such purpose credited to a Member
under the Penelec Plan, if any, shall be taken into account for such purpose under this Plan.
However, in no event will a Member receive duplicate service for service credited under both
the Penelec Plan and this Plan.
|
A4.6 |
Basic Earnings
. For purposes of determining a Members Basic Earnings under this
Plan, earning under the Penelec Plan prior to the Closing Date, if any shall be taken into
account.
|
A4.7 |
Inapplicable Penelec Plan Provisions
. The provisions of the Penelec Plan which are
administrative in nature, do not otherwise relate to determining an individuals benefit,
which relate to employee contributions, or for which there is a substantially similar
provision in this Plan shall not apply hereunder. Accordingly, notwithstanding any provision
herein to the contrary, the following Sections of the Penelec Plan shall not apply hereunder
and are excluded from incorporation in this Plan:
|
52
53
B2.1 |
Accumulated Member Contributions
, as of any specified time, means the sum of all
contributions made by a Member under this Plan which have not been withdrawn, with interest
credited on such amounts, for each Plan Year or portion thereof at the rate of 120 percent of
the Federal mid-term rate as in effect under section 1274 of the Code for the first month of
such Plan Year. Interest shall be computed on each contribution from the January 1 next
following the date such contribution was due to the earlier of:
|
(a) |
the first day of the month in which the Member commences to receive
Retirement Benefit payments, attains his Normal Retirement Date, or
withdraws his Accumulated Member Contributions, whichever occurs first;
or
|
||
(b) |
the first day of the month next following the date of the Members death.
|
B2.2 |
Accrued Benefit
means, as of any date, the amount of Retirement Benefit to which
an Appendix B Member is or would be entitled hereunder if he were
eligible to and did retire or otherwise terminate employment hereunder on such date,
commencing on his Normal Retirement Date and payable for his life.
|
54
B2.3 |
Actuarial Equivalent
means a benefit which is of equal value to a benefit
otherwise payable in a different form or at a different time under the Plan, when computed,
using the same factors for males and females, on the basis of:
|
(a) |
83% of the mortality rates for males determined in accordance with the
Group Annuity Tables for 1951 Males, projected to 1970 by Projection
Scale C, plus
|
(b) |
17% of the mortality rates for females equal to those for males five years
younger, and
|
(c) |
with an effective rate of interest of 4% compounded annually.
|
B2.4 |
Annuity Starting Date
means, in the case of any Members Retirement Benefit, the
first day of the first month for which the Retirement Benefit is payable. A Members Annuity
Starting Date shall be determined in accordance with the provisions of Section B7.4 (Normal
or Late Retirement Benefit) Section B7.5 (Deferred Early Retirement Benefit), Section B7.6
(Reduced Early Retirement Benefit), Section B7.7 (Disability Retirement Benefit), Section
B8.1(e) (pertaining to lump-sum benefits), Section B11.1 (Deferred Vested Retirement Benefit)
or Section B11.2 (Reduced Earlier Vested Retirement Benefit), whichever is applicable.
|
B2.5 |
Base Pay
means the compensation payable to an Employee by the Company for time
worked on regular normal scheduled work days, including paid holidays and vacations exclusive
of all compensation for overtime worked, premiums, commissions, bonuses, amounts deferred or
payable under a nonqualified plan or arrangement or deferred compensation and all other forms
of additional compensation, but including (a) lump sum merit increases (one-twelfth of such
increase to be included as Base Pay for each month in the twelve month period beginning with
the month of payment), (b) amounts (if any) elected by the Employee to be deferred under a
cash or deferred arrangement, qualified under section 401(k) of the Code, that is part of a
plan in which the Company participates, and (c) amounts (if any) by which an Employees salary
or other remuneration is reduced pursuant to an election or designation made under a cafeteria
plan under Section 125 in which the Company participates. Base Pay for a Member for any Plan
Year in excess of the amount in effect for the Plan Year under section 401(a)(17) of the Code
will be disregarded under the Plan in accordance with the rules under section 401(a)(17) of
the Code.
|
55
(a) |
Notwithstanding the foregoing, for periods prior to May 16, 1998, an
Employees Base Pay shall also include compensation as described
above for services rendered to a prior employer while a member of the
BECO Retirement Plan, and
|
(b) |
except as may otherwise be agreed upon under the terms of a collective
bargaining agreement between the Company and Local 369, UWUA, AFL-CIO, Base Pay shall not include any compensation for periods subsequent
to the pay period ending September 30, 2005.
|
B2.6 |
BECO Retirement Plan
means the Boston Edison Retirement Plan as in effect
immediately prior to the Effective Date of this Plan.
|
B2.7 |
Beneficiary
means the person or persons entitled under Article 8 or Appendix B to receive
any benefit payable hereunder on or after the Members death, other than any benefit payable
to a spouse pursuant to Section B7.3, to a Surviving Spouse pursuant to Section B9.1 or to a
Contingent Annuitant pursuant to Article B8.
|
B2.8 |
Contingent Annuitant
means the person to whom Retirement Benefit payments are to
be made for life after the death of a Member who (a) elected a Contingent Annuitant form of
Retirement Benefit pursuant to Article B8 and (b) dies on or after the Annuity Starting Date.
|
B2.9 |
Effective Date
means January 1, 2000, unless otherwise specified herein; however,
the original effective date was May 16, 1998, and the original plan name was the Sithe New
England Power Services, Inc. Union Pension Plan.
|
B2.10 |
Eligible Employee
means an active union Employee who was a Member of the Sithe
Energies, Inc. Group Pension Plan on December 31, 2000 and who is not a Member of the Sithe
Stable Account Plan cash balance feature.
|
B2.11 |
Employee
means an employee of the Company or an Affiliated Company as determined by the
Company.
|
56
B2.12 |
Final Average Pay
means the annual average of a Members Base Pay for those 36
consecutive months of employment as an Employee (or, if the Member has been an Employee for
less than 36 consecutive months, such lesser period of employment) within his last ten
consecutive calendar years of employment as an Employee which produces the highest average;
provided, however, that Final Average Pay shall not include any Base Pay for periods
subsequent to the pay period containing September 30, 2005. For purposes of the preceding
sentence, the term last ten consecutive calendar years of employment as an Employee means
the ten consecutive calendar years of employment as an Employee ending with the calendar year
in which an Employee dies, retires or otherwise ceases to be an Employee or to accrue benefits
under the Plan, whichever calendar year is earliest. In the event a Member ceases to be an Employee and thereafter
again becomes an Employee and a Member (unless in the interim he shall have suffered a
substantial period of severance as defined in Section B3.6), the periods before and after
his severance from service as an Employee shall be considered consecutive for purposes of
determining his Final Average Pay.
In determining Final Average Pay, a Members Base Pay for periods while a member of the BECO Retirement Plan shall be taken into account, and solely for purposes of this Section, such Member shall be considered an Employee for such periods. |
B2.13 |
Lump-sum Equivalent
means, in the case of a lump sum benefit which is to be paid
to a Participant, the actuarial present value of a Members Retirement Benefit, determined as
of the Annuity Starting Date, applying the Applicable Mortality Table and Applicable
Interest Rate as defined under Code section 417(e)(3)(A) (as amended by Public Law 103-465,
section 767(a)(2)) and the regulations and applicable rulings prescribed thereunder in effect
for the November preceding the Plan Year in which the Members Annuity Starting Date occurs.
However, for Annuity Starting Dates that occur in the 12-month period ending on December 31,
2001, the Applicable Interest Rate used to determine the Lump Sum Equivalent shall be the
rate in effect under Plan B on December 31, 2000 or the Applicable Interest Rate under the
Plan for the Plan Year beginning January 1, 2001, whichever produces the greater lump sum.
|
B2.14 |
Member
means any Eligible Employee who is currently participating in the Plan in
accordance with Article B4 or any former Eligible Employee who continues to be entitled to a
benefit under the Plan.
|
B2.15 |
Plan
means for purposes of this Appendix B, the Sithe Union Employees Pension Plan, which
prior to January 1, 2001 was known as the Sithe Energies, Inc. Group Pension Plan.
|
B2.16 |
Plan Year
means for this Plan B the period from May 16, 1999 through May 15,
2000; the short period beginning May 16, 2000 and ending December 31, 2000; and each
calendar year thereafter beginning with 2001.
|
B2.17 |
Retirement Date
means a Members Normal, Early, Late, or Disability Retirement
Date determined in accordance with Article B6.
|
B2.18 |
Surviving Spouse
means the individual who was legally married to a Member during
the entire twelve-month period preceding the Members death.
|
57
B3.1 |
Employment Commencement Date
means the date on which the Employee first performs
an Hour of Service or, in the case of an Employee who incurs a Break in Service, the date on
which he first performs an Hour of Service after such Break.
|
B3.2 |
Break in Service
means, in the case of any Employee, a Plan Year in which the
Employee has 500 or fewer Hours of Service, but not including any such Plan Year before the
one in which he ceases to be an Employee. Solely for purposes of determining whether a Break
in Service has occurred, there shall be credited to the Employee as Hours of Service each
hour not otherwise creditable under Section 1.21 during a period of absence from the Company
by reason of the Employees pregnancy; by reason of the birth of the Employees child; by
reason of the placement of a child with the Employee in connection with the adoption of such
child by the Employee; or for purposes of caring for such child for a period beginning
immediately following such birth or placement;
provided
, that:
|
(a) |
Any Hour of Service credited hereunder with respect to an absence shall be
credited (i) only in the Plan Year in which the absence begins, if the Employee would
be prevented from incurring a Break in Service in such Year solely because of Hours of
Service credited hereunder for such absence, or (ii) in any other case, in the
immediately following Plan Year;
|
(b) |
No Hours of Service shall be credited hereunder unless the Employee furnishes
the Plan Administrator with such information as the Plan Administrator may
reasonably require (in such form and at such time as the Plan Administrator may
reasonably require) establishing (i) that the absence from work is an absence described hereunder and (ii) the number of days for which the absence lasted;
|
(c) |
In no event shall more than 501 Hours of Service be credited to an Employee
hereunder for any one absence by reason of pregnancy or the placement of any one child.
|
B3.3 |
Substantial Break
means, in the case of any Employee or Member who does not have a
nonforfeitable right to any portion of his Accrued Benefit, a number of consecutive Breaks in
Service which equals or exceeds five.
|
58
B3.4 |
Year of
Eligibility Service
means,
|
(a) |
the twelve consecutive month period starting on an Employees Employment
Commencement Date, provided he completes at least 1,000 Hours of Service during such
period, or
|
(b) |
if the Employee does not complete at least 1,000 Hours of Service in the twelve
consecutive month period starting on an Employees Employment Commencement Date, any
Plan Year following such date during which he completes at least 1,000 Hours of
Service.
|
(c) |
For purposes of this Section, Hours of Service and the Employment Commencement
Date of any Employee who was both an active employee of Boston Edison Company and a
member of the BECO Retirement Plan immediately prior to the Effective Date shall
reflect the individuals employment with Boston Edison Company.
|
B3.5 |
Year of Vesting Service
means a Plan Year during which an Employee has at least
1,000 Hours of Service, subject to the following special rules:
|
(a) |
Each Member whose Year of Eligibility Service overlaps two Plan Years in
neither of which the Member has 1,000 Hours of Service shall, except as otherwise
provided in (b) and (c), be credited with one Year of Vesting Service upon becoming a
Member.
|
(b) |
If a Member has 1,000 Hours of Service in the period May 16, 2000 to May 15,
2001 and also in the period January 1, 2001 to December 31, 2001, he shall be credited
with two years of service for such periods.
|
(c) |
Except as otherwise provided in Section B3.8, in the case of a Member who
incurs a Substantial Break, Years of Vesting Service prior to such Break will be
disregarded.
|
(d) |
A Member who becomes disabled and retires in accordance with Section B6.3, and
is thereafter reemployed by the Company as an Employee prior to his Normal Retirement
Date, shall also be credited with a Year of Vesting Service for each Plan Year
during his period of disability retirement in which he has less than 1,000 Hours
of Service, such Years to be in addition to any Years of Vesting Service credited to
the Member under the other provisions of this Section.
|
(e) |
In the event a Member has a Break in Service and thereafter again becomes
an Employee and a Member without having incurred a Substantial Break,
his Years of Vesting Service prior to his Break in Service shall be restored to him.
|
(f) |
For purposes of this Section, Hours of Service and the Employment
Commencement Date of any Employee who was both an active employee of Boston Edison
Company and a member of the BECO Retirement Plan immediately prior to the Effective
Date shall reflect the individuals employment with Boston Edison Company.
|
59
B3.6 |
Years of Benefit Service
means the period of time (in years and fractions of
years) commencing with the date on which an Eligible Employee first performs an Hour of
Service for the Company (or the date on which a reemployed Employee first performs an Hour of
Service for the Company following reemployment) and ending on the earlier of the date he
ceases to be an Eligible Employee or September 30, 2005. All periods of service shall be
cumulative; provided, however, that, except as otherwise provided in Section B3.8, periods
prior to a substantial period of severance shall be disregarded. For purposes of the
foregoing, a substantial period of severance means, in the case of an individual who ceases
to be an Employee and at such time does not have a nonforfeitable interest in any portion of
his Retirement Benefit, a period of at least five years (six years, if the individual ceases
to be an Employee for one of the reasons specified in the first paragraph of Section B3.2
above) during which the individual is credited with no service as an Employee.
For any Member who was both an active employee of Boston Edison Company and a member of the BECO Retirement Plan immediately prior to the Effective Date, Years of Benefit Service shall also include the years of benefit service (including fractions thereof) such member had credited under the BECO Retirement Plan as of May 15, 1998. |
B3.7 |
Fully Vested
means, in the case of any Member, that the Member has completed at
least five Years of Vesting Service.
|
B3.8 |
Service Bridging
means the following. In accordance with agreements entered into
from time to time between the Company and Local 369, UWUA, AFL-CIO, Years of Vesting Service
prior to a Substantial Break or Years of Benefit Service prior to a substantial period of
severance (as defined in Section B3.6) shall be counted for purposes of the Plan in the case
of those Members who have been selected by the Plan Administrator pursuant to such
agreements.
|
B4.1 |
Eligibility
. Effective January 1, 2001, this Appendix B shall have no new Members.
The Members of this Appendix B shall be those Union Members who were covered by the Sithe
Energies Group Pension Plan on December 31, 2000 and who are not covered on and after such
date by the provisions of the cash balance feature described in the body of this document.
|
B4.2 |
Membership Following a Break in Service
. In the event a Members employment
terminates and thereafter the Member again becomes an Employee, he shall become an active
Member immediately upon again becoming an Employee; except that if he incurs a Substantial
Break, he shall be considered for all purposes of the Plan as a new Employee.
|
60
B5.1 |
Continuation of Member Contributions
. Each Member who was contributing to the BECO
Retirement Plan on May 15, 1998 may continue to contribute under this Plan on and after the
Effective Date in each calendar year while he is a Member in an amount equal to 3.75% of his
Base Pay in excess of $6,600 for such calendar year; provided, however, that no such
contribution shall be made after the earliest of: (a) December 31, 2000, (b) the date the
Member ceases to be an Employee, (c) the date the Member ceases to accrue benefits under this
Appendix B, (d) the date as of which he elects to discontinue his contributions, or (e) the
date he elects to withdraw his Accumulated Member Contributions. A contributing Member may
discontinue his contributions to the Plan upon written notification to the Plan
Administrator.
The contributions of a Member shall be made by deductions from his pay on written authorization and in a manner determined by the Plan Administrator in its sole discretion, and the amounts of contributions so deducted shall be paid to the Fund by the Company as of the earliest date on which the contributions can reasonably be segregated from the Companys general assets, but in no event later than the 15 th business day of the month following the month in which amounts would otherwise have been payable to the Member in cash. |
B5.2 |
Withdrawal of Accumulated Member Contributions
.
|
(a) |
A contributing Member may, as of the first day of any month, but not after
the date his Retirement Benefit payments commence, upon written request filed
with the Plan Administrator, elect to withdraw his eligible Accumulated Member
Contributions from the Fund. For purposes of the preceding sentence, eligible
Accumulated Member Contributions means the Members total Accumulated Member
Contributions as provided under Section B2.1. In the event of a withdrawal as
described in the first sentence of this paragraph, the formula Contributory
Retirement Benefit specified in Section B7.1(b)(i) shall be reduced (but not below
zero) as specified in that Section by the Retirement Benefit derived from the
Members contributions. The Retirement Benefit derived from the
Members contributions shall be an annual benefit, payable for the life of the Member
only and commencing at Normal Retirement Age, equivalent to the Members eligible
Accumulated Member Contributions, such equivalency to be determined in
accordance with the provisions of section 411(c) of the Code.
|
61
(b) |
Upon receipt of a request for a withdrawal the Plan Administrator shall
provide the Member with a written notification in nontechnical terms describing
the effects of such withdrawal and the rights of the Member and, if applicable,
the Members spouse with respect thereto. Such notification shall be comparable to the notification specified in Section 4.3,
except that the Plan Administrator shall make such modifications as it may deem
advisable, consistent with applicable law and regulations. No election to withdraw
shall be effective unless made within the 90-day period immediately preceding the
date of withdrawal. If the Member is married, his election to withdraw shall not be
effective unless his spouse also consents in writing thereto and acknowledges the
effect of such election (or it is determined that spousal consent and
acknowledgment cannot be obtained) in accordance with the rules set forth in
Section 4.3. The provisions of this paragraph (b) shall not apply where the
Lump-sum Equivalent of the Members vested Accrued Benefit, determined as of the
date of the withdrawal (or, if required under the Code or regulations thereunder,
the date of any prior withdrawal), is $5,000 or less (or such greater amount as
permitted under Code Section 411(a)(11)).
|
B5.3 |
Forfeitures and Other Gains
. Gains arising from any forfeiture of the interest in
the Fund of any Member, because of death, severance of employment or any other reason,
shall be applied to reduce the amount of Company contributions and not to increase the
benefits otherwise payable under the Plan.
|
B6.1 |
Normal Retirement Date
. The Normal Retirement Date of a Member shall be the first
day of the month next following his 65th birthday. Upon attaining age 65 while still employed
by the Company, a Member shall have a fully vested and nonforfeitable interest in his Accrued
Benefit and shall be entitled to retire and receive such benefit commencing on his Normal Retirement Date.
|
B6.2 |
Early Retirement Date
. A Member may elect to retire or may be retired by the
Company, except solely on the basis of age, on the first day of any month prior to his Normal
Retirement Date if he meets one of the following requirements:
|
(a) |
He has completed 20 Years of Benefit Service, has attained his 45th
birthday, and resigns for cause or is discharged for reasons not the fault of the
employee.
|
(b) |
He has both completed 10 Years of Benefit Service and attained his 62nd
birthday.
|
(c) |
He has completed 20 Years of Benefit Service and attained his 55th birthday.
|
(d) |
The sum of his age on his last birthday and whole Years of Benefit Service
is 85 or more.
|
62
B6.3 |
Disability Retirement Date
. A Member who has completed 15 Years of Benefit Service,
is disabled from employment with the Company and is receiving disability payments under the
Social Security Act may elect to retire or may be retired by the Company. The Disability
Retirement Date of a Member who is retired by the Company shall be the date determined by the
Company. The Disability Retirement Date of a Member who elects to retire shall be the date
elected by the Member but not earlier than the first day of the first month on which he meets
the requirements set forth above in this section.
A Member who is determined to be totally and permanently disabled and who has completed 15 Years of Benefit Service shall also be eligible to elect a disability retirement under this Section or may be retired under this Section by the Company, whether or not he is receiving disability payments under the Social Security Act. For purposes of the foregoing, the determination of a Members total and permanent disability may be made by a doctor of either the Members or the Companys choosing. The doctors determination shall be embodied in a written report made available to both the Member and the Company. The report of a doctor selected by the Member shall be prepared at the Members expense, and the report of a doctor selected by the Company shall be made at the Companys expense. If doctors selected by the Member and the Company fail to agree, the Member and the Company shall by agreement select a third doctor who shall be a specialist specified by his respective Board. The three doctors shall meet as a committee and consider the case and the decision of a majority of such doctors so acting shall be final and binding on the parties. Each party shall compensate the doctor chosen by such party for the time spent and expenses incurred in the case, and the parties shall share equally in paying the compensation and expenses of the third doctor. |
B6.4 |
Late Retirement Date
. A Member may continue as an Employee after his Normal
Retirement Date, subject to such restrictions and limitations, consistent with applicable law,
as the Company may prescribe. The Member shall not be eligible for Retirement Benefits prior
to his Late Retirement Date except as required under section 401(a)(9) of the Code or as
provided in Section B17.8. A Members Late Retirement Date shall be the first day of the month coinciding with or next following the date after his Normal Retirement Date on which he shall actually retire or be
retired.
|
63
B7.1 |
Formula Retirement Benefit
. The formula Retirement Benefit shall be a monthly
Retirement Benefit payable as a single life annuity commencing on the later of the Members
Normal or Late Retirement Date and ceasing with the last payment due before his death. The
amount of the monthly formula Retirement Benefit payable to a Member shall equal the Members
Noncontributory Retirement Benefit determined under (a) below plus the Members Contributory
Retirement Benefit, if any, as determined under (b) below, but not less than the Members
Minimum Retirement Benefit, as determined under (c) below.
|
(a) |
Noncontributory Retirement Benefit
shall be equal to (i), (ii), or
(iii) as applicable:
|
(i) |
Except for those Members described in (ii) or (iii) below, a
Members Noncontributory Retirement Benefit shall be equal to 1/12 of: 1.40%
of the Members Final Average Pay multiplied by the Members Years of Benefit
Service not in excess of 15 years, plus 1.86% of the Members Final Average
Pay multiplied by the Members Years of Benefit Service in excess of 15 years
but not in excess of 30 years, plus 0.65% of the Members Final Average Pay
multiplied by the Members Years of Benefit Service in excess of 30 years.
|
(ii) |
Former BECO Retirement Plan Members
. Except for
Members described in (iii) below, the Noncontributory Retirement Benefit for a
Member who was a member of the BECO Retirement Plan immediately prior to the
Effective Date and who became a Member hereunder as of the Effective Date
shall be equal to 1/12 of (A) minus (B) below where:
|
(A) |
equals the benefit determined under (i) above,
which shall reflect years of benefit service credited under the BECO
Retirement Plan as of May 15, 1998, as provided in Section B3.7, and
|
(B) |
equals the Members BECO Retirement Plan
Benefit (as defined below).
|
64
(iii) |
Former Local 387 BECO Retirement Plan Members
. The Noncontributory
Retirement Benefit for a Member who was a member of the BECO Retirement Plan
immediately prior to the Effective Date; who became a Member hereunder as of the
Effective Date; and who also was a member of Local 387, UWUA, AFL-CIO immediately
prior to its merger with Local 369, UWUA, AFL-CIO effective April 9, 1998 shall equal
the benefit determined under (i) above but based on Years of Benefit Service credited
to such Member subsequent to May 15, 1998 and up to September 30, 2005. However,
solely for purposes of determining the accrual percentage to apply under such formula
(1.40%, 1.86%, or 0.65%), years of benefit service credited to the Member under the
BECO Retirement Plan shall be considered.
|
(iv) |
In no event shall this Plan be liable for any benefits accrued by
Members under the BECO Retirement Plan
.
|
(b) |
Contributory Retirement Benefit
. A Members Contributory Retirement Benefit, if any,
shall equal the greater of (i) and (ii), where
|
(i) |
equals one-third of the sum of all contributions made by the Member under
the Plan, reduced (but not below zero) by the Retirement Benefit derived from the
Members contributions previously withdrawn as that term is used in Section B5.2(a);
and
|
(ii) |
the benefit derived from the Members remaining Accumulated Member
Contributions, if any, under the Plan as of the Members Annuity Starting Date,
determined in accordance with the provisions of section 411(c) of the Code.
|
(c) |
Minimum Retirement Benefit
. Notwithstanding the foregoing, a Members formula
Retirement Benefit shall not be less than the amount of Retirement Benefit the
Member could have received under Sections B7.6 if he had retired hereunder on any possible
Early Retirement Date. Furthermore, for any Member who was not an active member of the BECO
Retirement plan on the day before the Effective Date, such Members formula Retirement
Benefit shall not be less than $100 per month payable as a single life annuity commencing on
the later of the Members Normal or Late Retirement Date.
|
65
B7.2 |
Normal Form of Retirement Benefit for Single Members
. The normal form of
Retirement Benefit for a Member who is not married on his Annuity Starting Date shall be
the formula Retirement Benefit, payable as a single life annuity.
|
B7.3 |
Normal Form of Retirement Benefit for Married Members
. The normal form of Retirement
Benefit for a Member who is married on his Annuity Starting Date shall be a joint and
survivor form of Retirement Benefit and shall be the Actuarial Equivalent of the formula
Retirement Benefit. Under this normal form of Retirement Benefit, the Member shall receive a
reduced amount of monthly Retirement Benefit payable during his lifetime, and, commencing on
the first day of the month next following his death, 50% of such reduced Retirement Benefit
shall be payable for life to the person who was the Members spouse on the Members Annuity
Starting Date. The death of the Members spouse after the Members Annuity Starting Date and
while the Member is still living shall not affect the reduced amount of Retirement Benefit
payments payable thereafter to the Member under this form of Retirement Benefit.
|
B7.4 |
Normal or Late Retirement Benefit
. Each Member who retires on or after his Normal
Retirement Date shall be entitled to receive, commencing on his Retirement Date, a monthly
amount of formula Retirement Benefit payable under the normal form applicable to the Member
in accordance with Sections B7.2 or B7.3.
|
B7.5 |
Deferred Early Retirement Benefit
. Each Member who retires in accordance with
Section B6.2 before his Normal Retirement Date shall be entitled to receive, commencing on
his Normal Retirement Date, the monthly amount of formula Retirement Benefit described in
Section B7.1, payable under the normal form applicable to the Member in accordance with
Section B7.2 or B7.3 and determined as of his Early Retirement Date.
|
B7.6 |
Reduced Early Retirement Benefit
.
|
(a) |
In lieu of the Retirement Benefit specified in Section B7.5, a Member may
elect to receive a reduced monthly amount of Retirement Benefit, commencing
on the first day of any month on or after his Early Retirement Date and before his
Normal Retirement Date, and on or after the date his election is filed with the
Committee, and payable thereafter during his lifetime.
|
66
(b) |
The Retirement Benefit of an Appendix B Member who retires before October 1,
2005 and prior to his Normal Retirement Date shall be equal to the Retirement Benefit
otherwise payable under Section B7.5, multiplied by the appropriate early
retirement factor, determined as of the commencement date of his Retirement
Benefit, from the table set forth below, interpolated for full months prior to Normal
Retirement Date. A Member to whom this Section applies may also be eligible for
the Temporary Supplemental Benefit for Certain Early Retirees as described in Section B7.7
below.
|
Full Years | Early | |||
Prior to Normal | Retirement | |||
Retirement Date | Factor | |||
|
||||
1
|
1.000 | |||
2
|
1.000 | |||
3
|
1.000 | |||
4
|
1.000 | |||
5
|
1.000 | |||
6
|
.925 | |||
7
|
.850 | |||
8
|
.775 | |||
9
|
.700 | |||
10
|
.625 | |||
11
|
.457 | |||
12
|
.430 | |||
13
|
.404 | |||
14
|
.382 | |||
15
|
.360 | |||
16
|
.340 | |||
17
|
.321 | |||
18
|
.304 | |||
19
|
.288 | |||
20
|
.272 |
(c) |
Notwithstanding the foregoing, the Retirement Benefit for an Appendix B
Member who retires after September 30, 2005 shall be payable pursuant to (b) above with
respect to benefit accruals prior to January 1, 2001. However, for benefit accruals after
December 31, 2000, such benefit shall be multiplied by the appropriate early retirement
factor, determined as of the commencement of the Retirement Benefit, from the table set
forth below, interpolated for full months prior to Normal Retirement Date.
|
Full Years | Early | |||
Prior to Normal | Retirement | |||
Retirement Date | Factor | |||
|
||||
1
|
.922 | |||
2
|
.851 | |||
3
|
.786 | |||
4
|
.727 | |||
5
|
.674 | |||
6
|
.624 | |||
7
|
.579 | |||
8
|
.537 | |||
9
|
.499 | |||
10
|
.463 | |||
11
|
.457 | |||
12
|
.430 | |||
13
|
.404 | |||
14
|
.382 | |||
15
|
.360 | |||
16
|
.340 | |||
17
|
.321 | |||
18
|
.304 | |||
19
|
.288 | |||
20
|
.272 |
67
B7.7 |
Temporary Supplemental Benefit for Certain Early Retirees
. A Member who retires
early under Section B7.6 and who retires at age 57, 58, 59, 60 or 61 with at least 35 Years
of Benefit Service shall, in addition to the formula Retirement Benefit, receive a monthly
supplement, payable from the Members Early Retirement Date until the earlier of (a) the
Members death or (b) the month in which the Member attains age 62, equal to $10.00 times the
Members Years of Benefit Service, if such Member retires on or before September 30, 2005.
This benefit will be reduced by any concurrent temporary supplement payable to the Member
from the BECO Retirement Plan in respect of service rendered before May 15, 1998.
|
B7.8 |
Disability Retirement Benefit
. If an Appendix B Member is disabled and retires in
accordance with Section B6.3 before his Normal Retirement Date, he shall be entitled to
receive, commencing on his Normal Retirement Date or, if the Member so elects, on the first
day of any earlier month on or after his Disability Retirement Date, a monthly amount of
formula Retirement Benefit payable under the normal form applicable to the Member in
accordance with Section B7.2 or B7.3 and determined as of his Disability Retirement Date.
If a disabled Appendix B Member who retired in accordance with Section B6.3 and who begins receiving a benefit is reemployed by the Company as an Employee, payment of his Retirement Benefit shall be suspended during his subsequent period of reemployment (but only to the extent permitted under section 203 of ERISA and the regulations thereunder); he shall immediately become an active Member of the Plan; and his Years of Vesting Service and Years of Benefit Service at the time of his disability retirement shall be restored to him, and the Plan Years before and after his disability retirement shall be considered consecutive in determining his Final Average Pay. If a disabled Appendix B Member who retired in accordance with Section B6.3 and who begins receiving a benefit recovers sufficiently from the disability such that he is no longer receiving disability benefits under the Social Security Act and he is not reemployed by the Company, his Retirement Benefit payments shall be reduced thereafter to the amount of Retirement Benefit payments computed under Section B11.2 as of the date of his disability retirement. |
B7.9 |
Retirement Benefit After Reemployment Following a Break in Service
. This Section
shall apply in the event an Appendix B Member has a Break in Service and thereafter again
becomes an Employee and an Appendix B Member and does not incur a Substantial Break. On or
after the date he again becomes an Employee, any such Member who is receiving Retirement
Benefit payments may
elect to discontinue receiving such payments (but only to the extent permitted under
section 203 of ERISA, the regulations thereunder, and the Code. Whether or not such Member
elects to discontinue receiving Retirement Benefit payments, his Accrued Benefit after his
reemployment shall be reduced by the Actuarial Equivalent of the total Retirement Benefit
payments received by the Member prior to the date as of which his Accrued Benefit is
determined; provided, however, that such Accrued Benefit shall not, when computed in the
same form as the Member was receiving when reemployed, be less than the Retirement Benefit
payments the member was receiving when reemployed.
|
68
B8.1 |
Options and Elections
. Subject to the conditions enumerated in Section 4.3, a Member
may elect to receive one of the following optional forms of Retirement Benefit in lieu of the
form of Retirement Benefit otherwise payable under Article B7 or B11:
|
(a) |
A
contingent annuitant form
of Retirement Benefit under which the
Member shall receive a reduced monthly amount of Retirement Benefit payable during his
lifetime; and, if the Member dies after his Annuity Starting Date and the person
designated by him as Contingent Annuitant survives him, such Contingent Annuitant shall
receive for life, commencing on the first day of the month next following the month in
which the death of the Member occurs, either the same reduced monthly amount or such
fraction thereof as is approved by the Plan Administrator and is specified by the
Member in his election. Upon the death of both the Member and his Contingent Annuitant
after the effective date of the option, there shall be paid to the Members Beneficiary
an amount equal to the excess, if any, of the Accumulated Member Contributions of the
Member over the sum of the Retirement Benefit payments made to the Member and his
Contingent Annuitant which are attributable to the contributory Retirement Benefit
specified in Section B7.1(b).
|
(b) |
A
spousal joint and survivor form
of Retirement Benefit under which the
Member shall receive a reduced amount of Retirement Benefit payable during his
lifetime, and, commencing on the first day of the month next following his death, 50%
of such reduced Retirement Benefit shall be payable for life to the person who was his
spouse on the date that the Retirement Benefit payments commenced; provided, that if
such spouse dies after the Annuity Starting Date and while the Member is still living,
the Retirement Benefit thereafter payable to the Member, commencing on the first day or
the month next following his spouses death, shall be increased to equal the Retirement
Income that would have been payable to the Member had he effectively elected option (f)
below.
|
69
(c) |
A
ten year certain and lifetime form
of Retirement Benefit under which the
Member shall receive a reduced monthly amount of Retirement Benefit payable during his
lifetime; and, if the Member dies after the effective date of the option and the person
designated by him as Beneficiary survives him, such Beneficiary shall receive for life,
commencing on the first day of the month next following the month in which the death of the
Member occurs, the same reduced amount of Retirement Benefit until the Member and his
Beneficiary together have received 120 payments; provided, however, if the Member has
designated as his Beneficiary his estate, a corporation, association, partnership or
trustee, the commuted value of the payments due such Beneficiary may be paid in one
sum to such Beneficiary if the Plan Administrator shall so direct. The form of benefit
described in this subsection shall not be available unless the life expectancies of
the Member and his designated Beneficiary, as of the date benefits commence, equal or
exceed ten years.
|
(d) |
A
fifteen-year certain and lifetime form
of Retirement Benefit under which the Member
shall receive a reduced monthly amount of Retirement Benefit payable during his lifetime; and,
if the Member dies after the effective date of the option and the person designated by him as
Beneficiary survives him, such Beneficiary shall receive for life, commencing on the first day
of the month next following the month in which the death of the Member occurs, the same
reduced amount of Retirement Benefit until the Member and his Beneficiary together have
received 180 payments; provided, however, if the Member has designated as his Beneficiary his
estate, a corporation, association, partnership or trustee, the commuted value of the payments
due such Beneficiary may be paid in one sum to such Beneficiary if the Plan
Administrator shall so direct. The form of benefit described in this subsection shall
not be available unless the life expectancies of the Member and his designated
Beneficiary, as of the date benefits commence, equal or exceed fifteen years.
|
(e) |
A
lump sum form
under which the Member shall receive a single payment equal to the
Lump-sum Equivalent of 100%, 75%, 50% or 25%, as elected by the Member, of the formula
Retirement Benefit otherwise payable to the Member, determined as of the Members Annuity
Starting Date. If a Member elects to receive less than 100% of his formula Retirement Benefit
in a lump sum form, the balance of his formula Retirement Benefit shall be paid in such other
optional form elected by the Member under this Section. For purposes of this subsection the
following rules shall apply:
|
(i) |
A Member who wishes to select the option described in this subsection
must so notify the Company in writing, in such form as the Plan Administrator shall
prescribe, at least three (3) months (but not more than six (6) months) prior to the
Members Annuity Starting Date. The Notification required by this paragraph shall be
in addition to, and not in lieu of, the requirement that the Member formally waive
the normal form of benefit described in Section B7.2 or Section B7.3 (whichever is
applicable), in accordance with the provisions of Section 4.3, during the 30- to
90-day period immediately preceding the Annuity Starting Date. Nothing in this
paragraph shall be deemed to limit the right of a Member who has given notice of
his intent to receive the lump sum form of benefit, to revoke such notice at any
time prior to his Annuity Starting Date and elect to receive his benefit in the
normal form described in Section B7.2 or Section B7.3, whichever is applicable, or
in another alternative form of payment available under the Plan, subject to the
rules and conditions applicable to elections of such alternative form, including
the prior-notice provisions of this paragraph in the case of any Member who again
determines to receive payment of all or a portion of his Retirement Benefit in
lump-sum form.
|
70
(ii) |
In the case of a Member (A) whose Annuity Starting Date (determined under the
provisions of Articles B6, B7, or B11) would, but for the operation of this
subsection, fall on or after the date which precedes by six months the Members Normal
Retirement Date, but (B) who elects the lump-sum option described in this subsection,
the Annuity Starting Date of such Member shall be the later of the date determined
under Articles B6, B7, or B11 (without regard to this subsection) or the first day of
the first month which follows by at least six months the date on which the Member
gives written notice to the Company, in accordance with paragraph (i) above, of his
desire to take all or a portion of his Retirement Benefit in lump-sum form. If a
Members Annuity Starting Date would, by reason of the application of this subsection,
fall more than one month after the date of his actual retirement or age 65, whichever
is later (the predeferral date), the Members Retirement Benefit shall be the
Actuarial Equivalent of the Members Retirement Benefit determined as of his
predeferral date. The actuarial adjustment required by this paragraph shall be made
before the Lump-sum Equivalent of the Members Retirement Benefit is determined.
|
(f) |
A
life annuity form
of Retirement Benefit under which the Member shall receive the
monthly amount of formula Retirement Benefit payable during his lifetime with all payments
ceasing at his death.
|
(g) |
A
social security equalizer form
of Retirement Benefit under which the Member shall
receive a larger monthly amount of Retirement Benefit before the Member attains age 62, and a
reduced monthly amount of Retirement Benefit on and after the Member attains age 62, such that
the monthly amount of Retirement Benefit payable before the Member attains age 62 is equal to
the sum of the monthly amount of Retirement Benefit
payable on and after the Member attains age 62 plus the monthly Social Security
Benefits to which the Member would be entitled upon his attainment of age 62 if
Social Security Benefits commenced to the Member at that time, all as determined by
the Plan Administrator; provided that this option shall be available only if the
Member has not attained age 62 as of the effective date of the option and the
Member satisfies such other conditions or requirements consistent with applicable
law as the Plan Administrator may in its discretion prescribe.
|
B8.2 |
Amount of Retirement Benefit
. The amount of Retirement Benefit payable under the
optional forms described in Section B8.1 shall be the Actuarial Equivalent (or, in the case
of Section B8.1(e), the Lump-sum Equivalent) of the amount of Retirement Benefit otherwise
payable under the normal form.
|
71
B9.1 |
Preretirement Surviving Spouse Benefit
. In the case of an Appendix B Member who is
Fully Vested and who dies prior to his Annuity Starting Date, there shall be paid to his
Surviving Spouse, if any, a monthly Retirement Benefit, commencing on the date hereinafter
specified (if the Surviving Spouse is then alive) and ceasing after the first day of the
month in which the Surviving Spouse dies, computed as follows:
|
(a) |
If the Member dies while an Employee and after attaining his 55th birthday or
completing 10 Years of Benefit Service and before his Normal Retirement Date,
the monthly Retirement Benefit payable to his Surviving Spouse shall equal 50% of the
monthly formula Retirement Benefit specified in Section B7.1.
|
(b) |
In every case to which this Section applies but which is not described under
(a) above, the monthly Retirement Benefit payable to the deceased Members Surviving
Spouse shall be the Actuarial Equivalent of an amount equal to the monthly amount
such Surviving Spouse would have been entitled to receive had the Member:
|
(i) |
terminated employment on the date of his death (or, if
earlier, on the actual date of his termination of employment).
|
(ii) |
effectively elected to have his reduced Retirement Benefit
commence on the date of his death to be paid (in the normal form described in
Section B7.3) under the provisions of either:
|
(A) |
Section B7.6 (if the Member had satisfied
the requirements for early retirement under Section 6.2), or
|
(B) |
Section B11.2 (in every other case), and
|
72
(iii) |
died immediately following such benefit commencement.
|
B9.2 |
Return of Accumulated Member Contributions
. If a Member dies prior to his Annuity
Starting Date and does not have a Surviving Spouse or his Surviving Spouse is not entitled to
a Retirement Benefit under the provisions of Section
B9.1, the Members Accumulated Member Contributions shall be paid to the Members
Beneficiary.
|
73
B9.3 |
Termination of Membership
. Except as otherwise provided in this Article B9, death of
a Member prior to his Annuity Starting Date shall terminate his membership in the Plan and
his interest in the Fund shall be forfeited.
|
B10.1 |
No Optional Form of Retirement Benefit in Effect
. If an Appendix B Member dies on
or after his Annuity Starting Date and if no optional form of Retirement Benefit under
Article B8 is in effect, there shall be paid to the Members Beneficiary, after the death of
his spouse in the case of a married Member who had not effectively revoked the normal joint
and survivor form of Retirement Benefit, an amount equal to the excess, if any, of his
Accumulated Member Contributions over the sum of the contributory Retirement Benefit payments
specified in Section B7.1(b) (or reduced as provided in Section B7.3, B7.6, or B11.2)
received by him and his spouse.
|
B10.2 |
Optional or Normal Form of Retirement Benefit For Married Member in Effect
. If an
Appendix B Member dies on or after his Annuity Starting Date and if an optional form of
Retirement Benefit under Article B8 is in effect or, in the case of a married Member, if the
normal joint and survivor form of Retirement Benefit is in effect, there shall be paid to his
Beneficiary, Contingent Annuitant or Surviving Spouse, as the case may be, the benefits, if
any, payable upon his death in accordance with the appropriate provisions of Article B8 or
Section B7.3.
|
B10.3 |
Termination of Membership
. Except as otherwise provided in this Article B10, death of an
Appendix B Member on or after his Annuity Starting Date shall terminate his membership in the
Plan, and his interest in the Fund shall be forfeited.
|
74
B11.1 |
Deferred Vested Retirement Benefit
. An Appendix B Member who ceases to be an
Employee other than by death prior to retirement, who is not eligible for early
or disability retirement under the provisions of Section B6.2 or B6.3 and who is Fully
Vested as provided in Section 3.9 shall continue as a Member in the Plan and shall be
entitled to a deferred vested Retirement Benefit commencing on his Normal Retirement Date
and payable thereafter during his lifetime, equal to the Members Accrued Benefit described
in Section B7.1, payable under the normal form applicable to the Member in accordance with
Section B7.2 or B7.3, and determined as of the date he ceases to be an Eligible Employee.
|
B11.2 |
Reduced Earlier Vested Retirement Benefit
. In lieu of the deferred vested
Retirement Benefit specified in Section B11.1, an Appendix B Member may elect to receive a
reduced monthly amount of Retirement Benefit, commencing on the first day of any month on or
after the date he ceases to be an Employee and on or after the date his election is filed
with the Plan Administrator, but before his Normal Retirement Date. A Retirement Benefit
payable hereunder prior to a Members Normal Retirement Date shall be equal to the Retirement
Benefit otherwise determined and payable under Section B11.1, multiplied by the appropriate
factor, determined as of the commencement date of his Retirement Benefit from the table set
forth in Section B7.6, or if the Member elects to receive his Retirement Benefit earlier
than 20 years prior to his Normal Retirement Date, from the following table, interpolated for
full months prior to Normal Retirement Date:
|
Full Years | Early | |||
Prior to Normal | Retirement | |||
Retirement Date | Factor | |||
|
||||
21
|
.259 | |||
22
|
.246 | |||
23
|
.233 | |||
24
|
.222 | |||
25
|
.211 | |||
26
|
.201 | |||
27
|
.191 | |||
28
|
.182 | |||
29
|
.174 | |||
30
|
.165 | |||
31
|
.158 | |||
32
|
.151 | |||
33
|
.144 | |||
34
|
.138 | |||
35
|
.131 | |||
36
|
.125 | |||
37
|
.120 | |||
38
|
.115 | |||
39
|
.111 | |||
40
|
.106 |
75
B11.3 |
No Reduction of Vesting
. If the vesting requirements for a deferred vested
Retirement Benefit under the Plan, as now in effect or as hereafter amended, (the new
vesting provisions) would at any time result in a deferred vested Retirement Benefit in an amount less than a Member would have received under
this Plan, prior to any amendment to the Plan that directly or indirectly affects the
computation of the nonforfeitable percentage of the Members rights to his Accrued Benefit,
(the old vesting provisions) the Member shall be deemed to have elected the vesting
provisions which would result in the greatest benefit under ERISA, and his deferred vested
Retirement Benefit, in the event the Member ceases to be an Employee, shall be determined
under the new vesting provisions or old new vesting provisions, whichever is most favorable
to the Member.
|
B11.4 |
Withdrawal of Accumulated Member Contributions by Vested Member
. A Member who is
entitled to a Retirement Benefit under the provisions of Section B11.1 or B11.2 may, at any
time prior to the date his Retirement Benefit payments commence and upon written request
filed with the Plan Administrator, elect to withdraw his Accumulated Member Contributions
from the Fund, in which event the Retirement Benefit specified in Section B7.1(b), shall be
reduced (but not below zero) by the Retirement Benefit derived from the Members
contributions, determined in accordance with the provisions of Section B5.2.
