Exhibit 10.4
DYNEGY INC. RESTORATION PENSION
PLAN
As Effective June 1,
2008
|
|
1.1
|
Purpose and History of Plan
|
1
|
|
|
2.2
|
“Actuarial Equivalent”
|
1
|
|
|
2.4
|
“Approved Leave of
Absence”
|
1
|
|
|
2.5
|
“Average Monthly
Compensation”
|
2
|
|
|
2.6
|
“Base Compensation”
|
2
|
|
|
2.7
|
“Base Compensation Accruals
Percentage”
|
2
|
|
|
2.12
|
“Change in Control”
|
2
|
|
|
2.16
|
“Compensation Limit”
|
3
|
|
|
2.19
|
“Dynegy Portable Retirement
Benefit”
|
3
|
|
|
2.21
|
“Eligible Employee”
|
3
|
|
|
2.24
|
“Interest Credits”
|
4
|
|
|
2.30
|
“Termination of
Employment”
|
4
|
|
ARTICLE 3
|
ELIGIBILITY AND PARTICIPATION
|
4
|
|
ARTICLE 6
|
DISTRIBUTION OF BENEFITS
|
5
|
|
|
6.1
|
Timing of Distribution
|
5
|
|
|
6.2
|
Form of Distribution
|
5
|
|
ARTICLE 7
|
PLAN ADMINISTRATION
|
6
|
|
|
7.1
|
Plan Administration and
Interpretation
|
6
|
|
|
7.2
|
Powers, Duties, Procedures
|
6
|
|
|
7.5
|
Indemnification of Committee
|
8
|
|
ARTICLE 8
|
AMENDMENT AND TERMINATION
|
8
|
|
|
8.1
|
Authority to Amend and Terminate
|
8
|
|
ARTICLE 9
|
MISCELLANEOUS
|
10
|
|
|
9.2
|
General Creditor Status
|
10
|
|
|
9.4
|
Participants Bound
|
10
|
|
|
9.5
|
Satisfaction of Claims; Unclaimed
Benefits
|
10
|
|
|
9.6
|
Governing Law and Severability
|
11
|
|
|
9.7
|
Not Contract of Employment
|
11
|
ii
Dynegy Inc. Restoration Pension
Plan
Effective June 1,
2008
ARTICLE 1
INTRODUCTION
1.1
Purpose and History of Plan . Dynegy Inc. (the
“Company”) established the Dynegy Inc. Restoration
Pension Plan (the “Plan”) to provide benefits to a
select group of management and highly compensated employees of an
Employer that could not otherwise be provided under the Dynegy Inc.
Retirement Plan due to Code limits.
1.2
Status of Plan . The Plan is intended to be an
unfunded plan maintained by the Company “primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees” within the
meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1), and the
Plan shall be interpreted and administered consistent with this
intent. The Plan is intended to comply with Code Section 409A, and
the Plan shall be interpreted and administered consistent with this
intent.
ARTICLE 2
DEFINITIONS
Wherever used herein, the following
terms have the meanings set forth below, unless a different meaning
is clearly required by the context:
2.1 “Accrual
Service” means a DRP Participant’s accrual service
credited under the Qualified Plan for employment after December 31,
2007.
2.2 “Actuarial
Equivalent” shall have the meaning assigned to it under the
Qualified Plan.
2.3 “Affiliate”
means each trade or business (whether or not incorporated) that
together with an Employer would be deemed to be a “single
employer” within the meaning of Code Section 414(b) or (c).
Notwithstanding the foregoing, for purposes of the definition of
Termination of Employment, an Affiliate shall be determined by
applying:
(a) Code
Sections 1563(a)(1), (2), and (3) for purposes of determining a
controlled group of corporations under Code Section 414(b) with the
language “at least 50 percent” substituted for
“at least 80 percent” each place it appears in Code
Section 1563(a)(1), (2), and (3), and
(b) Treasury
Regulation Section 1.414(c)-2 for purposes of determining trades or
businesses (whether or not incorporated) that are under common
control for purposes of Code Section 414(c) by substituting
“at least 50 percent” for “at least 80
percent” each place it appears in Treasury Regulation Section
1.414(c)-2.
2.4 “Approved
Leave of Absence” means a military, sick or other bona fide
leave of absence approved by the Employer under its policies which
does not exceed six months, or if
longer, so long as the Participant
retains a right to reemployment with the Employer under an
applicable statute or by contract.
