SITHE STABLE PENSION ACCOUNT PLAN (AMENDED AND RESTATED AS OF JANUARY 1, 2007)

Employee Benefits Plan Agreement

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DYNEGY HOLDINGS INC | Sithe Energies, Inc | Sithe New England Power Services, Inc

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Title: SITHE STABLE PENSION ACCOUNT PLAN (AMENDED AND RESTATED AS OF JANUARY 1, 2007)
Date: 2/26/2009

Exhibit 10.40

SITHE STABLE PENSION ACCOUNT PLAN
(AMENDED AND RESTATED AS OF JANUARY 1, 2007)

TABLE OF CONTENTS


	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


	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 Member’s 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


	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


	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


	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


	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

PREAMBLE

This Sithe Stable Pension Account Plan document is hereby amended and restated effective January 1, 2007, to incorporate the provisions of the Plan, as last amended and restated effective January 1, 2000, and as thereafter amended by the First, Second, Third, Fourth, Fifth and Sixth Amendments to the Plan.

The Plan, as last amended and restated effective January 1, 2000, consisted of two separate tax-qualified defined benefit pension plans for the eligible employees of Sithe Energies, Inc., Sithe New England Power Services, Inc. and any Affiliated Company that has adopted one or both of these plans.

The first plan described in this document is the Sithe Stable Pension Account Plan, which has been established by Sithe Energies, Inc. to provide a cash balance pension benefit for the benefit of its eligible employees who are not represented by a collective bargaining agreement, effective January 1, 2000. All of the assets attributable to providing this cash balance pension benefit for the non-union eligible employees are called Plan A.

Plan A was amended by the Second Amendment to reflect certain provisions of EGTRRA. The Second Amendment was intended as good faith compliance with the requirements of EGTRRA and was to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise provided, the Second Amendment was effective as of the first day of the Plan Year beginning after December 31, 2001. The Second Amendment superseded the provisions of Plan A to the extent those provisions were inconsistent with the provisions of EGTRRA. The provisions of the Second Amendment are incorporated in this amended and restated Plan document.

The second plan described in this document is the Sithe Union Employees Pension Plan, which has been established and maintained by Sithe New England Power Services, Inc. for the benefit of its eligible employees whose employment is governed by a collective bargaining agreement with Local 369 of the Utility Workers Union of America, AFL-CIO (the “Union Members”). It consists of two parts. One part provides for a modified traditional defined benefit pension plan (the provisions of which are described at Appendix B of this document) and, effective January 1, 2001, the second part provides for a cash balance pension benefit that is identical to that described under the Sithe Stable Pension Account Plan for non-union employees. Both parts together are a continuation of the Sithe Energies Group Pension Plan, previously known as the Sithe New England Power Services, Inc. Union Pension Plan, originally effective May 16, 1998. All of the assets attributable to providing the Union Members both the modified traditional pension benefit and the cash balance pension benefit are collectively called Plan B.

Effective October 31, 2002, Exelon acquired all of the stock of Sithe New England Power Services, Inc., the sponsor of Plan B, as well as all corresponding assets and liabilities of Plan B. As a result of such stock acquisition, Exelon has adopted a new document for Plan B, separate and apart from the Plan. Therefore, effective November 1, 2002, Plan B provisions were deleted from this Plan document, and neither Sithe Energies, Inc. nor any member of its control group shall be liable for any benefits relating to former employees or beneficiaries covered under Plan B. The provisions of Plan B and of Appendix B to the Plan document are included in this amended and restated Plan document solely for purposes of historical reference.

The terms and conditions of Plan A and Plan B (collectively, the “Plans”) are set forth in the body of this document. Although the provisions of each of the Plans are described in this single document, they were separate and distinct qualified retirement plans. The assets of each of the Plans could be used solely to provide benefits for the covered employees and beneficiaries of that single Plan. Additionally, all of the assets of each Plan shall be at all times accounted for separately from all of the assets of the other Plan in a manner that satisfies Treas. Reg. Sec. 1.414(l)-1(b)(8). Plan A is intended to be qualified under section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”). Plan B was intended to be qualified under section 401(a) of the Code.