If a Member ceases to be an Employee, withdraws his Accumulated Member Contributions, and is reemployed by the Company as an Eligible Employee prior to May 15, 2000, such Member may repay to the Fund within 2 years of his reemployment the full amount of such withdrawal plus interest at the effective rate described in Section B2.1, compounded annually, from the date of the withdrawal to the date of repayment. Upon such repayment, the Member shall be entitled to the reinstatement of the amount of contributory Retirement Benefit derived from his contributions which he forfeited under the provisions of this Section B11.4. |
76
For Plan Year | Applicable Percentage | |||
|
||||
2008
|
20 | % | ||
|
||||
2009
|
40 | % | ||
|
||||
2010
|
60 | % | ||
|
||||
2011
|
80 | % |
2
3
Sithe Energies, Inc.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: Chairman, Dynegy Benefit Committee |
4
For Plan Year | Applicable Percentage | |||
2008
|
20 | % | ||
2009
|
40 | % | ||
2010
|
60 | % | ||
2011
|
80 | % |
- 2 -
- 3 -
(i) | Benefit Forms Not Subject to Section 417(e)(3) of the Internal Revenue Code : The straight life annuity that is actuarially equivalent to the Members form of benefit shall be determined under this subsection (i) if the form of the Members benefit is either (1) a nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the Member (or, in the case of a qualified pre-retirement survivor annuity, the life of the surviving spouse), or (2) an annuity that decreases during the life of the Member merely because of (a) the death of the survivor annuitant (but only if the reduction is not below 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 Section 401(a)(11) of the Internal Revenue Code). |
(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 Members form of benefit computed using whichever of the following produces the greater annual amount: (I) the interest rate specified in Section 1.2(a) of the Plan (hereinafter referred to as the Plan Interest Rate) and the mortality table (or other tabular factor) specified in Section 1.2(a) of the Plan (hereinafter referred to as the Plan Mortality Table) for adjusting benefits in the same form; and (II) a 5 percent interest rate assumption and the applicable mortality table prescribed in Revenue Ruling 2001-62 for that annuity starting date. |
(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 Member under the Plan commencing at the same annuity starting date as the Members 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 Members form of benefit, computed using a 5 percent interest rate assumption and the Applicable Mortality Table defined in Section 1.2 of the Plan for that annuity starting date. |
- 4 -
(ii) | Benefit Forms Subject to Section 417(e)(3) of the Internal Revenue Code : The straight life annuity that is actuarially equivalent to the Members form of benefit shall be determined under this subsection (ii) if the form of the Members benefit is other than a benefit form described in subsection (i) 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 Members 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 Members form of benefit, computed using the Plan Interest Rate specified in Section 1.2(a) of the Plan and the Plan Mortality Table (or other tabular factor) specified in Section 1.2(a) of the Plan 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 Members form of benefit, computed using a 5.5 percent 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 Members form of benefit, computed using the applicable interest rate defined in Section 1.4 of the Plan for that annuity starting date (hereinafter referred to as the Applicable Interest Rate) 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 Members 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 Members form of benefit, computed using whichever of the following produces the greater annual amount: (I) the Plan Interest Rate specified in Section 1.2(a) of the Plan and the Plan Mortality Table (or other tabular factor) specified in Section 1.2(a) of the Plan for adjusting benefits in the same form; and (II) a 5.5 percent interest rate assumption and the applicable mortality table prescribed in Revenue Ruling 2001-62. |
- 5 -
(i) | Employer contributions (other than elective contributions described in Sections 402(e)(3), 408(k)(6), 408(p)(2)(A)(i), or 457(b) of the Internal Revenue Code) to a plan of deferred compensation (including a simplified employee pension described in Section 408(k) or a simple retirement account described in Section 408(p) of the Internal Revenue Code, and whether or not qualified) to the extent such contributions are not includible in the Employees 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; |
(ii) | 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; |
(iii) | amounts realized from the sale, exchange or other disposition of stock acquired under a statutory stock option; |
(iv) | 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 Section 125 of the Internal Revenue Code); and |
(v) | other items of remuneration that are similar to any of the items listed in (i) through (iv). |
- 6 -
(i) | the payment is regular compensation for services during the Employees regular working hours, or compensation for services outside the Employees 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; |
(ii) | 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 |
(iii) | 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. |
- 7 -
- 8 -
- 9 -
(i) | Adjustment for Less Than 10 Years of Participation or Service : If the Member has less than 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 10. In the case of a Member who has less than 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 1 year) of Service with the employer, and the denominator of which is 10. |
- 10 -
(ii) | 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 Members 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 (ii). 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 (ii). |
(A) | Adjustment of Defined Benefit Dollar Limitation for Benefit Commencement Before Age 62: |
- 11 -
(B) | Adjustment of Defined Benefit Dollar Limitation for Benefit Commencement After Age 65: |
- 12 -
- 13 -
(C) | Notwithstanding the other requirements of this subsection (ii), no adjustment shall be made to the Defined Benefit Dollar Limitation to reflect the probability of a Members 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 Member 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 Members death if the Plan does not charge Members for providing a qualified preretirement survivor annuity, as defined in Section 417(c) of the Internal Revenue Code, upon the Members death. |
(iii) | Minimum Benefit Permitted : Notwithstanding anything else in this section to the contrary, the benefit otherwise accrued or payable to a Member 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 Member 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 Members number of Years (or part thereof, but not less than one year) of Service (not to exceed 10) with the employer, and the denominator of which is 10; and |
(B) | the employer (or a predecessor employer) has not at any time maintained a defined contribution plan in which the Member participated (for this purpose, mandatory employee contributions under a defined benefit plan, individual medical accounts under Section 401(h) of the Internal Revenue Code, and accounts for postretirement medical benefits established under Section 419A(d)(1) of the Internal Revenue Code are not considered a separate defined contribution plan). |
- 14 -
- 15 -
- 16 -
SITHE ENERGIES, INC.
|
||||
By: | ||||
Name: | ||||
Title: | BPC, Chairman | |||
- 17 -
Page | ||||
|
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ARTICLE I Purposes of Plan
|
1 | |||
|
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ARTICLE II Definitions
|
1 | |||
2.1 Definitions
|
1 | |||
|
||||
ARTICLE III Participation
|
4 | |||
3.1 Participation
|
4 | |||
|
||||
ARTICLE IV Company and Director Deferrals
|
4 | |||
4.1 Company Deferrals
|
4 | |||
4.2 Director Deferrals
|
5 | |||
|
||||
ARTICLE V Deemed Investment of Accounts
|
6 | |||
5.1 Deemed Investments
|
6 | |||
5.2 Changes to Deemed Investments
|
6 | |||
5.3 Exchange Act Restrictions
|
6 | |||
5.4 Earnings Allocations and Account Statements
|
6 | |||
|
||||
ARTICLE VI Distributions
|
7 | |||
6.1 Distributions
|
7 | |||
|
||||
ARTICLE VII Change in Control
|
9 | |||
7.1 Change in Control
|
9 | |||
|
||||
ARTICLE VIII Beneficiary Designation
|
10 | |||
8.1 Beneficiary
|
10 | |||
8.2 Beneficiary Designation; Change of Beneficiary Designation
|
10 | |||
8.3 Acknowledgment
|
10 | |||
8.4 No Beneficiary Designation
|
10 | |||
8.5 Doubt as to Beneficiary
|
10 | |||
8.6 Discharge of Obligations
|
10 |
i
Page | ||||
ARTICLE IX Nature of the Plan and Trust Establishment
|
11 | |||
9.1 Unfunded Nature of Plan and Participants Rights Unsecured
|
11 | |||
9.2 Discretionary Establishment of Trust
|
11 | |||
9.3 Interrelationship of the Plan and the Trust
|
11 | |||
9.4 Distributions From the Trust
|
11 | |||
|
||||
ARTICLE X Amendment or Termination
|
11 | |||
10.1 Amendments to the Plan
|
11 | |||
10.2 Termination of the Plan
|
11 | |||
|
||||
ARTICLE XI Administration
|
12 | |||
11.1 Plan Rules and Regulations
|
12 | |||
11.2 Discretion
|
12 | |||
ARTICLE XII Miscellaneous
|
13 | |||
12.1 Payment in Event of Incapacity
|
13 | |||
12.2 Expenses
|
13 | |||
12.3 Securities Law and Other Restrictions
|
13 | |||
12.4 No Rights to Continued Service Created
|
13 | |||
12.5 Successors
|
13 | |||
12.6 Governing Law
|
13 | |||
12.7 Headings
|
14 | |||
|
||||
Appendix A Grandfathered Plan Provisions
|
15 |
ii
2.1 |
Definitions
. The definitions set forth in this Article II apply unless the context
otherwise indicates.
|
(a) |
Accounts
. Accounts means a Participants Company Deferral Account
and Deferred Money Account, excluding such amounts in a Participants Grandfathered
Deferral Account, as applicable.
|
(b) |
Affiliate
. Affiliate means all persons with whom the Company would
be considered a single employer under Section 414(b) or 414(c) of the Code.
|
(c) |
Beneficiary
. Beneficiary with respect to a Participant is the person
designated or otherwise determined under the provisions of Article VIII as the
distributee of benefits payable after the Participants death. A person designated or
otherwise determined to be a Beneficiary under the terms of the Plan has no interest in
or right under the Plan until the Participant in question has died. A person will
cease to be a Beneficiary on the day on which all benefits to which such person is
entitled under the Plan have been distributed.
|
(e) |
Cash Compensation
. Cash Compensation means all cash amounts payable
by the Company or an Affiliate to a Qualified Director for his or her services to the
Company as a Qualified Director (i) including, without limitation, the retainers for
service on the Board and fees specifically paid for attending regular or special meetings of the
Board and Board committees or for acting as the chair of a committee, but (ii)
excluding expense allowances or reimbursements.
|
1
(f) |
Change in Control
. Change in Control means the occurrence of any of
the following events: (i) a merger of the Company with another entity, a consolidation
involving the Company, or the sale of all or substantially all of the assets or equity
interests of the Company to another entity if, in any such case, (A) the holders of
equity securities of the Company immediately prior to such event do not beneficially
own immediately after such event equity securities of the resulting entity entitled to
fifty-one percent (51%) or more of the votes then eligible to be cast in the election
of directors (or comparable governing body) of the resulting entity in substantially
the same proportions that they owned the equity securities of the Company immediately
prior to such event or (B) the persons who were members of the Board immediately prior
to such event do not constitute at least a majority of the board of directors of the
resulting entity immediately after such event; (ii) the dissolution or liquidation of
the Company, but excluding a reorganization pursuant to chapter 11 of Title 11, U.S.
Code, as amended; (iii) a circumstance where any person or entity, including a group
as contemplated by Section 13(d)(3) of the Exchange Act, acquires or gains ownership or
control (including, without limitation, power to vote) of fifty percent (50%) or more
of the combined voting power of the outstanding securities of, (A) if the Company has
not engaged in a merger or consolidation, the Company, or (B) if the Company has
engaged in a merger or consolidation, the resulting entity; (iv) circumstances where,
as a result of or in connection with, a contested election of directors, the persons
who were members of the Board immediately before such election shall cease to
constitute a majority of the Board; or (v) the Board adopts a resolution declaring that
a Change in Control has occurred. For purposes of the Change in Control definition,
(1) resulting entity in the context of an event that is a merger, consolidation or
sale of all or substantially all of the subject assets or equity interests shall mean
the surviving entity (or acquiring entity in the case of an asset or equity interest
sale), unless the surviving entity (or acquiring entity in the case of an asset sale)
is a subsidiary of another entity and the holders of common stock of the Company
receive capital stock of such other entity in such transaction or event, in which event
the resulting entity shall be such other entity, and (2) subsequent to the consummation
of a merger or consolidation that does not constitute a Change in Control, the term
the Company shall refer to the resulting entity and the term Board shall refer to
the board of directors (or comparable governing body) of the resulting entity.
|
(g) |
Code
. Code means the Internal Revenue Code of 1986, as amended
(including, when the context requires, all regulations, interpretations and rulings
issued thereunder). Any reference to a specific provision of the Code includes a
reference to that provision as it may be amended from time to time and to any successor
provision.
|
(h) |
Common Stock
. Common Stock means the Class A common stock, $0.01 par
value, of the Company.
|
(i) |
Company
. Company means Dynegy Inc., a Delaware corporation.
|
(j) |
Company Deferral Account
. Company Deferral Account shall have the
meaning specified in Section 4.1(a) hereof.
|
(k) |
Computation Date
. Computation Date shall have the meaning specified
in Section 7.1.
|
(l) |
Deferred Money Account
. Deferred Money Account shall have the
meaning specified in Section 4.2(d) hereof.
|
2
(m) |
Dynegy Stock Fund
. Dynegy Stock Fund shall have the meaning
specified in Section 5.1 hereof.
|
(n) |
Effective Date
. Effective Date means January 1, 2008.
|
(o) |
Exchange Act
. Exchange Act means the Securities Exchange Act of
1934, as amended. Any reference to a specific provision of the Exchange Act includes a
reference to that provision as it may be amended from time to time and to any successor
provision.
|
(p) |
Funds
. Funds shall have the meaning specified in Section 5.1 hereof.
|
(q) |
Grandfathered Deferral Account
. Grandfathered Deferral Account means
the balances of a Participants Company Deferral Account and Deferred Money Account
that are attributable to deferrals prior to January 1, 2005 and the related earnings
thereon, if any.
|
(r) |
Participant
. Participant is a current or a former Qualified Director
whose account amounts have been credited under the Plan and who has not ceased to be a
Participant pursuant to Section 3.1.
|
(s) |
Phantom Stock Amount
. Phantom Stock Amount means the quarterly
phantom stock grant dollar amount for a member of the Board as recommended by the
Governance Committee of the Company and approved by the Board.
|
(t) |
Plan
. Plan means the Dynegy Inc. Deferred Compensation Plan For
Certain Directors as provided herein and as amended from time to time.
|
(u) |
Plan Administrator
. Plan Administrator means the Company; provided,
that the Company has delegated to Dynegy Administrative Services Company, an Affiliate,
certain recordkeeping and plan administration functions.
|
(v) |
Plan Rules
. Plan Rules means the rules, policies, practices or
procedures adopted by the Plan Administrator pursuant to Section 11.1.
|
(w) |
Plan Year
. Plan Year means the period commencing on January 1 of
each calendar year and continuing through December 31 of such calendar year.
|
(x) |
Qualified Director
. Qualified Director shall have the meaning
specified in Section 3.1 hereof.
|
(y) |
Section 409A
. Section 409A means Code Section 409A and all rules,
regulations, interpretations and rulings issued thereunder.
|
(z) |
Section 409A Change in Control
. Section 409A Change in Control shall
have the meaning specified in Section 10.2(b).
|
(aa) |
Securities Act
. Securities Act means the Securities Act of 1933, as
amended. Any reference to a specific provision of the Securities Act includes a
reference to that provision as it may be amended from time to time and to any successor
provision.
|
3
(bb) |
Separation from Service
. Separation from Service means a complete
termination of a Qualified Directors service with the Company and all Affiliates as a
director, voluntarily or involuntarily, for any reason or, if less than a complete
termination, such service decreases to a level that is less than 20 percent of the
average level of services performed by the Participant over the immediately preceding
36-month period. For the sake of clarity and notwithstanding anything to the contrary,
a Participant shall be considered to have incurred a Separation from Service for
purposes of the Plan if such separation constitutes a separation from service within
the meaning of Final Regulation Section 1.409A-1(h).
|
(cc) |
Trading Day
. Trading Day means a day during which trading in
securities generally occurs in the principal securities market in which Common Stock is
traded.
|
(dd) |
Trust
. Trust means one or more grantor trusts established, if any,
as provided in Article IX, by and between Dynegy Administrative Services Company, as a
Plan Administrator pursuant to the delegation of certain administrative authority by
the Company, and the trustee named pursuant to a trust agreement.
|
3.1 |
Participation
. An individual who is a member of the Board and who is not an employee
of the Company or any Affiliate, shall become a Qualified Director under the Plan 0n the later
0f (a) the Effective Date 0r (b) the date he 0r she becomes such a Board member. An
individual who was a Qualified Director or other Participant in the Plan on the day prior to
the Effective Date shall remain as a Qualified Director or Participant in the Plan as of the
Effective Date. An individual shall cease to be a Participant as of the date his or her
account balances have been distributed.
|
4.1 |
Company Deferrals
.
|
(a) |
Quarterly Deferral Amount
. On each March 31, June 30, September 30 and
December 31 that occurs after the Effective Date, the Plan Administrator shall credit
to a Company deferral account on behalf of each Qualified Director (a Company Deferral
Account) a number of hypothetical shares (including fractional shares) of Common Stock
equal to (a) the Phantom Stock Amount divided by (b) the closing price of a share of
Common Stock on the last Trading Day of the calendar quarter ending on such March 31,
June 30, September 30 or December 31, as applicable; provided, however, that a
Qualified Directors Company Deferral Account shall receive such credit only if such
individual was a Qualified Director on the March 31, June 30, September 30 or December
31 to which such credit relates or he or she incurred a Separation from Service during
the calendar quarter ending on such date by reason of death or disability. The Company
Deferral Account shall be a bookkeeping entry only and shall be utilized solely as a
device for the measurement and determination of the amount to be paid to a Participant
pursuant to the Plan, if any.
|
(b) |
Dividends
. Dividends and other distributions that would be paid with
respect to a number of shares of Common Stock equal to the number of hypothetical
shares of Common Stock credited to a Participants Company Deferral Account as of the
date of such dividend or other distribution shall be credited to the Participants
Company Deferral Account as of such date and shall be deemed to be invested in hypothetical
shares (including fractional shares) of Common Stock based on the closing price of a
share of Common Stock on the date of such dividend or other distribution (or the
next preceding Trading Day if such date is not a Trading Day). Amounts credited to a
Participants Company Deferral Account shall be paid to or on behalf of the
Participant as hereinafter provided.
|
(c) |
Vesting
. A Qualified Director shall be 100% vested in his or her
Company Deferral Account.
|
4
4.2 |
Director Deferrals
.
|
(a) |
Annual Election to Defer Cash Compensation
. With respect to any Plan
Year, a Qualified Director may irrevocably elect, in accordance with this Section 4.2
and Plan Rules, to defer the receipt of all or a portion of his or her Cash
Compensation earned during that Plan Year. In the event that the deferral election is
expressed as a percentage of Cash Compensation, any such deferral election will
automatically apply to any adjusted Cash Compensation during the applicable Plan Year.
|
(b) |
Time of Filing Election
. A deferral election will not be effective
unless it is made on a properly completed election form received by the Company before
the first day of the Plan Year to which the deferral election relates or such earlier
time as may be required by the Company. However, in the case of an individual who
first becomes a Qualified Director on or after the first day of a Plan Year, the
deferral election may be made within 30 days after the date such individual becomes a
Qualified Director, which shall apply to the Cash Compensation earned after the date of
such election; provided such new Qualified Director was not eligible to participate in
a plan of the Company that is to be aggregated with this Plan under Treasury Regulation
Section 1.409A-1(c)(2).
|
(c) |
Duration of Deferral Elections
. A deferral election made pursuant to
this Section 4.2 for a Plan Year (or remainder thereof in the case of a new Qualified
Director) is irrevocable after the latest date by which the deferral election is
required to be given to the Plan Administrator for such Plan Year (or remainder
thereof) and will remain in effect for future Plan Years unless and until the Qualified
Director changes his or her deferral for future Plan Years. A Qualified Director may
change his or her deferral, including reducing it to zero, by delivering a new deferral
election not later than the day before the first Plan Year to which the new deferral
election relates or such earlier time as may be required by the Plan Administrator.
|
(d) |
Deferred Money Account
. For each Qualified Director electing to defer
Cash Compensation under the Plan in accordance with this Section 4.2, there shall be
maintained a deferred money account (a Deferred Money Account). Deferred Compensation
of each Qualified Director shall be credited as a dollar amount to the Qualified
Directors Deferred Money Account on the date such Cash Compensation otherwise would be
payable in cash to the Qualified Director. The Deferred Money Account shall be a
bookkeeping entry only and shall be utilized solely as a device for the measurement and
determination of the amount to be paid to a Participant pursuant to the Plan, if any.
|
(e) |
Vesting
. A Participant shall at all times be 100% vested in his or her
Deferred Money Account.
|
5
5.1 |
Deemed Investments
. Each Participant shall designate, in accordance with Plan Rules,
the manner in which the amounts allocated to his or her Deferred Money Account shall be deemed
to be invested from among the investment funds made available from time to time for such
purpose (the Funds); provided, however, that one of the Funds that shall be made available
for purposes of this Section 5.1 shall be a hypothetical fund maintained by the Plan
Administrator consisting primarily of Common Stock (the Dynegy Stock Fund). A Participant
may designate one of such Funds for the deemed investment of all such amounts allocated to the
Participants Deferred Money Account, or he or she may split the deemed investment of such
amounts allocated to his or her Deferred Money Account among such Funds in such increments as
the Plan Administrator may prescribe. If a Participant fails to make a proper designation,
then his or her Deferred Money Account shall be deemed to be invested in the Fund or Funds
designated by the Plan Administrator from time to time in a uniform and nondiscriminatory
manner.
|
5.2 |
Changes to Deemed Investments
.
|
(a) |
A Participant may change his or her deemed investment designation for future
deferrals to be allocated to the Participants Deferred Money Account. Any such change
shall be made in accordance with Plan Rules, and the frequency of such changes may be
limited by the Plan Administrator.
|
(b) |
A Participant may elect to convert his or her deemed investment designation
with respect to the amounts already allocated to the Participants Deferred Money
Account. Any such conversion shall be made in accordance with Plan Rules, and the
frequency of such conversions may be limited by the Plan Administrator. No election of
a conversion designation by a Participant which has the effect of increasing the total
amount allocated to the Dynegy Stock Fund may be made on a date which is less than six
months following (i) the date of any prior election of a conversion designation by such
Participant which had the effect of decreasing the total amount allocated to the Dynegy
Stock Fund or (ii) the date of any election by such Participant with respect to any
other plan of the Company or any subsidiary thereof which had the effect (directly or
indirectly) of making a disposition on behalf of such Participant of Common Stock. No
election of a conversion designation by a Participant which has the effect of
decreasing the total amount allocated to the Dynegy Stock Fund may be made on a date
which is less than six months following (1) the date of any prior election of a
conversion designation by such Participant which had the effect of increasing the total
amount allocated to the Dynegy Stock Fund or (2) the date of any election by such
Participant with respect to any other plan of the Company or any subsidiary thereof
which had the effect (directly or indirectly) of making an acquisition on behalf of the
Participant of Common Stock. The restrictions set forth in the two preceding sentences
shall not apply to a Participant at any time he or she is not subject to Section 16(b)
of the Exchange Act.
|
5.3 |
Exchange Act Restrictions
. The restrictions contained in the Plan regarding
investment designations, changes, and/or conversions by Participants who are subject to
Section 16(b) of the Exchange Act respecting the Dynegy Stock Fund are intended to comply
with, and enable such Participants to rely upon, the exemption provided by Rule 16b-3 under
the Exchange Act. Any future amendment to Rule 16b-3 or any successor rule promulgated by the
Securities and Exchange Commission affecting the investment by such Participants in the Dynegy
Stock Fund shall be incorporated by reference herein and be deemed to be an amendment to the
Plan in order that such Participants shall continue to be entitled to rely upon the exemption
provided by such rule without any interruption. Notwithstanding the foregoing, the Board may alter the
designation, change and/or conversion restrictions applicable to Participants, as set forth
in the Plan, as a result of changes in Rule 16b-3 under the Exchange Act.
|
5.4 |
Earnings Allocations and Account Statements
. The balance of each account maintained
on behalf of a Participant shall reflect the result of daily pricing of the assets in which
such account is deemed invested from time to time until the time of distribution. Each
Participant shall be furnished at least annually with a statement of his accounts, which
statement shall show the balance, if any, credited to each of his or her Deferred Money
Account and Company Deferral Account.
|
6
6.1 |
Distributions
.
|
(a) |
Elections as to Time and Form of Payment
.
|
(i) |
Initial Election
. Except as otherwise provided in this
Section 6.1(a)(iv) or in Sections 6.1(g), 7.1 and 10.2, a Participant shall
elect, in accordance with Plan Rules and subject to Section 409A, the manner of
distribution (as described in clause (ii)) and the time of distribution (as
defined in clause (iii)), provided such election, as it relates to deferrals
under Sections 4.1 and 4.2, is made no later than the date of the initial
deferral election in the first year of participation and, as it relates to
deferrals credited under Sections 4.1 and 4.2 after the first year of
participation, is made no later than the close of the Plan Year preceding the
first Plan Year during which the services giving rise to such Cash Compensation
are performed or such earlier time as may be required by the Plan
Administrator.
|
(ii) |
Form of Distribution
. When making an election as to
the form of payment of his or her Accounts, a Participant may elect to receive
the balance in such Accounts in a lump sum or in monthly, quarterly, or annual
installment payments over a specified term certain. In the event a Participant
fails to elect (or elect timely) the form in which his or her Account benefit
payments are to be made, such benefit payments shall be in the form of a
single, lump sum payment to such Participant.
|
(iii) |
Time of Distribution
. When making an election as to
the time of payment of his or her Accounts, a Participant may elect to receive
the balance in such Accounts as of the later of his or her Separation from
Service or a specified date or dates following his or her Separation from
Service. If no such election is made with respect to such Accounts, the
Participants Accounts will be distributed as of his or her Separation from
Service. Distribution upon a Separation from Service will be made, or will
commence, as soon as administratively practicable following his or her
Separation from Service, but no later than the end of the calendar year in
which the Separation from Service occurs or, if later, the 15
th
day
of the third month following the Separation from Service. Distributions upon a
specified date will be made, or will commence, as soon as administratively
practicable following such specified date, but no later than the end of the
calendar year in which the specified date occurs or, if later, the
15
th
day of the third month following the specified date.
|
(iv) |
Redeferral Election
. A Participant may elect to change
the time and manner of his or her distribution provided, in accordance with
Treasury Regulation Section 1.409A-2(b), (A) the Participant elects, in accordance with Plan Rules and
subject to Section 409A, at least twelve (12) months prior to the date that
the Participants first scheduled payment was to begin, (B) the election may
not take effect until at least 12 months after the date on which the
election is made, and (C) the election defers the first payment at least
five (5) years beyond the date
|
7
(b) |
Medium of Distribution
. Subject to the provisions of the Plan that
specify that certain payments shall be made in cash, a Participant shall have the right
to make a one-time election, in accordance with Plan Rules, to receive payments under
the Plan that are attributable to the balance in his or her Company Deferral Account in
shares of Common Stock or cash; provided, however, that if the Company determines that
shareholder approval of this restatement of the Plan is necessary or desirable under
applicable law and/or the rules of any national or regional securities exchange on
which the Common Stock has been listed in order to make such payments under the Plan in
shares of Common Stock, then a Participant shall not have the right to make any such
election and he or she shall be deemed to have elected to receive such payments in cash
if the first such payment that is payable to such Participant is required to be paid to
him or her pursuant to this Section 6.1 prior to the date upon which such shareholder
approval is obtained by the Company.
|
(c) |
Amount of Distribution for Deferred Money Account
. Payments under the
Plan that are attributable to the balance in a Participants Deferred Money Account
shall be paid in cash, and the amount of each such payment shall be computed by
dividing the unpaid balance in the Participants Deferred Money Account (determined as
of the date of such payment unless another determination date is expressly specified in
the Plan) by the remaining number of payments to be made under the Plan to the
Participant.
|
(d) |
Amount of Distribution for Company Deferral Account
.
|
(i) |
Common Stock Payment
. If a Participant elects to
receive such payments in shares of Common Stock, then the number of shares
included in each payment shall equal the number of whole shares determined by
dividing the total number of hypothetical shares of Common Stock credited to
his or her Company Deferral Account as of the date of such payment by the
remaining number of payments to be made under the Plan to the Participant (and
the value of any fractional share shall be paid in cash based on the closing
price of a share of Common Stock on the Trading Day next preceding the date of
payment).
|
(ii) |
Cash Payment
. If a payment to a Participant under the
Plan that is attributable to the Participants Company Deferral Account is to
be paid in cash, then the amount of such payment shall be computed by dividing
the unpaid value of the Participants Company Deferral Account (determined
based on the closing price of a share of Common Stock on the Trading Day next
preceding the date of such payment (or on the Trading Day next preceding such
other determination date as is expressly specified in the Plan)) by the
remaining number of payments to be made under the Plan to the Participant.
|
8
(e) |
Adjustments to Dynegy Stock Fund
. If the Company determines that any
distribution (whether in the form 0f cash, shares, other securities, or other
property), recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of shares or
other securities of the Company, issuance of warrants or other rights to purchase
shares or other securities of the Company, or other similar corporate transaction or
event affects the Common Stock such that an adjustment is determined by the Company to
be appropriate in order to prevent dilution or enlargement of the benefits intended to
be provided under the Plan, then the Company shall, in such manner as it may deem
equitable, adjust any or all of (i) the number and type of shares of Common Stock (or
other securities or property) comprising the Dynegy Stock Fund, (ii) the number and
type of hypothetical shares of Common Stock (or other securities or property) credited
to a Participants Company Deferral Account, and (iii) the number and type of shares of
Common Stock (or other securities or property), if any, to be distributed to a
Participant pursuant to Section 6(b).
|
(f) |
Adjustments to Accounts
. Once an amount has been paid to a Participant
or his Beneficiary, such amount shall be debited from the Participants Deferred Money
Account or Company Deferral Account, as applicable.
|
(g) |
Death of Participant
. If a Participant shall cease to be a Board
member by reason of his or her death or if he or she shall die after he or she shall be
entitled to distributions hereunder but prior to receipt of all distributions
hereunder, then the aggregate unpaid balance in such Participants Deferred Money
Account and Company Deferral Account (computed as of the date of his or her death)
shall be distributed in a single, lump sum cash payment to such Beneficiary as the
Participant shall designate in accordance with Article VIII, or in the absence of such
designation, shall be distributed to the individual or estate as determined under
Section 8.4. Distribution shall be made as soon as possible following the
Participants death, but no later than the end of the calendar year in which such death
occurs or, if later, the 15
th
day of the third month following such death.
|
7.1 |
Change in Control
. Notwithstanding any provision in Article VI to the contrary, if a
Qualified Director incurs a Separation from Service with the Company (or any successor) as a
result of or in connection with a Change in Control that occurs no later than two years
following such Change in Control, then the aggregate unpaid balance in the Participants
Deferred Money Account and Company Deferral Account (computed as of the later of the date of
such Change in Control or the date such Participant incurs such a Separation from Service with
the Company (or any successor) (the Computation Date)) shall be paid to the Participant in a
single, lump sum cash payment as soon as administratively feasible, but no later than 30 days,
after the Computation Date in full satisfaction of all of such Qualified Directors benefits
hereunder.
|
9
8.1 |
Beneficiary
. Each Participant shall have the right, at any time, to designate his or
her Beneficiary(ies) (both primary as well as contingent) to receive any benefits payable
under the Plan to a beneficiary upon the death of a Participant.
|
8.2 |
Beneficiary Designation; Change of Beneficiary Designation
. A Participant shall
designate his or her Beneficiary by completing and signing a beneficiary designation form, and
returning it to the Plan Administrator. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise complying with the terms of a beneficiary
designation form and Plan Rules, as in effect from time to time. Upon the acceptance by the
Plan Administrator of a new beneficiary designation form, all Beneficiary designations
previously filed shall be canceled. The Company shall be entitled to rely on the last
beneficiary designation form filed by the Participant and accepted by the Plan Administrator
prior to his or her death.
|
8.3 |
Acknowledgment
. No designation or change in designation of a Beneficiary shall be
effective until received and acknowledged in writing by the Plan Administrator.
|
8.4 |
No Beneficiary Designation
. If a Participant fails to designate a Beneficiary as
provided in Sections 8.1, 8.2 and 8.3 above or, if all designated Beneficiaries predecease the
Participant or die prior to complete distribution of the Participants benefits, then the
benefits remaining under the Plan to be paid to a Beneficiary shall be payable to the executor
or personal representative of the Participants estate, or if none is appointed within six
months of his or her death, to his or her spouse, or if not then living, to his or her then
living descendents, per stirpes.
|
8.5 |
Doubt as to Beneficiary
. If the Plan Administrator has any doubt as to the proper
Beneficiary to receive payments pursuant to the Plan, the Plan Administrator shall have the
right, exercisable in its discretion, to withhold such payments until this matter is resolved
to the Plan Administrators satisfaction.
|
8.6 |
Discharge of Obligations
. The payment of benefits under the Plan to a Beneficiary
shall fully and completely discharge the Company and all Affiliates from all further
obligations under the Plan with respect to the Participant.
|
9.1 |
Unfunded Nature of Plan and Participants Rights Unsecured
. The Plan constitutes a
mere promise by the Company to make benefit payments in the future. Plan benefits herein
provided are to be paid out of the general assets of Dynegy Administrative Services Company,
an Affiliate of the Company, and the right of any Participant to receive a distribution
hereunder shall be an unsecured claim against the general assets of the Company and Dynegy
Administrative Services Company, an Affiliate of the Company. The deferred compensation and
benefits hereunder may not be encumbered or assigned by a Participant. The Plan Administrator
may, but shall not be obligated to, acquire shares of outstanding Common Stock, or other
investment assets from time to time in anticipation of the obligation to make distributions
under the Plan, but no Participant shall have any rights in or against any shares of Common
Stock or other investment assets so acquired or in any cash or other investment assets held in
his or her Company Deferral Account and Deferred Money Account. All such Common Stock, other
investment assets and cash shall constitute general assets of Dynegy Administrative Services
Company and may be disposed of by the Plan Administrator at such time and for such purposes as
it may deem appropriate.
|
10
9.2 |
Discretionary Establishment of Trust
. Notwithstanding anything to the contrary,
Dynegy Administrative Services Company, in its sole and absolute discretion in its role as a
Plan Administrator pursuant to the delegation of certain administrative authorities by the
Company, may establish one or more accounts, funds or grantor trusts (the Trust) to reflect
obligations under the Plan and may make such investments as it may deem desirable to assist in
meeting such obligations. The Plan Administrator may transfer money or other property to any
such Trust, and the Trust shall pay Plan benefits to Participants and their Beneficiaries out
of the Trust Fund. Assets held in such Trust shall remain assets of Dynegy Administrative
Services Company, subject to the claims of general creditors of Dynegy Administrative Services
Company. No Participant or Beneficiary shall have any preferred claim to, or any beneficial
ownership interest in, any assets of the Trust, and Participants shall have the status of
general unsecured creditors of the Company and Dynegy Administrative Services Company.
|
9.3 |
Interrelationship of the Plan and the Trust
. The provisions of the Plan shall govern
the rights of a Participant to receive distributions pursuant to the Plan. The provisions of
the Trust shall govern the rights of Dynegy Administrative Services Company, Participants and
the creditors of the Company and Dynegy Administrative Services Company to the assets
transferred to the Trust. The Company shall at all times remain liable to carry out its
obligations under the Plan.
|
9.4 |
Distributions From the Trust
. The Companys obligations under the Plan may be
satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such
distribution shall reduce the Companys obligations under the Plan.
|
10.1 |
Amendments to the Plan
. The Board may amend the Plan at any time, without the
consent of the Participants or other beneficiaries; provided, however, that no amendment shall
divest any Participant or Beneficiary of rights to which he or she would have been entitled if
the Plan had been terminated on the effective date of such amendment except to the extent
necessary to comply with any applicable law, rule or regulation, including, but not limited
to, Code Section 409A. Notwithstanding the foregoing, the Plan and any payment hereunder may
be amended unilaterally by the Board at any time to make such changes as may be required to
comply with Section 409A.
|
10.2 |
Termination of the Plan
. The Board shall have the right to terminate the Plan at any
time. Upon termination of the Plan, distributions in respect of credits to a Participants
account as of the date of the termination shall be made in the manner and at the time
heretofore prescribed. If the Plan is terminated and a Trust has been established (as
described in Section 9.1), the Trust will pay benefits as provided under the amended or
terminated Plan. Notwithstanding the foregoing, the Board may, in its sole discretion,
terminate the Plan and accelerate the time and form of payment of benefits under the Plan,
only under the following circumstances:
|
(a) |
The Board may terminate and liquidate the Plan within twelve months of a
corporate dissolution taxed under Code Section 331, or with the approval of a
bankruptcy court pursuant to 11 U.S.C. § 503(b)(1)(A), provided that the remaining
unpaid benefits under the Plan are included in the Participants respective gross
incomes in the latest of: (A) the calendar year in which the Plan termination and
liquidation occurs; (B) the first calendar year in which such benefits are no longer
subject to a substantial risk of forfeiture; or (C) the first calendar year in which
the payment is administratively practicable.
|
(b) |
The Board may terminate and liquidate the Plan in connection with the
occurrence of a change in control event (within the meaning of Treasury Regulation
Section 1.409A-3(i)(5)) (a Section 409A Change in Control), provided that the
following requirements are satisfied:
|
(i) |
The Board takes irrevocable action to terminate and liquidate
the Plan during the period beginning thirty (30) days preceding the Section
409A Change in Control and ending twelve (12) months following such Section
409A Change in Control;
|
11
(ii) |
The benefits of each Participant under the Plan and all other
plans and other arrangements that are treated as single plan with this Plan
under Treasury Regulation Sections 1.409A-1(c) and 1.409A-3(j)(4)(ix)
(collectively, the Other Arrangements) are distributed within twelve (12)
months following the date that all necessary action to terminate and liquidate
the Plan and the Other Arrangements is irrevocably taken; and
|
(iii) |
All Other Arrangements are terminated and liquidated with
respect to each Participant who experienced such Section 409A Change in
Control. For purposes of any Section 409A Change in Control that results from
an asset purchase transaction, the applicable service recipient (within the
meaning of Code Section 409A) with the discretion to liquidate and terminate
the Plan and the Other Arrangements shall be the service recipient that is
primarily liable immediately after the transaction for the payment of the Plan
benefits.
|
(c) |
The Board may terminate and liquidate the Plan for any other reason, provided
that:
|
(i) |
The termination and liquidation of the Plan does not occur
proximate to a downturn in the financial health of the Company and all of its
Affiliates;
|
(ii) |
The Company and all of its Affiliates terminate and liquidate
all Other Arrangements;
|
(iii) |
No payments in liquidation of the Plan are made within twelve
months of the date that the Company takes all necessary action to irrevocably
terminate and liquidate the Plan, other than payments that would be payable
under the terms of the Plan if the action to terminate and liquidate the Plan
had not occurred;
|
(iv) |
All payments are made within 24 months of the date that the
Company takes all necessary action to irrevocably terminate and liquidate the
Plan; and
|
(v) |
The Company and all Affiliates do not adopt any Other
Arrangement at any time during the three-year period following the date the
Company takes all necessary action to irrevocably terminate and liquidate the
Plan.
|
(d) |
The Board may terminate and liquidate the Plan upon such other events and
conditions as permitted under Section 409A.
|
11.1 |
Plan Rules and Regulations
. The Plan Administrator has the discretionary power and
authority to make such Plan Rules as the Plan Administrator determines to be consistent with
the terms, and advisable in connection with the administration, of the Plan and to modify or
rescind any such Plan Rules.
|
11.2 |
Discretion
. The Plan Administrator has the sole discretionary power and authority to
make all determinations necessary for administration of the Plan and to construe, interpret,
apply and enforce the provisions of the Plan and Plan Rules whenever necessary to carry out
its intent and purpose and to facilitate its administration, including, without limitation,
the discretionary power and authority to remedy ambiguities, inconsistencies, omissions and
erroneous benefit calculations and to make a determination as to the right of any person to a
benefit under the Plan. In the exercise of its discretionary power and authority, the Plan
Administrator will treat all similarly situated persons uniformly.
|
12
12.1 |
Payment in Event of Incapacity
. If any individual entitled to receive any payment
under the Plan is, in the judgment of the Plan Administrator, physically, mentally or legally
incapable of receiving or acknowledging receipt of the payment, and no legal representative
has been appointed for the individual, the Plan Administrator may (but is not required to)
cause the payment to be made to any one or more of the following as may be chosen by the Plan
Administrator: the Beneficiary; the institution maintaining the individual; a custodian for
the individual under the Uniform Transfers to Minors Act of any state; or the individuals
spouse, child, parent, or other relative by blood or marriage. The Plan Administrator is not
required to see to the proper application of any such payment, and the payment completely
discharges all claims under the Plan against the Company, and the Plan to the extent of the
payment.
|
12.2 |
Expenses
. Costs of administration of the Plan will be paid by the Plan
Administrator.
|
12.3 |
Securities Law and Other Restrictions
. Notwithstanding any other provision of the
Plan or any agreements entered into pursuant to the Plan to the contrary, the Company is not
required to issue or distribute any Common Stock under the Plan, and a Participant or
distributee may not sell, assign, transfer or otherwise dispose of Common Stock issued or
distributed pursuant to the Plan, unless (a) there is in effect with respect to such Common
Stock a registration statement under the Securities Act and any applicable securities laws of
a state or foreign jurisdiction or an exemption from such registration under the Securities
Act and applicable state or foreign securities laws, and (b) there has been obtained any other
consent, approval or permit from any other regulatory body which the Company, in its sole
discretion, deems necessary or advisable. The Company may condition such issuance,
distribution, sale or transfer upon the receipt of any representations or agreements from the
parties involved, and the placement of any legends on certificates representing Common Stock,
as may be deemed necessary or advisable by the Company in order to comply with such securities
law or other restrictions.
|
12.4 |
No Rights to Continued Service Created
. Neither the establishment of or
participation in the Plan gives any individual the right to continued service on the Board or
limits the right of the Company or its stockholders to terminate or modify the terms and
conditions of service of such individual on the Board or otherwise deal with any individual
without regard to the effect that such action might have on him or her with respect to the
Plan.
|
12.5 |
Successors
. Except as otherwise expressly provided in the Plan, all obligations of
the Company under the Plan are binding on any successor to the Company whether the successor
is the result of a direct or indirect purchase, merger, consolidation or otherwise of all of
the business and/or assets of the Company.
|
12.6 |
Governing Law
. Questions pertaining to the construction, validity, effect and
enforcement of the Plan will be determined in accordance with the internal, substantive laws
of the State of Delaware without regard to the conflict of laws rules of the State of Delaware
or any other jurisdiction.
|
13
12.7 |
Headings
. The headings of Sections are included solely for convenience of reference;
if there exists any conflict between such headings and the text of the Plan, the text will
control.
|
DYNEGY INC.
|
||||
By: | /s/ J. Kevin Blodgett | |||
Name: | J. Kevin Blodgett | |||
Title: | EVP, Administration |
14
(a) |
For the period preceding July 1, 2003, amounts credited to a
Participants Deferred Money Account shall be deemed to be invested in
accordance with the provisions of the Plan then in effect. From and after July
1, 2003, amounts credited to a Participants Deferred Money Account shall be
deemed to be invested in accordance with the following provisions of this
Section 1.
|
(b) |
Each Participant shall designate, in accordance with the
procedures established from time to time by the Company, the manner in which
the amounts allocated to his or her Deferred Money Account shall be deemed to
be invested from among the Funds; provided, however, that one of the Funds that
shall be made available for purposes of this Section 1 shall be the Dynegy
Stock Fund. Such Participant may designate one of such Funds for the deemed
investment of all such amounts allocated to the Participants Deferred Money
Account or he or she may split the deemed investment of such amounts allocated
to his or her Deferred Money Account among such Funds in such increments as the
Company may prescribe. If a Participant fails to make a proper designation,
then his or her Deferred Money Account shall be deemed to be invested in the
Fund or Funds designated by the Company from time to time in a uniform and
nondiscriminatory manner.
|
(c) |
A Participant may change his or her deemed investment
designation for future deferrals to be allocated to the Participants Deferred
Money Account. Any such change shall be made in accordance with the procedures
established by the Company, and the frequency of such changes may be limited by
the Company.
|
(d) |
A Participant may elect to convert his or her deemed investment
designation with respect to the amounts already allocated to the Participants
Deferred Money Account. Any such conversion shall be made in accordance with
the procedures established by the Company, and the frequency of such
conversions may be limited by the Company. No election of a conversion
designation by a Participant which has the effect of increasing the total
amount allocated to the Dynegy Stock Fund may be made on a date which is less
than six months following (i) the date of any prior election of a conversion
designation by such Participant which had the effect of decreasing the total
amount allocated to the Dynegy Stock Fund or (ii) the date of any election by
such Participant with respect to any other plan of the Company or any
subsidiary thereof which had the effect (directly or indirectly) of making a
disposition on behalf of such Participant of Common Stock. No election of a
conversion designation by a Participant which has the effect of decreasing the
total amount allocated to the Dynegy Stock Fund may be made on a date which is
less than six months following (1) the date of any prior election of a
conversion designation by such Participant which had the effect of increasing
the total amount allocated to the Dynegy Stock Fund or (2) the date of
any election by such Participant with respect to any other plan of the
Company or any subsidiary thereof which had the effect (directly or
indirectly) of making an acquisition on behalf of the Participant of Common
Stock. The restrictions set forth in the two preceding sentences shall not
apply to a Participant at any time he or she is not subject to Section 16(b)
of the Exchange Act.
|
15
(e) |
The restrictions contained in the Plan regarding investment
designations, changes, and/or conversions by Participants who are subject to
Section 16(b) of the Exchange Act respecting the Dynegy Stock Fund are intended
to comply with, and enable such Participants to rely upon, the exemption
provided by Rule 16b-3 under the Exchange Act. Any future amendment to Rule
16b-3 or any successor rule promulgated by the Securities and Exchange
Commission affecting the investment by such Participants in the Dynegy Stock
Fund shall be incorporated by reference herein and be deemed to be an amendment
to the Plan in order that such Participants shall continue to be entitled to
rely upon the exemption provided by such rule without any interruption.
