Section 2.2.                                “Beneficiary” means the person or persons designated by the Participant as his or her Beneficiary under this Plan, in accordance with the provisions of Article VII hereof.

 

Section 2.3.                                “Board” means the Board of Directors of the Company.

 

Section 2.4.                                “Change of Control” means the consummation of any Change of Control of the Company, or its principal subsidiary, The Dayton Power and Light Company (“DP&L”), of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as determined by the Board in its sole discretion; provided that, without limitation, such a Change of Control shall be deemed to have occurred if:

 

(a)                                  any “Person” (as such term is defined in Sections 13(d) or 14(d)(2) of the Exchange Act; hereafter, a “Person”) is on the date hereof or becomes the beneficial owner, directly or indirectly, of securities of the Company or DP&L representing (I) 25% or more of the combined voting power of the then outstanding Voting Stock of the Company or DP&L if the acquisition of such beneficial ownership is not approved by the Board prior to the acquisition or (II) 50% or more of such combined voting power in all other cases;

 

(i)                                     for purposes of this Section 2.4, the following acquisitions shall not constitute a Change of Control: (A) any acquisition of Voting Stock of the Company or DP&L directly from the Company or DP&L that is approved by a majority of those persons serving as directors of the Company or DP&L on the date of this Plan (the “Original Directors”) or their Successors (as defined below), (B) any acquisition of Voting Stock of the Company or DP&L by the Company or any Subsidiary, and (C) any acquisition of Voting Stock of the Company or DP&L by the trustee or other fiduciary holding securities under any employee benefit plan (or related trust) sponsored or maintained by DPL or any Subsidiary (the term “Successors” shall mean those directors whose election or nomination for election by shareholders has been approved by the vote of at least two-thirds of the Original Directors and previously qualified Successors serving as directors of the Company or DP&L, as the case may be, at the time of such election or nomination for election);

 

(ii)                                  if any Person is or becomes the beneficial owner of 25% or more of combined voting power of the then-outstanding Voting Stock of the Company or DP&L as a result of a transaction described in clause (A) of Section 2.4(a)(i) above and such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company or DP&L representing 1% or more of the then-outstanding Voting Stock of the Company or DP&L, other than

 

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in an acquisition directly from the Company or DP&L that is approved by a majority of the Original Directors or their Successors or other than as a result of a stock dividend, stock split or similar transaction effected by the Company or DP&L in which all holders of Voting Stock of the Company or DP&L are treated equally, such subsequent acquisition shall be treated as a Change in Control;

 

(iii)                               a Change in Control will not be deemed to have occurred if a Person is or becomes the beneficial owner of 25% or more of the Voting Stock of the Company or DP&L as a result of a reduction in the number of shares of Voting Stock of the Company or DP&L outstanding pursuant to a transaction or series of transactions that is approved by a majority of the Original Directors or their Successors unless and until such Person thereafter becomes the beneficial owner of any additional shares of Voting Stock of the Company or DP&L representing 1% or more of the then-outstanding Voting Stock of the Company or DP&L, other than as a result of a stock dividend, stock split or similar transaction effected by the Company or DP&L in which all holders of Voting Stock are treated equally; and

 

(iv)                              if at least a majority of the Original Directors or their Successors determine in good faith that a Person has acquired beneficial ownership of 25% or more of the Voting Stock of the Company or DP&L inadvertently, and such Person divests as promptly as practicable but no later than the date, if any, set by the Original Directors or their Successors a sufficient number of shares so that such Person beneficially owns less than 25% of the Voting Stock of the Company or DP&L, then no Change of Control shall have occurred as a result of such Person’s acquisition; or

 

(b)                                 the Company or DP&L consummates a merger or consolidation, or consummates a “combination” or “majority share acquisition” in which it is the “acquiring corporation” (as such terms are defined in Ohio Rev. Code § 1701.01 as in effect on December 31, 1990) and in which shareholders of the Company or DP&L, as the case may be, immediately prior to entering into such agreement, will beneficially own, immediately after the effective time of the merger, consolidation, combination or majority share acquisition, securities of the Company or DP&L or any surviving or new corporation, as the case may be, having less than 50% of the “voting power” of DPL or DP&L or any surviving or new corporation, as the case may be, including “voting power” exercisable on a contingent or deferred basis as well as immediately exercisable “voting power”, excluding any merger of DP&L into the Company or of the Company into DP&L;

 

(c)                                  the Company or DP&L consummates a sale, lease, exchange or other transfer or disposition of all or substantially all of its assets to any Person other than to a wholly owned subsidiary or, in the case of DP&L, to the Company or a wholly owned subsidiary(ies) of the Company; but not including (I) a mortgage or pledge of

 

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assets granted in connection with a financing or (II) a spin-off or sale of assets if the Company continues in existence and its common shares are listed on a national securities exchange, quoted on the automated quotation system of a national securities association or traded in the over-the-counter market; or

 

(d)                                 the Original Directors and/or their Successors do not constitute a majority of the whole Board or the Board of Directors of DP&L, as the case may be; or

 

(e)                                  approval by the shareholders of the Company or DP&L of a complete liquidation or dissolution of the Company or DP&L, as the case may be.