Appendix A to this document is included in this amended and restated Plan document solely for historical purposes. Amendment A describes benefits that were provided between November 24, 1999 and May 12, 2000 to certain former union employees. In connection with the sale of certain operating companies to an unrelated employer, these benefits and related assets were transferred to a separate defined benefit pension plan maintained by that unrelated employer in accordance with section 414(I) of the Code.

The provisions of this Plan document shall apply only to a Member who terminated employment with Sithe Energies, Inc., Sithe New England Power Services, Inc. and all Affiliated Companies on or after January 1, 2000. Except as otherwise specifically and expressly provided herein, a former Employee’s eligibility for and the amount of benefits, if any, payable to or on behalf of such former Employee, shall be determined in accordance with the provisions of the Plan in effect on his termination of employment date. The benefit payable to or on behalf of a Member included under the Plan in accordance with the following provisions shall not be affected by the terms of any amendment to the Plan adopted after such Participant’s employment terminates, unless the amendment expressly provides otherwise.

ARTICLE 1
DEFINITIONS

The following words and phrases when used in the Plan shall have the meanings indicated in this Article 1 unless a different meaning is plainly required by the context or by Appendix A or Appendix B:

1.1

“ Accrued Benefit ” means the value of a Member’s 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 Member’s 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 Member’s 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 Member’s Accrued Benefit, such Member’s 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 Member’s 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 Member’s 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 Member’s 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.

This paragraph shall apply to distributions with Payment Dates on or after December 31, 2002. Notwithstanding any other provisions to the contrary, the applicable mortality table used for adjusting any benefit or limitation under Code Section 415(b)(2)(B), (C), or (D) as referenced in Section 4.7 of the Plan and the applicable mortality table used for the purposes of satisfying the requirements of Code Section 417(e) as set forth in this Section 1.2 is the table prescribed in Internal Revenue Service Revenue Ruling 2001-62.

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 Member’s 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.

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 Member’s 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.

Notwithstanding the foregoing, Compensation shall not include any of the following:

(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 Member’s Compensation for the calendar quarter beginning on January 1, 2005, only such Member’s 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 Member’s Compensation for any period beginning on or after the Closing shall be disregarded for purposes of this Section 1.11.

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.

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 workmen’s 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).

To the extent not credited above, Hours of Service will also be credited, based on the customary work week of the Employee, for periods of military duty as required by applicable law provided, however, that military duty shall count as Hours of Service only if the individual returns to work for the Company or an Affiliate within the period and under the conditions prescribed by such applicable law.

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.

1.22

“ Interest Credit(s) ” means the interest amounts credited to a Member’s 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 Member’s 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 Employee’s absence from work which has commenced for any of the following reasons:

	(a)		the pregnancy of the Employee;

	(b)		the birth of the Employee’s child;

	(c)		the adoption of a child by the Employee; or

(d)

the need to care for the Employee’s child immediately following its birth or adoption.

1.28

“ Participating Company ” means the Company and any Affiliated Company that adopts this Plan with the Company’s permission.

1.29

“ Pay Credit ” means the notional amounts credited to a Member’s 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

(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 Company’s standard personnel practice.

1.40

“ Trust ” means the trust established pursuant to the Trust Agreement.

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.

ARTICLE 2
PARTICIPATION AND SERVICE

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.

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.

ARTICLE 3
CASH BALANCE ACCOUNT

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 Member’s 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 Member’s December 31, 2000 accrued benefit under the Sithe Energies Group Pension Plan, calculated on the basis of the Member’s 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 Member’s 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.

3.4

Interest Credits .

(a)

Except as provided under (b) below, Interest Credits shall be equal to a percentage of the Member’s Cash Balance Account as of the first day of a calendar quarter and shall be added to each Member’s Cash Balance Account as of the last day of such quarter. However, for any year in which payment of the Member’s Cash Balance Account is made in any form, simple interest shall be credited on the amount of the Member’s 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 Member’s 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 Member’s 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 Member’s 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 Member’s Cash Balance Account.