Notwithstanding the foregoing, the Board may alter the designation, change
and/or conversion restrictions applicable to Participants, as set forth in the
Plan, as a result of changes in Rule 16b-3 under the Exchange Act.
|
(a) |
If a Participants service as a director terminates prior to
July 1, 2003, then such Participants benefits under the Plan shall be paid in
accordance with the provisions of the Plan then in effect. Subject to the
provisions of Sections 3(c), 4 and 7, if a Participants service as a director
terminates during the six-month period beginning on July 1, 2003, then the
aggregate amounts credited to his or her Deferred Money Account and Company
Deferral Account (determined as provided in Sections 3(d), (e), (f) and (g))
shall be paid to such Participant in such number of annual installments as
shall be determined by the Company in its sole discretion (but not exceeding
ten (10) annual installments). The Company may counsel with a Participant prior
to such determination, and each such annual installment shall be made as of
January 31, beginning with the January 31 following the termination of the
Participants service as a director. Except as expressly provided in the
preceding provisions of this Section 3(a), the following provisions of this
Section 3 shall apply only to a Participant whose service as a director
terminates after December 31, 2003.
|
(b) |
A Participant shall elect, subject to the provisions of
Sections 3(c), 4 and 7, the time (which may not be prior to the date on which
he or she terminates service as a director) and the mode (which may either be a
lump sum payment or monthly, quarterly, or annual installment payments over a
specified term certain) for payment of the aggregate amounts credited to his or
her Deferred Money Account and Company Deferral Account. A Participant may
revise his or her election regarding the time and mode of payment of amounts
credited to his or her accounts only if, and at such time as, such revised
election is approved by a Rule 16b-3 Committee (as hereinafter
|
16
(c) |
If a Participant shall cease to be a director by reason of his
or her death or if he or she shall die after he or she shall be entitled to
distributions hereunder but prior to receipt of all distributions hereunder,
then the aggregate unpaid balance in such Participants Deferred Money Account
and Company Deferral Account (computed as of the date of his or her death)
shall be distributed in a single lump sum cash payment to his or her
Beneficiary, or in the absence of such designation, to his or her personal
representative, or if none is appointed within six months of his or her death
to his or her spouse, or if not then living, to his or her then living
descendents, per stirpes.
|
(d) |
Payments under the Plan that are attributable to the balance in
a Participants Deferred Money Account shall be paid in cash, and the amount of
each such payment shall be computed by dividing the unpaid balance in the
Participants Deferred Money Account (determined as of the date of such payment
unless another determination date is expressly specified in the Plan) by the
remaining number of payments to be made under the Plan to the Participant
|
(e) |
Subject to the provisions of the Plan that specify that certain
payments shall be made in cash, a Participant shall have the right to make a
one-time election (at the time and in accordance with the procedures prescribed
by the Company) to receive payments under the Plan that are attributable to the
balance in his or her Company Deferral Account in shares of Common Stock or
cash; provided, however, that if the Company determines that shareholder
approval of this restatement of the Plan is necessary or desirable under
applicable law and/or the rules of any national or regional securities exchange
on which the Common Stock has been listed in order to make such payments under
the Plan in shares of Common Stock, then a Participant shall not have the right
to make any such election and he or she shall be deemed to have elected to
receive such payments in cash if the first such payment that is payable to such
Participant is required to be paid to him or her pursuant to this Section 3
prior to the date upon which such shareholder approval is obtained by the
Company. If the Participant elects to receive such payments in shares of Common
Stock, then the number of shares included in each payment shall equal the
number of whole shares determined by dividing the total number of hypothetical
shares of Common Stock credited to his or her Company Deferral Account as of
the date of such payment by the remaining number of payments to be made under
the Plan to the Participant (and the value of any fractional share shall be
paid in cash based on the closing price of a share of Common Stock on the
Trading Day next preceding the date of payment). If a payment to a Participant
under the Plan that is attributable to the Participants Company Deferral
Account is to be paid in cash, then the amount of
such payment shall be computed by dividing the unpaid value of the
Participants Company Deferral Account (determined based on the closing
price of a share of Common Stock on the Trading Day next preceding the date
of such payment (or on the Trading Day next preceding such other
determination date as is expressly specified in the Plan)) by the remaining
number of payments to be made under the Plan to the Participant.
|
17
(f) |
If the Company determines that any distribution (whether in the
form of cash, shares, other securities, or other property), recapitalization,
stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of shares or other
securities of the Company, issuance of warrants or other rights to purchase
shares or other securities of the Company, or other similar corporate
transaction or event affects the Common Stock such that an adjustment is
determined by the Company to be appropriate in order to prevent dilution or
enlargement of the benefits intended to be provided under the Plan, then the
Company shall, in such manner as it may deem equitable, adjust any or all of
(i) the number and type of shares of Common Stock (or other securities or
property) comprising the Dynegy Stock Fund, (ii) the number and type of
hypothetical shares of Common Stock (or other securities or property) credited
to a Participants Company Deferral Account, and (iii) the number and type of
shares of Common Stock (or other securities or property), if any, to be
distributed to a Participant pursuant to Section 3(e).
|
(g) |
Once an amount has been paid to a Participant or his
beneficiary, such amount shall be debited from the Participants Deferred Money
Account or Company Deferral Account, as applicable.
|
18
Pg. 2
Pg. 3
Pg. 4
Pg. 5
Pg. 6
Pg. 7
Pg. 8
Pg. 9
Pg. 10
Pg. 11
Pg. 12
ATTEST: | DYNEGY ADMINISTRATIVE SERVICES COMPANY | |||||||
|
||||||||
|
By: |
/s/ [ILLEGIBLE]
|
||||||
ATTEST: | VANGUARD FIDUCIARY TRUST COMPANY | |||||||
|
||||||||
/s/ [ILLEGIBLE]
|
By: |
/s/ [ILLEGIBLE]
|
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 |
(i)
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 |
(ii)
(iii)
1
2
For Plan Year | Applicable Percentage | |||
|
||||
2008
|
20 | % | ||
|
||||
2009
|
40 | % | ||
|
||||
2010
|
60 | % | ||
|
||||
2011
|
80 | % |
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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 |
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 |
18
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
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
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 | % |
69
70
DYNEGY INC.
|
||||
By: | ||||
Name: | ||||
Title: |
71
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 Participants 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 Participants 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
Participants 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 Participants 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
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 Participants 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 Participants 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 Participants executor (or administrator of the Participants estate)
paid for the benefit of such Participants estate or (B) his heirs at law if there
is no administration of such Participants estate.
|
||
|
||
A Participants 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 Participants 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 Participants 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 Participants Annuity Starting Date or
(b) such Participants Normal Retirement Date. For purposes of the Base
Compensation Accruals described in the preceding sentence, a Participants 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 Participants 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 Participants Portable Retirement Benefit in
accordance with conversion tables prepared by the Plans 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
Participants 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 Participants 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 Participants Annuity Starting Date precedes his Normal
Retirement Date.
|
(c)
Social Security Supplement
. If an Eligible Sithe Participants 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
Participants 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 Participants Surviving Spouse
is coincident with or following the date that would have been the Eligible Sithe
Participants Earliest Retirement Date if he had survived, and (4) the Eligible
Sithe Participants 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
Participants 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
81
82
83
84
Full Years of Vesting Service | Vested Interest | |||
Less than 5 years
|
0 | % | ||
5 years or more
|
100 | % |
85
86
87
88
89
90
91
92
93
94
95
96
97
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 |
98
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 |
99
Full Years of Vesting Service | Vested Interest | |||
|
||||
Less than 5 years
|
0 | % | ||
5 years or more
|
100 | % |
100
101
102
103
104
105
106
107
108
109
110
111
-i-
I. DEFINITIONS AND CONSTRUCTION
|
1 | |||
1.1
Definitions
|
1 | |||
1.2
Number and Gender
|
3 | |||
1.3
Headings
|
3 | |||
1.4
Reference to Plan Includes Constituent Benefit Programs
|
3 | |||
1.5
Inconsistent Provisions in Constituent Benefit Program Documents
|
3 | |||
1.6
Effect Upon Other Plans
|
3 | |||
II. ESTABLISHMENT AND PURPOSE OF THE PLAN
|
4 | |||
2.1
Establishment and Purpose of the Plan
|
4 | |||
2.2
Intention to be Welfare Benefit Plan
|
4 | |||
2.3
Incorporation of Constituent Benefit Programs
|
4 | |||
III. PARTICIPATION AND DEPENDENT COVERAGE
|
5 | |||
3.1
Eligible Employee Coverage
|
5 | |||
3.2
Eligible Dependent Coverage
|
5 | |||
3.3
Enrollment Without Regard
To
Medicaid Eligibility
|
6 | |||
3.4
Special Enrollment Periods
|
6 | |||
IV. THIRD PARTY LIABILITY
|
7 | |||
4.1
Effect of Article
|
7 | |||
4.2
Third Party Liability
Is
Primary
As
to Covered Expenses
|
7 | |||
4.3
Plans Rights of Reimbursement For Covered Expenses Previously Paid
|
7 | |||
4.4
Plans Exclusion of Coverage For Future Covered Expenses
|
7 | |||
4.5
Plans Rights of Independent Legal Action
|
7 | |||
4.6
Attorney Fees, Costs and Expenses
|
7 | |||
4.7
Obligations of Participants
|
8 | |||
4.8
Limitations on Plans Rights of Reimbursement
|
8 | |||
V. BENEFIT CLAIMS PROCEDURE
|
9 | |||
5.1
Claims For Benefits
|
9 | |||
5.2
Definitions
|
9 | |||
5.3
Filing of Benefit Claim
|
10 | |||
5.4
Processing of Benefit Claim
|
11 | |||
5.5
Notification of Adverse Benefit Determination
|
12 | |||
5.6
Timing of Adverse Benefit Determination Notification Regarding Health
Benefit Claims
|
12 | |||
5.7
Timing of Adverse Benefit Determination Notification Regarding
Disability Benefit Claims
|
14 | |||
5.8
Timing of Adverse Benefit Determination Regarding Non-Health and
Disability Claims
|
14 | |||
5.9
Review of Adverse Benefit Determination Regarding
Health or
Disability Benefit Claims
|
15 | |||
5.10
Review of Adverse Benefit Determination Regarding Non-Health and
Disability Benefit Claims
|
16 | |||
5.11
Notification of Benefit Determination on Review
|
17 |
-ii-
5.12
Timing of Notification Regarding Review of Health Benefit Claims
|
17 | |||
5.13
Timing of Notification Regarding Review of Disability Benefit Claims
|
18 | |||
5.14
Timing of Notification Regarding Review of Non-Health or Disability
Claims
|
18 | |||
5.15
Exhaustion of Administrative Remedies
|
18 | |||
5.16
Payment of Benefits
|
18 | |||
5.17
Authorized Representatives
|
19 | |||
VI. FUNDING OF PLAN
|
20 | |||
6.1
Source of Benefits
|
20 | |||
6.2
Participant Contributions
|
20 | |||
6.3 HMO
Premiums
|
20 | |||
6.4
Insurance Premiums
|
20 | |||
6.5
Trust
|
20 | |||
VII. ADMINISTRATION OF PLAN
|
21 | |||
7.1
Plan Administrator
|
21 | |||
7.2
Discretion to Interpret Plan
|
21 | |||
7.3
Powers and Duties
|
21 | |||
7.4
Expenses
|
22 | |||
7.5
Right to Delegate
|
22 | |||
7.6
Reliance on Reports, Certificates, and Participant Information
|
23 | |||
7.7
Indemnification
|
23 | |||
7.8
Fiduciary Duty
|
23 | |||
7.9
Compensation and Bond
|
23 | |||
VIII. AMENDMENT AND TERMINATION OF PLAN
|
24 | |||
8.1
Right to Amend
|
24 | |||
8.2
Right to Terminate
|
24 | |||
S3
Effect of Amendment or Termination
|
24 | |||
8.4
Delegation to Benefit Plans Committee
|
24 | |||
8.5
Effect of Oral Statements
|
24 | |||
IX. MISCELLANEOUS PROVISIONS
|
25 | |||
9.1 No
Guarantee of Employment
|
25 | |||
9.2
Payments to Minors and Incompetents
|
25 | |||
9.3 No
Vested Right to Benefits
|
25 | |||
9.4
Nonalienation of Benefits
|
25 | |||
9.5
Unknown Whereabouts
|
26 | |||
9.6
Participating Employers
|
26 | |||
9.7
Notice and Filing
|
26 | |||
9.8
Incorrect Information, Fraud, Concealment, or Error
|
27 | |||
9.9
Medical Responsibilities
|
27 | |||
9.10
Compromise of Claims
|
27 | |||
9.11
Electronic Administration
|
27 | |||
9.12
Tax Payments
|
27 | |||
9.13
Compensation and Bond
|
28 | |||
9.14
Jurisdiction
|
28 | |||
9.15
Severabilitv
|
28 |
-iii-
X. QUALIFIED MEDICAL CHILD SUPPORT ORDERS
|
29 | |||
XI. COBRA CONTINUATION COVERAGE
|
30 | |||
XII. FMLA COVERAGE
|
31 | |||
XIII. USERRA
|
32 | |||
XIV. RESTRICTIONS REGARDING PROTECTED HEALTH INFORMATION
|
33 | |||
14.1
Purpose of Article
|
33 | |||
14.2
Provision of Information to the Company Pursuant to Authorization
|
33 | |||
14.3
Provision of Summary Health Information to Company
|
33 | |||
14.4
General Provision of Health Information to Company
|
34 | |||
14.5
Adequate Separation
|
35 | |||
14.6
Privacy Officer
|
36 | |||
14.7
Coverage and Effective Date
|
38 | |||
APPENDIX A
|
A-1 | |||
APPENDIX B
|
B-1 |
-iv-
(1) |
Administrative Services Agreement
: The agreement(s) entered into with each individual
or entity providing administrative services with respect to one or more Constituent Benefit
Programs.
|
|
(2) |
Administrative Services Provider
: Any individual or entity operating under an
Administrative Services Agreement to provide administrative services with respect to any
benefits offered under one or more of the Constituent Benefit Programs.
|
|
(3) |
Board
: The board of directors of the Company.
|
|
(4) |
Cafeteria Plan
: The cafeteria plan, if any, established by the Employer under section
125 of the Code.
|
|
(5) |
Code
: The
Internal Revenue Code of 1986, as amended.
|
|
(6) |
Benefit Plans Committee
: The Committee to which the Board has delegated certain
Plan sponsor powers.
|
|
(7) |
Company
: Dynegy Inc.
|
|
(8) |
Compensation
: Unless otherwise specifically provided in a Constituent Benefit
Program, the annual base pay paid by the Employer to or for the benefit of a Participant
for services performed for the Employer.
|
|
(9) |
Condition
: Any sickness, injury, or other mental or physical disability giving rise
to the payment of benefits under the Plan.
|
|
(10) |
Constituent Benefit Programs
: The benefit programs listed on Appendix B to the Plan,
as such programs and such Appendix B may be amended from time to time.
|
|
(11) |
Constituent Benefit Program Document(s)
: The written document(s) setting forth the
terms of the applicable Constituent Benefit Program, including, but not limited to, the
benefits provided, the eligibility and enrollment requirements, the conditions of dependent
coverage, if applicable, the termination of coverage, and the terms and conditions of benefit
payments under each Constituent Benefit Program, as may be amended from time to time. Appendix
B describes the Constituent Benefit Program Document or Constituent Benefit Program Documents
for each Constituent Benefit Program. Appendix B also describes which Employers maintain which
Constituent Benefit Programs for their Eligible Employees.
|
|
(12) |
Covered Eligible Dependent
: Each Eligible Dependent who is covered under the Plan
pursuant to Section 3.2.
|
-1-
(13) |
Effective Date
: January 1, 2002, except as otherwise stated herein and except
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.
|
|
(14) |
Eligible Dependent
: With respect to an Eligible Employee, each person who by virtue
of a relationship to such Eligible Employee is eligible for coverage under a Constituent
Benefit Program.
|
|
(15) |
Eligible Employee
: Each individual who is eligible for coverage under a Constituent
Benefit Program because of current or former employment with the Employer. Notwithstanding any
provision of the Plan to the contrary, no individual who is designated, compensated, or
otherwise classified or treated by the Employer as an independent contractor, leased employee,
or other non-common law employee shall be an Eligible Employee, unless a Constituent Benefit
Program specifically and expressly provides otherwise.
|
|
(16) |
Employer
: The Company and each Participating Employer.
|
|
(17) |
ERISA
: The Employee Retirement Income Security Act of 1974, as amended.
|
|
(18) |
Group Health Plan
: Each Constituent Benefit Program, which is a group health plan
within the meaning of section 5000(b)(1) of the Code, and/or a group health plan within the
meaning of section 607(1) of ERISA, as applicable, and for purposes of Article XII, is either
a group health plan within the meaning of section 5000(b)(1) of the Code or any Constituent
Benefit Program designated by the Employer as a Group Health Plan for purposes of FMLA
Leave.
|
|
(19) |
HMO
: Any health maintenance organization or similar organization or network of
individuals or organizations that has contracted to provide medical, dental, and/or other
health-related benefits to Participants and Covered Eligible Dependents.
|
|
(20) |
Insured Constituent Benefit Program
: Each Constituent Benefit Program whose benefits
are provided by an Insurer.
|
|
(21) |
Insurer
: Any insurance company that has contracted to provide benefits under a
Constituent Benefit Program.
|
|
(22) |
Participant
: Each Eligible Employee who is a participant in the Plan pursuant to
Article III and, where reference is appropriate, each Covered Eligible Dependent.
|
|
(23) |
Participating Employer
: Any subsidiary or affiliate of the Company, or any other
entity permitted by law to do so, that has been designated by the Company as a participating
employer and participates in the Plan with respect to one or more Constituent Benefit
Programs.
|
|
(24) |
Plan
: The Dynegy Inc. Comprehensive Welfare Benefits Plan.
|
-2-
(25) |
Plan Administrator
: An individual, committee or entity appointed by the Board
to perform, in a fiduciary capacity as administrative fiduciary, certain identified duties
and responsibilities with respect to the administration of the Plan and/or a Constituent
Benefit Program.
|
|
(26) |
Plan Year
: The twelve-consecutive month period commencing on January 1 of each year.
|
|
(27) |
Recovery
: An amount obtained by or for the benefit of a Participant or Covered
Eligible Dependent from a Third Party, such Third Partys liability carrier, or in the case of
uninsured or underinsured motorist coverage, from such Participants or Covered Eligible
Dependents automobile insurance carrier because of a Condition for which a Third Party is
legally liable. In the case of a Recovery which, in whole or in part, includes assets other
than cash or cash equivalents, the Plan Administrator shall determine the monetary value
thereof.
|
|
(28) |
Third Party
: Any individual or entity who or which is or may be liable to a
Participant or Covered Eligible Dependent for a Condition or for payment of damages or
expenses related to a Condition.
|
-3-
-4-
-5-
-6-
-7-
-8-
(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 Claimants eligibility to participate in the Plan, and
including with respect to health benefits a denial, reduction, termination or failure
to provide or make payment resulting from the application of any utilization review, as
well the failure to cover an item or service for which benefits are otherwise provided
because it is determined to be experimental, investigational or not medically necessary
or appropriate. Further and with respect to health benefits, any reduction or
termination of an ongoing course of treatment prior to its scheduled expiration will be
treated as an Adverse Benefit Determination regarding a Concurrent Care Claim. Further,
any invalidation of a claim for failure to furnish written proof of loss or 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 Plan
Administrator that has powers and duties of benefit claims administration has delegated
day-to-day Plan administration responsibilities and who, pursuant to such delegation,
processes Plan benefit claims in the ordinary course or if none has been so designated,
the Plan Administrator that has powers and duties of benefits claims administration.
|
(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.
|
-9-
(4) |
Concurrent Care Claim
: Any request to extend an ongoing course of a health
benefit treatment beyond the period of time or number of treatments that has
previously been approved under the Plan.
|
||
(5) |
Health Care Professional
: A physician or other health care professional
licensed, accredited or certified to perform specified health services consistent with
State law.
|
||
(6) |
Independent Fiduciary
: The person or entity retained by the Plan
Administrator to perform the review of an Adverse Benefit Determination, who will be an
individual other than (a) the individual who made the Adverse Benefit Determination that
is the subject of the review and (b) the subordinate of such
individual.
|
||
(7) |
Post-Service Claim
: Any claim for a Plan health benefit that is not a
Pre-Service Claim.
|
||
(8) |
Pre-Service Claim
: Any claim for a Plan health benefit the terms of which
condition receipt thereof, in whole or in part, on approval of the benefit in advance of
obtaining medical care.
|
||
(9) |
Urgent Care Claim
: Any Plan health benefit claim for medical care or
treatment with respect to which the application of the time periods otherwise applicable
to such claim (a) could seriously jeopardize, as determined either by a physician with
knowledge of the Claimants medical condition or by the Benefits Administrator (applying
the judgment of a prudent layperson who possesses an average knowledge of health and
medicine), the Claimants life, health or ability to regain maximum function, or (b)
would subject the Claimant, in the opinion of a physician with knowledge of the
Claimants medical condition, to severe pain that cannot be adequately managed without
the care or treatment that is the subject of the claim.
|
-10-
(1) |
All materials submitted to the Benefits Administrator by the Claimant in
connection with the claim;
|
(2) |
A written description of why the Benefits Administrator was of the view that
the Claimants 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 Plan Administrator
in its consideration of the claim.
|
-11-
(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) |
In the case of a health or disability benefit claim and if an internal rule,
guideline, protocol or other similar criterion was relied upon in making the Adverse
Benefit Determination, either provide such criterion or state that such criterion was
relied upon and that a copy of the criterion will be provided free of charge to the
Claimant upon request;
|
(4) |
In the case of a health or disability benefit claim and if the Adverse Benefit
Determination is based on a medical necessity, experimental treatment or similar
exclusion or limit, either explain the scientific or clinical judgment for the
determination, applying the terms of the Plan to the Claimants medical circumstances,
or state that such explanation will be provided free of charge to the Claimant upon
request;
|
(5) |
Describe any additional material or information necessary for the Claimant to
perfect the claim and explain why such material or information is necessary;
|
(6) |
Describe the Plans review procedures and time limits applicable to such
procedures, including a statement of the Claimants right to bring a civil action under
section 502(a) of ERISA following an Adverse Benefit Determination on review; and
|
(7) |
If an Urgent Care Claim is involved, provide a description of the expedited
review process available for Urgent Care Claims (see Section 5.12).
|
(1) |
In the case of an Urgent Care Claim other than a Concurrent Care Claim, as
soon as possible, taking into account the medical exigencies, but not later than
seventy-two hours after the claim is filed with the Plan Administrator; provided,
however, that if additional information from the Claimant is necessary to complete
the claim, the Claimant will be notified within twenty-four hours after such claim is
filed with the Plan Administrator and will be given at least forty-eight hours to
provide the specified information, and notice of the Plan Administrators benefit
determination will be provided to the Claimant within forty-eight hours after the
earlier of (a) the Plan Administrators receipt of the specified information or (b)
the end of the period afforded the Claimant to provide the specified information. In
addition, such notification may be provided orally (provided that written or
electronic notification is provided within three days following such oral
notification).
|
-12-
(2) |
In the case of a properly submitted Urgent Care Claim that is a Concurrent Care
Claim, if such claim is made at least 24 hours prior to the scheduled expiration of
treatment, notice of the disposition of the claim will be furnished to the Claimant as
soon as possible, taking into account the medical exigencies, but not later than 24
hours after such claim is filed with the Plan Administrator. If such claim is not made
at least twenty-four hours prior to the scheduled expiration of treatment, the claim
shall be governed by Clause (1) above.
|
(3) |
In the case of a decision to reduce or terminate a previously approved ongoing
course of health benefit treatment that was to be provided over a period of time or a
number of treatments, the Plan Administrator shall notify the Claimant of the Adverse
Benefit Determination at a time sufficiently in advance of the reduction or termination
to allow the Claimant to appeal and obtain a determination on review of such Adverse
Benefit Determination before the benefit is reduced or terminated.
|
(4) |
In the case of a Pre-Service Claim not described in Clauses (1) through (3)
above, the Plan Administrator shall notify the Claimant of the Adverse Benefit
Determination within a reasonable period of time appropriate to the medical
circumstances but not later than fifteen days after receipt of the claim by the Plan
(which period may be extended one time for up to an additional fifteen days provided
that the Plan Administrator both determines that such extension is necessary due to
matters beyond the control of the Plan and notifies the Claimant prior to the expiration
of the initial fifteen-day period of the circumstances requiring the extension of time
and the date by which the Plan expects to render a decision).
|
(5) |
In the case of a Post-Service Claim not described in Clauses (1) through (3)
above, the Plan Administrator shall notify the Claimant of the Adverse Benefit
Determination within a reasonable period of time but not later than thirty days after
receipt of the claim (which period may be extended one time for up to fifteen days
provided that the Plan Administrator both determines that such extension is necessary
due to matters beyond the control of the Plan and notifies the Claimant prior to the
expiration of the initial thirty-day period of the circumstances
requiring the extension
of time and the date by which the Plan expects to render a decision).
|
-13-
-14-
(1) |
To exercise the right to request a review of an Adverse Benefit Determination, a
Claimant must submit a written request for such review to the Plan Administrator not later
than 180 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 Plan Administrator or, as
applicable, to the Independent Fiduciary;
|
(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 was considered in the initial benefit determination;
|
(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
(a) documents, records or other information relied upon for the benefit determination, (b)
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, (c) documents, records or other information that demonstrates compliance with
the standard claims procedure in making the benefit determination on the Claimants claim, and
(d) documents, records or other information that constitutes a statement of policy or guidance
with respect to the Plan concerning the denied treatment option or benefit for the Claimants
diagnosis, without regard to whether such statement of policy or guidance was relied upon in
making the benefit determination;
|
(5) |
The review of the Adverse Benefit Determination shall not give deference to the original
decision;
|
(6) |
The review of the Adverse Benefit Determination shall be conducted solely by an Independent
Fiduciary;
|
(7) |
If the initial benefit determination was based in whole or in part on a medical judgment,
including determinations with regard to whether a particular treatment, drug or other item is
experimental, investigational or not medically necessary or appropriate, the Independent
Fiduciary conducting the review shall consult with a Health Care Professional with appropriate
training and experience in the applicable field of medicine who was not consulted, and is not
the subordinate of someone who was consulted, during the initial benefit determination; and
|
(8) |
The Claimant shall have the right to have identified to him the medical or vocational experts
whose advice was obtained in connection with the Adverse Benefit Determination (without regard
to whether the advice was relied upon in making such determination).
|
-15-
(1) |
The Claimant must submit a written request for such review to the Plan
Administrator not later than 60 days following receipt by the Claimant of the Adverse
Benefit Determination notification;
|
(2) |
The Claimant shall have the opportunity to submit written comments, documents,
records, and other information relating to the claim for benefits to the Plan
Administrator;
|
(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 was 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 (a) documents, records or other information relied upon for the
benefit determination, (b) 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 (c) documents,
records or other information that demonstrates compliance with the standard claims
procedure.
|
-16-
(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 Claimants claim for benefits including (a) documents, records or other
information relied upon for the benefit determination, (b) 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, (c)
documents, records or other information that demonstrates compliance with the standard
claims procedure in making the benefit determination on the Claimants claim, and (d) in
the case of claims regarding health or disability benefits, documents, records or other
information that constitutes a statement of policy or guidance with respect to the Plan
concerning the denied treatment option or benefit for the Claimants diagnosis, without
regard to whether such statement of policy or guidance was relied upon in making the
benefit determination.
|
||
(4) |
Describe the Claimants right to bring an action under section 502(a) of ERISA;
|
(1) |
If an internal rule, guideline, protocol or other similar criterion was relied
upon in making the Adverse Benefit Determination, either provide such criterion or
state that such criterion was relied upon and that a copy of the criterion will be
provided free of charge to the Claimant upon request;
|
(2) |
If the Adverse Benefit Determination is based on a medical necessity,
experimental treatment or similar exclusion or limit, either explain the scientific or
clinical judgment for the determination, applying the terms of the Plan to the
Claimants medical circumstances, or state that such explanation will be provided free
of charge to the Claimant upon request;
|
(3) |
Include the following statement: You and your plan may have other voluntary
alternative dispute resolution options, such as mediation. One way to find out what may
be available is to contact your local U.S. Department of Labor Office and your State
insurance regulatory agency.
|
-17-
-18-
-19-
-20-
(1) |
To make and enforce such rules, regulations, and procedures as it may deem
necessary or proper for the orderly and efficient administration of the Plan and/or a
Constituent Benefit Program with respect to the duties and responsibilities of such
Plan Administrator as described on Appendix B;
|
(2) |
With the consent of the Company, to enter into an Administrative Services
Agreement with an individual or entity;
|
(3) |
In its discretion and as applicable with respect to the duties and
responsibilities of such Plan Administrator as described on Appendix B, to interpret
and decide all matters of fact in granting or denying benefits under the Plan and/or a
Constituent Benefit Program its interpretation and decision thereof to be final and
conclusive on all persons claiming benefits under the Plan and/or a Benefit Constituent
Program;
|
-21-
(4) |
In its discretion and as applicable with respect to the duties and
responsibilities of such Plan Administrator as described on Appendix B, to determine
eligibility under the terms of the Plan and/or a Constituent Benefit Program, its
determination thereof to be final and conclusive on all persons;
|
(5) |
In its discretion and as applicable with respect to the duties and
responsibilities of such Plan Administrator as described on Appendix B, to determine the
amount of and authorize the payment of benefits under the Plan and/or a Constituent
Benefit Program, its determination and authorization thereof to be final and conclusive
on all persons;
|
(6) |
To prepare and distribute information explaining the Plan and/or a Constituent
Benefit Program to the extent pertaining to provisions of the Plan as to which the
Plan Administrator has duties and responsibilities as described on Appendix B;
|
(7) |
To obtain from the Employer, Employees, beneficiaries, and Eligible Dependents
such information as may be necessary for the proper administration of the Plan and/or a
Constituent Benefit Program;
|
(8) |
With the consent of the Company, to appoint an Administrative Services Provider;
and
|
(9) |
With the consent of the Company, to sue or cause suit to be brought in the name
of the Plan.
|
-22-
(1) |
Solely in the interest of Participants and for the exclusive purpose of
providing benefits to Participants, Covered Eligible Dependents, and their
beneficiaries and of defraying reasonable expenses of administering the Plan;
|
(2) |
With the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person 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; and
|
(3) |
In accordance with the documents and instruments governing the Plan insofar
as such documents and instruments are consistent with applicable law.
|
-23-
-24-
-25-
-26-
-27-
-28-
-29-
-30-
-31-
-32-
(1) |
For the purpose of enabling the Company to obtain premium bids from
health insurers for providing health insurance coverage under the Plan;
|
(2) |
For purposes of determining whether and, if so, how to modify or amend
the Plan; or
|
(3) |
For purposes of determining whether and, if so, how to terminate the
Plan, in whole or in part.
|
-33-
(1) |
The Company will not use or further disclose the information other
than as permitted or required by the Plan documents or as required by law or
the Regulations as set forth in the Dynegy Inc. and Affiliates Employee Plan
Protected Health Information Privacy Policy (the Privacy Policy);
|
(2) |
The Company will ensure that any agents, including a subcontractor, to whom
it provides PHI received from the Plan agree to the same restriction and
conditions that apply to the Company with respect to such information;
|
(3) |
The Company will not use or disclose the information for employment-related actions and decisions or in connection with any other benefit or employee
benefit plan of the Company;
|
(4) |
The Company will report to the Plan any use or disclosure of the
information that is inconsistent with the uses or disclosures provided for of which it becomes aware;
|
(5) |
The Company will make available to Participants PHI in accordance with
Section 164.524 of the Regulations as set forth in the Privacy Policy;
|
(6) |
The Company will make available to Participants PHI for amendment and
incorporate any amendments to PHI in accordance with Section 164.526 of the
Regulations as set forth in the Privacy Policy;
|
(7) |
The Company will make available to Participants the information required
to provide an accounting of disclosures in accordance with
Section 164.528 of the Regulations as set forth in the Privacy Policy;
|
(8) |
The Company will make its internal practices, books and records relating
to the use and disclosure of PHI received from the Plan available to the
Secretary of Health and Human Services for purposes of determining compliance by
the Plan with the Regulations;
|
(9) |
If feasible, the Company will return or destroy all PHI received from the
Plan that the Company still maintains in any form and retain no copies of such
information when no longer needed for the purpose for which disclosure was made
or if such return or destruction is not feasible, the Company will limit further
uses and disclosures to those purposes that make the return or destruction of the
information infeasible; and
|
(10) |
The Company will ensure the adequate separation required pursuant to
Section 14.5 below.
|
-34-
(1) |
The only employees, classes of employees or other persons under the
control of the Company to be given access to PHI disclosed to the Company or
who receives PHI relating to payment under, health care operations of, or other matters pertaining to the Plan in the ordinary course of business
are: those individuals employed by or providing services to the division of the Companys
Human Resources Department which deals with the administration and processing of benefit
claims under the Plan, the Plans fiduciaries (i.e., the Plan Administrator(s)), the
members of the compensation committee of the Companys Board of Directors, the Plans
Privacy Officer and other employees/individuals who have been identified by the Privacy
Officer as persons who may have need to access PHI whether by virtue of being involved in
the ongoing operation and administration of the Plan or being involved in such Plan
sponsor activities that may entail bid proposals, etc.
|
(2) |
The access to and use by the Company and the other individuals and entities described in
item (A) above is restricted to (i) the Plan administration functions that the Company
performs in connection with the operation and administration of the Plan, (ii) the Plan
sponsor functions with respect to which the Company is entitled to receive SHI pursuant to
Section 14.4 above, (iii) uses and disclosures described in an authorization by the Plan
Participant, and (iv) uses and disclosures that are described to Plan Participants in the
Notice of Privacy Practices and Consent for Dynegy Inc. and Affiliates Plan Participants, as
required by Section 164.520 of the Regulations.
|
(3) |
In the event that any person described in item (A) of this section fails to comply with any
of the requirements of this section or of Section 14.4 above, the noncompliance shall be
reported to the Plans Privacy Office in a report describing the name of the noncompliant
person and a summary of the details regarding such persons noncompliance. Upon receipt of
such report, the Plans Privacy Officer shall solicit a response from the person who has been
reported as noncompliant giving such person the opportunity to contest the charge of
noncompliance or to offer justification or other reasons why sanctions should not be imposed
with respect to the noncompliance. The Plans Privacy Officer shall, after considering all
details and facts and circumstances relating to an alleged act of noncompliance for which
sanctions may be imposed pursuant to this item (C), determine if a sanction should be imposed
(which sanction may range from a warning that subsequent acts of noncompliance may result in
significant penalties to proposed dismissal from employment or termination of contract, as
applicable). Upon determination of a sanction and if the sanction may be imposed under the
authority of the Plans Privacy Officer, the sanction shall be imposed. If the sanction
requires action of the Company, the Plans Privacy Officer shall confer with the appropriate
executives of the Company. If the Company, following consideration of a proposed sanction from
the Plans Privacy Officer for noncompliance with the requirements of sections 14.4 and 14.5
by a person or entity, determines not to impose such sanction, the Company shall advise the
Plans Privacy Officer. In such event, the Plans Privacy Officer must consider and propose an alternative sanction for the
noncompliant person or entity.
|
-35-
(1) |
To develop and propose to the Plan fiduciaries (i.e., the Plan
Administrator) a protected health information policy for the Plan, which policy
when adopted shall become the Privacy Policy.
|
(2) |
Provides development guidance and assists in the identification,
implementation, and maintenance of information privacy policies and procedures
in coordination with management and administration, and legal counsel.
|
(3) |
Performs initial and periodic information privacy risk assessments and
conducts related ongoing compliance monitoring activities in coordination with
information privacy compliance and operational assessment functions.
|
(4) |
Works with legal counsel and management, key departments, and
committees to ensure the Company has and maintains appropriate privacy and
confidentiality consent, authorization forms, and information notices and
materials reflecting current organization and legal practices and requirements.
|
(5) |
Oversees, directs, delivers, or ensures delivery of initial and privacy
training and orientation to all parties who may have access to PHI in connection
with the Plan including Company employees, Plan service providers, contractors,
Plan business associates, such as third-party administrators, COBRA vendors
and utilization review organizations and other appropriate third parties.
|
||
(6) |
Participates in the development, implementation, and ongoing compliance monitoring of
all trading partner and business associate agreements, to ensure all privacy concerns,
requirements, and responsibilities are addressed.
|
-36-
(7) |
Establishes with management and operations a mechanism to identify all of the Companys plans
and benefit arrangements which are covered entities for purposes of the laws governing PHI.
|
||
(8) |
Tracks and monitors access to PHI within the Company in connection with the operation and
administration of the Plan and its sponsorship by the
Company.
|
||
(9) |
Establishes rules to determine when to allow qualified individuals to review or receive a
report on PHI privacy activity.
|
||
(10) |
Works cooperatively with the Human Resources Department and other applicable Company
offices/personnel in overseeing Plan Participants rights to inspect, amend and restrict
access to PHI when appropriate.
|
||
(11) |
Establishes and administers a process for receiving, documenting, tracking,
investigating, and taking action on all complaints concerning privacy policies regarding the
Plan and procedures in coordination and collaboration with other similar functions and, when
necessary, legal counsel.
|
||
(12) |
Ensures compliance with privacy practices and consistent application of sanctions for failure
to comply with Plan privacy policies for all individuals in the Companys workforce, extended
workforce, and for all business associates, such as third-party administrators, COBRA vendors
and utilization review organizations, in cooperation with Human Resources, administration, and
legal counsel as applicable.
|
||
(13) |
Initiates, facilitates and promotes activities to foster information privacy awareness within
the Company.
|
||
(14) |
Reviews all system-related information security plans throughout the Companys network to
ensure alignment between security and privacy practices, and acts as a liaison to the
information systems department.
|
||
(15) |
Works with all Company personnel and business associates, such as third-party
administrators, COBRA vendors and utilization review organizations, involved with any
aspect of release of Plan PHI, to ensure full coordination and cooperation under the Plans
privacy policies and procedures and legal requirements.
|
||
(16) |
Maintains current knowledge of applicable federal and state privacy laws and monitors
advancements in information privacy technologies to ensure organizational adaptation and
compliance.
|
(17) |
Serves as information privacy consultant to the Company with respect to the Plan.
|
-37-
DYNEGY INC.
|
||||
By: | /s/ Jane D. Jones | |||
Name: | Jane D. Jones |
-38-
I. |
Dynegy Inc. Group Medical Plan
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc. (Plan
Sponsor), Calcasieu Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global
Communications, Inc., Illinova Energy Partners, Inc., Illinova Generating Company,
Dynegy Midstream Services, Limited Partnership, Dynegy Marketing and Trade, Dynegy
Power Marketing, Inc., Dynegy Power Corp. and Illinois Power Company (for
non-collectively bargained employees). Effective February 1, 2002 Northern Natural
Gas Company.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Descriptions; Dynegy Inc.
Employee Welfare Benefit Trust; Administrative Services Contracts with United
HealthCare, Merck Medco
Rx
Services, Blue Cross/Blue Shield of Illinois,
Express Scripts, Inc., Behavioral Health Systems, United Behavioral Health (commencing
March 1, 2002), Managed Health Network (until February 28, 2002), Delta Dental
Insurance Company and Vision Service Plan; Health Maintenance Organization Contracts
with CIGNA HMO, Health Alliance and Ochsner; and Insurance Contracts with Delta Dental
Insurance Company, Vision Plan and CIGNA International.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
their respective contracts, United HealthCare, Merck Medco RX Services, Blue Cross/Blue
Shield of Illinois, Express Scripts, Inc., Behavioral Health Systems, United
Behavioral Health (commencing March 1, 2002), Managed Health Network (until February
28, 2002), Delta Dental Insurance Company and Vision Service Plan, CIGNA HMO, Health
Alliance, Ochsner, Vision Service Plan and CIGNA International shall serve as
benefit claims and claims appeals fiduciaries for the Dynegy Inc. Group Medical Plan
and shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Group Medical Plan, such interpretation decision thereof to be
final and conclusive on all persons claiming benefits under the Plan with
respect to the Dynegy Inc. Group Medical Plan;
|
B-1
(2) |
The sole discretionary authority to determine and authorize payment of
medical benefits under the Dynegy Inc. Group Medical Plan, any such decision
thereof to be final and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Inc. Group Medical Plan
except to the extent the Plans claims procedures expressly provides otherwise;
and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Inc. Group Medical
Benefit Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Dynegy Inc. Group Medical Plan, its decision thereof to
be final and conclusive on all persons;
|
(2) |
To prepare and distribute information explaining the Dynegy Inc.
Group Medical Plan including, but not limited to, all materials and information
required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Group Medical Plan under applicable provisions of
ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Group Medical Plan;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Inc. Group Medical Plan, in such manner and to such extent
as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc. Group
Medical Plan.
|
B-2
II. |
Dynegy Inc. Employee Assistance Plan
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services, Limited
Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc., Dynegy Power Corp. and
Illinois Power Company (for non-collectively bargained employees). Effective February 1, 2002
Northern Natural Gas Company.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Descriptions; and Administrative Services
Contracts with Chestnut Health Systems, Managed Health Network (until February 28, 2002) and
United Behavioral Health (commencing March 1, 2002).
|
||
|
Plan Administrators: With respect to benefits provided or administered under their
respective contracts, Chestnut Health Systems, Managed Health Network (until
February 28, 2002) and United Behavioral Health (commencing March 1, 2002) shall serve as
benefit claims and claims appeals fiduciaries for the Dynegy Inc. Employee Assistance Plan and
shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact
and Plan interpretation in granting or denying benefits under the Dynegy Inc. Employee
Assistance Plan, such interpretation decision thereof to be final and conclusive on
all persons claiming benefits under the Plan with respect to the Dynegy Inc. Employee
Assistance Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of
medical benefits under the Dynegy Inc. Employee Assistance Plan, any such decision
thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and
benefit claims appeals under the Dynegy Inc. Employee Assistance Plan except to the
extent the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its
fiduciary responsibility with respect to the Dynegy Inc. Employee Assistance Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility under the
terms of the Dynegy Inc. Employee Assistance Plan, its decision thereof to be final
and conclusive on all persons;
|
B-3
(2) |
To prepare and distribute information explaining the Dynegy Inc.
Employee Assistance Plan including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Employee Assistance Plan under applicable provisions
of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Employee Assistance Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan documents with
respect to the Dynegy Inc. Employee Assistance Plan, in such manner and to such
extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc.
Employee Assistance Plan.
|
III. |
Dynegy Inc. Health Care Spending Account Program
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream
Services, Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing,
Inc., Dynegy Power Corp. and Illinois Power Company (for non-collectively bargained
employees). Effective February 1, 2002 Northern Natural Gas Company. Effective
January 31, 2002 Dynegy Northeast Generation, Inc.
|
|
Constituent Benefit Plan Documents: Dynegy Inc. Health Care Spending Account
Program; Summary Plan Description; and Administrative Services Contract with TaxSaver,
Inc.
|
|
Plan Administrators: With respect to spending account benefits provided or
administered under its contract, TaxSaver, Inc. shall serve as benefits claims and
claims appeal fiduciary for the Dynegy Inc. Health Care Spending Account Program and
shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Health Care Spending Account Program, such interpretation
decision thereof to be final and conclusive on all persons claiming benefits
under the Plan with respect to the Dynegy Inc. Health Care Spending Account
Program;
|
B-4
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Inc. Health Care Spending Account Program, any such decision
thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Inc. Health Care Spending Account Program except to
the extent the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Dynegy Inc. Health Care Spending Account Program.
|
(1) |
All administrative responsibility with respect to salary reduction payroll
processing.
|
||
(2) |
In its sole discretionary authority, to determine eligibility under the terms
of the Dynegy Inc. Health Care Spending Account Program, its decision thereof to be
final and conclusive on all persons;
|
||
(3) |
To prepare and distribute information explaining the Dynegy Inc. Health Care Spending
Account Program including, but not limited to, all materials and information required to
be distributed pursuant to ERISA;
|
||
(4) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Inc. Health Care Spending Account Program under applicable provisions of ERISA;
|
||
(5) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Inc. Health Care Spending Account Program;
|
||
(6) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy Inc. Health
Care Spending Account Program, in such manner and to such extent as it deems expedient;
and
|
||
(7) |
To employ and compensate such accountants, attorneys and other agents and employees
as it may deem necessary or advisable in the appropriate and efficient administration of
the Plan with respect to the Dynegy Inc. Health Care Spending Account Program.
|
B-5
IV. |
Dynegy Inc. Dependent Care Spending Account Program
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services,
Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc., Dynegy
Power Corp. and Illinois Power Company (for non-collectively bargained employees).
Effective February 1, 2002 Northern Natural Gas Company. Effective January 31, 2002
Dynegy Northeast Generation, Inc.
|
|
Constituent Benefit Plan Documents: Dynegy Inc. Dependent Care Spending
Account Program; Summary Plan Description; and Administrative Services Contract with
TaxSaver, Inc.
|
|
Plan Administrators: With respect to spending account benefits provided or
administered under its contract, TaxSaver, Inc. shall have the following powers, duties
and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Dependent Care Spending Account Program, such interpretation
decision thereof to be final and conclusive on all persons claiming benefits
under the Plan with respect to the Dynegy Inc. Dependent Care Spending Account
Program;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Inc. Dependent Care Spending
Account Program, any such decision thereof to be final and conclusive on all
persons;
|
(3) |
The sole discretionary authority to process and determine
benefit claims and benefit claims appeals under the Dynegy Inc. Dependent Care
Spending Account Program except to the extent the Plans claims procedures
expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Inc. Dependent
Care Spending Account Program and the Plan.
|
(1) |
All administrative responsibilities with respect to salary reduction payroll
processing.
|
B-6
(2) |
In its sole discretionary authority, to determine eligibility under the
terms of the Dynegy Inc. Dependent Care Spending Account Program, its
decision thereof to be final and conclusive on all persons;
|
(3) |
To prepare and distribute information explaining the Dynegy Inc.
Dependent Care Spending Account Program Plan including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
(4) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Dependent Care Spending Account Program under
applicable provisions of ERISA;
|
(5) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Dependent Care Spending Account Program;
|
(6) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Inc. Dependent Care Spending Account Program, in such
manner and to such extent as it deems expedient; and
|
(7) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc.