2.5 “Average
Monthly Compensation” means a DRP Participant’s average
monthly compensation determined under the Qualified Plan without
regard to the Compensation Limit reduced by such DRP
Participant’s average monthly compensation determined under
the Qualified Plan applying the Compensation Limit.
2.6 “Base
Compensation” means a PRB Participant’s base
compensation as defined under the Qualified Plan in excess of the
Compensation Limit.
2.7 “Base
Compensation Accruals Percentage” means the percentage used
to calculate a PRB Participant’s base compensation accruals
under the Qualified Plan.
2.8 “Beneficiary”
means any person entitled to receive payment of benefits under the
Qualified Plan as a result of the Participant’s
death.
|
|
2.9
|
“Benefit” means the
amount determined under Article 4.
|
2.10 “Benefit
Limit” means the Code Section 415 limit on benefits under the
Qualified Plan.
2.11 “Board”
means the Board of Directors of the Company or any authorized
committee of the Board of Directors.
2.12 “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 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),
2
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 “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.
2.13 “Code”
means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations and rulings issued thereunder. Reference
to any section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation that amends,
supplements or replaces such section or subsection.
2.14 “Committee”
means the Dynegy Inc. Benefit Plans Committee. After a Change in
Control, Committee means the Dynegy Inc. Benefit Plans Committee as
it existed immediately before such Change in Control or any person
who is designated to be a successor member by the members of such
Committee.
2.15 “Company”
means Dynegy Inc., a Delaware corporation, or any successor
corporation thereto.
2.16 “Compensation
Limit” means the Code Section 401(a)(17) limit on
compensation under the Qualified Plan.
2.17 “Disability”
means (a) any medically determinable physical or mental impairment
whereby the Participant is
unable to engage in substantial gainful employment, where such
impairment can be expected to either result in death or last for a
continuous period of at least twelve months; (b) any medically
determinable physical or mental impairment where such impairment
can be expected to either result in death or last for a continuous
period of at least twelve months and the Participant has received
at least three months of income replacement benefits under the
Employer’s disability plan; or (c) the Participant is
determined to be disabled and granted disability benefits under
Title II of the Social Security Act.
2.18 “DRP
Participant” means a Participant who is a current or former
Eligible Employee whose benefit under the Qualified Plan is not a
Dynegy Portable Retirement Benefit.
2.19 “Dynegy
Portable Retirement Benefit” means the benefit determined
under Appendix D to the Qualified Plan.
|
|
2.20
|
“Effective Date” means
June 1, 2008.
|
2.21 “Eligible
Employee” means an employee of an Employer who is an eligible
employee within the meaning of the Qualified Plan on or after the
Effective Date.
|
|
2.22
|
“Employer” means
employer as defined under the Qualified Plan.
|
2.23 “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and rulings issued
thereunder. Reference to any
3
section or subsection of ERISA
includes reference to any comparable or succeeding provisions of
any legislation that amends, supplements or replaces such section
or subsection.
2.24 “Interest
Credits” shall be calculated in the same manner as provided
under the Qualified Plan.
2.25 “Participant”
means a current or former Eligible Employee who participates in the
Plan in accordance with Article 3 or maintains a
Benefit.
2.26 “Plan”
means the Dynegy Inc. Restoration Pension Plan as provided herein
and as amended from time to time.
2.27 “Plan
Year” means for 2008, the period from May 1, 2008 through
December 31, 2008, and thereafter, the calendar year.
2.28 “PRB
Participant” means a Participant who is a current or former
Eligible Employee whose benefit under the Qualified Plan is a
Dynegy Portable Retirement Benefit.
2.29 “Qualified
Plan” means the Dynegy Inc. Retirement Plan, as amended from
time to time.
2.30 “Termination
of Employment” means when the Participant ceases to perform
services for the Employer and
any Affiliate of the Employer and both the Participant and the
Employer reasonably anticipate that no further services will be
performed, or such services decrease to a level that is 20 percent
or less of the average level of services performed by the
Participant over the immediately preceding 36-month period.
However, temporary absence from employment because of vacation or
Approved Leaves of Absences, and transfers of employment among the
Employer and Affiliates of the Employer shall not be a Termination
of Employment. Notwithstanding anything to the contrary herein,
Participant shall not have a Termination of Employment unless he
incurs a “separation from service” within the meaning
of Code Section 409A(a)(2)(a)(ii).
ARTICLE 3
ELIGIBILITY AND
PARTICIPATION
An Eligible Employee shall become a
Part