Upon the conversion of a Member’s Cash Balance Account to an annuity, or payment of such account as a lump sum, such Cash Balance Account shall cease to exist. However, a Member may have a new Cash Balance Account established if he becomes a Member again following a Payment Date.

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.

ARTICLE 4
PAYMENTS

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 Member’s Termination Date, and the Member may not elect an annuity form of payment.

A Member who has not attained age 64 as of his Termination Date may elect a Payment Date that is any day up to and including his Normal Retirement Date. A Member who has attained age 64 or more as of his Termination Date may elect any Payment Date up to the month in which he would attain 70 ¹ / ₂ .

(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 Member’s 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 Member’s 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 Member’s 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 Member’s benefit shall not be less than the Actuarial Equivalent of his Accrued Benefit payable at his Normal Retirement Date.

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 Member’s 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 Member’s vested Cash Balance Account based on the Member’s 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 Member’s accrued benefit under Plan B as of December 31, 2000 reduced for early payment by using the Member’s 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 Member’s 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 Member’s 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 Member’s entire vested interest in the Plan.

(B)

Amount . As of any Payment Date, the lump sum cash-out value of the Member’s Plan benefit is the value of such Member’s vested Cash Balance Account as of such Payment Date. However, if greater than the Member’s Cash Balance Account, the amount of such lump sum shall be equal to the greater of the lump sum Actuarial Equivalent of a Union Member’s: (1) immediate single life annuity based on the Member’s December 31, 2000 accrued benefit under Plan B reduced for early commencement on the Payment Date, or (2) the Member’s single life annuity payable at age 65 based on the Member’s 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 Member’s 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 Member’s 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.

(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).

The Member, Spouse, or former Spouse, as applicable, must timely provide in writing all information required to effect the rollover.

(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 individual’s 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 Member’s right to make, and the effect of, an election to waive the applicable standard annuity form of benefit; (iii) the relative values of the applicable optional forms of benefit available; (iv) the rights of a Member’s Spouse; (v) the right to make, and the effect of, a revocation of a previous election to waive the applicable standard form of annuity; (vi) if applicable, 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).

(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 Member’s Payment Date is after the date such written notice is provided to the Member.

The Member’s Payment Date may be prior to the date the Member makes any affirmative benefit distribution election pursuant to this subsection (a)(2) and prior to the date distribution is permitted to commence pursuant to (B) above, provided that, except in a case due solely to administrative delay, distribution pursuant to such election shall commence not more than ninety (90) days after the written notice described in subsection (a)(1) above is provided to the Member.

(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 Member’s retirement benefit payments have not commenced;

(iii)

The Member’s elected RASD is not prior to the date of his termination of employment;

(iv)

The Member’s spouse (including an alternate payee who is treated as such spouse under an order the Committee has determined to be a qualified domestic relations order), determined as if the date distributions are to commence was the Member’s 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;

(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 Member’s election of an RASD and such election must be made after such written notice is provided but on or prior to the date of such first payment; provided, however, such written notice may be provided less than thirty (30) days prior to the date of such first payment if the requirements of 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.

(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 Member’s Payment Date.

(B)

The term ‘Qualified Election’ shall mean an election to waive the applicable standard form of annuity. The Member’s election must be in writing and, if he is married, must be consented to by his Spouse. The Spouse’s consent to an election must acknowledge the applicable standard form of annuity and the Spouse must acknowledge such consent before a notary public or Plan representative. The waiver must state the specific beneficiary applicable (including any class of beneficiaries). Such election may not be changed without further Spousal consent. Notwithstanding this consent requirement, if the 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.

(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 Spouse’s 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 Member’s 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.

4.5 Payment on Member’s Behalf .

(a)

Payment to the Member’s 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 Member’s 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.

(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 Member’s vested Plan Benefit, with reasonable effort and after a period of five years, his interest will be canceled. However, the Member’s 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 Member’s 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 Member’s 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 Member’s 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 Member’s benefits would cause the limitations of section 415(e) of the Code to be exceeded, the Member’s 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 Member’s 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 Member’s 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.