 

Section 2.5.                                “Company” means DPL Inc., an Ohio corporation, and any entity that succeeds DPL Inc. by merger, reorganization or otherwise.

 

Section 2.6.                                “Compensation” means, for a Plan Year, a Participant’s annual base salary as of the end of such Plan Year and the benefit earned by such Participant under the Company’s Executive Incentive Compensation Program for such Plan Year.

 

Section 2.7.                                “Compensation Committee” means the Compensation Committee of the Board.

 

Section 2.8.                                “Contributions” means the contributions credited pursuant to Section 3.1 of the Plan.

 

Section 2.9.                                “Controlled Group” means the Company and any and all other corporations, trades and/or businesses, the employees of which, together with employees of the Company, are treated under Section 414 of the Code as if they were employed by a single employer.  Each corporation or unincorporated trade or business that is or was a member of the Controlled Group shall be referred to herein as a “Controlled Group Member”, but only during such period as it is or was such a member.

 

Section 2.10.                         “Disability” means a Participant’s inability to perform the duties required on a full-time basis for a period of six consecutive months because of physical or mental illness or other physical or mental disability or incapacity.

 

Section 2.11.                         “Employee” means a full-time salaried employee of an Employer.

 

Section 2.12.                         “Employer” means the Company and any other Controlled Group Member.

 

Section 2.13.                         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

 

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Section 2.14.                         “Hypothetical Investment Fund” means any investment fund designated by the Company pursuant to Section 8.1.

 

Section 2.15.                         “Participant” means an Employee that the Compensation Committee has designated to participate under this Plan and who has executed a Participation Agreement.

 

Section 2.16.                         “Participation Agreement” means an agreement between the Company and each Employee that must be executed as a condition of the Participant’s eligibility for this Plan.

 

Section 2.17.                         “Plan” means the DPL Inc. Supplemental Executive Defined Contribution Retirement Plan, as herein set forth and as the same may from time to time be amended or restated.

 

Section 2.18.                         “Plan Administrator” means the Compensation Committee.

 

Section 2.19.                         “Plan Year” means the calendar year.

 

Section 2.20.                         “Qualified Plan” means The Dayton Power and Light Company Employee Savings Plan.

 

Section 2.21.                         “Retirement” has the meaning ascribed to such term in the Retirement Income Plan of The Dayton Power and Light Company.

 

Section 2.22.                         “Separates from Service” or “Separation from Service” has the meaning ascribed to such phrase in the 409A Guidance.

 

Section 2.23.                         “Unforseeable Emergency” means an event which results in a severe financial hardship to the Participant resulting from (a) an illness or accident of the Participant, the Participant’s spouse or a dependent of the Participant, (b) loss of the Participant’s property due to casualty or (c) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant.

 

Section 2.24.                         “Valuation Date” means each December 31, plus such additional date(s), if any, selected by the Plan Administrator.  In the event of a Change of Control, the term “Valuation Date” shall also mean the last day of the calendar month immediately preceding the date of the Change of Control.

 

Section 2.25.                         “Vesting Years” has the meaning ascribed to such phrase in the Retirement Income Plan of The Dayton Power and Light Company.

 

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Section 2.26.                         “Voting Stock” means securities entitled to vote generally in the election of directors.

 

Section 2.27.                         “409A Guidance” has the meaning set forth in Section 1.3.

 

ARTICLE III - CONTRIBUTIONS

 

Section 3.1.                                Contributions.  For each Plan Year, the Company shall credit to the Account established for each Participant an amount (the “Contribution”) equal to 15% of the amount, if any, by which the Participant’s Compensation for such Plan Year exceeds the limit on Compensation imposed by Section 401(a)(17) of the Code (the “Code Limit”) for that Plan Year.  The Company shall credit the Contribution to each Participant’s Account as soon as practicable after the Participant’s Compensation for the Plan Year is determined.

 

ARTICLE IV - ACCOUNTS

 

Section 4.1.                                Participants’ Accounts.  The Company shall establish and maintain on its books an Account for each Participant which shall contain the following entries:

 

(a)                                  Credits for the Contributions described in Section 3.1.

 

(b)                                 Credits or charges representing the income, expenses, gains or losses allocable to the Participant’s Account which would be applicable if such Account had been invested on a tax deferred basis in the Hypothetical Investment Fund(s) selected by the Participant or the Participant’s Beneficiary as provided in Section 8.1.  The entries provided by this Subsection shall continue to be made until the Participant’s entire Account has been distributed to the Participant or the Participant’s Beneficiary pursuant to Article VI.

 

(c)