Dependent Care Spending Account Program.
|
V. |
Dynegy Inc. Group Life and Accidental Death and Dismemberment Insurance Plan
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services,
Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc.,
Dynegy Power Corp. and Illinois Power Company. Effective February 1, 2002 Northern
Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Summary Plan Descriptions and Insurance
Contract with Met Life Insurance Company.
|
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Met Life Insurance Company shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Group Life and Accidental Death and Dismemberment Insurance
Plan,
such interpretation decision thereof to be final and conclusive on all persons claiming
benefits under the Plan with respect to the Dynegy Inc. Group Life and Accidental Death
and Dismemberment Plan;
|
B-7
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Inc. Group Life and Accidental Death and Dismemberment Insurance
Plan, any such decision thereof to be final and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Inc. Group Life and Accidental Death and Dismemberment
Insurance Plan except to the extent the Plans claims procedures expressly provides
otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Dynegy Inc. Group Life and Accidental Death and
Dismemberment Insurance Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Inc. Group Life and Accidental Death and Dismemberment Insurance Plan, its decision
thereof to be final and conclusive on all
persons;
|
(2) |
To prepare and distribute information explaining the Dynegy Inc. Group Life and
Accidental Death and Dismemberment Insurance Plan including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Inc. Group Life and Accidental Death and Dismemberment Insurance Plan under applicable
provisions of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Inc. Group Life and Accidental Death and Dismemberment Insurance Plan;
|
(5) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy inc. Group
Life and Accidental Death and Dismemberment Insurance Plan, in such manner and to such
extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other agents
and employees as it may deem necessary or advisable in the appropriate and
efficient administration of the Plan with respect to the Dynegy Inc. Group
Life and Accidental Death and Dismemberment Insurance Plan.
|
B-8
VI. |
Dynegy Inc. Long Term Disability Plan
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services,
Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc.,
Dynegy Power Corp. and Illinois Power Company. Effective February 1, 2002 Northern
Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Summary Plan Descriptions and Insurance
Contract with Met Life Insurance Company.
|
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Met Life Insurance shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Long Term Disability Plan, such interpretation decision thereof
to be
final and conclusive on all persons claiming benefits under the Plan with
respect to the Dynegy Inc. Long Term Disability Plan;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Inc. Long Term Disability Plan,
any such decision thereof to be final and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine
benefit claims and benefit claims appeals under the Dynegy Inc. Long Term
Disability Plan except to the extent the Plans claims procedures expressly
provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Inc. Long Term
Disability Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility under the
terms of the Dynegy Inc. Long Term Disability Plan, its decision thereof to
be final and conclusive on all persons;
|
B-9
(2) |
To prepare and distribute information explaining the Dynegy Inc.
Long Term Disability Plan including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Long Term Disability Plan under applicable provisions
of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to
the Dynegy Inc. Long Term Disability Plan;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan documents with
respect to the Dynegy Inc. Long Term Disability Plan, in such manner and to such
extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc. Long
Term Disability Plan.
|
VII. |
Dynegy Inc. Section 125 Flexible Benefits Program
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services,
Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc.
and Dynegy Power Corp. Effective January 31, 2002 Dynegy Northeast Generation, Inc.
Effective February 1, 2002 Northern Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Dynegy Inc. Section 125 Flexible Benefits
Program, Summary Plan Description and Administrative Contract with TaxSaver, Inc.
|
|
Plan Administrators: With respect to spending account benefits provided or
administered under its contracts, TaxSaver, Inc. shall have the following powers,
duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Section 125 Flexible Benefits Program, such interpretation
decision
thereof to be final and conclusive on all persons claiming benefits under the Plan with
respect to the Dynegy Inc. Section 125 Flexible Benefits Program;
|
B-10
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Inc. Section 125 Flexible Benefits Program, any such decision
thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Section 125 Flexible Benefits Program except to the extent
the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Dynegy Inc. Section 125 Flexible Benefits Program.
|
(1) |
All administrative responsibility with respect to salary reduction payroll
processing and pre-tax premium conversions.
|
(2) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Inc. Section 125 Flexible Benefits Program, its decision thereof to be final and
conclusive on all persons;
|
(3) |
To prepare and distribute information explaining the Dynegy Inc. Section 125 Flexible
Benefits Program including, but not limited to, all materials and information required to
be distributed pursuant to ERISA;
|
(4) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Inc. Section 125 Flexible Benefits Program under applicable
provisions of ERISA;
|
(5) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Inc. Section 125 Flexible Benefits Program;
|
(6) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy Inc. Section
125 Flexible Benefits Program, in such manner and to such extent as it deems expedient;
and
|
(7) |
To employ and compensate such accountants, attorneys and other agents and employees
as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc.
Section 125 Flexible Benefits Program.
|
B-11
VIII. |
Dynegy Inc. Business Travel Accident Plan
|
|
Participating Employers: Effective January 1, 2002 Dynegy Inc., Calcasieu
Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global Communications, Inc.,
Illinova Energy Partners, Inc., Illinova Generating Company, Dynegy Midstream Services,
Limited Partnership, Dynegy Marketing and Trade, Dynegy Power Marketing, Inc.,
Dynegy Power Corp., Dynegy Northeast Generation, Inc. and Illinois Power Company.
Effective February 1, 2002 Northern Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Summary Plan Descriptions and Insurance
Contract with Zurich American Insurance Company.
|
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Zurich American Insurance Company shall have the following powers, duties
and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Business Travel Accident Plan, such interpretation decision
thereof to be final and conclusive on all persons claiming benefits under the
Plan with respect to the Dynegy Inc. Business Travel Accident Plan;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Inc. Business Travel Accident
Plan, any such decision thereof to be final and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine
benefit claims and benefit claims appeals under the Dynegy Inc. Business Travel
Accident Plan except to the extent the Plans claims procedures expressly
provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Inc. Business
Travel Accident Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Dynegy Inc. Business Travel Accident Plan, its decision
thereof to be final and conclusive on all persons;
|
B-12
(2) |
To prepare and distribute information explaining the Dynegy Inc. Business
Travel Accident Plan including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Business Travel Accident under applicable provisions
of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Business Travel Accident Plan;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Inc. Business Travel Accident Plan, in such manner and to
such extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc.
Business Travel Accident Plan.
|
IX. |
Dynegy Inc. Midstream Services Union Managed Indemnity Plan
(terminating plan)
|
|
Participating Employers: Dynegy Midstream Services, Limited Partnership.
|
|
Constituent Benefit Plan Documents: Summary Plan Description; Trident NGL
Employee Benefit Trust; and Insurance Contract with United HealthCare.
|
|
Plan Administrators: With respect to benefits provided or administered under
its contract, United HealthCare shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Inc. Midstream Services Union Managed Indemnity Plan, such
interpretation decision thereof to be final and conclusive on all persons
claiming benefits under the Plan with respect to the Dynegy Inc. Midstream
Services Union Managed Indemnity Plan;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Inc. Midstream Services Union
Managed Indemnity Plan, any such decision thereof to be final and conclusive on
all persons;
|
B-13
(3) |
The sole discretionary authority to process and determine benefit claims
and benefit claims appeals under the Dynegy Inc. Midstream Services Union
Managed Indemnity Plan except to the extent the Plans claims procedures
expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Inc. Midstream
Services Union Managed Indemnity Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Dynegy Inc. Midstream Services Union Managed Indemnity
Plan, its decision thereof to be final and conclusive on all persons;
|
(2) |
To prepare and distribute information explaining the Dynegy Inc.
Midstream Services Union Managed Indemnity Plan including, but not limited to,
all materials and information required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Inc. Midstream Services Union Managed Indemnity Plan under
applicable provisions of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Midstream Services Union Managed Indemnity Plan;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan documents with
respect to the Dynegy Inc. Midstream Services Union Managed Indemnity Plan, in
such manner and to such extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Inc.
Midstream Services Union Managed Indemnity Plan.
|
X. |
Dynegy Severance Pay Plan
|
|
Participating Employers: Effective as of January 1, 2002 Dynegy Inc.,
Calcasieu Power, LLC, Dynegy Global Liquids (Cayman) Ltd., Dynegy Global
Communications, Inc., Illinova Energy Partners, Inc., Illinova Generating Company,
Dynegy Midstream Services, Limited Partnership, Dynegy Marketing and Trade,
Dynegy Power Marketing, Inc., Dynegy Power Corp., Illinois Power Company, and Dynegy Midwest
Generation, Inc. Effective February 1, 2002 Northern Natural Gas Company.
|
B-14
|
Constituent Benefit Plan Documents: Dynegy Severance Pay Plan and
Summary Plan Description.
|
||
|
Plan Administrator: The Company shall be the Plan Administrator and
shall have any and all administrative fiduciary powers and duties with
respect to the Dynegy Inc. Severance Pay Plan, including, but not
limited to, the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact and Plan
interpretation in granting or denying benefits under the Dynegy Inc. Severance Pay Plan,
such interpretation decision thereof to be final and conclusive on all persons claiming
benefits under the Plan with respect to the Dynegy Inc. Severance Pay Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Inc. Severance Pay Plan, any such decision thereof to be final
and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Inc. Severance Pay Plan except to the extent the Plans
claims procedures expressly provides otherwise;
|
||
(4) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Inc. Group Severance Pay, its decision thereof to be final and conclusive on all
persons;
|
||
(5) |
To prepare and distribute information explaining the Dynegy Inc. Severance Pay Plan
including, but not limited to, all materials and information required to be distributed
pursuant to ERISA;
|
||
(6) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Inc. Severance Pay Plan under applicable provisions of ERISA;
|
||
(7) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Inc. Severance Pay Plan;
|
||
(8) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy Inc. Severance
Pay Plan, in such manner and to such extent as it deems expedient; and
|
||
(9) |
To employ and compensate such accountants, attorneys and other agents and employees as it may
deem necessary or advisable in the appropriate and efficient administration of the Plan with
respect to the Dynegy Inc. Severance Pay Plan.
|
B-15
XI. |
Dynegy Executive Severance Pay Plan
|
|
Participating Employers: Effective as of January 1, 2002 Dynegy Inc.,
Calcasieu Power, LLC, Dynegy Global Liquids (Cayman) Ltd,, Dynegy Global
Communications, Inc., Illinova Energy Partners, Inc., Illinova Generating Company,
Dynegy Midstream Services, Limited Partnership, Dynegy Marketing and Trade, Dynegy
Power Marketing, Inc., Dynegy Power Corp., Illinois Power Company and Dynegy Midwest
Generation, Inc. Effective February 1, 2002 Northern Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Dynegy Executive Severance Pay Plan.
|
|
Plan Administrator: The Company shall be the Plan Administrator with respect to
any and all administrative fiduciary powers and duties with respect to the Dynegy Inc.
Executive Severance Pay Plan, including, but not limited to, the following powers,
duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of
fact and Plan interpretation in granting or denying benefits under the Dynegy Inc.
Executive Severance Pay Plan, such interpretation decision thereof to be final
and conclusive on all persons claiming benefits under the Plan with respect to the
Dynegy Inc. Executive Severance Pay Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of
medical benefits under the Dynegy Inc. Executive Severance Pay Plan, any such
decision thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Executive Severance Pay Plan
except to the extent the Plans claims procedures expressly provides otherwise;
|
||
(4) |
In its sole discretionary authority, to determine eligibility under the
terms of the Dynegy Inc. Group Severance Pay, its decision thereof to be final
and conclusive on all persons;
|
||
(5) |
To prepare and distribute information explaining the Dynegy Inc.
Executive Severance Pay Plan including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
B-16
(6) |
To perform any and all reporting and disclosure required with respect to the
Dynegy Inc. Executive Severance Pay Plan under applicable provisions of ERISA;
|
(7) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Inc. Executive Severance Pay Plan;
|
(8) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Inc. Executive Severance Pay Plan, in such manner and to such
extent as it deems expedient; and
|
(9) |
To employ and compensate such accountants, attorneys and other agents
and employees as it may deem necessary or advisable in the appropriate and
efficient administration of the Plan with respect to the Dynegy Inc. Executive
Severance Pay Plan.
|
XII. |
Illinois Power Company Health Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement
|
|
Participating Employers: Illinois Power Company, and Dynegy Midwest Generation,
Inc.
|
||
|
Constituent Benefit Plan Documents: Illinois Power Company Health Care
Reimbursement Plan; Summary Plan Description; and Administrative Services Contract
with Tax Saver.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Tax Saver shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Illinois Power Company Health Care Spending Account Program for Employees
Covered Under a Collective Bargaining Agreement, such interpretation decision
thereof to be final and conclusive on all persons claiming benefits under the
Plan with respect to the Illinois Power Company Health Care Spending Account
Program for Employees Covered Under a Collective Bargaining Agreement;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Illinois Power Company Health Care
Spending Account Program for Employees Covered Under a Collective Bargaining
Agreement, any such decision thereof to be final and conclusive on all persons;
|
B-17
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Illinois Power Company Health Care Spending Account Program for
Employees Covered Under a Collective Bargaining Agreement except to the extent the Plans
claims procedures expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Illinois Power Company Health Care Spending Account
Program for Employees Covered Under a
Collective Bargaining Agreement.
|
(1) |
In its sole discretionary authority, to determine eligibility under the terms of the
Illinois Power Company Health Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement, its decision thereof to be final and conclusive on all
persons;
|
||
(2) |
To prepare and distribute information explaining the Illinois Power
Company Health Care Spending Account Program for Employees Covered Under a Collective
Bargaining Agreement including, but not limited to, all materials and information
required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with respect to the Illinois
Power Company Health Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement under applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the
Illinois Power Company Health Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement;
|
||
(5) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan documents with respect to the Illinois Power
Company Health Care Spending Account Program for Employees Covered Under a Collective
Bargaining Agreement, in such manner and to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other agents and employees
as it may deem necessary or advisable in the appropriate and efficient administration of
the Plan with respect to the Illinois Power
Company Health Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement.
|
B-18
XIII. |
Illinois Power Company Dependent Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement
|
|
Participating Employers: Illinois Power Company and Dynegy Midwest Generation,
Inc.
|
|
Constituent Benefit Plan Documents: Illinois Power Company Dependent Care
Program; Summary Plan Description; and Administrative Services Contract with Tax Saver.
|
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Tax Saver shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Illinois Power Company Dependent Care Spending Account Program for
Employees Covered Under a Collective Bargaining Agreement, such
interpretation decision thereof to be final and conclusive on all persons
claiming benefits under the Plan with respect to the Illinois Power Company
Dependent Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Illinois Power Company Dependent Care
Spending Account Program for Employees Covered Under a Collective Bargaining
Agreement, any such decision thereof to be final and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine
benefit claims and benefit claims appeals under the Illinois Power Company
Dependent Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement except to the extent the Plans claims
procedures expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Illinois Power
Company Dependent Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement and the Plan.
|
B-19
The Company shall be the Plan Administrator with respect to any and all other
administrative fiduciary powers and duties not described above with respect to the
Illinois Power Company Dependent Care Spending Account Program for Employees
Covered Under a Collective Bargaining Agreement, including, but not limited to, the
following powers and duties:
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Illinois Power Company Dependent Care Spending Account
Program for Employees Covered Under a Collective Bargaining Agreement, its
decision thereof to be final and conclusive on all persons;
|
(2) |
To prepare and distribute information explaining the Illinois
Power Company Dependent Care Spending Account Program for Employees Covered
Under a Collective Bargaining Agreement including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
(3) |
To perform any and all reporting and disclosure required with
respect to the Illinois Power Company Dependent Care Spending Account Program
for Employees Covered Under a Collective Bargaining Agreement under applicable
provisions of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Illinois Power Company Dependent Care Spending Account Program
for Employees Covered Under a Collective Bargaining Agreement;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Illinois Power Company Dependent Care Spending Account Program
for Employees Covered Under a Collective Bargaining Agreement, in
such manner and to such extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Illinois Power
Company Dependent Care Spending Account Program for Employees Covered Under a
Collective Bargaining Agreement.
|
XIV. |
Illinois Power Company Section 125 Flexible Benefits Plan for Employees Covered Under a
Collective Bargaining Agreement
|
|
Participating Employers: Illinois Power Company and Dynegy Midwest Generation,
Inc.
|
|
Constituent Benefit Plan Documents: Illinois Power Company Flexible Benefits
Program; Summary Plan Description; and Administrative Services Contract with Tax Saver.
|
B-20
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Tax Saver shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discietionary authority to interpret and decide all matters of fact
and Plan interpretation in granting or denying benefits under the Illinois Power
Company Section 125 Flexible Benefits Plan for Employees Covered Under a Collective
Bargaining Agreement, such interpretation decision thereof to be final and conclusive
on all persons claiming benefits under the Plan with respect to the Illinois Power
Company Section 125 Flexible Benefits Plan for Employees Covered Under a Collective
Bargaining Agreement;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of
medical benefits under the Illinois Power Company Section 125 Flexible Benefits Plan
for Employees Covered Under a Collective Bargaining Agreement, any such decision
thereof to be final and conclusive on all
persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and
benefit claims appeals under the Illinois Power Company Section 125 Flexible Benefits
Plan for Employees Covered Under a Collective Bargaining Agreement except to the
extent the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its
fiduciary responsibility with respect to the Illinois Power Company Section 125
Flexible Benefits Plan for Employees Covered Under a Collective Bargaining
Agreement.
|
(1) |
In its sole discretionary authority, to determine eligibility under the terms
of the Illinois Power Company Section 125 Flexible Benefits Plan for
Employees Covered Under a Collective Bargaining Agreement, its decision
thereof to be final and conclusive on all persons;
|
(2) |
To prepare and distribute information explaining the Illinois Power Company
Section 125 Flexible Benefits Plan for Employees Covered Under a Collective Bargaining
Agreement including, but not limited to, all materials and information required to be
distributed pursuant to ERISA;
|
B-21
(3) |
To perform any and all reporting and disclosure required with respect to
the Illinois Power Company Section 125 Flexible Benefits Plan for Employees
Covered Under a Collective Bargaining Agreement under applicable provisions
of ERISA;
|
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Illinois Power Company Section 125 Flexible Benefits Plan for
Employees Covered Under a Collective Bargaining Agreement;
|
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Illinois Power Company Section 125 Flexible Benefits Plan for
Employees Covered Under a Collective Bargaining Agreement, in such manner and
to such extent as it deems expedient; and
|
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Illinois Power
Company Section 125 Flexible Benefits Plan for Employees Covered Under a
Collective Bargaining Agreement.
|
XV. |
Northern Natural Gas Company Medical, Dental and Group Term Life Plan for Retirees and
Surviving Spouses
|
|
Participating Employers: Effective July 1, 2002 Northern Natural Gas Company.
|
|
Constituent Benefit Plan Documents: Summary Plan Description; Employee Benefit
Trust for Northern Natural Gas Company Medical and Dental Plan for Retirees and
Surviving Spouses; Administrative Services Contracts with United HealthCare, CIGNA,
Merck Medco Rx Services, and Inovative Resource Group; Health Maintenance
Organization Contract with First Care HMO; and Insurance Contract with Met Life
Insurance.
|
|
Plan Administrators: With respect to benefits provided or administered under
their respective contracts, United HealthCare, CIGNA, Merck Medco Rx Services,
Inovative Resource Group, Met Life Insurance and First Care shall have the following
powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Northern Natural Gas Company Medical, Dental and Group Term Life Plan for
Retirees and Surviving Spouses, such interpretation decision thereof to be
final and conclusive on all persons claiming benefits under the Plan with
respect to the Northern Natural Gas Company Medical and Dental Plan for
Retirees and Surviving Spouses;
|
B-22
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Inc. Northern Natural Gas Company Medical, Dental and Group
Term Life Plan for Retirees and Surviving Spouses, any such decision thereof to be final
and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Northern Natural Gas Company Medical, Dental and Group Term Life
Plan for Retirees and Surviving Spouses except to the extent the Plans claims procedures
expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Northern Natural Gas Company Medical, Dental and Group
Term Life Plan for Retirees and Surviving
Spouses.
|
(1) |
In its sole discretionary authority, to determine eligibility under the
terms of the Northern Natural Gas Company Medical, Dental and Group Term Life Plan for
Retirees and Surviving Spouses, its decision thereof to be final and conclusive on all
persons;
|
||
(2) |
To prepare and distribute information explaining the Northern Natural Gas Company
Medical, Dental and Group Term Life Plan for Retirees and Surviving Spouses including, but
not limited to, all materials and information required to be distributed pursuant to
ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with respect to the Northern
Natural Gas Company Medical, Dental and Group Term Life Plan for Retirees and Surviving
Spouses under applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the
Northern Natural Gas Company Medical, Dental and Group Term Life Plan for Retirees and
Surviving Spouses;
|
||
(5) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Northern Natural Gas
Company Medical, Dental and Group Term Life Plan for Retirees and Surviving Spouses, in
such manner and to such extent as it deems expedient; and
|
B-23
(6) |
To employ and compensate such accountants, attorneys and other agents
and employees as it may deem necessary or advisable in the appropriate and
efficient administration of the Plan with respect to the Northern Natural
Gas Company Medical, Dental and Group Term Life Plan for Retirees and
Surviving Spouses.
|
XVI. |
Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses
|
|
Participating Employers: Effective January 1, 2002 Illinois Power Company,
Illinova Generating Company.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Descriptions; Illinois Power
Company Welfare Benefit Trust for Salaried Retirees; Illinois Power Company Welfare
Benefit Trust for Retirees Covered by a Collective Bargaining Agreement; Administrative
Services Contracts with Blue Cross/Blue Shield of Illinois, Express Scripts, Inc.,
Behavioral Health Systems, Health Alliance; and Insurance Contract with Met Life
Insurance Company.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
their respective contracts, Blue Cross/Blue Shield of Illinois, Express Scripts,
Inc., Behavioral Health Systems, Health Alliance, and Met Life Insurance Company shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Medical and Group Term Life Insurance Plan for Retirees and Surviving
Spouses, such interpretation decision thereof to be final and conclusive on all
persons claiming benefits under the Plan with respect to the Medical and Group
Term Life Insurance Plan for Retirees and Surviving Spouses;
|
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Medical and Group Term Life Insurance
Plan for Retirees and Surviving Spouses, any such decision thereof to be final
and conclusive on all persons;
|
(3) |
The sole discretionary authority to process and determine
benefit claims and benefit claims appeals under the Medical and Group Term Life
Insurance Plan for Retirees and Surviving Spouses except to the extent the
Plans claims procedures expressly provides otherwise; and
|
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Medical and Group Term
Life Insurance Plan for Retirees and Surviving Spouses.
|
B-24
(1) |
In its sole discretionary authority, to determine eligibility under the terms of the
Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses, its decision
thereof to be final and conclusive on all
persons;
|
||
(2) |
To prepare and distribute information explaining the Medical and Group Term Life
Insurance Plan for Retirees and Surviving Spouses including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with respect to the Medical
and Group Term Life Insurance Plan for Retirees and Surviving Spouses under applicable
provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the
Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses;
|
||
(5) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Medical and Group
Term Life Insurance Plan for Retirees and Surviving Spouses, in such manner and to such
extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other agents and employees
as it may deem necessary or advisable in the appropriate and efficient administration of
the Plan with respect to the Medical and Group Term Life Insurance Plan for Retirees and
Surviving Spouses.
|
B-25
2
DYNEGY INC.
|
||||
By: | /s/ J. Kevin Blodgett | |||
J. Kevin Blodgett | ||||
Title: | Sr. Vice President, Human Resources |
3
2
DYNEGY INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Chairman - BPC |
3
(27A) |
Sithe Participant
:
An Eligible Employee who (i) was
enrolled in the Sithe Plan for the plan year of Sithe Plan beginning on
January 1, 2005, (ii) became eligible to participate in the Plan in
connection with acquisition of ExRes SHC, Inc., and (iii) whose
participation in the Sithe Plan was terminated following the acquisition
of ExRes SHC, Inc.
|
(27B) |
Sithe Plan
:
The Sithe Energies Group Flexible Benefits Plan.
|
-2-
-3-
-4-
DYNEGY INC.
|
||||
By: | /s/ J. Kevin Blodgett | |||
Title: SVP, HR |
-5-
2
DYNEGY INC.
|
||||
By: | /s/ J. Kevin Blodgett | |||
Title: | Sr VP Human Resources |
3
(A) |
Act:
The Health Insurance Portability and Accountability Act
of 1996.
|
||
(B) |
Benefit Plans Committee:
The Dynegy Inc. Benefit Plans Committee.
|
||
(C) |
Business Associate
:
individual or entity, other than an
employee of the Employer, that provides services to the Plan, such as a third
party administrator, COBRA vendor or utilization review organization.
|
||
(D) |
Contact Person:
The person appointed to serve as contact
person pursuant to Section 14.8 and Article III of the Manual for purposes of
complaints.
|
||
(E) |
Health Component:
Any of the health components of the
Plan designated as such by the Benefit Plans Committee consisting of: the Dynegy
Inc. Group Medical Plan; the Dynegy Inc. Employee Assistance Plan; the Dynegy
Inc. Health Care Spending Account Program; the Dynegy Inc. Health Care Spending
Account Program for Employees Covered Under a Collective Bargaining Agreement;
the medical benefits program of Medical and Group Term Life Insurance Plan for
Retirees and Surviving Spouses; and any health maintenance organization offered
as a benefit alternative under the Plan.
|
||
(F) |
Manual:
The Dynegy Inc. Comprehensive Welfare Benefits Plan
Protected Health Information Policies and Procedures.
|
-2-
(G) |
Non-Health Components:
Components of the Plan other than the Health
Components.
|
||
(H) |
PHI:
Individually identifiable health information which is
protected pursuant to the Act and the Regulations.
|
||
(H) |
Privacy Officer:
The individual or entity appointed to serve
as the Plans Privacy Officer pursuant to Section 14.7 and Article III of the
Manual.
|
||
(I) |
Regulations:
The regulations promulgated pursuant to the Act
at 45 C.F.R. Parts 160 and 164, Subpart E and, effective as of April 20, 2005,
Subpart C.
|
||
(J) |
Security Officer:
Effective as of April 20, 2005, the
individual or entity appointed to serve as the Plans Security Officer pursuant to
Section 14.10.
|
||
(K) |
SHI:
Information that summarizes the claims history, claims
expense or type of claims experienced by covered persons under the Plan as such
term is described in Section 164.504 of the Regulations.
|
(A) |
For the purpose of enabling the Employer to obtain premium bids
from health insurers for providing health insurance coverage under the Health
Component;
|
||
(B) |
For purposes of determining whether and, if so, how to modify or
amend the Health Component; or
|
||
(C) |
For purposes of determining whether and, if so, how to terminate
the Health Component, in whole or in part.
|
-3-
(A) |
The Employer will not use or further disclose the information other
than as permitted or required by the Plan documents or as required by law or the
Regulations as set forth in the Manual;
|
||
(B) |
The Employer will ensure that any agents, including a subcontractor, to whom it
provides PHI received from a Health Component agree to the same restriction and conditions that apply to the Employer with respect to such information;
|
||
(C) |
The Employer will not use or disclose the information for employment-related
actions and decisions or in connection with any other benefit or employee benefit plan
of the Employer;
|
||
(D) |
The Employer will report to the Plan any use or disclosure of the information that
is inconsistent with the uses or disclosures provided for of which it becomes aware;
|
||
(E) |
The Employer will make PHI available to Participants in accordance with Section
164.524 of the Regulations as set forth in the Manual;
|
||
(F) |
The Employer will provide Participants with the right to amend their PHI and will
incorporate any amendments to PHI in accordance with Section 164.526 of the Regulations
as set forth in the Manual;
|
||
(G) |
The Employer will provide to Participants an accounting of disclosures of their
PHI for reasons other than treatment, payment or health care operations or
pursuant to an authorization in accordance with Section 164.528 of the Regulations as
set forth in the Manual;
|
-4-
(H) |
The Employer will make its internal practices, books and records relating to the
use and disclosure of PHI received from a Health Component available to the Secretary
of Health and Human Services for purposes of determining compliance by the Health
Component with the Regulations;
|
||
(I) |
If feasible, the Employer will return or destroy all PHI received from a Health
Component that the Employer still maintains in any form and retain no copies of such
information when no longer needed for the purpose for which disclosure was made or if
such return or destruction is not feasible, the Employer will limit further uses and
disclosures to those purposes that make the return or destruction of the information
infeasible;
|
||
(J) |
The Employer will ensure the adequate separation required pursuant to Section 14.6
below;
|
||
(K) |
Effective as of April 20, 2005, the Employer will implement administrative,
physical, and technical safeguards that reasonably and appropriately protect the
confidentiality, integrity, and availability of the electronic PHI that it creates,
receives, maintains or transmits on behalf of the Plan (except with respect to
enrollment and disenrollment information, SHI and PHI disclosed pursuant to an
authorization under Section 164.508 of the Regulations) and shall ensure that any
agents (including subcontractors) to whom it provides such electronic PHI agree to
implement reasonable and appropriate security measures to protect such information; and
|
||
(L) |
Effective as of April 20, 2005, the Employer will report to the Plan any security
incident of which it becomes aware.
|
(A) |
The only employees, classes of employees or other persons under the control of
the Employer to be given access to PHI disclosed to the Employer or who receive PHI
relating to treatment, payment under, health care operations of, or other matters
pertaining to a Health Component in the ordinary course of business are those identified in new Appendix C to the
Plan, a copy of which is attached hereto. Appendix C to the Plan may be revised and updated at
the direction of the Privacy Officer. Effective as of April 20, 2005, the Employer will ensure
that the provisions of this Section 14.5 are supported by reasonable and appropriate security
measures to the extent that the designees have access to electronic PHI.
|
-5-
(B) |
The access to and use by the Employer and the other individuals and entities
described in item (A) above is restricted to (i) the Plan sponsor functions with respect
to which the Firm is entitled to receive SHI pursuant to Section 14.4 above, (ii) uses
and disclosures described in an authorization by a Plan Participant, (iii) uses and
disclosures that are described to Plan Participants in the Plans notice of privacy
practices and (iv) the Health Component administration functions that the Employer
performs in connection with the operation and administration of the Health Component
consisting of:
|
(1) |
conducting quality assessment and improvement activities
(provided that the obtaining of generalizable knowledge is not the primary
purpose of any studies resulting from such activities) and related
functions that do not include medical treatment;
|
||
(2) |
evaluating health plan performance;
|
||
(3) |
underwriting, premium rating, and other activities relating
to the creation, renewal or replacement of a contract of health insurance
or health benefits, and ceding, securing, or placing a contract for reinsurance
of risk relating to claims for health care (including stop-loss insurance
and excess of loss insurance), provided that the
requirements of Section 164.514 of the Regulations are met, if applicable;
|
-6-
(4) |
conducting or arranging for medical review, legal services, and
auditing functions, including fraud and abuse detection and compliance
programs;
|
||
(5) |
business planning and development, such as conducting
cost-management and planning-related analyses related to managing and operating
the Health Component, including development or improvement of methods of payment
or coverage policies; and
|
||
(6) |
business management and general administrative activities of
the Health Component, including, but not limited to management activities
relating to implementation of and compliance with the requirements of the Act and
the Regulations; Health Component participant service activities, including the
provision of data analyses, provided that protected health information is not
disclosed unless such disclosure is permissible under the Act and the
Regulations; resolution of internal grievances; consistent with the applicable
requirements of Section 164.514 of the Regulations, creation of deidentified
health information.
|
(1) |
determinations of eligibility or coverage (including coordination
of benefits or the determination of cost sharing amounts), and adjudication or
subrogation of health benefit claims;
|
-7-
(2) |
risk adjusting amounts due based on enrollee health status and demographic
characteristics;
|
||
(3) |
billing, claims management, collection activities, obtaining
payment under a contract for reinsurance (including stop-loss insurance and
excess of loss insurance), and related health care data processing;
|
||
(4) |
review of health care services with respect to medical necessity,
coverage under the Health Component, appropriateness of care, or
justification of charges;
|
||
(5) |
utilization review activities, including precertification and
preauthorization of services, concurrent and retrospective review of services;
and
|
||
(6) |
disclosure to consumer reporting agencies of any of
the following protected health information relating to collection of
premiums or reimbursement; name and address; date of birth;
social security number; payment history; account number; and name and address of
the health care provider and/or the Health Component.
|
(C) |
In the event that any person described in item (A) of this section fails to
comply with any of the requirements of this section or of section 14.5 above, the
noncompliance shall be reported to the Plans Privacy Officer in a report describing the
name of the noncompliant person and a summary of the details regarding such persons
noncompliance. Upon receipt of such report, the Plans Privacy Officer shall solicit a
response from the person who has been reported as noncompliant giving such person the
opportunity to contest the charge of noncompliance or to offer justification or other
reasons why sanctions should not be imposed with respect to the noncompliance. The
Plans Privacy Officer shall, after considering all details and facts and circumstances
relating to an alleged act of noncompliance for which sanctions may be imposed
pursuant to this item determine if a
|
-8-
(A) |
To develop and propose to the Plan fiduciaries a protected health information
policy for the Plan, which policy when adopted shall become the Privacy Policy.
|
||
(B) |
To provide development guidance and assist in the identification,
implementation, and maintenance of information privacy policies and
procedures in coordination with management and administration, and legal counsel.
|
-9-
(C) |
To perform initial and periodic information privacy risk assessments and
conduct related ongoing compliance monitoring activities in coordination with
information privacy compliance and operational assessment functions.
|
||
(D) |
To work with legal counsel and management, key departments, and
committees to ensure the Employer has and maintains appropriate privacy and
confidentiality consent, authorization forms, and information notices and materials
reflecting current organization and legal practices and requirements.
|
||
(E) |
To oversee, direct, deliver or ensure delivery of initial and privacy training
and orientation to all individuals in the Employers workforce who may have access to
PHI in connection with the Plan.
|
||
(F) |
To participate in the development, implementation, and ongoing compliance
monitoring of all trading partner and business associate agreements as a means of
ensuring that all privacy concerns, requirements, and responsibilities are addressed.
|
||
(G) |
To track and monitor access to PHI within the Employer in connection with the
operation and administration of the Plan and its sponsorship by the Employer.
|
||
(H) |
To establish rules to determine when to allow qualified individuals to review or
receive a report on PHI privacy activity.
|
||
(I) |
To work cooperatively with the Human Resources Department and other applicable
Employer offices/personnel in overseeing Plan Participants rights to inspect, amend and
restrict access to PHI when appropriate.
|
||
(J) |
To establish and administer a process for receiving, documenting, tracking,
investigating and taking action on all complaints concerning privacy policies and
procedures in coordination and collaboration with other similar functions and, when
necessary, with legal counsel.
|
||
(K) |
To ensure compliance with privacy practices and consistent application of
sanctions for failure to comply with Plan privacy policies for all individuals
in the Employers workforce.
|
-10-
(L) |
To initiate, facilitate and promote activities to foster information privacy
awareness within the Employer.
|
||
(M) |
To review all system-related information security plans throughout the Employers
network to ensure alignment between security and privacy practices and to act as a
liaison to the information systems department.
|
||
(N) |
To work with all Employer personnel and Business Associates to ensure full
coordination and cooperation under the Plans privacy policies and procedures and legal
requirements.
|
||
(O) |
To maintain current knowledge of applicable federal and state privacy laws and
monitor advancements in information privacy technologies to ensure organizational
adaptation and compliance.
|
-11-
-12-
-13-
-14-
-15-
-16-
-17-
-18-
DYNEGY INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title : Chairman, BPC |
-19-
1. |
Individuals employed by or providing services to the division of the Employers
Human Resources Department that deals with the administration and
processing of benefit claims under the Health Components;
|
|
2. |
The Benefit Plans Committee;
|
|
3. |
The Privacy Officer;
|
|
4. |
The Contact Person;
|
|
5. |
Personnel in the Employers payroll and information systems departments who
may receive information as to whether an individual is enrolled in the Plan or
has disenrolled;
|
|
6. |
Effective as of April 20, 2005, the Security Officer.
|
Table of Contents
|
||||
I. DEFINITIONS AND CONSTRUCTION
|
1 | |||
|
||||
1.1
Definitions
|
1 | |||
1.2
Number and Gender
|
3 | |||
1.3
Headings
|
3 | |||
1.4
Reference to Plan Includes Constituent Benefit Programs
|
3 | |||
1.5
Inconsistent Provisions in Constituent Benefit Program Documents
|
3 | |||
1.6
Effect Upon Other Plans
|
3 | |||
|
||||
II. ESTABLISHMENT AND PURPOSE OF THE PLAN
|
4 | |||
|
||||
2.1
Establishment and Purpose of the Plan
|
4 | |||
2.2
Intention to be Welfare Benefit Plan
|
4 | |||
23
Incorporation of Constituent Benefit Programs
|
4 | |||
|
||||
III. PARTICIPATION AND DEPENDENT COVERAGE
|
5 | |||
|
||||
3.1
Eligible Employee Coverage
|
5 | |||
3.2
Eligible Dependent Coverage
|
5 | |||
3.3
Enrollment Without Regard to
Medicaid Eligibility
|
6 | |||
3.4
Special Enrollment Periods
|
6 | |||
|
||||
IV. THIRD PARTY LIABILITY
|
7 | |||
|
||||
4.1
Effect of Article
|
7 | |||
4.2
Third Party Liability is
Primary as
to Covered Expenses
|
7 | |||
4.3
Plans Rights of Reimbursement For Covered Expenses Previously Paid
|
7 | |||
4.4
Plans Exclusion of Coverage For Future Covered Expenses
|
7 | |||
4.5
Plans Rights of Independent Legal Action
|
7 | |||
4.6
Attorney Fees, Costs and Expenses
|
8 | |||
4.7
Obligations of Participants
|
8 | |||
4.8
Limitations on Plans Rights of Reimbursement
|
8 | |||
|
||||
V. BENEFIT CLAIMS PROCEDURE
|
9 | |||
|
||||
5.1
Claims For Benefits
|
9 | |||
5.2
Definitions
|
9 | |||
5.3
Filing of Benefit Claim
|
10 | |||
5.4
Processing of Benefit Claim
|
11 | |||
5.5
Notification of Adverse Benefit Determination
|
12 | |||
5.6
Timing of Adverse Benefit Determination Notification Regarding Health Benefit Claims
|
12 | |||
5.7
Timing of Adverse Benefit Determination Notification Regarding Disability Benefit Claims
|
14 | |||
5.8
Timing of Adverse Benefit Determination Regarding Non-Health And Disability Claims
|
14 | |||
5.9
Review of Adverse Benefit Determination Regarding Health or Disability Benefit Claims
|
15 | |||
5.10
Review of Adverse Benefit Determination Regarding Non-Health and Disability Benefit Claims
|
16 | |||
5.11
Notification of Benefit Determination on Review
|
16 |
-ii-
5.12
Timing of Notification Regarding Review of Health Benefit Claims
|
17 | |||
5.13
Timing of Notification Regarding Review of Disability Benefit Claims
|
18 | |||
5.14
Timing of Notification Regarding Review of Non-Health or Disability
Claims
|
18 | |||
5.15
Exhaustion of Administrative Remedies
|
18 | |||
5.16
Payment of Benefits
|
18 | |||
5.17
Authorized Representatives
|
19 | |||
|
||||
VI. FUNDING OF PLAN
|
20 | |||
|
||||
6.1
Source of Benefits
|
20 | |||
6.2
Participant Contributions
|
20 | |||
6.3 HMO
Premiums
|
20 | |||
6.4
Insurance Premiums
|
20 | |||
6.5
Trust
|
20 | |||
|
||||
VII. ADMINISTRATION OF PLAN
|
21 | |||
|
||||
7.1
Plan Administrator
|
21 | |||
7.2
Discretion to Interpret Plan
|
21 | |||
7.3
Powers and Duties
|
21 | |||
7.4
Expenses
|
22 | |||
7.5
Right to Delegate
|
22 | |||
7.6
Reliance on Reports, Certificates, and Participant Information
|
23 | |||
7.7
Indemnification
|
23 | |||
7.8
Fiduciary Duty
|
23 | |||
7.9
Compensation and Bond
|
23 | |||
|
||||
VIII. AMENDMENT AND TERMINATION OF PLAN
|
24 | |||
|
||||
8.1
Right to Amend
|
24 | |||
8.2
Right to Terminate
|
24 | |||
8.3
Effect of Amendment Or Termination
|
24 | |||
8.4
Delegation to Benefit Plans Committee
|
24 | |||
8.5
Effect of Oral Statements
|
24 | |||
|
||||
IX. MISCELLANEOUS PROVISIONS
|
25 | |||
|
||||
9.1 No
Guarantee of Employment
|
25 | |||
9.2
Payments to Minors and Incompetents
|
25 | |||
9.3 No
Vested Right to Benefits
|
25 | |||
9.4
Nonalienation of Benefits
|
25 | |||
9.5
Unknown Whereabouts
|
26 | |||
9.6
Participating Employers
|
26 | |||
9.7
Notice and Filing
|
26 | |||
9.8
Incorrect Information, Fraud, Concealment, or Error
|
27 | |||
9.9
Medical Responsibilities
|
27 | |||
9.10
Compromise of Claims
|
27 | |||
9.11
Electronic Administration
|
27 | |||
9.12
Tax Payments
|
27 | |||
9.13
Compensation and Bond
|
28 | |||
9.14
Jurisdiction
|
28 | |||
9.15
Severability
|
28 |
-iii-
X. QUALIFIED MEDICAL CHILD SUPPORT ORDERS
|
29 | |||
|
||||
XI. COBRA CONTINUATION COVERAGE
|
30 | |||
|
||||
XII. FMLA COVERAGE
|
31 | |||
|
||||
XIII. USERRA
|
32 | |||
|
||||
XIV. RESTRICTIONS REGARDING PROTECTED HEALTH INFORMATION
|
33 | |||
|
||||
14.1
Purpose of Article
|
33 | |||
14.2
Provision of Information to the Company Pursuant to Authorization
|
33 | |||
14.3
Provision of Summary Health Information to Company
|
33 | |||
14.4
General Provision of Health Information to Company
|
33 | |||
14.5
Adequate Separation
|
35 | |||
14.6
Privacy Officer
|
36 | |||
14.7
Coverage and Effective Date
|
38 | |||
|
||||
APPENDIX A
|
A-1 | |||
|
||||
APPENDIX B
|
B-1 |
-iv-
(1) |
Administrative Services Agreement
:
The agreement(s) entered into with each
individual or entity providing administrative services with respect to one or more Constituent
Benefit Programs.
|
|
(2) |
Administrative Services Provider
:
Any individual or entity operating under an
Administrative Services Agreement to provide administrative services with respect to any
benefits offered under one or more of the Constituent Benefit Programs.
|
|
(3) |
Board
:
The board of directors of the Company.
|
|
(4) |
Cafeteria Plan
:
The cafeteria plan, if any, established by the Employer under
section 125 of the Code.
|
|
(5) |
Code
:
The Internal Revenue Code of 1986, as amended.
|
|
(6) |
Benefit Plans Committee
:
The Committee to which the Board has delegated certain
Plan sponsor powers.
|
|
(7) |
Company
:
Dynegy Northeast Generation, Inc.
|
|
(8) |
Compensation
:
Unless otherwise specifically provided in a Constituent Benefit
Program, the annual base pay paid by the Employer to or for the benefit of a Participant for
services performed for the Employer.
|
|
(9) |
Condition
:
Any sickness, injury, or other mental or physical disability giving rise
to the payment of benefits under the Plan.
|
|
(10) |
Constituent Benefit Programs
:
The benefit programs listed on Appendix B to the Plan,
as such programs and such Appendix B may be amended from time to time.
|
|
(11) |
Constituent Benefit Program Document(s)
:
The written document(s) setting forth the
terms of the applicable Constituent Benefit Program, including, but not limited to, the
benefits provided, the eligibility and enrollment requirements, the conditions of dependent
coverage, if applicable, the termination of coverage, and the terms and conditions of benefit
payments under each Constituent Benefit Program, as may be amended from time to time.
Appendix B describes the Constituent Benefit Program Document or Constituent Benefit Program
Documents for each Constituent Benefit Program. Appendix B also describes which Employers
maintain which Constituent Benefit Programs for their Eligible Employees.
|
|
(12) |
Covered Eligible Dependent
:
Each Eligible Dependent who is covered under the Plan
pursuant to Section 3.2.
|
-1-
(13) |
Effective Date
:
January l, 2002, except as otherwise stated herein
and except 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.
|
|
(14) |
Eligible Dependent
:
With respect to an Eligible Employee, each person who by virtue
of a relationship to such Eligible Employee is eligible for coverage under a Constituent
Benefit Program.
|
|
(15) |
Eligible Employee
:
Each individual who is eligible for coverage under a Constituent
Benefit Program because of current or former employment with the Employer. Notwithstanding
any provision of the Plan to the contrary, no individual who is designated, compensated, or
otherwise classified or treated by the Employer as an
independent contractor, leased employee, or other non-common law employee shall be an
Eligible Employee, unless a Constituent Benefit Program specifically and expressly provides
otherwise.
|
|
(16) |
Employer
:
The Company and each Participating Employer.
|
|
(17) |
ERISA
:
The Employee Retirement Income Security Act of 1974, as amended.
|
|
(18) |
Group Health Plan
:
Each Constituent Benefit Program, which is a group health plan
within the meaning of section 5000(b)(l) of the Code, and/or a group health plan within the
meaning of section 607(1) of ERISA, as applicable, and for purposes of Article XII, is either
a group health plan within the meaning of section 5000(b)(l) of the Code or any Constituent
Benefit Program designated by the Employer as a Group Health Plan for purposes of FMLA
Leave.
|
|
(19) |
HMO
:
Any health maintenance organization or similar organization or network of
individuals or organizations that has contracted to provide medical, dental, and/or other
health-related benefits to Participants and Covered Eligible Dependents.
|
|
(20) |
Insured Constituent Benefit Program
:
Each Constituent Benefit Program whose
benefits are provided by an Insurer.
|
|
(21) |
Insurer
:
Any insurance company that has contracted to provide benefits under a
Constituent Benefit Program.
|
|
(22) |
Participant
:
Each Eligible Employee who is a participant in the Plan pursuant to
Article III and, where reference is appropriate, each Covered Eligible Dependent.
|
|
(23) |
Participating Employer
:
Any subsidiary or affiliate of the Company, or any other
entity permitted by law to do so, that has been designated by the Company as a participating
employer and participates in the Plan with respect to one or more Constituent Benefit
Programs.
|
|
(24) |
Plan
:
The Dynegy Northeast Generation, Inc. Comprehensive Welfare Benefits Plan.
|
-2-
(25) |
Plan Administrator
:
An individual, committee or entity appointed by the Board to
perform, in a fiduciary capacity as administrative fiduciary, certain identified duties and
responsibilities with respect to the administration of the Plan and/or a Constituent
Benefit Program.
|
|
(26) |
Plan Year
:
The twelve-consecutive month period commencing on January 1 of each
year.
|
|
(27) |
Recovery
:
An amount obtained by or for the benefit of a Participant or Covered
Eligible Dependent from a Third Party, such Third Partys liability carrier, or in the case of
uninsured or underinsured motorist coverage, from such Participants or Covered Eligible
Dependents automobile insurance carrier because of a Condition for which a Third Party is
legally liable. In the case of a Recovery which, in whole or in part, includes assets other
than cash or cash equivalents, the Plan Administrator shall determine the monetary value
thereof.
|
|
(28) |
Third Party
:
Any individual or entity who or which is or may be liable to a
Participant or Covered Eligible Dependent for a Condition or for payment of damages or
expenses related to a Condition.
|
-3-
-4-
-5-
-6-
-7-
-8-
(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 Claimants eligibility to participate in the Plan, and
including with respect to health benefits a denial, reduction, termination or failure
to provide or make payment resulting from the application of any utilization review, as
well the failure to cover an item or service for which benefits are otherwise provided
because it is determined to be experimental, investigational or not medically necessary
or appropriate. Further and with respect to health benefits, any reduction or
termination of an ongoing course of treatment prior to its scheduled expiration will be
treated as an Adverse Benefit Determination regarding a Concurrent Care Claim.