(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 Member’s entire interest will be distributed, or begin to be distributed, to the Member no later than the Member’s required beginning date.

(ii)

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

(A)

If the Member’s surviving Spouse is the Member’s sole designated Beneficiary, distributions to the surviving Spouse will begin by December 31 of the calendar year immediately following the calendar year in which the 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 Member’s surviving Spouse is not the Member’s 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.

(C)

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

(D)

If the Member’s surviving Spouse is the Member’s 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.

For purposes of this Paragraph (b)(ii) and Paragraph (e), distributions are considered to begin on the Member’s required beginning date (or, if Paragraph (b)(ii)(D) applies, the date distributions are required to begin to the surviving Spouse under Paragraph (b)(ii)(A)). If annuity payments irrevocably commence to the Member before the Member’s required beginning date (or to the Member’s surviving Spouse before the date distributions are required to begin to the surviving Spouse under Paragraph (b)(ii)(A)), the date distributions are considered to begin is the date distributions actually commence.

(iii)

Form of Distribution . Unless the Member’s interest is distributed in the form of an annuity purchased from an insurance company or in a single sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance with Paragraphs (c), (d) and (e) of this Section 4.8. If the Member’s interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Code Section 401(4)(9) and the Treasury regulations. Any part of the Member’s 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.

(c)

Determination of Amounts to be Distributed Each Year .

(i)

General Annuity Requirements . If the Member’s 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 Member’s 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 Member’s 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 Member’s 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 Member’s 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 Member’s required beginning date.

(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 Member’s Lifetime .

(i)

Joint Life Annuities Where the Beneficiary Is Not the Member’s Spouse . If the Member’s 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 Member’s required beginning date to the designated Beneficiary after the Member’s 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 Member’s 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 Member’s 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 Member’s birthday in the year that contains the annuity starting date. If the Member’s Spouse is the Member’s 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 Member’s applicable distribution period, as determined under Paragraph (d)(ii), or the joint life and last survivor expectancy of the Member and the Member’s 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 Member’s and Spouse’s attained ages as of the Member’s and Spouse’s birthdays in the calendar year that contains the annuity starting date.

(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 Member’s 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 Beneficiary’s age as of the Beneficiary’s birthday in the calendar year immediately following the calendar year of the Member’s 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 Beneficiary’s age as of the Beneficiary’s 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 Member’s death, distribution of the Member’s entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Member’s 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 Member’s surviving Spouse is the Member’s 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).

(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 Member’s death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Member’s required beginning date. For distributions beginning after the Member’s 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.

ARTICLE 5
PRE-DISTRIBUTION DEATH BENEFITS

5.1

General Provisions . If a Member dies before his Payment Date occurs, 100% of his Cash Balance Account will be payable to the Member’s 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 Member’s entire Cash Balance Account in a lump sum payment as soon as practicable after the Member’s death. If the Cash Balance Account is greater than $1,000, the Member’s surviving Spouse Beneficiary may elect to receive a lump sum or a single life annuity. Single life annuity payments shall be for the Spouse’s lifetime only and shall be determined by converting the Member’s Cash Balance Account to a single life annuity payable to the Spouse in the manner described under Section 4.2(b)(i) using the Spouse’s age at the Payment Date for such Spouse.

The Spouse may elect for annuity payments to commence at any time after the Member’s death. If the Spouse does not elect earlier payment, the Payment Date for the Spouse’s survivor benefit payable as a life annuity will be the Member’s Normal Retirement Date.

Lump sum payments to a non-Spouse Beneficiary will be paid as soon as practicable after the Member’s death. A Spouse electing to receive a lump sum death benefit must receive such lump sum within 12 months of the Member’s death.

Neither an annuity payable to a Spouse hereunder nor the Actuarial Equivalent of a lump sum paid to such Spouse hereunder shall be less than the qualified preretirement survivor’s annuity described in Code Section 417(c).

ARTICLE 6
DISABILITY

6.1

Disability . If a Non-Appendix B Member incu