Further, any invalidation of a claim for failure to furnish written proof of loss or 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 Plan
Administrator that has powers and duties of benefit claims administration has delegated
day-to-day Plan administration responsibilities and who, pursuant to such
delegation, processes Plan benefit claims in the ordinary course or if none has been so
designated, the Plan Administrator that has powers and duties of benefits claims
administration.
|
||
(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.
|
-9-
(4) |
Concurrent Care Claim
: Any request to extend an ongoing course of a health
benefit treatment beyond the period of time or number of treatments that has
previously been approved under the Plan.
|
||
(5) |
Health Care Professional
: A physician or other health care professional
licensed, accredited or certified to perform specified health services consistent with
State law.
|
||
(6) |
Independent Fiduciary
: The person or entity retained by the Plan
Administrator to perform the review of an Adverse Benefit Determination, who will be an
individual other than (a) the individual who made the Adverse Benefit Determination
that is the subject of the review and (b) the subordinate of such individual.
|
||
(7) |
Post-Service Claim
: Any claim for a Plan health benefit that is not a
Pre-Service Claim.
|
||
(8) |
Pre-Service Claim
: Any claim for a Plan health benefit the terms of
which condition receipt thereof, in whole or in part, on approval of the benefit in
advance of obtaining medical care.
|
||
(9) |
Urgent Care Claim
: Any Plan health benefit claim for medical care or
treatment with respect to which the application of the time periods otherwise applicable
to such claim (a) could seriously jeopardize, as determined either by a physician with
knowledge of the Claimants medical condition or by the Benefits Administrator
(applying the judgment of a prudent layperson who possesses an average knowledge of
health and medicine), the Claimants life, health or ability to regain maximum function,
or (b) would subject the Claimant, in the opinion of a physician with knowledge of the
Claimants medical condition, to severe pain that cannot be adequately managed without
the care or treatment that is the subject of the claim.
|
-10-
(1) |
All materials submitted to the Benefits Administrator by the Claimant in
connection with the claim;
|
||
(2) |
A written description of why the Benefits Administrator was of the view that
the Claimants 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 Plan Administrator
in its consideration of the claim.
|
-11-
(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) |
In the case of a health or disability benefit claim and if an internal rule,
guideline, protocol or other similar criterion was relied upon in making the Adverse
Benefit Determination, either provide such criterion or state that such criterion was
relied upon and that a copy of the criterion will be provided free of charge to the
Claimant upon request;
|
||
(4) |
In the case of a health or disability benefit claim and if the Adverse Benefit
Determination is based on a medical necessity, experimental treatment or similar
exclusion or limit, either explain the scientific or clinical judgment for the
determination, applying the terms of the Plan to the Claimants medical circumstances,
or state that such explanation will be provided free of charge to the Claimant upon
request;
|
||
(5) |
Describe any additional material or information necessary for the Claimant to
perfect the claim and explain why such material or information is necessary;
|
||
(6) |
Describe the Plans review procedures and time limits applicable to such
procedures, including a statement of the Claimants right to bring a civil action under
section 502(a) of ERISA following an Adverse Benefit Determination on review; and
|
||
(7) |
If an Urgent Care Claim is involved, provide a description of the expedited
review process available for Urgent Care Claims (see Section 5.12).
|
(1) |
In the case of an Urgent Care Claim other than a Concurrent Care Claim, as
soon as possible, taking into account the medical exigencies, but not later than
seventy-two hours after the claim is filed with the Plan Administrator; provided,
however, that if additional information from the Claimant is necessary to complete
the claim, the Claimant will be notified within twenty-four hours after such claim is
filed with the Plan Administrator and will be given at least
forty-eight
hours to
provide the specified information, and notice of the Plan Administrators benefit
determination will be provided to the Claimant within forty-eight hours after the
earlier of (a) the Plan Administrators receipt of the specified information or (b)
the end of the period afforded the Claimant to provide the specified information. In
addition, such notification may be provided orally (provided that written or
electronic notification is provided within three days following such oral
notification).
|
-12-
(2) |
In the case of a properly submitted Urgent Care Claim that is a Concurrent Care
Claim, if such claim is made at least 24 hours prior to the scheduled expiration of
treatment, notice of the disposition of the claim will be furnished to the Claimant as
soon as possible, taking into account the medical exigencies, but not later than 24
hours after such claim is filed with the Plan Administrator. If such claim is not made
at least twenty-four hours prior to the scheduled expiration of treatment, the claim
shall be governed by Clause (1) above.
|
||
(3) |
In the case of a decision to reduce or terminate a previously approved ongoing
course of health benefit treatment that was to be provided over a period of time or a
number of treatments, the Plan Administrator shall notify the Claimant of the Adverse
Benefit Determination at a time sufficiently in advance of the reduction or termination
to allow the Claimant to appeal and obtain a determination on review of such Adverse
Benefit Determination before the benefit is reduced or terminated.
|
||
(4) |
In the case of a Pre-Service Claim not described in Clauses (1) through (3)
above, the Plan Administrator shall notify the Claimant of the Adverse Benefit
Determination within a reasonable period of time appropriate to the medical
circumstances but not later than fifteen days after receipt of the claim by the Plan
(which period may be extended one time for up to an additional fifteen days provided
that the Plan Administrator both determines that such extension is necessary due to
matters beyond the control of the Plan and notifies the Claimant prior to the expiration
of the initial fifteen-day period of the circumstances requiring the extension of time
and the date by which the Plan expects to render a decision).
|
||
(5) |
In the case of a Post-Service Claim not described in Clauses (1) through (3)
above, the Plan Administrator shall notify the Claimant of the Adverse Benefit
Determination within a reasonable period of time but not later than thirty days after
receipt of the claim (which period may be extended one time for up to fifteen days
provided that the Plan Administrator both determines that such extension is necessary
due to matters beyond the control of the Plan and notifies the Claimant prior to the
expiration of the initial thirty-day period of the circumstances requiring the extension
of time and the date by which the Plan expects to render a decision).
|
-13-
-14-
(1) |
To exercise the right to request a review of an Adverse Benefit Determination, a Claimant
must submit a written request for such review to the Plan Administrator not later than 180
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 Plan Administrator or, as
applicable, to the Independent Fiduciary;
|
||
(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 was considered in the initial benefit determination;
|
||
(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
(a) documents, records or other information relied upon for the benefit determination, (b)
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, (c) documents, records or
other information that demonstrates compliance with the standard claims procedure in making the
benefit determination on the Claimants claim, and (d) documents, records or other information
that constitutes a statement of policy or guidance with respect to the Plan concerning the
denied treatment option or benefit for the Claimants diagnosis, without regard to whether
such statement of policy or guidance was relied upon in making the benefit determination;
|
||
(5) |
The review of the Adverse Benefit Determination shall not give deference to the original
decision;
|
||
(6) |
The review of the Adverse Benefit Determination shall be conducted solely by an Independent
Fiduciary;
|
||
(7) |
If the initial benefit determination was based in whole or in part on a medical judgment,
including determinations with regard to whether a particular treatment, drug or other item is
experimental, investigational or not medically necessary or appropriate, the Independent
Fiduciary conducting the review shall consult with a Health Care Professional with
appropriate training and experience in the applicable field of medicine who was not
consulted, and is not the subordinate of someone who was consulted, during the initial benefit
determination; and
|
||
(8) |
The Claimant shall have the right to have identified to him the medical or vocational experts
whose advice was obtained in connection with the Adverse Benefit Determination (without regard
to whether the advice was relied upon in making such determination).
|
-15-
(1) |
The Claimant must submit a written request for such review to the Plan
Administrator not later than 60 days following receipt by the Claimant of the Adverse
Benefit Determination notification;
|
||
(2) |
The Claimant shall have the opportunity to submit written comments, documents,
records, and other information relating to the claim for benefits to the Plan
Administrator;
|
||
(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 was 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 (a) documents, records or other information relied upon for the
benefit determination, (b) 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
(c) documents, records or other information that demonstrates compliance with the
standard claims procedure.
|
(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;
|
-16-
(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 Claimants claim for benefits including (a) documents,
records or other information relied upon for the benefit determination, (b) 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, (c) documents, records or other information that demonstrates
compliance with the standard claims procedure in making the benefit determination on
the Claimants claim, and (d) in the case of claims regarding health or disability
benefits, documents, records or other information that constitutes a statement of
policy or guidance with respect to the Plan concerning the denied treatment option or
benefit for the Claimants diagnosis, without regard to whether such statement of
policy or guidance was relied upon in making the benefit determination.
|
||
(4) |
Describe the Claimants right to bring an action under section 502(a) of ERISA;
|
(1) |
If an internal rule, guideline, protocol or other similar criterion was relied
upon in making the Adverse Benefit Determination, either provide such criterion or
state that such criterion was relied upon and that a copy of the criterion will be
provided free of charge to the Claimant upon request;
|
||
(2) |
If the Adverse Benefit Determination is based on a medical necessity,
experimental treatment or similar exclusion or limit, either explain the scientific or
clinical judgment for the determination, applying the terms of the Plan to the
Claimants medical circumstances, or state that such explanation will be provided free
of charge to the Claimant upon request;
|
||
(3) |
Include the following statement: You and your plan may have other voluntary
alternative dispute resolution options, such as mediation. One way to find out what
may be available is to contact your local U.S. Department of Labor Office and your
State insurance regulatory agency.
|
-17-
-18-
-19-
-20-
(1) |
To make and enforce such rules, regulations, and procedures as it may deem necessary or
proper for the orderly and efficient administration of the Plan and/or a Constituent
Benefit Program with respect to the duties and responsibilities of such Plan Administrator
as described on Appendix B;
|
||
(2) |
With the consent of the Company, to enter into an Administrative Services
Agreement with an individual or entity;
|
||
(3) |
In its discretion and as applicable with respect to the duties and
responsibilities of such Plan Administrator as described on Appendix B, to interpret
and decide all matters of fact in granting or denying benefits under the Plan and/or a
Constituent Benefit Program its interpretation and decision thereof to be final and
conclusive
on all persons claiming benefits under the Plan and/or a Benefit Constituent Program;
|
-21-
(4) |
In its discretion and as applicable with respect to the duties and responsibilities of
such Plan Administrator as described on Appendix B, to determine eligibility under
the terms of the Plan and/or a Constituent Benefit Program, its determination thereof
to be final and conclusive on all persons;
|
||
(5) |
In its discretion and as applicable with respect to the duties and
responsibilities of such Plan Administrator as described on Appendix B, to determine the
amount of
and authorize the payment of benefits under the Plan and/or a Constituent Benefit
Program, its determination and authorization thereof to be final and conclusive on
all persons;
|
||
(6) |
To prepare and distribute information explaining the Plan and/or a Constituent
Benefit Program to the extent pertaining to provisions of the Plan as to which the Plan
Administrator has duties and responsibilities as described on Appendix B;
|
||
(7) |
To obtain from the Employer, Employees, beneficiaries, and Eligible Dependents
such information as may be necessary for the proper administration of the Plan and/or a
Constituent Benefit Program;
|
||
(8) |
With the consent of the Company, to appoint an Administrative Services Provider;
and
|
||
(9) |
With the consent of the Company, to sue or cause suit to be brought in the name
of the Plan.
|
-22-
(1) |
Solely in the interest of Participants and for the exclusive purpose of
providing benefits to Participants, Covered Eligible Dependents, and their
beneficiaries and of defraying reasonable expenses of administering the Plan;
|
||
(2) |
With the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent person 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; and
|
||
(3) |
In accordance with the documents and instruments governing the Plan insofar as
such documents and instruments are consistent with applicable law.
|
-23-
-24-
-25-
-26-
-27-
-28-
-29-
-30-
-31-
-32-
(1) |
For the purpose of enabling the Company to obtain premium bids from health
insurers for providing health insurance coverage under the Plan;
|
||
(2) |
For purposes of determining whether and, if so, how to modify or amend the
Plan; or
|
||
(3) |
For purposes of determining whether and, if so, how to terminate the Plan,
in whole or in part.
|
(1) |
The Company will not use or further disclose the information other
than as permitted or required by the Plan documents or as required by law or
the Regulations as set forth in the Dynegy Inc. and Affiliates Employee Plan
Protected Health Information Privacy Policy (the Privacy Policy);
|
-33-
(2) |
The Company will ensure that any agents, including a subcontractor, to whom it
provides PHI received from the Plan agree to the same restriction and conditions
that apply to the Company with respect to such information;
|
||
(3) |
The Company will not use or disclose the information for employment- related
actions and decisions or in connection with any other benefit or employee benefit
plan of the Company;
|
||
(4) |
The Company will report to the Plan any use or disclosure of the information
that is inconsistent with the uses or disclosures provided for of which it becomes
aware;
|
||
(5) |
The Company will make available to Participants PHI in accordance with
Section 164.524 of the Regulations as set forth in the Privacy Policy;
|
||
(6) |
The Company will make available to Participants PHI for amendment and
incorporate any amendments to PHI in accordance with Section 164.526 of the
Regulations as set forth in the Privacy Policy;
|
||
(7) |
The Company will make available to Participants the information required to
provide an accounting of disclosures in accordance with
Section 164.528 of the Regulations as set forth in the Privacy Policy;
|
||
(8) |
The Company will make its internal practices, books and records relating to
the use and disclosure of PHI received from the Plan available to the Secretary of
Health and Human Services for purposes of determining compliance by the Plan with
the Regulations;
|
||
(9) |
If feasible, the Company will return or destroy all PHI received from the
Plan that the Company still maintains in any form and retain no copies of such
information when no longer needed for the purpose for which disclosure was made or
if such return or destruction is not feasible, the Company will limit further uses
and disclosures to those purposes that make the return or destruction of the
information infeasible; and
|
||
(10) |
The Company will ensure the adequate separation required pursuant to Section 14.5 below.
|
-34-
(1) |
The only employees, classes of employees or other persons under the
control of the Company to be given access to PHI disclosed to the Company or
who receives PHI relating to payment under, health care
operations of, or other matters pertaining to the Plan in the ordinary course of business
are: those individuals employed by or providing services to the division of the Companys
Human Resources Department which deals with the administration and processing of benefit
claims under the Plan, the Plans fiduciaries (i.e., the Plan Administrator(s)), the members
of the compensation committee of the Companys Board of Directors, the Plans Privacy
Officer and other employees/individuals who have been identified by the Privacy Officer as
persons who may have need to access PHI whether by virtue of being involved in the ongoing
operation and administration of the Plan or being involved in such Plan sponsor activities
that may entail bid proposals, etc.
|
||
(2) |
The access to and use by the Company and the other individuals and entities described in
item (A) above is restricted to (i) the Plan administration functions that the Company
performs in connection with the operation and administration of the Plan, (ii) the Plan
sponsor functions with respect to which the Company is entitled to receive SHI pursuant to
Section 14.4 above, (iii) uses and disclosures described in an authorization by the Plan
Participant, and (iv) uses and disclosures that are described to Plan Participants in the
Notice of Privacy Practices and Consent for Dynegy Inc. and Affiliates Plan Participants, as
required by Section 164.520 of the Regulations.
|
||
(3) |
In the event that any person described in item (A) of this section fails to comply with any
of the requirements of this section or of Section 14.4 above, the noncompliance shall be
reported to the Plans Privacy Office in a report describing the name of the noncompliant
person and a summary of the details regarding such persons
noncompliance. Upon receipt of such
report, the Plans Privacy Officer shall solicit a response from the person who has been
reported as noncompliant giving such person the opportunity to contest the charge of
noncompliance or to offer justification or other reasons why sanctions should not be imposed
with respect to the noncompliance. The Plans Privacy Officer shall, after considering all
details and facts and circumstances relating to an alleged act of noncompliance for which
sanctions may be imposed pursuant to this item (C), determine if a sanction should be imposed
(which sanction may range from a warning that subsequent acts of noncompliance may result in
significant penalties to proposed dismissal from employment or termination of contract, as
applicable). Upon determination of a sanction and if the sanction may be imposed under the
authority of the Plans Privacy Officer, the sanction shall be imposed. If the sanction
requires action of the Company, the Plans Privacy Officer shall confer with the appropriate
executives of the Company. If the Company, following consideration of a proposed sanction from
the Plans Privacy Officer for noncompliance with the requirements of sections 14.4 and 14.5
by a person or entity, determines not to impose such sanction, the Company shall advise the
Plans Privacy Officer. In such event, the Plans Privacy
Officer must consider and propose an alternative sanction for the
noncompliant person or entity.
|
-35-
(1) |
To develop and propose to the Plan fiduciaries (i.e., the
Plan Administrator) a protected health information policy for the Plan, which
policy when adopted shall become the Privacy Policy.
|
||
(2) |
Provides development guidance and assists in the
identification, implementation, and maintenance of information privacy policies
and procedures in coordination with management and administration, and legal
counsel.
|
||
(3) |
Performs initial and periodic information privacy risk assessments and
conducts related ongoing compliance monitoring activities in coordination with
information privacy compliance and operational assessment functions.
|
||
(4) |
Works with legal counsel and management, key departments, and
committees to ensure the Company has and maintains appropriate privacy and
confidentiality consent, authorization forms, and information notices and
materials reflecting current organization and legal practices and requirements.
|
||
(5) |
Oversees, directs, delivers, or ensures delivery of initial and privacy
training and orientation to all parties who may have access to PHI in connection
with the Plan including Company employees, Plan service providers, contractors,
Plan business associates, such as third-party administrators, COBRA vendors
and utilization review organizations and other appropriate third parties.
|
-36-
(6) |
Participates in the development, implementation, and ongoing compliance monitoring of all
trading partner and business associate agreements, to ensure all privacy concerns,
requirements, and responsibilities are
addressed.
|
||
(7) |
Establishes with management and operations a mechanism to identify all of the Companys plans
and benefit arrangements which are covered entities for
purposes of the laws governing PHI.
|
||
(8) |
Tracks and monitors access to PHI within the Company in connection with the operation and
administration of the Plan and its sponsorship by the Company.
|
||
(9) |
Establishes rules to determine when to allow qualified individuals to review or receive a
report on PHI privacy activity.
|
||
(10) |
Works cooperatively with the Human Resources Department and other applicable Company
offices/personnel in overseeing Plan Participants rights to inspect, amend and restrict
access to PHI when appropriate.
|
||
(11) |
Establishes and administers a process for receiving, documenting, tracking,
investigating, and taking action on all complaints concerning privacy policies regarding the
Plan and procedures in coordination and collaboration with other similar functions and, when
necessary, legal counsel.
|
||
(12) |
Ensures compliance with privacy practices and consistent application of sanctions for
failure to comply with Plan privacy policies for all individuals in the Companys
workforce, extended workforce, and for all business associates, such as third-party
administrators, COBRA vendors and utilization review organizations, in cooperation
with Human Resources, administration, and legal counsel as applicable.
|
||
(13) |
Initiates, facilitates and promotes activities to foster information privacy awareness within
the Company.
|
||
(14) |
Reviews all system-related information security plans throughout the Companys network to
ensure alignment between security and privacy practices, and acts as a liaison to the
information systems department.
|
||
(15) |
Works with all Company personnel and business associates, such as third- party
administrators, COBRA vendors and utilization review organizations, involved
with any aspect of release of Plan PHI, to ensure full coordination and cooperation under the
Plans privacy policies and procedures and legal requirements.
|
||
(16) |
Maintains current knowledge of applicable federal and state privacy laws and monitors
advancements in information privacy technologies to ensure organizational adaptation and
compliance.
|
||
(17) |
Serves as information privacy consultant to the Company with respect to the Plan.
|
-37-
DYNEGY NORTHEAST GENERATION, INC.
|
||||
By: | /s/ Jane D. Jones | |||
Name: | Jane D. Jones |
-38-
A-1
I. |
Dynegy Northeast Generation, Inc. Group Medical Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description and Administrative
Services Contracts with MVP, Centrus and Complink.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
their respective contracts, MVP, Centrus and Complink shall serve as benefit claims and
claims appeals fiduciaries for the Dynegy Northeast Generation, Inc. Group Medical Plan
and shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Group Medical Plan, such interpretation
decision thereof to be final and conclusive on all persons claiming benefits
under the Plan with respect to the Dynegy Northeast Generation, Inc. Medical
Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Medical
Plan, any such decision thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation, Inc.
Medical Plan except to the extent the Plans claims procedures expressly
provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Northeast
Generation, Inc. Medical Benefit Plan.
|
B-1
(1) |
In its sole discretionary authority, to determine eligibility under the terms
of the Dynegy Northeast Generation, Inc. Medical Plan, its decision thereof to
be final and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy
Northeast Generation, Inc. Medical Plan including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Northeast Generation, Inc. Medical Plan under applicable
provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Medical Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Northeast Generation, Inc. Medical Plan, in such manner and
to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate and
efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Medical Plan.
|
II. |
Dynegy Northeast Generation, Inc. Employee Assistance Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Descriptions and
Administrative Services Contract with ENI.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
its contract, ENI shall serve as benefit claims and claims appeals fiduciary for the
Dynegy Northeast Generation, Inc. Employee Assistance Plan and shall have the following
powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Employee Assistance Plan, such
interpretation decision thereof to be final and conclusive on all persons
claiming benefits under the Plan with respect to the Dynegy Northeast
Generation, Inc. Employee Assistance Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Employee
Assistance Plan, any such decision thereof to be final and conclusive on all
persons;
|
B-2
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation, Inc.
Employee Assistance Plan except to the extent the Plans claims procedures
expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to
be its fiduciary responsibility with respect to the Dynegy Northeast Generation,
Inc. Employee Assistance Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Dynegy Northeast Generation, Inc. Employee Assistance
Plan, its decision thereof to be final and conclusive on all peisons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy
Northeast Generation, Inc. Employee Assistance Plan including, but not limited
to, all materials and information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Northeast Generation, Inc. Employee Assistance Plan under
applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Employee Assistance Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan documents with
respect to the Dynegy Northeast Generation, Inc. Employee Assistance Plan, in
such manner and to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Employee Assistance Plan.
|
B-3
III. |
Dynegy Northeast Generation, Inc. Medical Reimbursement Account Program
|
|
Participating Employers: Dynegy Northeast Generation, Inc. (until January 30, 2002)
|
||
|
Constituent Benefit Plan Documents: Dynegy Northeast Generation, Inc. Medical Reimbursement
Spending Account Program; Summary Plan Description and Administrative Services
Contract with TaxSaver, Inc.
|
||
|
Plan Administrators: With respect to spending account benefits provided or administered
under its contract, TaxSaver, Inc. shall serve as benefits claims and claims appeal
fiduciary for the Dynegy Northeast Generation, Inc. Medical Reimbursement Account
Program and shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact
and Plan interpretation in granting or denying benefits under the Dynegy Northeast
Generation, Inc. Medical Reimbursement Account Program, such interpretation decision
thereof to be final and conclusive on all persons claiming benefits under the Plan with
respect to the Dynegy Northeast Generation, Inc. Medical Reimbursement Account Program;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Northeast Generation, Inc. Medical Reimbursement Account
Program, any such decision thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and
benefit claims appeals under the Dynegy Northeast Generation, Inc. Medical
Reimbursement Account Program except to the extent the Plans claims procedures
expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its
fiduciary responsibility with respect to the Dynegy Northeast Generation, Inc. Medical
Reimbursement Account Program.
|
(1) |
All administrative responsibility with respect to salary reduction payroll
processing;
|
||
(2) |
In its sole discretionary authority, to determine eligibility under the terms
of the Dynegy Northeast Generation, Inc. Medical Reimbursement Account Program, its
decision thereof to be final and conclusive on all persons;
|
||
(3) |
To prepare and distribute information explaining the Dynegy Northeast
Generation, Inc. Medical Reimbursement Account Program including, but
not limited to, all materials and information required to be distributed
pursuant to ERISA;
|
B-4
(4) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Northeast Generation, Inc. Medical Reimbursement Account
Program under applicable provisions of ERISA;
|
||
(5) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Medical Reimbursement Account
Program;
|
||
(6) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Northeast Generation, Inc. Medical Reimbursement Account
Program, in such manner and to such extent as it deems expedient; and
|
||
(7) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Medical Reimbursement Account Program.
|
IV. |
Dynegy Northeast Generation, Inc. Dependent Care Reimbursement Account Program
|
|
Participating Employers:
Dynegy Northeast Generation, Inc. (until January 30, 2002)
|
||
|
Constituent Benefit Plan Documents: Dynegy Northeast Generation, Inc. Dependent
Care Reimbursement Account Program; Summary Plan Description and
Administrative Services Contract with TaxSaver, Inc.
|
||
|
Plan Administrators: With respect to spending account benefits provided or
administered under its contract, TaxSaver shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Dependent Care Reimbursement
Account Program, such interpretation decision thereof to be final and conclusive
on all persons claiming benefits under the Plan with respect to the Dynegy
Northeast Generation, Inc. Dependent Care Reimbursement Account
Program;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc.
Dependent Care Reimbursement Account Program, any such decision thereof to be
final and conclusive on all persons;
|
B-5
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Northeast Generation, Inc. Dependent Care
Reimbursement Account Program except to the extent the Plans claims procedures expressly
provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its
fiduciary responsibility with respect to the Dynegy Northeast Generation, Inc. Dependent
Care Reimbursement Account Program and the Plan.
|
(1) |
All administrative responsibility with respect to salary reduction payroll processing;
|
||
(2) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Northeast Generation, Inc. Dependent Care Reimbursement Account Program, its
decision thereof to be final and conclusive on all persons;
|
||
(3) |
To prepare and distribute information explaining the Dynegy Northeast Generation, Inc.
Dependent Care Reimbursement Account Program Plan including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
||
(4) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Northeast Generation, Inc. Dependent Care Reimbursement Account Program under applicable
provisions of ERISA;
|
||
(5) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Northeast Generation, Inc. Dependent Care Reimbursement Account Program;
|
||
(6) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy Northeast
Generation, Inc. Dependent Care Reimbursement Account Program, in such manner and to such
extent as it deems expedient; and
|
||
(7) |
To employ and compensate such accountants, attorneys and other agents and employees as
it may deem necessary or advisable in the appropriate and efficient administration of the
Plan with respect to the Dynegy Northeast Generation, Inc. Dependent Care Reimbursement
Account Program.
|
B-6
V. |
Dynegy Northeast Generation, Inc. Group Life Insurance and Accidental Death and
Dismemberment Insurance Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description and Insurance
Contract with Aetna Life Insurance Company.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Aetna Life Insurance Company shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Group Life Insurance Plan, such
interpretation decision thereof to be final and conclusive on all persons
claiming benefits under the Plan with respect to the Dynegy Northeast
Generation, Inc. Group Life Insurance Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Group
Life Insurance Plan, any such decision thereof to be final and conclusive on all
persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation, Inc.
Group Life Insurance Plan except to the extent the Plans claims procedures
expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Northeast
Generation, Inc. Group Life Insurance Plan.
|
(1) |
In its sole discretionary
authority, to determine elligibility
under the terms of the Dynegy Northeast Generation, Inc. Group Life Insurance
Plan, its decision thereof to be final and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy
Northeast Generation, Inc. Group Life Insurance Plan including, but not limited
to, all materials and information required to be distributed pursuant to ERISA;
|
B-7
(3) |
To perform any and all reporting and disclosure required with respect to the
Dynegy Northeast Generation, Inc. Group Life Insurance Plan under applicable
provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Group Life Insurance Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Northeast Generation, Inc. Group Life Insurance Plan, in
such manner and to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other agents
and employees as it may deem necessary or advisable in the appropriate and
efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Group Life Insurance Plan.
|
VI. |
Dynegy Northeast Generation, Inc. Long Term Disability Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan
Documents: Summary Plan Description.
|
||
|
Plan Administrator: The Company shall be the Plan Administrator with respect to
any and all administrative fiduciary powers and duties with respect to the Dynegy
Northeast Generation, Inc. Long Term Disability Plan, including, but not limited to,
the following powers and duties:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Long Term Disability Plan for Bargaining
Unit Employees, such interpretation decision thereof to be final and conclusive
on all persons claiming benefits under the Plan with respect to the Dynegy
Northeast Generation, Inc. Long Term Disability Plan for Bargaining Unit
Employees;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Long
Term Disability Plan for Bargaining Unit Employees, any such decision thereof to
be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation, Inc.
Long Term Disability Plan for Bargaining Unit Employees except to the extent the
Plans claims procedures expressly provides otherwise; and
|
B-8
(4) |
Any such other powers and duties as the Company shall designate to be
its fiduciary responsibility with respect to the Dynegy Northeast
Generation, Inc. Long Term Disability Plan for Bargaining Unit
Employees.
|
||
(5) |
In its sole discretionary authority, to determine
eligibility under the terms of the Dynegy Northeast Generation, Inc.
Long Term Disability Plan for Bargaining Unit Employees, its decision
thereof to be final and conclusive on all persons;
|
||
(6) |
To prepare and distribute information explaining
the Dynegy Northeast Generation, Inc. Long Term Disability
Plan for Bargaining Unit Employees including, but not limited to,
all materials and information required to be distributed pursuant to
ERISA;
|
||
(7) |
To perform any and all reporting and disclosure
required with respect to the Dynegy Northeast Generation, Inc. Long Term
Disability Plan for Bargaining Unit Employees under applicable
provisions of ERISA;
|
||
(8) |
To sue or cause suit to be brought in the name of
the Plan with respect to the Dynegy Northeast Generation, Inc. Long Term
Disability Plan for Bargaining Unit Employees;
|
||
(9) |
To correct any defect or supply any omission or
recover any inconsistency that may appear in the Constituent Benefit
Plan documents with respect to the Dynegy Northeast Generation, Inc.
Long Term Disability Plan for Bargaining Unit Employees, in such manner
and to such extent as it deems expedient; and
|
||
(10) |
To employ and compensate such accountants,
attorneys and other agents and employees as it may deem necessary or
advisable in the appropriate and efficient administration of the Plan
with respect to the Dynegy Northeast Generation, Inc. Long Term
Disability Plan for Bargaining Unit Employees.
|
VII. |
Dynegy Northeast Generation, Inc. Pre-Tax Premium and Benefits Program
|
|
Participating Employers: Dynegy Northeast Generation, Inc. (until January 30,
2002)
|
||
|
Constituent Benefit Plan Documents: Dynegy Northeast
Generation, Inc, Pre-Tax Premium and Benefits Program, Summary Plan Description
and Administrative Contract with TaxSaver, Inc.
|
B-9
|
Plan Administrators: With respect to spending account
benefits provided or administered under its contracts, TaxSaver, Inc. shall
have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact and Plan
interpretation in granting or denying benefits under the Dynegy Northeast Generation, Inc.
Pre-Tax Premium and Benefits Program, such interpretation decision thereof to be final and
conclusive on all persons claiming benefits under the Plan with respect to the Dynegy
Northeast Generation, Inc. Pre-Tax Premium and Benefits Program;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of medical benefits
under the Dynegy Northeast Generation, Inc. Pre-Tax Premium and Benefits Program, any such
decision thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Dynegy Pre-Tax Premium and Benefits Program except to the extent
the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Dynegy Northeast Generation, Inc. Pre-Tax Premium and
Benefits Program.
|
(1) |
All administrative responsibility with respect to salary reduction payroll processing
and pre-tax premium conversions;
|
||
(2) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Northeast Generation, Inc. Pre-Tax Premium and Benefits Program, its decision
thereof to be final and conclusive on all persons;
|
||
(3) |
To prepare and distribute information explaining the Dynegy Northeast Generation, Inc.
Pre-Tax Premium and Benefits Program including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
||
(4) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Northeast Generation, Inc. Pre-Tax Premium and Benefits Program under applicable provisions
of ERISA;
|
||
(5) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Northeast Generation, Inc. Pre-Tax Premium and Benefits Program;
|
B-10
(6) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to
the Dynegy Northeast Generation, Inc. Pre-Tax Premium and Benefits Program,
in such manner and to such extent as it deems expedient; and
|
||
(7) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Pre-Tax Premium and Benefits Program.
|
VIII. |
Dynegy Northeast Generation, Inc. Business Travel Accident Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description and Insurance
Contract with Hartford Insurance Company.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Hartford Insurance Company shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Business Travel Accident Plan,
such interpretation decision thereof to be final and conclusive on all persons
claiming benefits under the Plan with respect to the Dynegy Northeast
Generation, Inc. Business Travel Accident Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Business
Travel Accident Plan, any such decision thereof to be final and conclusive on
all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation, Inc.
Business Travel Accident Plan except to the extent the Plans claims procedures
expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Northeast
Generation, Inc. Business Travel Accident Plan.
|
B-11
(1) |
In its sole discretionary authority, to determine eligibility under the terms
of the Dynegy Northeast Generation, Inc. Business Travel Accident Plan, its
decision thereof to be final and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy
Northeast Generation, Inc. Business Travel Accident Plan including, but not
limited to, all materials and information required to be distributed pursuant to
ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Northeast Generation, Inc. Business Travel Accident under
applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Business Travel Accident Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan Documents with
respect to the Dynegy Northeast Generation, Inc. Business Travel Accident Plan,
in such manner and to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Business Travel Accident Plan.
|
IX. |
Dynegy Northeast Generation, Inc. Dental Plan
|
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description and Insurance Contract
with Prudential Insurance Company.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
its contract, Prudential Insurance Company shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation, Inc. Dental Plan, such interpretation
decision thereof to be final and conclusive on all persons claiming benefits
under the Plan with respect to the Dynegy Northeast Generation, Inc. Dental
Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation, Inc. Dental
Plan, any such decision thereof to be final and conclusive on all persons;
|
B-12
(3) |
The sole discretionary authority to process and determine benefit claims and
benefit claims appeals under the Dynegy Northeast Generation, Inc. Dental Plan
except to the extent the Plans claims procedures expressly provides
otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Northeast
Generation, Inc. Dental Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility
under the terms of the Dynegy Northeast Generation, Inc. Dental Plan, its
decision thereof to be final and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy
Northeast Generation, Inc. Dental Plan including, but not limited to, all
materials and information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with
respect to the Dynegy Northeast Generation, Inc. Dental Plan under applicable
provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with
respect to the Dynegy Northeast Generation, Inc. Dental Plan;
|
||
(5) |
To correct any defect or supply any omission or recover any
inconsistency that may appear in the Constituent Benefit Plan documents with
respect to the Dynegy Northeast Generation, Inc. Dental Plan, in such manner and
to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Dental Plan.
|
X. |
Dynegy Northeast Generation, Inc. Vision Plan
|
|
Participating Employers:
Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description and Insurance
Contract with Vision Services Plan.
|
B-13
|
Plan Administrators: With respect to benefits provided or administered under its contract,
Vision Services Plan shall have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact
and Plan interpretation in granting or denying benefits under the Dynegy Northeast
Generation, Inc. Vision Plan, such interpretation decision thereof to be final and
conclusive on all persons claiming benefits under the Plan with respect to the Dynegy
Northeast Generation, Inc. Vision Plan;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of medical
benefits under the Dynegy Northeast Generation, Inc. Vision Plan, any such decision
thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and
benefit claims appeals under the Dynegy Northeast Generation, Inc. Vision Plan except
to the extent the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its
fiduciary responsibility with respect to the Dynegy Northeast Generation, Inc. Vision
Plan.
|
(1) |
In its sole discretionary authority, to determine eligibility under the terms
of the Dynegy Northeast Generation, Inc. Vision Plan, its decision thereof to be final
and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy Northeast
Generation, Inc. Vision Plan including, but not limited to, all materials and
information required to be distributed pursuant to ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with respect to the
Dynegy Northeast Generation, Inc. Vision Plan under applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the
Dynegy Northeast Generation, Inc. Vision Plan;
|
B-14
(5) |
To correct any defect or supply any omission or recover any inconsistency that
may appear in the Constituent Benefit Plan documents with respect to
the Dynegy Northeast Generation, Inc. Vision Plan, in such manner and to
such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other
agents and employees as it may deem necessary or advisable in the appropriate
and efficient administration of the Plan with respect to the Dynegy Northeast
Generation, Inc. Vision Plan.
|
XI. |
Dynegy Northeast Generation, Inc. Medical and Group Term Life for Retirees and
Surviving Spouses
|
|
Participating Employers: Effective January 1, 2002 -Dynegy Northeast
Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Descriptions; Administrative
Services Contracts with MVP, Centrus and Insurance Contract with Aetna Life Insurance
Co.
|
||
|
Plan Administrators: With respect to benefits provided or administered under
their respective contracts, MVP, Centrus and Aetna Life Insurance Co. shall serve as
benefit claims and claims appeals fiduciaries for the Dynegy Northeast Generation Inc.
Group Medical and Group Term Life Plan and shall have the following powers, duties and
responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all
matters of fact and Plan interpretation in granting or denying benefits under
the Dynegy Northeast Generation Medical and Group Term Life Insurance Plan for
Retirees and Surviving Spouses, such interpretation decision thereof to be final
and conclusive on all persons claiming benefits under the Plan with respect to
the Dynegy Northeast Generation Medical and Group Term Life Insurance Plan for
Retirees and Surviving Spouses;
|
||
(2) |
The sole discretionary authority to determine and authorize
payment of medical benefits under the Dynegy Northeast Generation Medical and
Group Term Life Insurance Plan for Retirees and Surviving Spouses, any such
decision thereof to be final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit
claims and benefit claims appeals under the Dynegy Northeast Generation Medical
and Group Term Life Insurance Plan for Retirees and Surviving Spouses except to
the extent the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate
to be its fiduciary responsibility with respect to the Dynegy Northeast
Generation Medical and Group Term Life Insurance Plan for Retirees and Surviving
Spouses.
|
B-15
The Company shall be the Plan Administrator with respect to any and all other administrative
fiduciary powers and duties not disclosed above with respect to the Dynegy Northeast Generation
Medical and Group Term Life Plan for Retirees and Surviving Spouses, including, but not limited
to, the following powers and duties:
|
(1) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Northeast Generation Medical and Group Term Life Insurance Plan for Retirees and
Surviving Spouses, its decision thereof to be final and conclusive on all persons;
|
||
(2) |
To prepare and distribute information explaining the Dynegy Northeast Generation
Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses including,
but not limited to, all materials and information required to be distributed pursuant to
ERISA;
|
||
(3) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Northeast Generation Medical and Group Term Life Insurance Plan for Retirees and Surviving
Spouses under applicable provisions of ERISA;
|
||
(4) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Northeast Generation Medical and Group Term Life Insurance Plan for Retirees and Surviving
Spouses;
|
||
(5) |
To correct any defect or supply any omission or recover any inconsistency that may
appear in the Constituent Benefit Plan Documents with respect to the Dynegy Northeast
Generation Medical and Group Term Life Insurance Plan for Retirees and Surviving Spouses,
in such manner and to such extent as it deems expedient; and
|
||
(6) |
To employ and compensate such accountants, attorneys and other agents and employees as
it may deem necessary or advisable in the appropriate and efficient administration of the
Plan with respect to the Dynegy Northeast Generation Medical and Group Term Life Insurance
Plan for Retirees and Surviving Spouses.
|
B-16
2
DYNEGY NORTHEAST GENERATION, INC.
|
||||
By: | /s/ J. Kevin Blodgett | |||
Title: S r VP Human Resources | ||||
3
(A) |
Act
:
The Health Insurance Portability and Accountability Act of 1996.
|
||
(B) |
Benefit Plans
Committee
:
The Dynegy Inc. Benefit Plans Committee.
|
||
(C) |
Business Associate
:
Individual or entity, other than an employee of the
Employer or Dynegy Inc., that provides services to the Plan, such as a third party
administrator, COBRA vendor or utilization review organization.
|
||
(D) |
Contact Person
:
The person appointed to serve as contact person pursuant
to Section 14.8 and Article III of the Manual for purposes
of complaints.
|
||
(E) |
Employer
:
The Company, each Participating Employer and
Dynegy Inc.
|
||
(F) |
Health Component
:
Any of the health components of the Plan designated as
such by the Dynegy Inc. Benefit Plans Committee consisting of the DNE Group Medical
Plan, the DNE Employee Assistance Plan; the DNE Dental Plan; the DNE Vision Plan and the
medical benefits program of DNE Medical and Group Term Life Insurance Plan for Retirees
and Surviving Spouses; and any health maintenance organization offered as a benefit
alternative under the Plan.
|
||
(G) |
Manual
:
The Dynegy Northeast Generation, Inc. Comprehensive Welfare
Benefits Plan Protected Health
Information Policies and Procedures.
|
-2-
(H) |
Non-Health Components
:
Components of the Plan other than the Health
Components.
|
||
(I) |
PHI
:
Individually identifiable health information which is protected
pursuant to the Act and the Regulations.
|
||
(J) |
Privacy Officer:
The individual or entity appointed to serve as the
Plans Privacy Officer pursuant to Section 14.7 and Article III of the Manual.
|
||
(K) |
Regulations
:
The regulations promulgated pursuant to the Act at 45
C.F.R. Parts 160 and 164, Subpart E and, effective as of April 20, 2005, Subpart C.
|
||
(L) |
Security Officer
:
Effective as of April 20, 2005, the individual or entity appointed to serve as the Plans Security Officer pursuant to Section 14.10.
|
||
(M) |
SHI
:
Information that summarizes the claims history, claims expense or
type of claims experienced by covered persons under the Plan as such term is described
in Section 164.504 of the Regulations.
|
(A) |
For the purpose of enabling the Employer to obtain premium bids from health
insurers for providing health insurance coverage under the Health Component;
|
||
(B) |
For purposes of determining whether and, if so, how to modify or amend the
Health Component; or
|
||
(C) |
For purposes of determining whether and, if so, how to terminate the Health
Component, in whole or in part.
|
-3-
(A) |
The Employer will not use or further disclose the information other than as
permitted or required by the Plan documents or as required by law or the Regulations as
set forth in the Manual;
|
||
(B) |
The Employer will ensure that any agents, including a subcontractor, to whom it
provides PHI received from a Health Component agree to the same restriction and
conditions that apply to the Employer with respect to such information;
|
||
(C) |
The Employer will not use or disclose the information for employment-related
actions and decisions or in connection with any other benefit or employee benefit plan
of the Employer;
|
||
(D) |
The Employer will report to the Plan any use or disclosure of the information
that is inconsistent with the uses or disclosures provided for of which it becomes
aware;
|
||
(E) |
The Employer will make PHI available to Participants in accordance with Section
164.524 of the Regulations as set forth in the Manual;
|
||
(F) |
The Employer will provide
Participants with the right to amend their PHI and will
incorporate any amendments to PHI in accordance with Section 164.526 of the Regulations
as set forth in the Manual;
|
||
(G) |
The Employer will provide to Participants an accounting of disclosures of their
PHI for reasons other than treatment, payment or health care operations or pursuant
to an authorization in accordance with Section 164.528 of the Regulations as set forth
in the Manual;
|
-4-
(H) |
The Employer will make its internal practices, books and records relating to the
use and disclosure of PHI received from a Health Component available to the Secretary
of Health and Human Services for purposes of determining compliance by the Health
Component with the Regulations;
|
||
(I) |
If feasible, the Employer will return or destroy all PHI received from a Health
Component that the Employer still maintains in any form and retain no copies of such
information when no longer needed for the purpose for which disclosure was made or if
such return or destruction is not feasible, the Employer will limit further uses and
disclosures to those purposes that make the return or destruction of the information
infeasible;
|
||
(J) |
The Employer will ensure the adequate separation required pursuant to Section 14.6
below;
|
||
(K) |
Effective as of April 20, 2005, the Employer will implement administrative,
physical, and technical safeguards that reasonably and appropriately protect the
confidentiality, integrity, and availability of the electronic PHI that it creates,
receives, maintains or transmits on behalf of the Plan (except with respect to
enrollment and disenrollment information, SHI and PHI disclosed pursuant to an
authorization under Section 164.508 of the Regulations) and shall ensure that any agents
(including subcontractors) to whom it provides such electronic PHI agree to implement
reasonable and appropriate security measures to protect such information; and
|
||
(L) |
Effective as of April 20, 2005, the Employer will report to the Plan any security
incident of which it becomes aware.
|
(A) |
The only employees, classes of employees or other persons under the control of
the Employer to be given access to PHI disclosed to the Employer or who receive PHI
relating to treatment, payment under, health care operations of, or other matters
pertaining to a Health
Component in the ordinary course of business are those identified in new Appendix C to the
Plan, a copy of which is attached hereto. Appendix C to the Plan may be revised and updated
at the direction of the Privacy Officer. Effective as of April 20, 2005, the Employer will
ensure that the provisions of this Section 14.5 are supported by reasonable and appropriate
security measures to the extent that the designees have access to electronic PHI.
|
-5-
(B) |
The access to and use by the Employer and the other individuals and entities described in
item (A) above is restricted to (i) the Plan sponsor functions with respect to which the Firm
is entitled to receive SHI pursuant to Section 14.4 above, (ii) uses and disclosures described
in an authorization by a Plan Participant, (iii) uses and disclosures that are described to
Plan Participants in the Plans notice of privacy practices and (iv) the Health Component
administration functions that the Employer performs in connection with the operation and
administration of the Health Component consisting of:
|
(1) |
conducting quality assessment and improvement activities
(provided that the obtaining of generalizable knowledge is not the
primary purpose of any studies resulting from such activities) and related
functions that do not include medical treatment;
|
||
(2) |
evaluating health plan performance;
|
||
(3) |
underwriting, premium rating, and other activities relating to
the creation, renewal or replacement of a contract of health insurance or
health benefits, and ceding, securing, or placing a contract for reinsurance
of risk relating to claims for health care (including stop-loss insurance and
excess of loss insurance), provided that the requirements of Section 164.514
of the Regulations are met, if applicable;
|
-6-
(4) |
conducting or arranging for medical review, legal services, and auditing
functions, including fraud and abuse detection and compliance programs;
|
||
(5) |
business planning and development, such as conducting cost-management and
planning-related analyses related to managing and operating the Health Component,
including development or improvement of methods of payment or coverage policies; and
|
||
(6) |
business management and general administrative activities of the Health
Component, including, but not limited to management activities relating to
implementation of and compliance with the requirements of the Act and the
Regulations; Health Component participant service activities, including the
provision of data analyses, provided that protected health information is not
disclosed unless such disclosure is permissible under the Act and the Regulations;
resolution of internal grievances; consistent with the applicable requirements of
Section 164.514 of the Regulations, creation of deidentified health information.
|
(1) |
determinations of eligibility or coverage (including coordination of
benefits or the determination of cost sharing amounts), and adjudication or
subrogation of health benefit claims;
|
-7-
(2) |
risk adjusting amounts due based on enrollee health status and
demographic characteristics;
|
||
(3) |
billing, claims management, collection activities, obtaining
payment under a contract for reinsurance (including stop-loss insurance and
excess of loss insurance), and related health care data processing;
|
||
(4) |
review of health care services with respect to medical
necessity, coverage under the Health Component, appropriateness of care, or
justification of charges;
|
||
(5) |
utilization review activities, including precertification and
preauthorization of services, concurrent and retrospective review of services;
and
|
||
(6) |
disclosure to consumer reporting agencies of any of the
following protected health information relating to collection of premiums or
reimbursement: name and address; date of birth; social security number;
payment history; account number; and name and address of the health care
provider and/or the Health Component.
|
(C) |
In the event that any person described in item (A) of this section fails to comply with any
of the requirements of this section or of section 14.5 above, the noncompliance shall be
reported to the Plans Privacy Officer in a report describing the name of the noncompliant
person and a summary of the details regarding such persons noncompliance. Upon receipt of
such report, the Plans Privacy Officer shall solicit a response from the person who has been
reported as noncompliant giving such person the opportunity to contest the charge of
noncompliance or to offer justification or other reasons why sanctions should not be imposed
with respect to the noncompliance. The Plans Privacy Officer shall, after considering all
details and facts and circumstances relating to an alleged act of
|
-8-
noncompliance for which sanctions may be imposed pursuant to this item (C), determine if a sanction should be imposed (which sanction
may range from a warning that subsequent acts of noncompliance may result in
significant penalties to proposed dismissal from employment or termination of
contract, as applicable). Upon determination of a sanction and if the sanction may be
imposed under the authority of the Plans Privacy Officer, the sanction shall be
imposed. If the sanction requires action of the Employer, the Plans Privacy Officer
shall confer with the appropriate executives of the Employer. If the Employer,
following consideration of a proposed sanction from the Plans Privacy Officer for
noncompliance with the requirements of sections 14.5 and 14.6 by a person or entity,
determines not to impose such sanction, the Employer shall advise the Plans Privacy
Officer. In such event, the Plans Privacy Officer must consider and propose an
alternative sanction for the noncompliant person or entity.
|
(A) |
To develop and propose to the Plan fiduciaries a protected health information
policy for the Plan, which policy when adopted shall become the
Privacy Policy.
|
||
(B) |
To provide development guidance and assist in the identification,
implementation, and maintenance of information privacy policies and procedures in
coordination with management and administration, and legal counsel.
|
-9-
(C) |
To perform initial and periodic information privacy risk assessments and conduct
related ongoing compliance monitoring activities in coordination with information privacy
compliance and operational assessment functions.
|
||
(D) |
To work with legal counsel and management, key departments, and committees to ensure the
Employer has and maintains appropriate privacy and confidentiality consent, authorization
forms, and information notices and materials reflecting current organization and legal practices and requirements.
|
||
(E) |
To oversee, direct, deliver or ensure delivery of initial and privacy training and
orientation to all individuals in the Employers workforce who may have access to PHI in
connection with the Plan.
|
||
(F) |
To participate in the development, implementation, and ongoing compliance monitoring of all trading partner and business associate agreements as a
means of ensuring that all privacy concerns, requirements, and responsibilities are
addressed.
|
||
(G) |
To track and monitor access to PHI within the Employer in connection with the operation and
administration of the Plan and its sponsorship by the Employer.
|
||
(H) |
To establish rules to determine when to allow qualified individuals to review or
receive a report on PHI privacy activity.
|
||
(I) |
To work cooperatively with the Human Resources Department and other applicable Employer
offices/personnel in overseeing Plan Participants rights to inspect, amend and restrict
access to PHI when appropriate.
|
||
(J) |
To establish and administer
a process for receiving, documenting, tracking, investigating and taking action on all complaints concerning privacy
policies and procedures in coordination and collaboration with other similar functions and,
when necessary, with legal counsel.
|
||
(K) |
To ensure compliance with privacy practices and consistent application of sanctions for
failure to comply with Plan
privacy policies for all individuals in the Employers workforce.
|
-10-
(L) |
To initiate, facilitate and
promote activities to foster information privacy awareness within the Employer.
|
||
(M) |
To review all system-related information security plans throughout the Employers
network to ensure alignment between security and privacy practices and to act as a
liaison to the information systems department.
|
||
(N) |
To work with all Employer personnel and Business Associates to ensure full
coordination and cooperation under the Plans privacy policies and procedures and legal
requirements.
|
||
(O) |
To maintain current knowledge of applicable federal and state privacy laws and
monitor advancements in information privacy technologies to ensure organizational
adaptation and compliance.
|
-11-
-12-
|
Participating Employers: Dynegy Northeast Generation, Inc.
|
||
|
Constituent Benefit Plan Documents: Summary Plan Description,
Insurance Contract with Prudential Insurance Company (the Prudential
Contract) and Dynegy Northeast Generation, Inc. Disability Plan.
|
-13-
|
Plan Administrator: With respect to long term disability benefits provided or administered under
the Prudential Contract, Prudential Insurance Company shall serve as benefit claims and benefit
appeals fiduciary for the Dynegy Northeast Generation, Inc. Long Term Disability Plan and shall
have the following powers, duties and responsibilities:
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact and Plan
interpretation in granting or denying long term disability benefits under the Prudential Contract, such
interpretation decision thereof to be final and conclusive on all persons claiming benefits
under the Prudential
Contract;
|
||
(2) |
The sole discretionary authority to determine and authorize payment of long term disability
benefits under the Prudential Contract, any such decision thereof to be final and conclusive
on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit
claims appeals under the Prudential Contract except to the extent the Plans claims
procedures expressly provides otherwise; and
|
||
(4) |
Any such other powers and duties as the Company shall designate to be its fiduciary
responsibility with respect to the Dynegy Northeast Generation, Inc. Long Term Disability
Plan.
|
(1) |
The sole discretionary authority to interpret and decide all matters of fact and Plan
interpretation in granting or denying benefits under the Dynegy Northeast Generation, Inc.
Disability Plan, such interpretation decision thereof to be final and conclusive on all
persons claiming benefits under the Plan with respect to the Dynegy Northeast Generation, Inc.
Disability Plan;
|
-14-
(2) |
The sole discretionary authority to determine and authorize payment of medical benefits
under the Dynegy Northeast Generation, Inc. Disability Plan, any such decision thereof to be
final and conclusive on all persons;
|
||
(3) |
The sole discretionary authority to process and determine benefit claims and benefit claims
appeals under the Dynegy Northeast Generation, Inc. Disability Plan except to the extent
the Plans claims procedures expressly provides otherwise; and
|
||
(4) |
In its sole discretionary authority, to determine eligibility under the terms of the
Dynegy Northeast Generation, Inc. Long Term Disability Plan, its decision thereof to be
final and conclusive on all persons;
|
||
(5) |
To prepare and distribute
information explaining the Dynegy Northeast Generation, Inc. Long
Term Disability Plan including, but not limited to, all materials and information
required to be distributed pursuant to ERISA;
|
||
(6) |
To perform any and all reporting and disclosure required with respect to the Dynegy
Northeast Generation, Inc. Long Term Disability Plan under applicable provisions of ERISA;
|
||
(7) |
To sue or cause suit to be brought in the name of the Plan with respect to the Dynegy
Northeast Generation, Inc. Long Term Disability Plan;
|
||
(8) |
To correct any defect or supply any omission or recover any inconsistency that may appear in
the Constituent Benefit Plan documents with respect to the Dynegy Northeast Generation, Inc.
Long Term Disability Plan, in such manner and to such extent as it deems expedient; and
|
||
(9) |
To employ and compensate such accountants, attorneys and other agents and employees as it may
deem necessary or advisable in the appropriate and efficient administration of the Plan with
respect to the Dynegy Northeast Generation, Inc. Long Term Disability Plan,
|
-15-
DYNEGY NORTHEAST GENERATION, INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: Chairman, BPC | ||||
-16-
1. |
Individuals employed by or providing services to the division of the Employers Human
Resources Department that deals with the administration and processing of benefit claims under
the Health Components;
|
|
2. |
The Benefit Plans Committee;
|
|
3. |
The Privacy Officer;
|
|
4. |
The Contact Person;
|
|
5. |
Personnel in the Employers payroll and information systems departments who may receive
information as to whether an individual is enrolled in the Plan or has disenrolled;
|
|
6. |
Effective as of April 20, 2005, the Security Officer.
|
ARTICLE 1 Definitions
|
1 | |||
1.1 Accrued Benefit
|
1 | |||
1.2 Actuarial Equivalent
|
1 | |||
1.3 Benefit Commencement Date
|
2 | |||
1.4 Benefit Service
|
2 | |||
1.5 Board
|
2 | |||
1.6 Break in Service
|
2 | |||
1.7 Code
|
2 | |||
1.8 Committee
|
2 | |||
1.9 Company
|
2 | |||
1.10 Compensation
|
2 | |||
1.11 Controlled Group
|
3 | |||
1.12 Disability
|
3 | |||
1.13 Earliest Retirement Date
|
3 | |||
1.14 Early Retirement Date
|
3 | |||
1.15 Effective Date
|
4 | |||
1.16 Eligible Employee
|
4 | |||
1.17 Employee
|
4 | |||
1.18 Employee Contributions
|
4 | |||
1.19 Employer
|
4 | |||
1.20 Employment
|
4 | |||
1.21 Employment Date
|
4 | |||
1.22 ERISA
|
5 | |||
1.23 Five-Year Break
|
5 | |||
1.24 Highly Compensated Employee
|
5 | |||
1.25 Hours of Service
|
6 | |||
1.26 Normal Retirement Age
|
6 | |||
1.27 Normal Retirement Date
|
6 | |||
1.28 One-Year Break
|
6 | |||
1.29 Participant
|
7 | |||
1.30 Plan
|
7 | |||
1.31 Plan Administrator
|
7 | |||
1.32 Plan Year
|
7 | |||
1.33 Prior Plan
|
7 | |||
1.34 Plan Sponsor
|
7 | |||
1.35 Qualified Optional Survivor Annuity
|
7 | |||
1.36 Social Security Retirement Age
|
7 | |||
1.37 Spouse
|
7 | |||
1.38 Termination Date
|
7 | |||
1.39 Trust (or Trust Fund)
|
8 | |||
1.40 Trustee
|
8 | |||
1.41 Vesting Service
|
8 | |||
1.42 Years of Benefit Service (or Benefit Service)
|
8 | |||
1.43 Years of Vesting Service (or Vesting Service)
|
9 |
i
ARTICLE 2 Eligibility
|
11 | |||
2.1 Eligibility
|
11 | |||
2.2 Participation Upon Reemployment
|
11 | |||
2.3 Leased Employees and Independent Contractors
|
12 | |||
2.4 Adoption of the Plan by a Controlled Group Member
|
12 | |||
|
||||
ARTICLE 3 Retirement Dates and Benefits
|
13 | |||
3.1 Normal Retirement
|
13 | |||
3.2 Suspension of Benefit Payments
|
15 | |||
3.3 Early Retirement
|
16 | |||
3.4 Delayed Retirement
|
16 | |||
3.5 Termination of Employment
|
17 | |||
3.6 Disability Retirement
|
17 | |||
3.7 Reemployment
|
19 | |||
|
||||
ARTICLE 4 Payment of Benefits
|
20 | |||
4.1 Normal Form of Payment
|
20 | |||
4.2 Election Procedures
|
20 | |||
4.3 Description of Forms of Payment
|
25 | |||
4.4 Cash-Out
|
25 | |||
4.5 Effect of Death on Forms of Payment
|
26 | |||
4.6 Required Distribution Rules
|
27 | |||
4.7 Payment on Participants Behalf
|
28 | |||
4.8 Unclaimed Benefits
|
28 | |||
4.9 Correction of Mistakes
|
28 | |||
|
||||
ARTICLE 5 Preretirement Death Benefits
|
29 | |||
5.1 Married Vested Participant
|
29 | |||
5.2 Unmarried Participant or Nonvested Participant
|
29 | |||
|
||||
ARTICLE 6 Limitations on Benefit Amounts
|
30 | |||
6.1 Limitations Imposed by Section 415 of the Internal Revenue Code:
|
30 | |||
6.2 Restrictions for Twenty-five Highest-Paid Participants
|
46 | |||
6.3 Top-Heavy Rules
|
47 | |||
|
||||
ARTICLE 7 Contributions
|
50 | |||
7.1 Employer Contributions
|
50 | |||
7.2 Participant Contributions
|
50 | |||
7.3 Return of Contributions to the Employers
|
50 | |||
7.4 Actuarial Gains
|
50 | |||
|
||||
ARTICLE 8 Amendment, Termination, Merger
|
51 | |||
8.1 Amendment
|
51 | |||
8.2 Termination of the Plan
|
52 | |||
8.3 Merger
|
53 |
ii
1.1 |
Accrued Benefit.
Accrued Benefit means the retirement benefit which the Participant has
earned as of the date of determination, calculated under Subsection 3.1(b) which will be
payable as of his Normal Retirement Date in the form of a single life annuity. For the
Participant who retires after his Normal Retirement Date, the Accrued Benefit is the amount
calculated for him under Section 3.4.
|
1.2 |
Actuarial Equivalent.
Actuarial Equivalent means a benefit of equal value computed on the
following bases:
|
(a) |
For annuity forms of payment
, the 1983 Group Annuity Mortality Table,
assuming the Participant is male and the contingent annuitant is female, and interest
at the rate of 7
1
/
2
% compounded annually.
|
||
(b) |
For lump sum payments
,
|
(1) |
The applicable mortality table, which means the mortality
table prescribed by the Secretary of the Treasury pursuant to Section
415(b)(2)(E)(v) of the Code; and
|
(2) |
The applicable interest rate, which means the annual rate of
interest determined in accordance with Section 417(e)(3)(C) of the Code 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 Section
430(h)(2)(C) of the Code for the fifth month before the first day of 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 Section 430(h)(2)(c) of the Code if (i) Section 430(h)(2)(D) of the Code
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) Section 430(h)(2)(G)(i)(II) of the Code 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 Section 430(h)(2)(G) of the Code were
determined in accordance with the following table:
|
For Plan Year | Applicable Percentage | |
2008
|
20% | |
2009
|
40% | |
2010
|
60% | |
2011
|
80% |
1
1.3 |
Benefit Commencement Date.
Subject to the modifications under certain circumstances described
in Articles 3 and 4, 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 as an annuity or
in any other applicable form available under the terms of the Plan. At all times, if the
benefit is payable in a lump sum, the Benefit Commencement Date is the date when the Trustee
issues the payment. If the Participant dies before his Benefit Commencement Date, the only
benefit payable will be the preretirement death benefit to the surviving Spouse.
|
|
1.4 |
Benefit Service.
See Section 1.42.
|
|
1.5 |
Board.
Board means the Board of Directors of Dynegy Inc.
|
1.6 |
Break in Service.
See Section 1.23
Five-Year Break
and Section 1.28
One-Year Break
. See
Addendum A for the Break in Service rules in effect before the 1989 Plan Year, for the Prior
Plan.
|
1.7 |
Code.
Code means the Internal Revenue Code of 1986 as amended from time to time, and
Regulations and rulings issued under the Code.
|
|
1.8 |
Committee.
Committee means the Dynegy Inc. Benefit Plans Committee.
|
|
1.9 |
Company.
Company means
Dynegy Northeast Generation, Inc.
|
|
1.10 |
Compensation.
|
(a) |
Accrued Benefit
. For purposes of calculating each Participants Accrued
Benefit, Compensation means the Plan will use the annual base rate of earnings at
October 1st of each year paid to the Participant by his Employer, plus amounts paid to
such Participant during the 12 months prior to such October 1 including project
bonuses, awards, lump sum cash awards, (and, for non-officers of the Company,
performance bonuses, incentive cash awards and/or bonuses paid), but excluding
overtime, additional compensation for unusual circumstances, premium pay, shift
differential, tuition assistance, severance benefits, theft of service awards,
suggestion plan awards, reimbursements, expense allowances, cash and noncash fringe
benefits, moving expenses, deferred compensation and welfare benefits. Compensation
shall also exclude any incentive cash awards and/or bonuses paid
to officers of the Company. Notwithstanding the foregoing provisions of this
Section 1.10(a), if a Participant is scheduled to work a 12-hour shift (the
Shift), the regularly-scheduled overtime for the Shift shall be included as
Compensation, and is calculated by multiplying the Participants straight time
hourly rate of pay by the number of regularly-scheduled overtime hours for the Shift
for which the Participant is paid.
|
2
(b) |
Military Service
. For the Participant who resumes Employment after a
period of unpaid military leave covered by the Uniformed Services Employment and
Reemployment Rights Act of 1994, the Plan will impute Compensation in the amount he
would have received if he had remained in active Employment, based on his rate of pay
in effect when he began his leave and taking into account any promotion he would have
received, or if that pay rate cannot be determined with certainty, the Plan will treat
him as having Compensation equal to the amount he received during the 12-month period
preceding his leave, or during the entire period of his Employment if shorter than 12
months.
|
(c) |
Statutory Limit
. Each Participants Compensation will be limited to
$245,000 (as indexed under Section 401(a)(17) of the Code) for all purposes under the
Plan. For purposes of determining benefit accruals in a plan year beginning after
December 31, 2001, the annual compensation limit in this paragraph 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.
|
1.11 |
Controlled Group.
Controlled Group means (i) the Company and each member of the group of
corporations under at least 80% common control by or with the Company, within the meaning of
Section 414(b) of the Code; (ii) each incorporated or unincorporated trade or business under
common control with the Company, within the meaning of Section 414(c) of the Code; (iii) each
organization which is within an affiliated service group with the Company, within the meaning
of Section 414(m) of the Code; and (iv) any entity required to be aggregated with the Company
under Section 414(o) of the Code.
|
1.12 |
Disability.
Disability means a physical or mental incapacity which qualifies the disabled
Participant for Social Security disability benefits.
|
1.13 |
Earliest Retirement Date.
Earliest Retirement Date means the first day of the month
coincident with or next following the month in which the Participant has both reached his
55
th
birthday and completed 10 Years of Vesting Service.
|
1.14 |
Early Retirement Date.
Early Retirement Date means the first day of the month on or after the
Participants Earliest Retirement Date and before his Normal Retirement Date, when he actually
retires.
|
3
1.15 |
Effective Date.
Effective Date means January 1, 2009, the effective date of this restatement
of the Plan, or as otherwise provided herein. The Plan was initially established effective
January 31, 2001.
|
1.16 |
Eligible Employee.
Each Employee other than (i) an Employee whose terms and conditions of
employment are governed by a collective bargaining agreement, unless such agreement provides
for his coverage under the Plan, (ii) a nonresident alien who receives no earned income from
the Employer that constitutes income from sources within the United States, (iii) a leased
employee (as defined in Section 2.3), (iv) an individual who is deemed to be an Employee
pursuant to Treasury regulations issued under Section 414(o) of the Code, (v) an Employee who
has waived participation in the Plan through any means including, but not limited to, an
Employee whose employment is governed by a written agreement with the Employer (including an
offer letter setting forth the terms and conditions of employment) that provides that the
Employee is not eligible to participate in the Plan (a general statement in the agreement,
offer letter, or other communication stating that the Employee is not eligible for benefits
shall be construed to mean that the Employee is not an Eligible Employee), and (vi) an
Employee of an entity that has been designated to participate in the Plan to the extent that
such entitys designation specifically excepts such Employees participation. Notwithstanding
any provision of the Plan to the contrary, no individual who is designated, compensated, or
otherwise classified or treated by the Employer as an independent contractor or other
non-common law employee shall be eligible to become a Participant of the Plan. It is
expressly intended that individuals not treated as common law employees by the Employer are to
be excluded from Plan participation even if a court or administrative agency determines that
such individuals are common law employees.
|
1.17 |
Employee.
Employee means each (i) individual employed by the Employer (as reported on the
Employers payroll records and for whom the Employer has FICA taxes withheld), and (ii) leased
employee (as defined in Section 2.3).
|
1.18 |
Employee Contributions.
Employee Contributions are not required or permitted in this Plan.
See Addendum A for rules impacting accumulated contributions in the Prior Plan.
|
1.19 |
Employer.
Employer means the Company and each Controlled Group member which adopts the Plan
and is identified in Addendum B. Dynegy Inc., the Plan Sponsor, is not a participating
Employer.
|
1.20 |
Employment.
Employment means the period during which an Employee is regularly employed by an
Employer. For purposes of deferring the Benefit Commencement Date and suspending benefit
payments upon reemployment, the Plan will treat periods of service with any Controlled Group
member as if it were Employment under this Plan.
|
1.21 |
Employment Date.
Employment Date means the date on which the Employee earned his first Hour
of Service. The Employment Date of the nonvested Employee who resumed Employment after he
incurred a Five-Year Break will be the date on which he earned his first Hour of Service after
he resumed Employment.
|
4
1.22 |
ERISA.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and Regulations and rulings issued under ERISA.
|
1.23 |
Five-Year Break.
Five-Year Break means five consecutive One-Year Breaks, which will cause the
nonvested Participant to lose his pre-break Benefit Service and Vesting Service.
|
1.24 |
Highly Compensated Employee.
Highly Compensated Employee means an Employee who performs
service during the Determination Year and who:
|
(a) |
Is a five percent (5%) owner as defined in Section 416(i)(1)(B)(i) of the Code,
at any time during the Determination Year or the Look-back Year, or
|
(b) |
An Employee who received 414(q) Compensation in excess of $80,000 during the
Look-back Year and was in the Top-paid Group during the Look-back Year. The $80,000
limitation will be adjusted annually for increases in the cost of living in accordance
with Section 415(d) of the Code.
|
(1) |
414(q) Compensation means compensation as defined in Section
414(q)(4) of the Code.
|
(2) |
Determination Year means the Plan Year for which the
determination of who is a Highly Compensated Employee is being made.
|
(3) |
Look-back Year means the twelve (12) month period preceding
the Determination Year.
|
(4) |
Top-paid Group means the top twenty percent (20%) of
Employees when rated on the basis of 414(q) Compensation paid during the year.
The number of Employees in the group will be determined in accordance with
Section 414(q)(5) of the Code.
|
5
1.25 |
Hours of Service.
Hour of Service means the following hours that are credited for
eligibility.
|
(a) |
Periods of Credit
. Hours of Service will be credited for the following:
|
(1) |
Working Hours
. Each hour for which the Employee is paid
or entitled to payment by an Employer for the performance of duties.
|
(2) |
Nonworking Hours
. Each hour for which the Employee is
paid or is entitled to payment by an Employer on account of a period of time
during which no duties are performed due to vacation, holiday, illness,
incapacity, layoff, jury duty, military duty, or leave of absence, whether or
not his Employment has terminated.
|
(3) |
Back Pay
. Each hour for which back pay, without regard
to mitigation of damages, is either awarded or agreed to by an Employer.
|
(b) |
Periods of No Credit
. Hours of Service will not be credited for the
following:
|
(1) |
Nonpayment
. Periods during which the Employee is
neither paid nor entitled to payment from his Employer.
|
(2) |
Limited Number
. Hours in excess of 501 in a single
continuous period during which no duties are performed, except as provided in
Subsection 1.43(b) for military leaves, parental leaves, and other approved
leaves of absence.
|
(3) |
Statutory Payments
. Hours for which payment is made or
due under a plan maintained solely for the purpose of complying with workers
compensation, unemployment compensation, or disability insurance laws.
|
(4) |
Double Back Pay
. Back pay where credit has already been
given for the hours to which the back pay relates.
|
(5) |
Medical Expenses
. A payment which solely reimburses an
Employee for medical or medically related expenses incurred by him.
|
1.26 |
Normal Retirement Age.
Normal Retirement Age means the Participants 65
th
birthday.
|
1.27 |
Normal Retirement Date.
Normal Retirement Date means the first day of the month coincident
with or next following the month in which the Participants 65
th
birthday occurs.
|
1.28 |
One-Year Break.
One-Year Break means a twelve-consecutive-month period beginning on the
Participants Termination Date and ending on the first anniversary of that date, during which
he does not earn any Hours of Service. For purposes of determining whether an Employee has had
a One-Year Break, the Committee will treat a leave protected under the Family and Medical
Leave Act of 1993 as a period of active Employment.
|
6
1.29 |
Participant.
Participant means an Eligible Employee participating in the Plan under Section
2.1. The term Participant is sometimes used to include active, vested terminated and/or
retired Participants. Where the context indicates, the term Participant includes persons
claiming benefits accrued by a Participant.
|
1.32 |
Plan Year.
Plan Year means each twelve consecutive month period beginning on January 1 and
ending on December 31.
|
1.33 |
Prior Plan.
Prior Plan means the Retirement Income Plan of Central Hudson Gas and Electric
Corporation.
|
1.35 |
Qualified Optional Survivor Annuity.
Qualified Optional Survivor Annuity means 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 Section 417(g) of the Code.
|
1.36 |
Social Security Retirement Age.
Social Security Retirement Age means the age used as the
Participants retirement age under Section 216(l)(4) of the Social Security Act. Each
Participants Social Security Retirement Age will be the following age which relates to his
year of birth:
|
Year of Birth | Social Security Retirement Age | |
Before 1938 | 65 years | |
1938 1954 | 66 years | |
After 1954 | 67 years |
1.37 |
Spouse.
Spouse means the individual to whom the Participant is legally married on the earlier
of his date of death or his Benefit Commencement Date. In the event of a dispute, such status
will be determined in accordance with applicable laws of the Participants state of domicile.
|
1.38 |
Termination Date.
Termination Date means the earlier of (i) the date the Employee quits,
retires, is discharged or dies; or (ii) the first anniversary of the beginning date of a paid
or unpaid absence for any reason other than quit, retirement, discharge or death. A
Termination Date will not occur during an authorized leave of absence which is included in
Vesting Service under Section 1.43. The Termination Date of the Employee who quits, retires,
is discharged or dies before the first anniversary of his authorized leave of absence (or the
second anniversary for a parental leave) will be the date such event occurs. Accrual of
Benefit Service and Vesting Service will cease on the Termination Date except as otherwise
provided under Sections 1.42 and 1.43, respectively.
|
7
1.39 |
Trust (or Trust Fund).
Trust (or Trust Fund) means the fund established to hold Plan assets
and from which the Plan assets are distributed. When there is more than one Trust, the term
Trust shall refer to all such Trusts.
|
1.40 |
Trustee.
Trustee means the legal reserve life insurance company or trustee selected to hold
and/or invest the Plan assets and if and when directed, to pay the benefits provided under the
Plan. When there is more than one Trustee, the term Trustee shall refer to all such
Trustees.
|
1.42 |
Years of Benefit Service (or Benefit Service).
Years of Benefit Service (or Benefit Service)
means the Participants whole and partial Years of Vesting Service subject to the following
rules and exclusions:
|
(a) |
Exclusions
. The following periods will be excluded from Benefit
Service:
|
(1) |
Periods during which the Participant was not an Employee.
|
(2) |
Periods of absence described in Subsection 1.43(b) (other than
military service under (b)(1)) and
Subsection 1.43(f).
|
(3) |
Periods during which the Participant accrued vested benefits
under another qualified defined benefit plan to which an Employer contributed,
except as provided in Subsection (b).
|
(4) |
Periods for which the Participant received a cash-out of his
Accrued Benefit.
|
(5) |
Periods during which the Participant failed to make any
required Employee Contributions (including any waiting period before becoming
eligible to participate).
|
(b) |
Period Before an Employer Adopted the Plan
. The Board will determine
any Benefit Service to be credited for periods of service with an Employer before it
adopted the Plan. In the event the Board grants retroactive Benefit Service, the Plan
will offset any benefits previously accrued under the Employers qualified defined
benefit plan(s).
|
(c) |
Periods of Employment Before a Five-Year Break
. The nonvested
Participant who incurs a Five-Year Break will lose all of his credit for Benefit
Service earned before his Five-Year Break. The vested Participant will retain all of
his credit for Benefit Service regardless of the number of his One-Year Breaks.
|
(d) |
Military Service
. Each Participant will receive credit for Benefit
Service as if his active Employment had continued during the period of his military
service covered by the Uniformed Services Employment and Reemployment Rights Act of
1994, but only if he retains statutory reemployment rights and resumes
Employment within 90 days after his honorable discharge from military duty, or
during any other period prescribed by law.
|
8
1.43 |
Years of Vesting Service (or Vesting Service).
Years of Vesting Service (or Vesting Service)
means the period beginning on the Participants Employment Date and ending on his Termination
Date, subject to the following rules:
|
(a) |
Computation
. Years of Vesting Service will be computed in whole and
partial years, by measuring months from the Employment Date, counting each month as
1/12 year, aggregating noncontinuous partial months into whole 30-day months, and
ignoring any remaining days.
|
(b) |
Leaves of Absence
. Except as provided in this Subsection, each
Participant will be credited with Vesting Service as if his status as an Employee had
continued during the period of his approved leave of absence granted under his
Employers standard, uniformly-applied personnel policies, but only if he resumes
active Employment promptly upon the expiration of his approved leave.
|
(1) |
Military Service
. Each Participant will receive credit
for Vesting Service as if his active Employment had continued during the period
of his military service covered by the Uniformed Services Employment and
Reemployment rights Act of 1994, but only if he retains statutory reemployment
rights and resumes Employment within 90 days after his honorable discharge from
military duty, or during any other period prescribed by law.
|
(2) |
Parental Leave
. Each Participant will receive credit
for Vesting Service for the period of a parental leave which does not extend
beyond 12 months. If the leave continues beyond 12 months. the first
anniversary of the date the leave began will be the Termination Date for
purposes of crediting Vesting Service, and the second anniversary will be the
Termination Date for purposes of determining when a Break in Service begins.
The Plan will credit Vesting Service for the period between the first
anniversary of the leave date and the date when the Participant resumes active
Employment only if that date occurs before the second anniversary. The
Termination Date of the Employee who quits, retires, is discharged or dies
before the second anniversary of the parental leave will be the date such event
occurs. A parental leave is an absence from active Employment by reason of
pregnancy, childbirth, child adoption, and/or child care immediately following
birth or adoption. The leave will be treated as any other absence unless the
Employee timely provides to the Committee all information reasonably required
to establish that the absence constitutes a parental leave.
|
(3) |
Leaves of Absence
. Vesting Service will include a
period of absence that is approved under the Employers standard,
uniformly-applied personnel policies. Vesting Service will include a period of
unapproved absence only
if the Participant resumes Employment within one year after his Termination
Date.
|
9
(c) |
Employment with a Controlled Group Member
. Each Employee will receive
credit for Vesting Service for the period of his employment with any Controlled Group
member, whether or not it has adopted the Plan, beginning on the date the member became
part of the Controlled Group.
|
(d) |
Period Before an Employer Adopted the Plan
. The Board will determine
any Vesting Service to be credited for periods of employment with an Employer before it
adopted the Plan, to the extent credit is not required under
Subsection 1.43(c).
|
(e) |
Employment Before a Five-Year Break
. The nonvested Participant who
incurs a Five-Year Break will lose all his credit for Vesting Service earned before his
Five-Year Break. The vested Participant will retain all his credit for Vesting Service
regardless of the number of his One-Year Breaks.
|
(f) |
Service Spanning
. If an Employee terminates Employment for any reason
and resumes Employment within 12 months, the Plan will include his period of
termination in his Vesting Service.
|
10
2.1 |
Eligibility
. Each Eligible Employee will begin participating in the Plan as of the first day
of the month on or after he has completed his first 12 consecutive months of Employment. The
Plan shall be frozen to eligibility and participation effective for any Employee with an
Employment Date on or after January 1, 2009.
|
(a) |
Vested Participants
. The vested terminated Participant who resumes
Employment at any time will resume participation as of the date he resumes Employment.
|
||
(b) |
Nonvested Participants
.
|
(1) |
Before Five-Year Break
. The nonvested terminated
Participant who resumes Employment before he incurs a Five-Year Break will
resume participation as of the date he resumes Employment.
|
(2) |
After Five-Year Break
. The nonvested terminated
Participant who resumes Employment after he has incurred a Five-Year Break will
be treated as a new Employee under Section 2.1.
|
(c) |
Nonparticipating Employees
.
|
(1) |
Before Five-Year Break
. The nonparticipating terminated
Employee who resumes Employment before he incurs a Five-Year Break will retain
credit for his Employment before his Termination Date for purposes of
determining his eligibility to begin participating under Section 2.1. If he met
the eligibility requirements under Section 2.1 as of his Termination Date, he
will begin participating as of the date he resumes Employment.
|
(2) |
After Five-Year Break
. The nonparticipating terminated
Employee who resumes Employment after he has incurred a Five-Year Break will be
treated as a new Employee under Section 2.1.
|
(d) |
Notwithstanding any Plan provision to the contrary, effective for Plan Years
beginning after December 31, 2008, terminated Employees, whether vested, nonvested, or
nonparticipating, shall not be eligible to participate in the Plan upon resumption of
Employment.
|
11
2.3 |
Leased Employees and Independent Contractors
. Leased employees will be treated as Employees
to the extent required under Section 414(n) of the Code, but will not be eligible to
participate in this Plan. A leased employee shall be given credit for eligibility and Years of
Vesting Service for the period during which he worked as a leased employee, under the rules
described in Sections 1.43 and 2.1. However, the Plan will not give such credit if (i) the
leased employee was covered by a money purchase plan sponsored by the leasing organization,
with 10% contributions and immediate
participation and vesting, and (ii) leased employees constitute no more than 20% of the
Controlled Groups nonhighly compensated employees. If an individual who has worked for an
Employer as an independent contractor becomes an Employee, he will not receive credit for
any purpose under the Plan until the date when he becomes an Employee. The term leased
employee means each person who is not an employee of the Employer or a Controlled Group
member but who performs services for the Employer or a Controlled Group member pursuant to
an agreement (oral or written) between the Employer or a Controlled Group member and any
leasing organization, provided that (i) such person has performed such services for the
Employer or a Controlled Group member or for related persons (within the meaning of Section
144(a)(3) of the Code) on a substantially full-time basis for a period of at least one year,
and (ii) such services are performed under primary direction or control by the Employer or a
Controlled Group member.
|
2.4 |
Adoption of the Plan by a Controlled Group Member
. A Controlled Group member may adopt the
Plan by appropriate action of its board of directors or authorized officer(s) or
representative(s), subject to approval of the Board and the Committee.
|
12
3.1 |
Normal Retirement
.
|
(a) |
Normal Retirement Date
. Whether or not the Participant actually
retires on the date on which he attains Normal Retirement Age, the Participants Normal
Retirement Date will be the first day of the month coincident with or next following
the month in which he reaches Normal Retirement Age. If he is not already vested, he
will become fully vested in his Accrued Benefit on the date he reaches Normal
Retirement Age.
|
(b) |
Amount of Normal Retirement Benefit
.
The Plan will use the following
formula to calculate the Accrued Benefit of each Participant who earns any Compensation
on or after the date the sale closed in connection with the Asset Purchase and Sale
Agreement dated as of August 7, 2000 between Central Hudson Gas and Electric
Corporation and Dynegy Power Corporation. The Participant who retires on his Normal
Retirement Date will receive a monthly benefit in an amount equal to 1/12 of the sum of
the amounts described in Subsections (1), (2) and (3):
|
(1) |
The sum of (A) plus (B) as follows:
|
(A) |
2.0% of his Compensation for each Year of
Benefit Service prior to the October 1
st
coincident with or
next following such Participants 50
th
birthday.
|
(B) |
2.5% of his Compensation for each Year of
Benefit Service after the October 1
st
coincident with or
next following such Participants 50
th
birthday.
|
(2) |
Plan to Plan Transfer Benefit
. The benefit transferred
from the Prior Plan into this Plan following the date the sale closed in
connection with the Asset Purchase and Sale Agreement dated as of August 7,
2000 among Central Hudson Gas and Electric Corporation, Consolidated Edison
Company of New York, Inc., Niagara Mohawk Power Corporation and Dynegy Power
Corporation. See Addendum A for historical documentation.
|
13
(3) |
Supplementary Past Service Retirement Income
. An amount
equal to the sum of (i) and (ii), minus the sum of (iii), (iv) and (v), where
(i) 1.40% of the Participants Average Earnings as of October 1, 2001 up to
$35,000 plus (ii) 1.70% of Average Earnings in excess of $35,000 multiplied by
Years of Benefit Service (not to exceed 50) while a Participant prior to
October 1, 2001 (plus one year for Participants for whom the one-year
eligibility period provisions then in effect were not waived), excluding Years
of Benefit Service before January 1, 1933, for an employee who was a
Participant continuously and Years of Benefit Service during which a
Participant was eligible to accrue a retirement annuity under the Group
Annuity Contract but failed to do so minus (iii) the portion of Future
Service Retirement Income for the period prior to October 1, 2001, minus
(iv) Past Service Retirement Income, and (v) the portion of Supplementary
Past Service Retirement Income calculated in Subsection (A), (B), (C), (D),
(E), (F), (G), (H), (I), and (J) of Addendum A. For purposes of the formula
in this Subsection 3.1(b)(3), Average Earnings shall be the sum of the
following Compensation for such Participant divided by 3:
|
|
50% of Compensation at October 1, 1998
|
||
|
100% of Compensation at October 1, 1999
|
||
|
100% of Compensation at October 1, 2000
|
||
|
50% of Compensation at October 1, 2001
|
|
50% of Compensation at October 1, 2001
|
||
|
100% of Compensation at October 1, 2002
|
||
|
100% of Compensation at October 1, 2003
|
||
|
50% of Compensation at October 1, 2004
|
14
(2) |
Social Security Supplement
.
In addition to the normal
retirement benefit determined in Subsections (1), (2) and (3) above, if a
Participants Normal Retirement Date occurs before his Social Security
Retirement Age, a Social Security supplement will be payable equal to eighty
percent (80%) of the primary monthly Social Security benefit that the Committee
estimates the Participant will be entitled to receive at the Participants
Social Security Retirement 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.
|
(c) |
Benefit Commencement Date
. The normal retirement benefit will be
payable on the first day of each month beginning on the Participants Normal Retirement
Date if he has retired.
|
(d) |
Adjustment for Form of Payment
. The normal retirement benefit payable
to the Participant who receives a form of payment other than the Single Life Annuity
will be adjusted as described in Section 4.3.
|
3.2 |
Suspension of Benefit Payments
.
|
(a) |
Benefit Commencement Date
. The delayed retirement benefit will be
payable on the first day of each month beginning on the Participants Delayed
Retirement Date.
|
||
(b) |
Notice to Participants who Delay Retirement
.
|
(1) |
The Committee shall furnish any Participant whose employment
with the Employer or any Controlled Group member 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 29 CFR Section 2530.203-3. Upon such Participants
subsequent termination of employment, his retirement benefit payable pursuant
to Article IV shall be increased to the extent required, if at all, under such
Regulations as provided in Subsection (2) below to avoid the effecting of a
prohibited forfeiture of benefits by reason of the suspension of benefits
during such Participants post Normal Retirement Date employment.
|
(2) |
A Participant described in Subsection (b)(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.
|
15
(3) |
Further, such Participants retirement benefit payable pursuant
to Subsection 3.2(b) shall be increased to the extent required, if at all,
under Section 401(a)(9)(C)(iii) of the Code in the event his employment or
reemployment continues after April of the year immediately following the year
he attains age 70
1
/
2
.
|
3.3 |
Early Retirement.
|
(a) |
Early Retirement Date
. The Participants Earliest Retirement Date is
the first day of the month coincident with or next following the month in which he has
both reached his 55
th
birthday and completed 10 Years of Vesting Service.
The Participants Early Retirement Date will be the first day of the month on or after
his Earliest Retirement Date and before his Normal Retirement Date, when he actually
retires.
|
(b) |
Amount of Early Retirement Benefit
. The Participant who retires before
his Normal Retirement Date and elects to begin receiving his benefits early, will
receive a monthly retirement benefit in the amount he could have received as a normal
retirement benefit under Section 3.1, with no reduction for early payment. In addition,
if the Participants Early Retirement Date occurs on or after the Participants
59
th
birthday, a Social Security Supplement will be payable equal to eighty
percent (80%) of the primary monthly Social Security benefit which the Committee
estimates the Participant will be entitled to receive at the Participants Social
Security Retirement Age. Participants retiring after age 59 but prior to age 60 shall
not begin to receive a Social Security Supplement until reaching age 60. Social
Security Supplement payments 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.
|
(c) |
Benefit Commencement Date
. The Accrued Benefit of the Participant who
retires early will be payable on the first day of each month beginning on his Normal
Retirement Date, unless he elects to begin payments on an earlier date.
|
(d) |
Adjustment for Form of Payment
. The early retirement benefit payable to
the Participant who receives a form of payment other than the Single Life Annuity will
be adjusted as described in Section 4.3.
|
3.4 |
Delayed Retirement
.
|
(a) |
Delayed Retirement Date
. The delayed retirement date of the Participant
who continues Employment after his Normal Retirement Date will be the first day of the
month following the month in which he actually retires.
|
16
(b) |
Amount of Delayed Retirement Benefit
. The Participant who retires on
his delayed retirement date will receive a monthly delayed retirement benefit in an
amount calculated under Subsection 3.1(b) as of his delayed retirement date. In
addition, if a Participants delayed retirement date occurs before his Social
Security Retirement Age, a Social Security supplement will be payable to such
Participant in accordance with Section 3.1(b)(4). The Participant who continues
active Employment after age 70
1
/
2
will receive the greater of (i) continued accruals,
or (ii) an Actuarial Equivalent increase in his Accrued Benefit for the period
between April 1 following the year in which he reaches age 70
1
/
2
and his delayed
retirement date.
|
3.5 |
Termination of Employment
.
|
(a) |
Eligibility for Benefits
. Each Participant will become fully vested in
his Accrued Benefit as of the date he completes 5 Years of Vesting Service.
|
(1) |
Nonvested Termination
. The Participant who terminates
Employment before he completes 5 Years of Vesting Service and before he reaches
Normal Retirement Age will not receive any benefits under this Plan unless he
resumes Employment and becomes vested.
|
(2) |
Vested Termination
. The Participant who terminates
Employment after he has completed at least 5 Years of Vesting Service, for any
reason other than retirement, disability or death, will be entitled to the
monthly vested termination benefit described in Subsection (b).
|
(b) |
Amount of Vested Termination Benefit
. The vested Participant who
terminates Employment will receive a vested termination benefit beginning on his Normal
Retirement Date in the amount of his Accrued Benefit. However, the Participant may
elect to begin receiving his benefits on the first day of any month coincident with or
following his 55
th
birthday, and his benefit will be reduced for early
payment by 1/180 for each of the first sixty (60) months and further reduced by 1/360
for each of the next sixty (60) months by which his Benefit Commencement Date precedes
his Normal Retirement Date.
|
(c) |
Benefit Commencement Date
. The vested termination benefit will be
payable on the first day of each month beginning on the Participants Normal Retirement
Date, unless he is eligible and elects to begin receiving benefits on an earlier
Benefit Commencement Date.
|
(d) |
Adjustment for Form of Payment
. The vested termination benefit payable
to the Participant who receives a form of payment other than the Single Life Annuity
will be adjusted as described in Section 4.3.
|
3.6 |
Disability Retirement
.
|
(a) |
Eligibility
. The Participant who incurs a Disability will be entitled
to the retirement benefit described in this Section. The Participant must qualify for
coverage under the Employers long term disability plan and must apply to receive
Social Security disability benefits under the Social Security Act.
|
17
(b) |
Amount of Retirement Benefit
. The Participant who retires because of a
Disability before age 60 will receive a monthly benefit in the amount he would have
received as a normal retirement benefit under Section 3.1, calculated as if (i) his
Employment had continued for purposes of Vesting Service and Benefit Service during the
period he receives payments from the Employers long term disability plan, and (ii) his
Compensation for the October 1 on or preceding his Disability commencement date had
remained constant. Notwithstanding the foregoing, the Participants retirement benefit
will not be less than the disability benefit he received from the Employers long term
disability plan. The Disabled Participant who has at least 10 Years of Vesting Service
may elect to begin receiving his benefits on an Early Retirement Date, in lieu of a
Disability Retirement.
|
(c) |
Benefit Commencement Date
. The retirement benefit will be payable to
the Disabled Participant on the first day of each month beginning on or following his
attainment of age 60. If he is eligible, he may elect to begin receiving benefits on an
Early Retirement Date, in lieu of a Disability Retirement.
|
(d) |
Recovery and Resumption of Employment
. The Disabled Participant who
recovers and resumes Employment within the time required under rules adopted by the
Committee and uniformly applied, and remains in Employment for at least one full year
or resumes his Disability within one year, will be treated as if (i) his Employment had
continued for purposes of Vesting Service and Benefit Service, and (ii) his
Compensation for the October 1 on or preceding his Disability commencement date had
remained constant throughout his period of Disability. With respect to a Disabled
Participant who recovers and resumes Employment, but whose Compensation upon
reemployment is less than that which the Disabled Participant received for the October
1 on or preceding his Disability, such Disabled Participant will be treated as if his
Compensation for the October 1 on or preceding his Disability commencement date was
still in effect upon reemployment.
|
(e) |
Forfeiture of Disability Status
. The Participant will not be entitled
to the benefits described in this Section if his Disability results from any of the
following: (i) continuing abuse of drugs or alcohol that is not protected under the
Americans with Disabilities Act; (ii) injury or disease sustained while willfully
participating in acts of violence, riots, civil insurrections or while committing a
felony; (iii) injury or disease sustained while serving in any armed forces or as the
result of warfare; (iv) injury or disease sustained after termination of Employment;
(v) injury or disease sustained while working for anyone other than an Employer, which
is directly attributable to such employment; or (vi) intentional, self-inflicted
injury.
|
18
3.7 |
Reemployment
.
|
(a) |
Effect of Reemployment
.
|
(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 Group member, whether or not as an 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 3.7.
|
(2) |
In the event a Participant is reemployed by an Employer or
Controlled Group member, whether or not as an 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
Section 3.2.
|
(b) |
Reemployment After Receipt of Monthly Payments
. If a Participant
described in Subsection (a)(1) above is reemployed as an Employee he shall resume
benefit accruals pursuant to the applicable provisions of the Plan, subject to the
modifications required by this Section 3.7. 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 Participants
Accrued Benefit as of his Benefit Commencement Date. Any such excess shall be applied
as of the first retirement benefit payment after the Participants period of
reemployment to increase such retirement benefit payment and each payment thereafter in
the annuity form in which such Participants retirement benefit is being paid, together
with an actuarial adjustment, if necessary, adequate to satisfy the requirements of
Section 411(a) of the Code and 29 CFR Section 2530.203-3 concerning the delay in
payment of the amount of such increase. In the event such Participants reemployment
continues after April 1 of the year immediately following the year in which he attains
age seventy and one-half (70
1
/
2
), an actuarial adjustment, if necessary, adequate to
satisfy the requirements of Section 401(a)(9)(C)(iii) of the Code 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
Participants 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.
|
19
4.1 |
Normal Form of Payment
.
|
(a) |
Unmarried Participant
. The normal form of benefit payable to the
unmarried Participant will be the Single Life Annuity described in Subsection 4.3(a).
The Participant may elect any optional form described in Section 4.3.
|
(b) |
Married Participant
. The normal form of benefit payable to the married
Participant will be the Qualified Joint and Survivor Annuity described in Subsection
4.3(b). The Qualified Joint and Survivor Annuity is a reduced monthly benefit beginning
on the Participants Benefit Commencement Date and payable throughout his lifetime,
with 50% of that monthly amount continuing for life to his surviving Spouse, beginning
on the first day of the month following the month in which his date of death occurs. In
the event the Participants benefit had been subject to the Code Section 415 limitation
described in Section 6.1, the Plan will calculate the amount payable to the surviving
Spouse on the basis of the amount the Participant would have received if his benefit
had not been subject to that limitation; provided that the Spouses benefit will not
exceed 100 percent of the amount the Participant had received. The Participant may
elect any optional form described in Section 4.3 but only if he has his Spouses
written consent obtained under the procedures described in Section 4.2.
|
4.2 |
Election Procedures
.
|
(a) |
General Rules
.
|
(1) |
Except as provided in Subsections (a)(2) and (a)(3) below,
within the period of time commencing 180 days (effective January 1, 2008) and
ending thirty (30) days prior to his Benefit Commencement 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
4.1(b) 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 4.1(a) 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 Participants
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 Participants 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, his right to defer
his Benefit Commencement
Date; and (vii) if applicable, his right to a Direct Rollover pursuant to
Section 4.4(c).
|
20
(2) |
In the event the written notice described in Subsection (a)(1)
above is provided to a Participant before his Benefit Commencement 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 Subsection (a)(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 Paragraph (A) above at least until the
Benefit Commencement 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
Subsection (a)(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 Participants Benefit Commencement Date is
after the date such written notice is provided to the Participant.
|
(3) |
In accordance with the conditions and requirements of this
Subsection (a)(3) and of Section 417(a)(7) of the Code and the Treasury
Regulations promulgated thereunder, a Participant who is eligible to do so may
elect a retroactive Benefit Commencement Date with respect to the distribution
of his retirement benefit. For purposes of the Plan, a retroactive Benefit
Commencement Date (RASD) means an Benefit Commencement Date affirmatively
elected by a Participant which is on or before the date the written notice
described in Subsection (a)(1) above is provided to the Participant.
|
21
(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 Subsection (a)(1) above prior to his
Benefit Commencement Date and, solely due to administrative
delay, such written notice is provided to the Participant on or
after his Benefit Commencement Date;
|
(ii) |
The Participants retirement
benefit payments have not commenced;
|
(iii) |
The Participants elected RASD
is not prior to the date of his Termination Date;
|
(iv) |
The Participants 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 Participants Benefit
Commencement 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 Benefit Commencement
Date after the date the written notice described in Subsection
(c)(1) above is provided to the Participant;
|
(v) |
Any distribution (including
appropriate interest adjustments) based on the RASD must satisfy
the requirements of Section 415 of the Code if the date the
distribution is to commence is substituted for the Benefit
Commencement Date for all purposes, including for purposes of
determining the applicable interest rate and the applicable
mortality table as described in Subsection 1.2(b); provided,
however, satisfaction of such requirement is not required in the
case of a distribution in the form of an annuity described in
Section 4.1 or Section 4.3 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 Section 417(e)(3) of the Code
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 as described in Subsection
1.2(b) 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.
|
22
(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 as described in Subsection 1.2(b) for such period on such missed
payment or payments);
|
(C) |
The written notice described in Subsection
(a)(1) above must generally be provided to the Participant not less
than 30 days nor more than 180 days (effective January 1, 2008) prior
to the date of the first payment pursuant to the Participants 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 30 days prior to
the date of such first payment if the requirements of Subsection (a)(2)
above would be satisfied when such date is substituted for the Benefit
Commencement Date in applying the requirements of such Subsection other
than the requirements described in the final sentence of such
Subsection; and, provided, further, that, except in a case due solely
to administrative delay, the date of such first payment shall be not
more than 180 days (effective January 1, 2008) after such written
notice is provided to the Participant.
|
(4) |
For purposes of this Subsection 4.2(a), 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
Subsections (a)(2) and (a)(3) above, the 180-day period (effective
January 1, 2008) ending on the Participants Benefit Commencement Date.
|
23
(B) |
The term Qualified Election shall mean an
election to waive the applicable standard form of annuity, and,
effective January 1, 2008, to elect or waive the Qualified Optional
Survivor Annuity.
The Participants election must be in writing and, if he is married,
must be consented to by his Spouse. The Spouses 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 Subsection (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.
|
(b) |
Election of 100%, 75% or 50% Joint and Survivor Annuity
. The married
Participant may elect to receive a 100%, 75% or 50% Joint and Survivor Annuity with his
Spouse as his joint annuitant, and he will not be required to have his Spouses consent
to make the election.
|
(c) |
Election Concerning Form of Benefit
. Any Participant who would
otherwise receive the standard form of benefit described in Section 4.1 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 Subsection
4.2(a)(4)(A) as a Qualified Election as described in Subsection 4.2(a)(4)(B).
|
(d) |
Election
. Notwithstanding any provision of the Plan to the contrary,
but subject to Section 4.6 of the Plan, a Participant, other than a Participant whose
present value of his vested 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 Participants benefits to a date after his
Normal Retirement Date, such Participants benefit shall not be less than the Actuarial
Equivalent of his Accrued Benefit payable at his Normal Retirement Date.
|
24
4.3 |
Description of Forms of Payment
. The value of each of the following forms of payment will be
the Actuarial Equivalent of the benefit that would be payable to the Participant as a Single
Life Annuity.
|
(a) |
Single Life Annuity
. The Single Life Annuity is a monthly benefit in
the amount determined under the applicable provision of Article 3, beginning on the
Participants Benefit Commencement Date and payable throughout his lifetime, ending
with the last payment due on the first day of the month preceding the month in which
his death occurs.
|
(b) |
Joint and Survivor Annuity
. The Joint and Survivor Annuity is a reduced
monthly benefit beginning on the Participants Benefit Commencement Date and payable
throughout his lifetime, with either 30%, 40%, 50%, 75% or 100%, as elected by the
Participant, of that monthly amount continuing for life to his surviving joint
annuitant, beginning on the first day of the month in which the Participants date of
death occurs. If the designated joint annuitant predeceases the Participant while the
Participant is receiving retirement payments, then, the Participants monthly benefit
will increase to the amount he would have been receiving under the Plan had the
Participant originally elected the Single Life Annuity. This increase is effective the
first day of the month after the death of the Participants designated joint annuitant.
|
4.4 |
Cash-Out
.
|
(a) |
Vested Participant
. As soon as practicable after the Termination Date
of the Participant whose Accrued Benefit has a present value not greater than $1,000,
the Committee will pay his entire benefit in the form of a lump sum payment. In the
event benefit payments have begun to a Participant or surviving Spouse, and the Accrued
Benefit had a present value no greater than $1,000 as of the Benefit Commencement Date,
the Committee will cash out the remaining benefit only if the Participant and his
Spouse, or his surviving Spouse if he is deceased, consent in writing. The Committee
need not obtain consent from a non-Spouse beneficiary.
|
(b) |
Nonvested Participant (Zero Cash-out)
. Regardless of the present value
of his Accrued Benefit, each nonvested Participant will be considered to have received
a constructive cash-out of his entire Accrued Benefit as of his Termination Date. In
the event such Participant resumes Employment before he incurs a Five-Year Break, he
will be considered to have repaid his constructive cash-out as of the date he resumes
Employment.
|
25
(c) |
Direct Rollover of Lump Sum Payments
.
|
(1) |
The retired or terminated vested Participant who receives a
lump sum may instruct the Committee to transfer all or part of his lump sum
payment to an eligible retirement plan, as defined below. The Participant must
timely provide in writing all information required to effect the transfer.
Since the
lump sum payment will not be greater than $1,000, the Spouses consent will
not be required. A surviving Spouse or Spousal alternate payee under a
qualified domestic relations order who receives a lump sum payment may
instruct the Committee to transfer all or part of the payment to an IRA, and
must timely provide in writing all information required to effect the
transfer. A Spousal alternate payee under a qualified domestic relations
order may also roll over to another employers qualified plan. The Committee
will provide timely notice of the right to make a direct-plan transfer.
However, any lump sum payment less than $200, any payment required under
Section 401(a)(9) of the Code, and any distribution on account of hardship
shall not be eligible for direct rollover.
|
(2) |
An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, a qualified trust described in Section 401(a) of the Code,
an annuity contract described in Section 403(b) of the Code, and an eligible
plan under Section 457(b) of the Code which is maintained by a state, political
subdivision of a state, or any agency or instrumentality of a state or
political subdivision of a state (that agrees to separately account for amounts
transferred into such plan from this Plan) that accepts the distributees
eligible rollover distribution. Effective January 1, 2008, an eligible
retirement plan is also an individual retirement account described in Section
408A of the Code (a Roth IRA). However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity. 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 the Alternate Payee
under a qualified domestic relations order.
|
4.5 |
Effect of Death on Forms of Payment
.
|
(a) |
Death of Spouse or Beneficiary Before Benefits Begin
. If the
Participants benefit is payable in any form with a survivor benefit and his Spouse or
designated beneficiary dies before his Benefit Commencement Date, the survivor form of
payment will not become effective, and he will instead receive his retirement benefit
as a Single Life Annuity unless he properly elects another form before his Benefit
Commencement Date.
|
(b) |
Death of Participant Before Benefits Begin
. If the Participants
benefit is payable in any form with a survivor benefit and he dies before his Benefit
Commencement Date, his Spouse or other beneficiary will not be entitled to any benefits
under any such form. His surviving Spouse will be entitled only to the preretirement
death benefit payable under Article 5.
|
26
(c) |
Death of Spouse or Beneficiary After Benefits Begin
. If the
Participants benefit has begun in any form with a survivor benefit and his Spouse or
other beneficiary
dies before he does, then, the Participants monthly benefit will increase to the
amount he would have been receiving under the Plan had the Participant originally
elected the Single Life Annuity. This increase is effective the first day of the
month after the death of the Participants designated joint annuitant.
|
(d) |
Death of Participant After Benefits Begin
. If the Participant dies
after his benefits have begun, no death benefit will be payable except to the extent
provided under the form of benefit he was receiving.
|
4.6 |
Required Distribution Rules
.
|
(a) |
Payment to the Participant
. The Plan will cash-out each Participants
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 70
1
/
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 owner even if he has not retired. The Plan will
pay the Accrued Benefit over a period not extending beyond the Participants 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.
|
(b) |
Participants Death Before Benefits Begin
. If the Participant dies
before his Benefit Commencement Date, the only preretirement death benefit payable
under the Plan is the benefit payable to the surviving Spouse (if any) under Article 5.
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
70
1
/
2
. Payments will cease as of the Spouses date of death.
|
(c) |
Participants Death After Benefits Begin
. If the Participant dies after
his Benefit Commencement Date, his remaining Accrued Benefit will be paid at least as
rapidly as under the method of payment in effect before his death.
|
(d) |
Compliance with Section 401(a)(9) of the Code
. 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 Section
401(a)(9) of the Code 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 Section 401(a)(9) of the Code, that Code Section will prevail.
|
27
4.7 |
Payment on Participants Behalf
.
|
(a) |
Payment to the Participants Representative
. If the Participant is
incompetent to handle his affairs on his Benefit Commencement Date or thereafter, or
cannot be located after reasonable effort, the Committee will make payments to his
court-appointed personal representative, or if none is appointed the Committee may in
its discretion make payments to his next-of-kin. The Committee may request a court of
competent jurisdiction to determine the payee.
|
(b) |
Payment to Minor or Incompetent Beneficiaries
. In the event the
deceased Participants beneficiary is a minor, or is legally incompetent, or cannot be
located, the Committee will make payment to the court-appointed guardian or
representative of such beneficiary, or to a trust established for the benefit of such
beneficiary, as applicable.
|
(c) |
Judicial Determination
. In the event the Committee considers it
necessary, it may have a court of applicable jurisdiction determine to whom payments
should be made, in which event all expenses incurred in obtaining the determination may
be charged against the payee.
|
4.8 |
Unclaimed Benefits
. In the event the Committee cannot locate any person entitled to receive
the Participants vested Accrued Benefit, with reasonable effort and after a period of five
years, his interest will be canceled but will be reinstated within 60 days after he is
located, as required under Treasury Regulations Section 1.401(a)-14(d) or any other applicable
law. The Committee will pay any required retroactive payment in a single sum without
adjustment for interest.
|
4.9 |
Correction of Mistakes
. In the event the Committee discovers that a mistake has been made in
the calculation of the benefit amount payable to any Participant or beneficiary, it will
correct the mistake as soon as practicable. If an overpayment in monthly payments has been
made, the Committee will reduce future monthly benefit payments to the extent necessary to
recover the overpayment within a reasonable period of time. If an overpayment has been made in
a lump sum, the Committee will seek cash reimbursement. If an underpayment in monthly payments
has been made, the Committee either will pay the Actuarial Equivalent present value of the
underpayment in a single sum, or will increase future monthly benefit payments to the extent
necessary to pay Actuarial Equivalent present value of the underpayment within a reasonable
period of time. If an underpayment has been made in a lump sum, the Committee will pay the
Actuarial Equivalent present value of the underpayment in a single sum. However, if the
Committee determines that the burden or expense of seeking recovery of any overpayment would
be greater than the potential recovery warrants, it may in its discretion forego recovery
efforts. If a mistake in any communication creates a risk of loss to any Participant or
beneficiary, the Plan will take reasonable steps to mitigate such risk, such as making de
minimis variances from Plan provisions (including but not limited to forms and timing of
payment), to the extent any such variance would comply with applicable qualification
requirements if it were set forth in written provisions of the Plan.
|
28
5.1 |
Married Vested Participant
. The surviving Spouse of the vested Participant who dies before
his Benefit Commencement Date will receive the monthly preretirement death benefit described
in this Section.
|
(a) |
Coverage for Surviving Spouse Only
. The preretirement death benefit
coverage will become effective on the later of (i) the date the Participant becomes
vested, or (ii) the date he becomes married. The coverage will remain in effect until
the earlier of (i) the date the Participant becomes unmarried for any reason, (ii) the
Participants date of death, or (iii) the Benefit Commencement Date. The coverage will
remain in effect whether or not the Participant continues in Employment. The Plan will
provide the death benefit without any charge for the cost of coverage and without
reduction in the benefit payable to the Participant or surviving Spouse to account for
the cost of coverage.
|
(b) |
Amount of Spouses Preretirement Death Benefit
. If the present value of
the survivor benefit is not greater than $1,000, the Committee will pay the entire
benefit to the surviving Spouse in a lump sum payment. Otherwise, the surviving Spouse
will receive a monthly benefit equal to the amount that would have been payable to the
Participant as a Single Life Annuity, based on his Accrued Benefit earned as of his
date of death. The Plan will apply the Code Section 415 limitations described in
Section 6.1 to the Spouses benefit as if the Spouse were the Participant. In the event
the surviving Spouse elects to begin receiving benefits before the date that would have
been the Participants Normal Retirement Date if he had survived, the amount of the
benefit will be reduced by the early retirement reduction factor described in
Subsection 3.3(b) if any.
|
(c) |
Beginning Date of Spouses Preretirement Death Benefit
. The
preretirement death benefit will normally become payable to the surviving Spouse on the
date that would have been the Participants Normal Retirement Date if he had survived.
However, the surviving Spouse of the Participant who dies before his Earliest
Retirement Date may elect to begin receiving benefits on the date that would have been
the Participants Earliest Retirement Date if he had survived. The surviving Spouse of
the Participant who dies after his Earliest Retirement Date may elect to begin
receiving benefits as of the first day of the month following the month in which the
Participants date of death occurs. Benefit payments will be made as of the first day
of each month, with the final payment due on the first day of the month preceding the
month in which the Spouses death occurs.
|
5.2 |
Unmarried Participant or Nonvested Participant
. The Participant who either does not have a
surviving Spouse, or is not vested on his date of death, will not have any preretirement death
benefit coverage under the Plan.
|
29
6.1 |
Limitations Imposed by Section 415 of the Internal Revenue Code
:
|
(a) |
The limitations of this Section 6.1 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 Participants
Annual Benefits from all such plans may not exceed the Maximum Permissible Benefit.
Where the Participants 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 Participants 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 Section 415 of the Internal Revenue Code in effect as of the end of the
last Limitation Year beginning before July 1, 2007, as described in Treasury
Regulations Section 1.415(a)-1(g)(4).
|
(e) |
The limitations of this Section 6.1 shall be determined and applied taking into
account the rules in Subsection (g) below.
|
30
(1) |
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 Section 6.1. 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
Section 6.1 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 starting date has
occurred shall be made without regard to Section 1.401(a)-20, Q&A 10(d), and
with regard to Treasury Regulation Section 1.415(b)-1(b)(1)(iii)(B) and (C).
|
(A) |
Benefit Forms Not Subject to
Section 417(e)(3) of the Internal Revenue Code
: The straight life
annuity that is actuarially equivalent to the Participants form of
benefit shall be determined under this subsection (i) if the form of
the Participants benefit is either (1) 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 (2) 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 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
Section 401(a)(11) of the Code).
|
31
(I) |
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 Participants form of benefit
computed using whichever of the following produces the greater
annual amount: (i) the interest rate specified in Section 1.2(a)
of the Plan (which is 7
1
/
2
% compounded annually and is hereinafter
referred to as the Plan Interest Rate) and the mortality table
(or other tabular factor) specified in Section 1.2(a) of the Plan
(which is the 1983 Group Annuity Mortality Table, assuming the
Participant is male and the contingent annuitant is female, and
is hereinafter referred to as the Plan Mortality Table) for
adjusting benefits in the same form; and (ii) a 5 percent
interest rate assumption and the applicable mortality table
prescribed in Revenue Ruling 2001-62 for that annuity starting
date.
|
(II) |
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
Participants 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
Participants form of benefit, computed using a 5 percent
interest rate assumption and the Applicable Mortality Table
defined in Section 1.2(b)(1) of the Plan for that annuity
starting date.
|
32
(B) |
Benefit Forms Subject to Section 417(e)(3)
of the Internal Revenue Code
: The straight life annuity that is
actuarially equivalent to the Participants form of benefit shall be
determined under this subsection (ii) if the form of the Participants
benefit is other than a benefit form described in Subsection (A) above.
In this case, the
actuarially equivalent straight life annuity shall be determined as
follows:
|
(I) |
Annuity Starting Date in Plan
Years Beginning After 2005
. If the annuity starting date of
the Participants 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 Participants form of
benefit, computed using the Plan Interest Rate specified in
Section 1.2(a) of the Plan and the Plan Mortality Table (or other
tabular factor) specified in Section 1.2(a) of the Plan 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
Participants form of benefit, computed using a 5.5 percent
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
Participants 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.
|
(II) |
Annuity Starting Date in Plan
Years Beginning in 2004 or 2005
. If the annuity starting
date of the Participants 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 Participants form of
benefit, computed using whichever of the following produces the
greater annual amount: (i) the Plan Interest Rate specified in
Section 1.2(a) of the Plan and the Plan Mortality Table (or other
tabular factor) specified in Section 1.2(a) of the Plan for
adjusting benefits in the same form; and (ii) a 5.5 percent
interest rate assumption and the applicable mortality table
prescribed in Revenue Ruling 2001-62.
|
33
(2) |
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 Sections 402(e)(3), 408(k)(6),
408(p)(2)(A)(i), or 457(b) of the Code) to a plan of deferred
compensation (including a simplified employee pension described in
Section 408(k) or a simple retirement account described in
Section 408(p) of the Code, and whether or not qualified) to the extent
such contributions are not includible in the Employees 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 Treasury Regulations Section 1.421-1(b)), 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
Section 125 of the Code); and
|
(E) |
Other items of remuneration that are similar to
any of the items listed in (A) through (D).
|
34
(A) |
The payment is regular compensation for
services during the Employees regular working hours, or compensation
for services outside the Employees 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.
|
35
(3) |
Defined Benefit Compensation Limitation shall mean 100
percent of a Participants High Three-Year Average Compensation, payable in the
form of a straight life annuity.
|
36
(4) |
Defined Benefit Dollar Limitation shall mean, effective for
Limitation Years ending after December 31, 2001, $160,000, automatically
adjusted under Section 415(d) of the Internal Revenue Code 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 Participants 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.
|
(5) |
employer shall mean the employer that adopts this Plan, and
all members of a controlled group of corporations, as defined in
Section 414(b) of the Code, as modified by Section 415(h) of the Code, all
commonly controlled trades or businesses (as defined in Section 414(c) of the
Code, as modified, except in the case of a brother-sister group of trades or
businesses under common control, by Section 415(h) of the Code), or affiliated
service groups (as defined in Code 414(m) of the Code) of which the adopting
employer is a part, and any other entity required to be aggregated with the
employer pursuant to Section 414(o) of the Code.
|
37
(6) |
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 Section 414(b) of the Code, as modified by
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.
|
(7) |
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 Participants 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 Participants 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 Participants
compensation for a year of service shall not include compensation in excess of
the limitation under Section 401(a)(17) of the Code that is in effect for the
calendar year in which such year of service begins.
|
(8) |
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.
|
(9) |
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).
|
(A) |
Adjustment for Less Than 10 Years of
Participation or Service
: If the Participant has less than 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 10. In the
case of a Participant who has less than 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 1 year) of Service with the employer, and the
denominator of which is 10.
|
38
(B) |
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 Participants 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 (ii). If the annuity starting date is after age 65, the
Defined Benefit Dollar Limitation shall be adjusted under subsection
(2) below, as modified by subsection (C) below in this subsection (B).
|
(I) |
Adjustment of Defined Benefit
Dollar Limitation for Benefit Commencement Before Age 62
:
|
(1) |
Limitation
Years Beginning Before July 1, 2007
. If the annuity
starting date for the Participants benefit is prior to
age 62 and occurs in a Limitation Year beginning before
July 1, 2007, the Defined Benefit Dollar Limitation for
the Participants annuity starting date is the annual
amount of a benefit payable in the form of a straight
life annuity commencing at the Participants annuity
starting date that is the actuarial equivalent of the
Defined Benefit Dollar Limitation (adjusted for Years of
Participation less than 10, if required) with actuarial
equivalence computed using whichever of the following
produces the smaller annual amount: (i) the Plan Interest
Rate specified in Section 1.2(a) of the Plan and the Plan
Mortality Table (or other tabular factor) specified in
Section 1.2(a) of the Plan; or (ii) a 5-percent interest
rate assumption and the applicable mortality table as
prescribed in Revenue Ruling 2001-62.
|
39
(2) |
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 Participants
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
Participants annuity starting date is the
annual amount of a benefit payable in the form
of a straight life annuity commencing at the
Participants annuity starting date that is
the actuarial equivalent of the Defined
Benefit Dollar Limitation (adjusted for Years
of Participation less than 10, if required)
with actuarial equivalence computed using a 5
percent interest rate assumption and the
Applicable Mortality Table for the annuity
starting date (and expressing the
Participants 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 Participants 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 Participants 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 10, if required)
multiplied by the ratio of the annual amount of
the immediately commencing straight life annuity
under the Plan at the Participants 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 Section 6.1.
|
40
(II) |
Adjustment of Defined Benefit
Dollar Limitation for Benefit Commencement After Age 65
:
|
(1) |
Limitation
Years Beginning Before July 1, 2007
. If the annuity
starting date for the Participants benefit is after age
65 and occurs in a Limitation Year beginning before July
1, 2007, the Defined Benefit Dollar Limitation for the
Participants annuity starting date is the annual amount
of a benefit payable in the form of a straight life
annuity commencing at the Participants annuity starting
date that is the actuarial equivalent of the Defined
Benefit Dollar Limitation (adjusted for Years of
Participation less than 10, if required) with actuarial
equivalence computed using whichever of the following
produces the smaller annual amount: (i) the Plan Interest
Rate specified in Section 1.2(a) of the Plan and the Plan
Mortality Table (or other tabular factor) specified in
Section 1.2(a) of the Plan; or (ii) a 5-percent interest
rate assumption and the applicable mortality table as
prescribed in Revenue Ruling 2001-62.
|
(2) |
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 Participants
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
Participants annuity starting date is the annual
amount of a benefit payable in the form of a
straight life annuity commencing at the
Participants annuity starting date that is the
actuarial equivalent of the Defined Benefit
Dollar Limitation (adjusted for Years of
Participation less than 10, if required), with
actuarial equivalence computed using a 5 percent
interest rate assumption and the Applicable
Mortality Table for that annuity starting date
(and
expressing the participants age based on
completed calendar months as of the annuity
starting date).
|
41
(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 Participants 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 Participants 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 10, if required)
multiplied by the ratio of the annual amount of
the adjusted immediately commencing straight life
annuity under the Plan at the Participants
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 Section
6.1. For this purpose, the adjusted immediately
commencing straight life annuity under the Plan
at the Participants annuity starting date is the
annual amount of such annuity payable to the
Participant, computed disregarding the
Participants 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.
|
42
(III) |
Notwithstanding the other
requirements of this subsection (B), no adjustment shall be made
to the Defined Benefit Dollar Limitation to reflect the
probability of a Participants
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
Participants death if the Plan does not charge Participants
for providing a qualified preretirement survivor annuity, as
defined in Section 417(c) of the Code, upon the Participants
death.
|
(C) |
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:
|
(I) |
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 Participants number of
Years (or part thereof, but not less than one year) of Service
(not to exceed 10) with the employer, and the denominator of
which is 10; and
|
(II) |
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 Section 401(h) of the Code, and
accounts for postretirement medical benefits established under
Section 419A(d)(1) of the Code are not considered a separate
defined contribution plan).
|
(10) |
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.
|
(11) |
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 Employees new employer maintains the Plan with respect to
the Employee.
|
43
(12) |
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 Section 415(c)(3)(C)(i) of the Code 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.
|
(13) |
Year of Service. For purposes of Section 6.1(f)(7), 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.
|
(g) |
Other Rules
.
|
(1) |
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 Participants benefits under
the terminated plan at each possible annuity starting date shall be taken into
account in applying the limitations of this Section 6.1. 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.
|
44
(2) |
Benefits Transferred From the Plan
. If a participants
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 Treasury Regulations
Section 1.411(d)-4, Q&A-3(c), 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 participants 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 Treasury
Regulations Section 1.411(d)-4, Q&A-3(c), the transferred benefits are
treated by the employers 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
participants 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 Treasury Regulations Section 1.411(d)-4,
Q&A-3(c), the amount transferred is treated as a benefit paid from the
transferor plan.
|
(3) |
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.
|
(4) |
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
Participants 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.
|
(5) |
Special Rules
. The limitations of this Section 6.1
shall be determined and applied taking into account the rules in Treasury
Regulations Section 1.415(f)-1(d), (e) and (h).
|
45
(6) |
Aggregation with Multiemployer Plans
.
|
(A) |
If the employer maintains a multiemployer plan,
as defined in Section 414(f) of the Code, 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 Section 6.1.
|
(B) |
Effective for Limitation Years ending after
December 31, 2001, a multiemployer plan shall be disregarded for
purposes of applying the compensation limitation of Sections 6.1(f)(3)
and 6.1(f)(1)(A) to a plan which is not a multiemployer plan.
|
(h) |
Compliance With Section 415 of the Internal Revenue Code
. The
provisions set forth in Section 6.1 are intended to conform the Plan to the Final
Treasury Regulations under Section 415 of the Code, that were released in April, 2007.
|
6.2 |
Restrictions for Twenty-five Highest-Paid Participants
.
|
(a) |
Restricted Participants
. In each Plan Year, the total number of
Participants whose benefit payments are restricted under this Section is limited to the
25 highly compensated employees and former employees (within the meaning of Section
414(q) of the Code) with the greatest Compensation in the current or any prior Plan
Year (the restricted Participants).
|
(b) |
Restricted Amount
. For each Plan Year, the amount of benefits payable
to each restricted Participant will be limited to the annual amount that would be
payable in the single life annuity form, unless either:
|
(1) |
The value of Plan assets remaining after payment to such
Participant is at least 110% of the value of current liabilities, or
|
(2) |
The value of benefits paid to such Participant is less than 1
percent of the value of current liabilities.
|
(c) |
Security for Restricted Amount
. In lieu of the restrictions described
in this Section and to the extent permitted by applicable law, the Plan may permit each
restricted Participant to provide security for any payments which exceed the annual
amount that would have been payable as a single life annuity.
|
(d) |
Restriction upon Plan Termination
. In the event the Plan terminates,
the benefits payable to the restricted Participants will be limited to an amount that
is not discriminatory under Section 401(a)(4) of the Code.
|
46
6.3 |
Top-Heavy Rules
.
|
(a) |
Applicable Definitions
. For purposes of this Section, the following
terms will have the meanings set forth below.
|
(1) |
Aggregation Group
. The
Required Aggregation Group
includes each qualified plan maintained in the Controlled Group in which a Key
Employee is a participant, and each other plan which enables any plan with Key
Employee participants to meet the requirements of Sections 401(a)(4) or 410 of
the Code, which plans are required to be aggregated for purposes of determining
top-heavy status. The
Permissive Aggregation Group
includes the qualified plans
of the Controlled Group which are required to be aggregated, plus such plans
which are not part of the Required Aggregation Group but which satisfy the
requirements of Sections 401(a)(4) and 410 of the Code when considered together
with the Required Aggregation Group.
|
(2) |
Determination Date
means, for each Plan Year, the first
day of the preceding Plan Year.
|
(3) |
Key employee
means any Employee or former Employee
(including any deceased employee) who at any time during the Plan Year that
includes the determination date was an officer of the employer having Top-Heavy
Annual Compensation greater than $130,000 (as adjusted under Section 416(i)(l)
of the Code), a 5-percent owner of the employer, or a 1-percent owner of the
employer having Top-Heavy Annual Compensation of more than $150,000. The
determination of who is a Key Employee will be made in accordance with Section
416(i)(1) of the Code and the applicable Regulations and other guidance of
general applicability issued thereunder.
|
(4) |
Non-Key Employee
means an Employee who is not a Key
Employee.
|
(5) |
Top-Heavy Annual Compensation
means compensation with
the meaning of Section 415(c)(3) of the Code.
|
(6) |
Top-Heavy Group
means an Aggregation Group in which the
sum of (i) the present value of cumulative Accrued Benefits for Key Employees
under all defined benefit plans included in the group, and (ii) the aggregate
account balances of Key Employees under all defined contribution plans included
in the group, exceeds 60 percent of a similar sum determined for all Employees.
|
(7) |
Top-Heavy Plan Year
means a Plan Year when the Plan is
top-heavy.
|
47
(b) |
Determination of Top-Heavy Status
. The determination of top-heavy
status for any Plan Year will be based on the actuarial valuation made as of the first
day of the Plan Year in which the Determination Date occurs. If benefits under all the
Controlled Group plans accrue at the same rate, that accrual rate may be used;
otherwise the present value of all accrued benefits will be determined by use of the
fractional rule described in Section 411(b)(1)(C) of the Code. The Plan will be
treated as top-heavy for the tested Plan Year under the following rules:
|
(1) |
60-Percent Rule
. The Plan will be treated as top-heavy
if the Actuarial Equivalent of the cumulative Accrued Benefits for Key
Employees exceeds 60 percent of the Actuarial Equivalent of the cumulative
Accrued Benefits for all Employees.
|
(2) |
Top-Heavy Group Rule
. The Plan will be treated as
top-heavy if it is part of a Top-heavy Group. The Plan will not be considered
top-heavy in any Plan Year in which the Plan is part of a Required or
Permissive Aggregation Group that is not top-heavy.
|
(3) |
Distributions during year ending on the determination
date
. The present values of accrued benefits and the amounts of account
balances of an employee as of the determination date shall be increased by the
distributions made with respect to the employee under the plan and any plan
aggregated with the plan under Section 416(g)(2) of the Code during the 1-year
period ending on the determination date. The preceding sentence shall also
apply to distributions under a terminated plan which, had it not been
terminated, would have been aggregated with the plan under Section
416(g)(2)(A)(i) of the Code. In the case of a distribution made for a reason
other than separation from service, death, or disability, this provision shall
be applied by substituting 5-year period for 1-year period.
|
(4) |
Employees not performing services during year ending on the
determination date
. The accrued benefits and accounts of any individual who
has not performed services for the employer during the 1-year period ending on
the determination date shall not be taken into account.
|
(5) |
For purposes of satisfying the minimum benefit requirements of
Section 416(c)(1) of the Code and the Plan, in determining years of service
with the employer, any service with the employer shall be disregarded to the
extent that such service occurs during a Plan Year when the plan benefits
(within the meaning of Section 410(b) of the Code) no Key Employee or former
Key Employee.
|
48
(c) |
Plan Operation During Top-Heavy Plan Years
. Notwithstanding any other
provision of the Plan, the following provisions will apply for any Top-Heavy Plan Year:
|
(1) |
Minimum Benefit
. The Accrued Benefit of each active
Non-Key Employee Participant will not be less than the lesser of (i) 2 percent
(2%) of his Top-Heavy Annual Compensation multiplied by the number of his Years
of Benefit Service, not in excess of 10, earned during Top-Heavy
Plan Years; or (ii) 20 percent (20%) of his Top-Heavy Annual Compensation.
The Participant will accrue this minimum benefit for each of his Years of
Benefit Service earned during Top-Heavy Plan Years, regardless of the level
of his Form W-2 Compensation for any such Plan Year, or whether he remains
in Employment until the last day of any such Plan Year. If the Employee also
participates in a defined contribution plan maintained by an Employer, this
Plan will provide the top-heavy minimum benefit.
|
(2) |
Minimum Vesting
. The following vesting schedule will be
in effect for Participants who earn any Hours of Service during Top-Heavy Plan
Years:
|
Years of Vesting Service | Vested Percentage | |
Fewer than 2 | 0% | |
2 | 20% | |
3 | 40% | |
4 | 60% | |
5 | 100% |
(d) |
Plan Operation After Top-Heavy Plan Years
. If the Plan is top-heavy in
a Plan Year and ceases to be top-heavy in a subsequent Plan Year, the following
provisions will apply:
|
(1) |
Accrued Benefit
. The Participants Accrued Benefit in
each subsequent Plan Year will not be less than the minimum Accrued Benefit
described in Subsection 6.3(c)(1), computed as of the end of the most recent
Plan Year in which the Plan was top-heavy.
|
(2) |
Vested Percentage
. The Participant who became partially
vested under the schedule set forth in Subsection 6.3(c)(2) before the end of
the last Top-Heavy Plan Year, will continue to have the vested percentage of
his Accrued Benefit which he has as of that date but will not have any
additional vested percentage until he has completed 5 Years of Vesting Service.
However, the Participant who has completed at least 3 Years of Vesting Service
before the end of the last Plan Year in which the Plan was top-heavy may elect
to continue to have the vested percentage of his Accrued Benefit determined
under that vesting schedule instead of the 5-year cliff vesting schedule
described in Subsection 3.5(a)(2).
|
49
7.1 |
Employer Contributions
. The Employers will make contributions in the amounts determined by
the Committee to be necessary to provide benefits under the Plan, based on the recommendations
of the Plans actuary. Employer contributions will be irrevocable and will be used only for
the benefit of Participants and beneficiaries, except as provided in Sections 7.3 and 8.2. The
Company reserves the right to establish and to change from time to time the method for funding
benefits, either through the use of one or more trust agreements or one or more group annuity
contracts or other forms of insurance contracts or agreements with one or more insurance
companies.
|
7.2 |
Participant Contributions
. Participants will neither be required nor permitted to make
contributions to the Plan.
|
7.3 |
Return of Contributions to the Employers
. Contributions will be returned to the affected
Employer(s) under the following circumstances:
|
(a) |
Mistake of Fact
. Any contribution made by mistake of fact will be
returned to the affected Employer(s) within one year after the contribution is made.
|
(b) |
Nondeductible
. All contributions are conditioned upon their
deductibility under Section 404 of the Code and will be returned to the affected
Employer(s) within one year after any disallowance.
|
7.4 |
Actuarial Gains
. Actuarial gains arising from any cause whatsoever will not be applied to
increase the benefits any Participant would otherwise receive at any time before termination
of the Plan, but will be applied to reduce Employer contributions for the current or
subsequent Plan Years.
|
50
8.1 |
Amendment
|
(a) |
Right to Amend
. Subject to Section 8.1(b) and any other limitations
contained in ERISA or the Code, the Board or the Compensation Committee of the Board
may from time to time amend, in whole or in part, any or all of the provisions of the
Plan on behalf of the Plan Sponsor 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 Board, the Compensation Committee of the Board, 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.
|
(b) |
Prohibited Amendments
. No amendment will have the effect of any of the
following:
|
(1) |
Exclusive Benefit
. No amendment will permit any part of
the Trust Fund to be used for purposes other than the exclusive benefit of
Participants.
|
(2) |
Nonreversion
. No amendment will revest in any Employer
any portion of the Trust Fund except such amount as may remain after
termination of the Plan and satisfaction of all liabilities.
|
(3) |
Accrued Benefit
. No amendment will eliminate or reduce
any Participants Accrued Benefit determined as of the effective date of the
amendment, except as may be permitted pursuant to Treasury Regulations issued
pursuant to Section 411(d)(6) of the Code.
|
(4) |
Forms of Payment
. No amendment will eliminate any
optional form of benefit described in Section 4.3, with respect to benefits
accrued before the amendment.
|
(5) |
Retirement Subsidy
. No amendment will eliminate or
reduce any retirement subsidy or retirement-type subsidy with respect to
benefits accrued before the amendment, for Participants who either before or
after the amendment meet the requirements for the subsidy.
|
(c) |
Limited to Active Participants
. Except as specifically stated in the
amendment, no amendment that improves benefits will apply to any Employee whose
Termination Date occurred before the effective date of the amendment.
|
51
(d) |
Administrative Changes Without Plan Amendment
. The Committee reserves
authority to make administrative changes to this Plan document that do not alter
either the minimum qualification requirements or the Plans funding and expense
provisions, without formal amendment to the Plan. The Committee will effect such
changes by substituting pages in the Plan document with corrected pages.
Administrative changes include, but are not limited to, corrections of typographical
errors and similar errors, conforming provisions for administrative procedures to
actual practice and changes in practice, and deleting or correcting language that
fails to accurately reflect the intended provision of the Plan.
|
8.2 |
Termination of the Plan
.
|
(a) |
Right to Terminate or Partially Terminate
. The Plan Sponsor 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 Plan Sponsor 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 Board 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 Trustee and all affected Participants shall be notified of such
termination or partial termination.
|
(b) |
Full Vesting
. In the event of termination or partial termination of the
Plan, the Accrued Benefit of each affected Participant, to the extent funded, will
become fully vested as of the termination date. For purposes of accelerated vesting,
affected Participants will include only those who are in active Employment as of the
Plan termination date. All nonvested Participants who terminated Employment before the
Plan termination date will be considered to have received constructive (zero) cash-outs
of their entire Accrued Benefits under Subsection 4.4(b).
|
52
(c) |
Provision for Benefits upon Plan Termination
. In the event of
termination, the Committee may in its discretion act as follows:
|
(1) |
Maintain the Trust
. The Committee may continue the
Trust for so long as it considers advisable and so long as permitted by law,
either through the existing trust agreement(s), or through successor funding
media.
|
(2) |
Terminate the Trust
. The Committee may terminate the
Trust, pay all expenses, and direct the payment of the benefits as allocated
under Subsection (d), either in the form of lump-sum distributions, annuity
contracts, transfer to another qualified plan. or any other form selected by
the Committee, to the extent not prohibited by law.
|
(d) |
Allocation of Assets
. Upon termination, the Committee will allocate the
assets that remain after payment of all Plan expenses, to pay benefits due to
Participants and beneficiaries under applicable provisions of the Plan, as specified in
ERISA Section 4044.
|
(e) |
Surplus Reversion
. Any assets that remain after all benefits under the
Plan have been allocated will be returned to the Company and/or the affected
Employer(s).
|
8.3 |
Merger
. In the event of any merger or consolidation of the Plan with any other plan, or the
transfer of assets or liabilities by the Plan to another plan, each Participant will be
entitled to receive a benefit immediately after the merger, consolidation or transfer, if the
Plan then terminated, which is equal to or greater than the benefit he would have been
entitled to receive immediately before the merger, consolidation, or transfer if the Plan had
then terminated.
|
53
9.1 |
Fiduciary Provisions
.
|
(a) |
This Section 9.1(a) shall control over any contrary, inconsistent, or ambiguous
provisions contained in the Plan.
|
(1) |
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 Board shall have the sole authority to appoint and remove the Trustee.
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
Trustee shall have the sole responsibility for the administration, investment
and management of the assets held under the Plan. It is intended under the Plan
that each fiduciary shall be responsible for the proper exercise of his own
powers, duties, responsibilities and obligations hereunder and shall not be
responsible for any act or failure to act of another fiduciary except to the
extent provided by law or as specifically provided herein.
|
(2) |
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 delegate. 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 then delegating Committee members do not
violate any fiduciary responsibility in making or continuing such delegation.
|
(3) |
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 Trustee in this regard, so
long as:
|
(A) |
The investment manager is (i) registered as an
investment adviser under the Investment Advisers Act of 1940, (ii) not
registered as an investment adviser under such act by reason of
paragraph (1) of section 203A(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
|
54
(B) |
Such investment manager acknowledges in writing
that he is a fiduciary with respect to the Plan.
|
(b) |
The Committee
.
|
(1) |
Appointment of Committee
. The general administration of
the Plan shall be vested in the Committee. For purposes of ERISA, the Committee
shall be the Plan administrator and shall be the named fiduciary with
respect to the general administration of the Plan (except as to the investment
of the assets of the Trust). Each member of the Committee shall serve until he
resigns, dies or is removed by the Committee or the Compensation and Human
Resources Committee of the Board. A member of the Committee who is an Employee
of the Employer 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 Employer or any of its
affiliates.
|
(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 individuals 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.
|
(3) |
Meetings
. The Committee shall hold meetings upon such
notice and at such time and place as it may from time to time determine. Notice
to a member shall not be required if waived in writing by that member. A
majority of the members of the Committee duly appointed shall constitute a
quorum for the transaction of business. All resolutions or other actions taken
by the Committee at any meeting where a quorum is present shall be by vote of a
majority of those present at such meeting and entitled to vote. Resolutions may
be adopted or other action taken without a meeting upon written consent signed
by all of the members of the Committee. The Committee may hold any meeting
telephonically and any business
conducted at a telephonic meeting shall have the same force and effect as if
the members had met in person.
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55
(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 Board or the Compensation and Human Resources Committee of the Board
shall appoint a temporary substitute member to exercise all the powers of the
disqualified member concerning the matter in which he is disqualified.
|
(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 ERISA or other applicable law, or required
by the Plan Sponsor, members of the Committee shall furnish bond or security
for the performance of their duties hereunder.
|
(6) |
Committee Powers and Duties
. The Committee shall
supervise the administration and enforcement of the Plan according to the terms
and provisions hereof and shall have all powers necessary to accomplish these
purposes. including, but not by way of limitation, the right, power, authority,
and duty:
|
(A) |
To make rules, Regulations, and bylaws for the
administration of the Plan that are not inconsistent with the terms and
provisions hereof, provided such rules, Regulations, and bylaws are
evidenced in writing and copies thereof are delivered to the Trustee
and to the Plan Sponsor 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;
|
56
(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 ERISA;
|
(H) |
To issue directions, which shall be in writing
and signed an authorized member of the Committee, to the Trustee
concerning all benefits that are to be paid from the Trust 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 Trustee
as to the financial condition of the Trust, including its receipts and
disbursements.
|
(c) |
The Trustee and Trust
|
(1) |
Trustee
. The assets of the Plan shall be maintained in
a fund by the Trustee for the purpose of providing the benefits provided for
under the Plan. The Plan Sponsor may provide for such fund by entering into an
annuity contract or a trust agreement with the Trustee. The Plan Sponsor may
maintain the Plans fund through more than one Trustee and under more than one
annuity contract or trust agreement, or any combination thereof. The Plan
Sponsor, at any time and from time to time, may substitute a new funding medium
or Trustee without such substitution being considered a discontinuance of the
Plan.
|
(2) |
Payment of Expenses
. All expenses incident to the
administration of the Plan and Trust including but not limited to, actual legal
accounting premiums to the Pension Benefit Guaranty Corporation, Trustee fees,
direct expenses of the Plan Sponsor, the Employer and the Committee in the
administration of the Plan, and the cost of furnishing any bond or security
required of the Committee, shall be paid by the Trustee from the
Trust and, until paid, shall constitute a claim against the Trust which is
paramount to the claims of Participants and beneficiaries provided however,
that (i) the obligation of the Trustee to pay such expenses from the Trust
shall cease to exist to the extent such expenses are paid by the Plan
Sponsor or the Employer, and (ii) in the event the Trustees compensation is
to be paid, pursuant to this Section, from the Trust, any individual serving
as a Trustee who already receives full-time pay from the Plan Sponsor, 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
Trust administration, whether or not the signatory to such contract is, as a
matter of convenience, the Employer.
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57
(3) |
Trust Property
|
(A) |
All contributions heretofore made and hereafter
made under this Plan shall be paid to the Trustee and shall be held,
invested, and reinvested by the Trustee as Plan assets. All property
and funds of the Trust, 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 Trust to the extent not paid by the Plan
Sponsor or the Employer.
|
(B) |
No Participant shall have any title to any
specific asset in the Trust. No Participant shall have any right to, or
interest in, any assets of the Trust 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 Trust.
|
(C) |
Authorization of Benefit Payments
. The
Committee shall issue directions to the Trustee concerning all benefits
which are to be paid from the Trust pursuant to the provisions of the
Plan. All distributions hereunder shall be made in cash or in the form
of a commercial annuity contract.
|
(D) |
Payments Solely from Trust
. All
benefits payable under the Plan shall be paid or provided for solely
from the Trust, and neither the Plan Sponsor, the Employer nor the
Trustee assumes any liability or responsibility for the adequacy
thereof. The Committee or the Trustee may require execution and
delivery of such instruments as are deemed necessary to assure proper
payment of any benefits.
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58
(E) |
No Benefits to the Employer
. No part of
the corpus or income of the Trust 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 Trust. Anything to the contrary herein
notwithstanding, the Plan shall not be construed to vest any rights in
the Plan Sponsor or the Employer other than those specifically given
hereunder.
|
9.2 |
Employer to Supply Information
. The Employer shall supply full and timely information to the
Committee, including, but not limited to, information relating to each Participants
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 Trustee of
such of the foregoing facts as are deemed necessary for the Trustee to carry out the Trustees
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.
|
9.3 |
Indemnification
. The Plan Sponsor shall indemnify and hold harmless each member of the
Committee and each individual employed by the Plan Sponsor or a Controlled Group member 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 individuals 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.
|
9.4 |
Claims Procedure
.
|
(a) |
Definitions
. For purposes of this Section, the following terms, when
capitalized, will be defined as follows:
|
(i) |
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 Claimants
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.
|
(ii) |
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.
|
(iii) |
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.
|
59
(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 Claimants
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 Claimants right to the requested
benefit, payable at the time or times and in the form requested, is not clear, it shall
refer the benefit claim to the Committee for review and determination, which referral
shall include:
|
(1) |
All materials submitted to the Benefits Administrator by the
Claimant in connection with the claim;
|
(2) |
A written description of why the Benefits Administrator was of
the view that the Claimants 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.
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60
(d) |
Notification of Adverse Benefit Determination
. In any case of an
Adverse Benefit Determination of a claim for a Plan benefit, the Committee shall
furnish written notice to the affected Claimant within a reasonable period of time but
not later than ninety days after receipt of such claim for Plan benefits (or within 180
days if special circumstances necessitate an extension of the ninety-day period and the
Claimant is informed of such extension in writing within the ninety-day period and is
provided with an extension notice consisting of an explanation of the special
circumstances requiring the extension of time and the date by which the benefit
determination will be rendered). Any notice that denies a benefit claim of a Claimant
in whole or in part shall, in a manner calculated to be understood by the Claimant:
|
(1) |
State the specific reason or reasons for the Adverse Benefit
Determination;
|
(2) |
Provide specific reference to pertinent Plan provisions on
which the Adverse Benefit Determination is based;
|
(3) |
Describe any additional material or information necessary for
the Claimant to perfect the claim and explain why such material or information
is necessary; and
|
(4) |
Describe the Plans review procedures and the time limits
applicable to such procedures, including a statement of the Claimants right to
bring a civil action under Section 502(a) of the Act following an Adverse
Benefit Determination on review.
|
(e) |
Review of Adverse Benefit Determination
. A Claimant has the right to
have an Adverse Benefit Determination reviewed in accordance with the following claims
review procedure:
|
(1) |
The Claimant must submit a written request for such review to
the Committee not later than 60 days following receipt by the Claimant of the
Adverse Benefit Determination notification;
|
(2) |
The Claimant shall have the opportunity to submit written
comments, documents, records, and other information relating to the claim for
benefits to the Committee;
|
(3) |
The Claimant shall have the right to have all comments,
documents, records, and other information relating to the claim for benefits
that have been submitted by the Claimant considered on review without regard to
whether such comments, documents, records or information were considered in
the initial benefit determination; and
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61
(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 (a) documents, records or other
information relied upon for the benefit determination, (b) 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 (c) documents, records or other information that
demonstrates compliance with the standard claims procedure.
|
(f) |
Notification of Benefit Determination on Review
. Notice of the
Committees 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 Claimants 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 Claimants right to bring an action under Section
502(a) of the Act.
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62
(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 Claimants
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 Claimants benefit claim under the Plan or appeal of an Adverse
Benefit Determination with respect to such benefit claim.
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63
10.1 |
Headings
. The headings and subheadings in this Plan have been inserted for convenient
reference, and to the extent any heading or subheading conflicts with the text, the text will
govern.
|
10.2 |
Construction
. The Plan will be construed in accordance with the laws of the State of Texas,
except to the extent such laws are preempted by ERISA and the Code.
|
10.3 |
Continued Qualification for Tax-Exempt Status
. Notwithstanding any other provision of the
Plan, the Plan is adopted on the condition that it will be approved by the Internal Revenue
Service as meeting the requirements of the Code and ERISA for continued tax-exempt status, and
in the event continued qualification is denied and cannot be obtained by revisions
satisfactory to the Committee, this Plan will be null and void.
|
10.4 |
Nonalienation
. No benefits payable under the Plan will be subject to the claim or legal
process of any creditor of any Participant or beneficiary, and no Participant or beneficiary
will alienate, transfer, anticipate or assign any benefits under the Plan, except that
distributions will be made pursuant to (i) qualified domestic relations orders issued in
accordance with Section 414(p) of the Code, (ii) judgments resulting from federal tax
assessments, (iii) agreements between a Participant or beneficiary and an Employer under
Treasury Regulation Section 1.401(a)(13)(e) for the use of all or part of his benefits under
the Plan to repay his indebtedness to the Employer, which amount of benefits will be paid in a
lump sum as soon as practicable after the agreement is executed and will be subject to the
withholding requirements set forth in Section 10.7 and (iv) as otherwise required by law.
|
|
This Section 10.4 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.
|
10.5 |
No Employment Rights
. Participation in the Plan will not give any Employee the right to be
retained in the employ of any Employer, or upon termination any right or interest in the Plan
except as provided in the Plan.
|
10.6 |
No Enlargement of Rights
. No person will have any right to or interest in any portion of the
Plan except as specifically provided in the Plan.
|
10.7 |
Withholding for Taxes
. Payments under the Plan will be subject to withholding for payroll
taxes as required by law. Each Employer will withhold 20% federal income tax
from each lump sum payment which is not transferred directly into another qualified
retirement plan or individual retirement account under Subsection 4.4(c).
|
64
11.1 |
Cash Balance Accounts
|
(a) |
Eligibility
. Only an individual who was an Employee and a Participant
of the Prior Plan on September 30, 1999 determined by excluding all Employees who had
not satisfied the eligibility requirements subsequent to their Re-employment
Commencement Date were eligible for the Fourth Cash Balance Account.
|
(b) |
Credits
. As of September 30, 1999 each Participants Fourth Cash
Balance Account shall be credited with an amount equal to five percent (5%) of the
Participants Compensation on such date and, except as provided in the immediately
following Paragraph 3, no further credits will be made to such Account.
|
(c) |
Interest
. Beginning January 1, 2000 and on each January 1 thereafter,
such Account shall be credited with interest except that for the period October 1, 1999
through December 31, 1999, interest shall be credited pro rata, all as described in
Section 11.2. Reference below to Accounts shall mean collectively the First, Second,
Third and Fourth Cash Balance Accounts.
|
11.2 |
Interest Adjustment
|
(a) |
On January 1 of each year, the Account of each Participant shall be
automatically increased by an amount equal to the rate of interest or yield available
on 30-Year Treasury Bonds of constant maturities for the month of November in the
second calendar year preceding the January 1 as of which such interest is to be
credited, as published in the Federal Reserve Statistical Release. Notwithstanding the
foregoing, for the amount credited on September 30, 1999 for the Fourth Cash
Balance Account, as described under subparagraph 1 of Section 11.1, the
Participants Account (to the extent it relates to the Fourth Cash Balance Account)
shall be credited with interest on a pro rata basis for the period October 1, 1999
through December 31, 1999, or portion thereof, using the rate of interest or yield
available on 30-Year Treasury Bonds of constant maturities for the month of November
1998.
|
65
(b) |
If a Participant has an Annuity Starting Date (as defined in Section 11.2(d))
other than on a January 1 (including, in the case of the Fourth Cash Balance Account,
an Annuity Starting Date after September 30, 1999 and before January 1, 2000), the
Participants Account shall be adjusted for the Plan Year in which the Annuity Starting
Date occurs by multiplying his Account by an amount equal to the product of:
|
(1) |
the number of completed calendar months in such Plan Year prior
to the Participants Annuity Starting Date; and
|
(2) |
the rate of interest or yield available on 30-Year Treasury
Bonds of constant maturities for the month of November in the first calendar
year preceding the Participants Annuity Starting Date, divided by 12.
|
(c) |
As of a Participants Annuity Starting Date, his Account shall be cancelled and
no further adjustments shall be made to his Account balance. If a Participants Annuity
Starting Date is January 1, the Participants Account shall be adjusted as provided in
Section 11.2(a) above and then cancelled.
|
(d) |
Except as may otherwise be provided in Section 11.5(b), Annuity Starting Date
shall mean, in the case of an annuity form of distribution of Cash Balance Retirement
Income, the first day of the first period for which an amount is paid under Section
11.7(b)(2) and, in the case of a lump sum payment of Cash Balance Retirement Income, it
shall mean the date as of which payment is made pursuant to Section 11.7(a) or (b)(1).
|
11.3 |
Vesting
|
11.4 |
Cash Balance Retirement Income
|
66
11.5 |
Death Before Annuity Starting Date
|
(a) |
If the Participants beneficiary is any person other than his Spouse, there
shall be paid to such beneficiary as of the first day of the month following the month
in which the Participant or former Participants death occurs a lump sum amount equal
to the amount of his Account as of the last day of the month in which the Participant
or former Participants death occurs.
|
(b) |
If the Participants beneficiary is his Spouse, there shall be paid to the
Spouse an annuity for the life of the Spouse. The Annuity Starting Date with respect to
such benefit shall be (i) the first day of the month following the month in which the
Participants or former Participants death occurs if such death occurs after he had
attained fifty-five (55) years of age, or (ii) the first day of the month following the
month in which the Participant or former Participant would have attained fifty-five
(55) years of age if his death occurred before he had attained fifty-five (55) years of
age, or (iii) the first day of any subsequent month, as elected by the Spouse, but not
later than the first day of the month subsequent to the date that the Member would have
attained age 65.
|
||
The amount of the annuity shall be equal to the Participants Account as of the
Annuity Starting Date adjusted in accordance with factors specified in Exhibit B
based on the Spouses age at the Annuity Starting Date. The Spouse may direct the
Committee to pay to the Spouse, in lieu of such annuity, the Participants Account
in a lump sum, determined on the same basis as set forth in Section 11.5(a).
|
67
11.6 |
Beneficiary
|
(a) |
A Participant or former Participant who has a Spouse at the date of his death
shall automatically be deemed to have designated such Spouse as his beneficiary unless
(i) the Participant or former Participant designates a different beneficiary (which
designation may not be changed without spousal consent unless the consent of the Spouse
expressly permits designations without any further consent by the Spouse) and the
Spouse of such Participant or former Participant consents to such designation in
writing, which consent acknowledges the effect of such designation
and which is witnessed by a notary public, or (ii) it is established to the
satisfaction of the Committee that the consent of the Spouse cannot be obtained
because the Spouse cannot be located or because of other special circumstances.
Notwithstanding the foregoing, no such designation of an alternate beneficiary shall
be effective unless made after the earlier of (i) the first day of the Plan Year in
which the Participant attains age 35, or (ii) the date the Member separates from
service.
|
(b) |
Subject to the provisions of Paragraph (a) above, a Participant or former
Participant may designate a beneficiary or beneficiaries to receive any death benefit
payable under Section 11.5. Any such designation shall be made, and may be changed or
revoked, except as provided in Paragraph (a) above, by filing the appropriate form with
the Committee. If more than one person is designated each shall have an equal share
unless the designation directs otherwise. Any designation, change or revocation by a
Participant or former Participant shall be effective only if it is received by the
Committee before the death of such Participant or former Participant. For purposes of
this Paragraph (b), the term person includes an individual, a trust or an estate, If
no beneficiary designation is on file with the Committee at the Participants or former
Participants death, or if any designation is not effective for any reason, as
determined by the Committee, the benefit payable under Section 11.5 shall be paid to
such Participants or former Participants estate.
|
11.7 |
Payment of Cash Balance
|
(a) |
If the sum of the amount of his Account as of the first day of the month after
his Termination Date and the present value of his vested Accrued Benefit, if any, is
$1,000 or less, his Account balance as of such date shall be paid to him in a lump sum
on such date. If required for administrative reasons, the members Account shall be
paid as aforesaid as the first day of any subsequent month. The date of such payment
shall be his Annuity Starting Date.
|
68
(b) |
If the balance of a Participants Account, together with the present value of
his vested Accrued Benefit, if any, exceeds $1,000 or less, a Participants Account
shall, at the election of the Participant, be paid in accordance with (1) or (2) below:
|
(1) |
At the written election and direction of the Participant (and
in the case of a married Participant with the written consent of his Spouse),
payment shall be made in a lump sum amount equal to his Account balance
determined and paid as of the first day of the month subsequent to his
Termination Date. If required for administrative reasons, the Participants
Account shall be paid as aforesaid as of the first day of any subsequent month.
The date of such payment shall be his Annuity Starting Date.
|
(2) |
At the written election and direction of a Participant, payment
shall be made in the form of Cash Balance Retirement Income (as defined in
Section 11.4) or, in the case of a married Participant with the consent of his
Spouse, in any other form permitted under Section 4.3 commencing as of the
first day of the month subsequent to his Termination Date.
|
(c) |
If no election is made in Subparagraph (b)(1) or (2) of this Section 11.7, the
Cash Balance Retirement Income shall be paid in the same form and at the same time that
the Accrued Benefit is paid.
|
(d) |
An election in Subparagraph (b) (1) or (2) of this Section 11.7, must be made
and may be changed or revoked during the 180-day period (effective January 1, 2008)
ending on the Annuity Starting Date.
|
DYNEGY INC.
|
||||
By: | ||||
Name: | ||||
Title: |
69
Page | ||||
ARTICLE 1
-
DEFINITIONS
|
||||
A-1.6 Break in Service
|
A-1 | |||
(a) Before the 1976 Plan Year
|
A-1 | |||
(b) 1976 1984 Plan Years
|
A-1 | |||
(c) 1985 1988 Plan Years
|
A-1 | |||
(d) After the 1988 Plan Year
|
A-1 | |||
A-1.17 Employee Contributions
|
A-2 | |||
|
||||
ARTICLE 3
-
RETIREMENT DATES AND BENEFITS
|
||||
A-3.1 Normal Retirement
|
A-3 | |||
(b) Amount of Normal Retirement Benefit
|
A-3 |
70
A-1.6 |
Break in Service
. A Break in Service incurred by a nonvested terminated Participant has
always been governed by the rule in effect as of his Termination Date. No Participant has been
entitled to have his Years of Vesting Service determined under a more generous Break in
Service rule which became effective after his Termination Date, unless he resumed Employment
before he incurred a Break in Service under the old rule and earned at least one Hour of
Service after the effective date of the new rule. As described below, the Break in Service
rule as in effect from time to time has become progressively more generous.
|
(a) |
Before the 1976 Plan Year
. The nonvested Participant who terminated and
incurred a One-Year Break lost all credit for all purposes under the Plan.
|
(b) |
1976 -1984 Plan Years
. The nonvested Participant who terminated and incurred
consecutive One-Year Breaks equal to or greater than the number of his pre-break Years
of Vesting Service lost all credit for all purposes under the Plan.
|
(c) |
1985 -1988 Plan Years
. The nonvested Participant who terminated and incurred
consecutive One-Year Breaks which equaled or exceeded the greater of five or the number
of his pre-break Years of Vesting Service, lost all credit for all purposes under the
Plan.
|
(d) |
After the 1988 Plan Year
. The nonvested Participant who terminates Employment
will lose all credit for all purposes under the Plan after he incurs a Five-Year Break,
regardless of the number of his pre-break Years of Vesting Service.
|
A-1
A-1.17 |
Employee Contributions
mean the aggregate after-tax contributions made by a Participant,
plus credited interest, which amount is always fully vested. Interest on the aggregate
contributions is credited at the rates of:
|
(a) |
3% per annum for Plan Years beginning in 1961 and ending in 1976;
|
||
(b) |
5% per annum for Plan Years beginning 1976 and ending in 1988;
|
||
(c) |
a rate equal to 120% of the federal midterm rate as in effect for October of
each year in Plan Years beginning in and after 1988.
|
A-2
A-3.1 |
Normal Retirement
.
|
(b) |
Amount of Normal Retirement Benefit
. Before January 1, 2001, each Participants
normal retirement benefit is an amount equal to the sum of (1), (2) and (3):
|
(1) |
Future Service Retirement Income
|
(A) |
For periods after September 30, 1989 through
December 31, 2000 the sum of (1) plus (2) as follows:
|
(1) |
2.0% of his Compensation for each
Year of Benefit Service prior to the October 1
st
coinciding with or next following such Participants
50
th
birthday.
|
(2) |
2.5% of his Compensation for each
Year of Benefit Service after the October 1
st
coinciding with or next following such Participants 50th
birthday.
|
(B) |
For periods after January 1, 1961 and prior to
October 1, 1989 the sum of (1) plus (2) as follows:
|
(1) |
The amount set forth in column
(2) of Exhibit A for each Year of Benefit Service prior to the
October 1
st
coinciding with or next following such
Participants 50
th
birthday.
|
(2) |
The amount set forth in column
(3) of Exhibit A for each Year of Benefit Service after the
October 1
st
coinciding with or next following such
Participants 50
th
birthday.
|
(2) |
Past Service Retirement Income, an amount equal to (A) or (B):
|
(A) |
If the Participant did not withdraw his
Employee Contributions, the retirement annuity accrued under the Group
Annuity Contract on December 31, 1960, or
|
(B) |
If the Participant withdrew his Employee
Contributions, the retirement annuity resulting from the multiplication
of (i) the retirement annuity attributable to Company contributions
multiplied by (ii) a fraction, the numerator equal to Years of
Benefit Service while a Participant and the denominator equal to the
Years of Benefit Service the Participant would have at his Normal
Retirement Date, provided, however, that a Participant who has not
attained age 62 years of age at his Termination Date, shall be
treated as if he had reached 62 years of age.
|
A-3
(3) |
Supplementary Past Service Retirement Income, an amount equal
to the sum of (A) through (J).
|
(A) |
The sum of (i) and (ii), minus (iii), where
(i)
3
/
4
% of annual earnings as of January 1, 1961 up to $4,800 plus (ii)
1
1
/
2
% of annual earnings in excess of $4,800 multiplied by Years of
Benefit Service while a Participant prior to January 1, 1961 (plus one
year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), excluding, however, such
years of Service prior to the Participants 30th birthday, minus (iii)
Past Service Retirement Income.
|
(B) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1% of his annual earnings as of October
1, 1971, up to $4,800 plus (ii) 1
1
/
2
% of his annual earnings as of
October 1, 1971 over $4,800 multiplied by the number of Years of
Benefit Service while a Participant prior to October 1, 1971 (plus
one-year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), minus (iii) the portion of
Future Service Retirement Income for the period prior to October 1,
1971, (iv) Past Service Retirement Income, and (v) the portion of
Supplementary Past Service Retirement Income calculated in Subsection
(A) of this Section A-3.1(3). For purposes of the formula in this
Subsection (B), earnings at October 1, 1971 shall not exceed a
Participants average earnings for the five consecutive Plan Years
during which the Participant received his highest earnings.
|
(C) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1% of annual earnings as of October 1,
1977, up to $7,600 plus (ii) 1
1
/
2
% of annual earnings in excess of $7,600
multiplied by Years of Benefit Service while a Participant prior to
October 1, 1977 (plus one year for Participants for whom the one-year
eligibility period provisions then in effect were not waived), minus
(iii) the portion of Future Service Retirement Income for the period
prior to October 1, 1977, (iv) Past Service Retirement Income, and (v)
the portion of Supplementary Past Service Retirement Income calculated
in Subsection (A) and (B) of this Section A-3.1(3). For purposes of the
formula in this Subsection (C), earnings at
October 1, 1977 shall not exceed a Participants average earnings for
the five consecutive Plan Years during which the Participant received
his highest earnings.
|
A-4
(D) |
This subsection (D) applies only to
Participants retiring on or after October 1, 1981 and shall be equal to
the sum of (i) and (ii), minus the sum of (iii), (iv) and (v), where
(i) 1% of annual earnings as of October 1, 1980, up to $10,000 plus
(ii) 1
1
/
2
% of annual earnings in excess of $10,000 multiplied by Years of
Benefit Service while a Participant prior to October 1, 1980 (plus
one-year for Participants for whom the one year eligibility period
provisions then in effect were not waived), minus (iii) the portion of
Future Service Retirement Income for the period prior to October 1,
1980, (iv) Past Service Retirement Income, and (v) the portion of
Supplementary Past Service Retirement Income calculated in Subsection
(A), (B) and (C) of this Section A-3.1 (3). For purposes of the formula
in this Subsection (D), earnings at October 1, 1980 shall not exceed a
Participants average earnings for the four consecutive Plan Years
during which the Participant received his highest earnings.
|
(E) |
This subsection (E) applies only to
Participants retiring on or after October 1, 1982 the sum of (i) and
(ii), minus the sum of (iii), (iv) and (v), where (i) 1% of annual
earnings as of October 1, 1981, up to $10,000 plus
(ii) 1
1
/
2
% of annual
earnings in excess of $10,000 multiplied by Years of Benefit Service
while a Participant prior to October 1, 1981 (plus one year for
Participants for whom the one-year eligibility period provisions then
in effect were not waived), minus (iii) the portion of Future Service
Retirement Income for the period prior to October 1, 1981, (iv) Past
Service Retirement Income, and (v) the portion of Supplementary Past
Service Retirement Income calculated in Subsection (A), (B), (C) and
(D) of this Section A-3.1(3). For purposes of the formula in this
Subsection (E), earnings at October 1, 1981 shall not exceed a
Participants average earnings for the four consecutive Plan Years
during which the Participant received his highest earnings,
|
(F) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1% of annual earnings as of October 1,
1985 up to $13,800 plus (ii) 1
1
/
2
% of annual earnings in excess of
$13,800 multiplied by Years of Benefit Service while a Participant
prior to October 1, 1985, excluding Years of Benefit Service before
January 1, 1933 for all Participants and Years of Benefit Service
during which a Participant was eligible to accrue a retirement annuity
under the Group Annuity Contract but failed to do so minus (iii) the
portion of Future Service Retirement Income for the period prior to
October 1, 1985, minus (iv) Past Service Retirement Income, and (v)
the portion of Supplementary Past Service Retirement Income
calculated in Subsection (A), (B), (C), (D) and (E) of this Section
A-3.1(3). For purposes of the formula in this Subsection (F),
earnings at October 1, 1985 shall not exceed a Participants average
earnings for the four consecutive Plan Years during which the
Participant received his highest earnings.
|
A-5
(G) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1.25% of the Participants Average
Earnings as of October 1, 1989 up to $15,708 plus (ii) 1.6% of Average
Earnings in excess of $15,708 multiplied by Years of Benefit Service
(not to exceed 43) while a Participant prior to October 1, 1989 (plus
one year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), excluding Years of Benefit
Service before January 1, 1933, for an employee who was a Participant
continuously and Years of Benefit Service during which a Participant
was eligible to accrue a retirement annuity under the Group Annuity
Contract but failed to do so minus (iii) the portion of Future Service
Retirement Income for the period prior to October 1, 1989, minus (iv)
Past Service Retirement Income, and (v) the portion of Supplementary
Past Service Retirement Income calculated in Subsection (A), (B), (C),
(D), (E), and (F) of this Section A-3.1(3). For purposes of the formula
in this Subsection (G), Average Earnings shall be the sum of the
following base rates of pay for such Participant divided by 3:
|
|
50% of the base pay rate at October 1, 1986
|
||
|
100% of the base pay rate at October 1, 1987
|
||
|
100% of the base pay rate at October 1, 1988
|
||
|
50% of the base pay rate at October 1, 1989
|
(H) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1.35% of the Participants Average
Earnings as of October 1, 1992 up to $21,194 plus (ii) 1.6% of Average
Earnings in excess of $21,194 multiplied by Years of Benefit Service
(not to exceed 50) while a Participant prior to October 1, 1992 (plus
one year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), excluding Years of Benefit
Service before January 1, 1933, for an employee who was a Participant
continuously and Years of Benefit Service during which a Participant
was eligible to accrue a retirement annuity under the Group Annuity
Contract but failed to do so minus (iii) the portion of Future Service
Retirement Income for the period prior to October 1, 1992, minus (iv)
Past Service Retirement Income, and (v) the portion of Supplementary
past Service
Retirement Income calculated in Subsection (A), (B), (C), (D), (E),
(F) and (G) of this Section A-3.1(3). For purposes of the formula in
this Subsection (H), Average Earnings shall be the sum of the
following base rates of pay for such Participant divided by 3:
|
|
50% of the base pay rate at October 1, 1989
|
||
|
100% of the base pay rate at October 1, 1990
|
||
|
100% of the base pay rate at October 1, 1991
|
||
|
50% of the base pay rate at October 1, 1992
|
A-6
(I) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1.40% of the Participants Average
Earnings as of October 1, 1994 up to $25,000 plus (ii) 1.6% of Average
Earnings in excess of $25,000 multiplied by Years of Benefit Service
(not to exceed 50) while a Participant prior to October 1, 1994 (plus
one year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), excluding Years of Benefit
Service before January 1, 1933, for an employee who was a Participant
continuously and Years of Benefit Service during which a Participant
was eligible to accrue a retirement annuity under the Group Annuity
Contract but failed to do so minus (iii) the portion of Future Service
Retirement Income for the period prior to October 1, 1994, minus (iv)
Past Service Retirement Income. and (v) the portion of Supplementary
Past Service Retirement Income calculated in Subsection (A), (B), (C),
(D), (E), (F), (G) and (H) of this Section A-3.1(3). For purposes of
the formula in this Subsection (I), Average Earnings shall be the sum
of the following base rates of pay for such Participant divided by 3:
|
|
50% of the base pay rate at October 1, 1991
|
||
|
100% of the base pay rate at October 1, 1992
|
||
|
100% of the base pay rate at October 1, 1993
|
||
|
50% of the base pay rate at October 1, 1994
|
(J) |
The sum of (i) and (ii), minus the sum of
(iii), (iv) and (v), where (i) 1.40% of the Participants Average
Earnings as of October 1, 1998 up to $30,000 plus (ii) 1.7% of Average
Earnings in excess of $30,000 multiplied by Years of Benefit Service
(not to exceed 50) while a Participant prior to October 1, 1998 (plus
one year for Participants for whom the one-year eligibility period
provisions then in effect were not waived), excluding Years of Benefit
Service before January 1, 1933, for an employee who was a Participant
continuously and Years of Benefit Service during which a Participant
was eligible to accrue a retirement annuity under the Group Annuity
Contract but failed to do so minus (iii) the portion of Future Service
Retirement Income for the period
prior to October 1, 1998, minus (iv) Past Service Retirement Income,
and (v) the portion of Supplementary Past Service Retirement Income
calculated in Subsection (A), (B), (C), (D), (E), (F), (G), (H) and
(I) of this Section A-3.1 (3). For purposes of the formula in this
Subsection (J), Average Earnings shall be the sum of the following
base rates of pay for such Participant divided by 3:
|
|
50% of the base pay rate at October 1, 1995
|
||
|
100% of the base pay rate at October 1, 1996
|
||
|
100% of the base pay rate at October 1, 1997
|
||
|
50% of the base pay rate at October 1, 1998
|
A-7
Annual Future Service | Annual Future Service Retirement | |||
Compensation | Retirement Income | Income (Credited After Age 50) | ||
As of October 1 st | (Credited Prior to Age 50) | and Prior to Retirement Date | ||
$1,049.99 and under | $17.85 | Same | ||
1,050.00 to 1,349.99 | 20.40 | Same | ||
1,350.00 to 1,649.99 | 25.50 | Same | ||
1,650.00 to 1,949.99 | 30.60 | Same | ||
1,950.00 to 2,249.99 | 35.70 | Same | ||
2,250.00 to 2,549.99 | 40.80 | Same | ||
2,550.00 to 2,849.99 | 45.90 | Same | ||
2,850.00 to 3,149.99 | 51.00 | Same | ||
3,150.00 to 3,449.99 | 56.10 | Same | ||
3,450.00 to 3,749.99 | 61.20 | Same | ||
3,750.00 to 4,049.99 | 66.30 | Same | ||
4,050.00 to 4,349.99 | 71.40 | Same | ||
4,350.00 to 4,649.99 | 76.50 | Same | ||
4,650.00 to 4,949.99 | 81.60 | Same | ||
4,950.00 to 5,249.99 | 87.60 | 89.10 | ||
5,250.00 to 5,549.99 | 93.60 | 96.60 | ||
5,550.00 to 5,849.99 | 99.60 | 104.40 | ||
5,850.00 to 6,149.99 | 105.60 | 111.60 | ||
6,150.00 to 6,449.99 | 111.60 | 119.10 | ||
6,450.00 to 6,749.99 | 117.60 | 126.60 | ||
6,750.00 to 7,049.99 | 123.60 | 134.10 | ||
7,050.00 to 7,349.99 | 129.60 | 141.60 | ||
7,350.00 to 7,649.99 | 135.60 | 149.10 | ||
7,650.00 to 7,949.99 | 141.60 | 156.60 | ||
7,950.00 to 8,249.99 | 147.60 | 164.10 | ||
8,250.00 to 8,549.99 | 153.60 | 171.60 | ||
8,550.00 to 8,849.99 | 159.60 | 179.10 | ||
8,850.00 to 9.149.99 | 165.60 | 186.60 | ||
9,150.00 to 9,449.99 | 171.60 | 194.10 | ||
9,450.00 to 9,749.99 | 177.60 | 201.60 | ||
9,750.00 to 10,049.99 | 183.60 | 209.10 | ||
10,050.00 to 10,349.99 | 189.60 | 216.60 | ||
10,350.00 to 10,649.99 | 195.60 | 224.10 | ||
10,650.00 to 10,949.99 | 201.60 | 231.60 | ||
10,950.00 to 11,249.99 | 207.60 | 239.10 | ||
11,250.00 to 11,549.99 | 213.60 | 246.60 | ||
11,550.00 to 11,849.99 | 219.60 | 254.10 | ||
11,850.00 to 12,149.99 | 225.60 | 261.60 |
A-8
Annual Future Service | Annual Future Service Retirement | |||
Compensation | Retirement Income | Income (Credited After Age 50) | ||
As of October 1 st | (Credited Prior to Age 50) | and Prior to Retirement Date | ||
12,150.00 to 12,449.99 | 231.60 | 269.10 | ||
12,450.00 to 12,749.99 | 237.60 | 276.60 | ||
12,750.00 to 13,049.99 | 243.60 | 284.10 | ||
13,050.00 to 13,349.99 | 249.60 | 291.60 | ||
13,350.00 to 13,649.99 | 255.60 | 299.10 | ||
13,650.00 to 13,949.99 | 261.60 | 306.60 | ||
13,950.00 to 14,249.99 | 267.60 | 314.10 | ||
14,250.00 to 14,549.99 | 273.60 | 321.60 | ||
14,550.00 to 14,849.99 | 279.60 | 329.10 | ||
14,850.00 to 15,149.99 | 285.60 | 336.60 | ||
15,150.00 to 15,449.99 | 291.60 | 344.10 | ||
15,450.00 to 15,749.99 | 297.60 | 351.60 | ||
15,750.00 to 16,049.99 | 303.60 | 359.10 | ||
16,050.00 to 16,349.99 | 309.60 | 366.60 | ||
16,350.00 to 16,649.99 | 315.60 | 374.10 | ||
16,650.00 to 16,949.99 | 321.60 | 381.60 | ||
16,950.00 to 17,249.99 | 327.60 | 389.10 | ||
17,250.00 to 17,549.99 | 333.60 | 396.60 | ||
17,550.00 to 17,849.99 | 339.60 | 404.10 | ||
17,850.00 to 18,149.99 | 345.60 | 411.60 | ||
18,150.00 to 18,449.99 | 351.60 | 419.10 | ||
18,450.00 to 18,749.99 | 357.60 | 426.60 | ||
18,750.00 to 19,049.99 | 363.60 | 434.10 | ||
19,050.00 to 19,349.99 | 369.60 | 441.60 | ||
19,350.00 to 19,649.99 | 375.60 | 449.10 | ||
19,650.00 to 19,949.99 | 381.60 | 456.60 | ||
19,950.00 to 20,249.99 | 387.60 | 464.10 | ||
20,250.00 to 20,549.99 | 393.60 | 471.60 | ||
20,550.00 to 20,849.99 | 399.60 | 479.10 | ||
20,850.00 to 21,149.99 | 405.60 | 486.60 | ||
21,150.00 to 21,449.99 | 411.60 | 494.10 | ||
21,450.00 to 21,749.99 | 417.60 | 501.60 | ||
21,750.00 to 22,049.99 | 423.60 | 509.10 | ||
22,050.00 to 22,349.99 | 429.60 | 516.60 | ||
22,350.00 to 22,649.99 | 435.60 | 524.10 | ||
22,650.00 to 22,949.99 | 441.60 | 531.60 | ||
22,950.00 to 23,249.99 | 447.60 | 539.10 | ||
23,250.00 to 23,549.99 | 453.60 | 546.60 | ||
Increase by $300 for each
salary class |
Increase by $6.00 for each
salary class |
Increase by $7.50 for each
salary class |
A-9
A-10
Pg. 2
Pg. 3
Pg. 4
Pg. 5
Pg. 6
Pg. 7
Pg. 8
Pg. 9
Pg. 10
Pg. 11
Pg. 12
Pg. 13
Pg. 14
Pg. 15
Attest: | DYNEGY INC. | |||||||
|
||||||||
By: | /s/ [ILLEGIBLE] | |||||||
|
Title: | |||||||
|
|
|||||||
Attest: | VANGUARD FIDUCIARY TRUST COMPANY | |||||||
|
||||||||
/s/ [ILLEGIBLE] | By: | /s/ [ILLEGIBLE] | ||||||
|
Title: | Principal |
Pg. 16
2
(a) |
prohibit or limit (for example, as a percentage of a
Participants account) further purchases or holdings of Company Stock or
increasing the Dynegy Stock Funds holding of cash or cash equivalent
investments, and in the event of such prohibition or limitation, to
designate, as necessary, an alternative investment fund for the
investment of the proceeds pending further investment directions by the
Plans Participants and beneficiaries;
|
||
(b) |
liquidate some or all of the Plans holdings in Company
Stock and determine how such liquidation should be accomplished and in
the event of such liquidation, to designate, as necessary, an
alternative investment fund for the investment of the proceeds pending
further investment directions by the Plans Participants and
beneficiaries; or
|
3
(c) |
terminate the availability of the Dynegy Stock Fund as an
investment option under the Plan on such terms and conditions as the
Independent Fiduciary shall deem prudent and in the interest of the
Plan and its Participants and beneficiaries (and notwithstanding any
Participant or beneficiary investment directions to the contrary),
including the determination of the manner and timing of termination
of the Dynegy Stock Fund and orderly liquidation of its assets and
designation of an alternative investment fund for the investment of
the proceeds pending further investment directions by the Plans
Participants and beneficiaries.
|
4
DYNEGY INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: Vice President, HR | ||||
VANGUARD FIDUCIARY TRUST COMPANY
|
||||
By: | /s/ Dennis Simmons | |||
Title: Principal
Dennis Simmons |
AGREED TO AND APPROVED BY: | ||||
FIDUCIARY COUNSELORS INC. |
||||
|
||||
By:
|
/s/ [ILLEGIBLE] | |||
|
||||
|
Title: President & CEO |
5
Attest: | Dynegy Inc., an Illinois corporation | |||||||||
|
||||||||||
/s/ [ILLEGIBLE] | By: | /s/ [ILLEGIBLE] | ||||||||
|
Title: | [ILLEGIBLE] | ||||||||
|
Date: | April 2, 2007 |
Approved and accepted: | ||||||||||
|
||||||||||
Attest: | Dynegy Inc., a Delaware corporation | |||||||||
|
||||||||||
/s/ [ILLEGIBLE] | By: | /s/ [ILLEGIBLE] | ||||||||
|
Title: | [ILLEGIBLE] | ||||||||
|
Date: | April 2, 2007 |
Attest: | Vanguard Fiduciary Trust Company | |||||||||
|
||||||||||
/s/ [ILLEGIBLE]
|
By: | /s/ [ILLEGIBLE] | ||||||||
|
Title: | Principal | ||||||||
|
Date: | 4/18/2007 |
Approved and accepted: | ||||||||||
|
||||||||||
Attest: | Dynegy Inc., a Delaware corporation | |||||||||
|
||||||||||
|
By: | |||||||||
|
Title: | |||||||||
|
Date: |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
DYNEGY INC.
|
||||
By: | /s/ Jane D. Jones | |||
Its: VP, Rewards & Technology |
/s/ [ILLEGIBLE]
|
||
|
||
Dynegy lnc.
|
THE NORTHERN TRUST COMPANY
|
||||
By: | /s/ [ILLEGIBLE] | |||
Its: Vice President |
|
||
The Northern Trust Company
|
17
18
Date: August 5, 2002 |
DYNEGY INC.
|
|||
By: | /s/ [ILLEGIBLE] | |||
Its: [ILLEGIBLE] | ||||
/s/ [ILLEGIBLE]
|
||
Assistant Secretary
|
||
Dynegy Inc.
|
Date: August 5, 2002 |
THE NORTHERN TRUST COMPANY
|
|||
By: | /s/ [ILLEGIBLE] | |||
Its: Vice President | ||||
/s/ [ILLEGIBLE]
|
Assistant Secretary
|
The Northern Trust Company
|
2
DYNEGY INC.
|
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By: | /s/ J. Kevin Blodgett | |||
J. Kevin Blodgett | ||||
Title: Senior Vice President, Human Resources |
3
THE NORTHERN TRUST COMPANY
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: Vice President |
4
2
DYNEGY INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Sr.Vice President, Human Resources | |||
SITHE ENERGIES, INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Sr. Vice President | |||
THE NORTHERN TRUST COMPANY
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Vice President |
3
4
DYNEGY INC.
|
||||
By: | /s/ [ILLEGIBLE] | |||
Its: Assistant Treasurer | ||||
THE NORTHERN TRUST COMPANY
|
||||
By: | /s/ [ILLEGIBLE] | |||
Its: Second Vice President |
-2-
Dynegy Inc., an Illinois corporation
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Executive Vice President, Administration | |||
Date: | April 2, 2007 | |||
The Northern Trust Company
|
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Second Vice President | |||
Date: | April 2, 2007 | |||
Agreed and accepted:
Dynegy Inc., a Delaware corporation |
||||
By: | /s/ [ILLEGIBLE] | |||
Title: | Executive Vice President, Administration | |||
Date: | April 2, 2007 | |||
STATE OR | ||||||
COUNTRY OF | ||||||
SUBSIDIARY | INCORPORATION | |||||
1. |
Dynegy Holdings Inc.
|
Delaware | ||||
2. |
Illinova Corporation
|
Illinois | ||||
3. |
DMT Holdings, Inc.
|
Delaware | ||||
4. |
Dynegy Falcon Holdings Inc.
|
Delaware | ||||
5. |
Dynegy Midwest Generation, Inc.
|
Illinois | ||||
6. |
Sithe Energies Inc.
|
Delaware | ||||
7. |
Dynegy Power Marketing Inc.
|
Texas |
1. | Registration Statement (Form S-8 No. 333-141810 pertaining to various benefit plans including equity, savings and deferred compensation plans), | ||
2. | Registration Statement (Form S-3 No. 333-141898), | ||
3. | Registration Statement (Form S-3 No. 333-115148), | ||
4. | Registration Statement (Form S-3 No. 333-66088), | ||
5. | Registration Statement (Form S-3 No. 333-47532), | ||
6. | Registration Statement (Form S-3 No. 333-31394), and | ||
7. | Registration Statement (Form S-3 No 333-32036); |
/s/ Ernst & Young LLP |
1. | Registration Statement (Form S-3 No. 333-66090), | ||
2. | Registration Statement (Form S-3 No. 333-115148-01), and | ||
3. | Registration Statement (Form S-3 No. 333-12987); |
/s/ Ernst & Young LLP |
1. | I have reviewed this report on Form 10-K of Dynegy Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 26, 2009 | By: | /s/ BRUCE A. WILLIAMSON | ||
Bruce A. Williamson | ||||
Chairman of the Board, President and
Chief Executive Officer |
1. | I have reviewed this report on Form 10-K of Dynegy Holdings Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 26, 2009 | By: | /s/ BRUCE A. WILLIAMSON | ||
Bruce A. Williamson | ||||
President and Chief Executive Officer |
1. | I have reviewed this report on Form 10-K of Dynegy Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 26, 2009 | By: | /s/ HOLLI C. NICHOLS | ||
Holli C. Nichols | ||||
Executive Vice President, Chief Financial
Officer and Treasurer |
1. | I have reviewed this report on Form 10-K of Dynegy Holdings Inc.; | |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
4. | The registrants other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | ||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: February 26, 2009 | By: | /s/ HOLLI C. NICHOLS | ||
Holli C. Nichols | ||||
Executive Vice President, Chief Financial
Officer and Treasurer |
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and | |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: February 26, 2009 | By: | /s/ BRUCE A. WILLIAMSON | ||
Bruce A. Williamson | ||||
Chairman of the Board, President and
Chief Executive Officer |
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and | |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: February 26, 2009 | By: | /s/ BRUCE A. WILLIAMSON | ||
Bruce A. Williamson | ||||
President and Chief Executive Officer |
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and | |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: February 26, 2009 | By: | /s/ HOLLI C. NICHOLS | ||
Holli C. Nichols | ||||
Executive Vice President, Chief Financial
Officer and Treasurer |
(1) | the Report fully complies with the requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and | |
(2) | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company at the dates and for the periods indicated. |
Date: February 26, 2009 | By: | /s/ HOLLI C. NICHOLS | ||
Holli C. Nichols | ||||
Executive Vice President, Chief Financial
Officer and Treasurer |