AMENDMENT TO THE
IPALCO ENTERPRISES, INC.
VOLUNTARY EMPLOYEE BENEFICIARY ASSOCIATION
TRUST AGREEMENT
Pursuant to rights reserved under Section 8.01 of the IPALCO
Enterprises, Inc. Voluntary Employee Beneficiary Association Trust
Agreement (the "Agreement") and action of the Board of Directors of
IPALCO Enterprises, Inc., the Agreement is hereby amended in the
following manner:
1. The third recital of the Agreement shall be deleted from
the Agreement in its entirety, and the following shall be inserted
in its place as the new third recital:
WHEREAS, the funds which will be contributed or
transferred to the Trustee, as and when received by
the Trustee, will constitute a trust fund to be held
for the sole and exclusive benefit of the Members
under the plans identified at Appendix 2 hereto, as
such Appendix 2 may hereafter be amended, added or
deleted from time to time in the discretion of the
Company (singularly a "Plan" and collectively the
"Plans");
2. Section 1.04 of the Agreement is amended to provide, in its
entirety, as follows:
Section 1.04. Corporation Contributions. Except
as hereinafter provided, the Corporation shall make
contributions to the Trust Fund in such amounts and at such
times as it shall determine ("Corporation Contributions").
The Corporation Contributions shall be based on the amounts
necessary to provide for the benefits expected to become
payable, or to pay any premiums becoming due, under the Plans
and to fund reasonable reserves with respect thereto. Also
except as hereinafter provided, the Corporation shall not be
required to use the Trust Fund or any other funded mechanism
to pay benefits and premiums provided under the Plan.
3. Section 1.11 of the Agreement is amended to provide, in its
entirety, as follows:
Section 1.11. Settlement of Trust Liabilities. If the
share exchange contemplated by the Agreement and Plan of Share
Exchange dated as of July 15, 2000 between The AES Corporation
and the Company is approved by the Company shareholders
("Shareholder Approval") and notwithstanding any provision
contained herein to the contrary, the following provisions
shall take effect and supersede all other provisions of this
Agreement to the extent inconsistent thereof:
(a) Within thirty (30) days following the Shareholder
Approval, the Company shall contribute the sum of seven
million five hundred thousand dollars ($7,500,000) in full
satisfaction of all current and future funding obligations
under this Amended Agreement.
(b) After the contribution described in paragraph (a)
is complete, the assets in the Trust Fund shall be transferred
to an independent trustee (the "Independent Trustee") selected
by the VEBA Committee to be applied in the manner described in
paragraph (c) below.
(c) The assets held in the Trust Fund shall be applied by
the Independent Trustee solely to provide the type of benefits
available immediately prior to Shareholder Approval or to provide
comparable benefits to the group of Members (including their
surviving spouses and dependents) consisting of (i) retirees who
are entitled to benefits immediately prior to the Shareholder
Approval and (ii) individuals who are employed by the Company or
an affiliate of the Company immediately prior to the Shareholder
Approval and whose employment with the Company, affiliates and/or
successors is subsequently terminated after the Shareholder
Approval on or after meeting the requirements for retirement.
The assets of the Trust Fund may under no circumstances revert
to the Company or be applied in a manner inconsistent with the
terms of this paragraph.
(d) To the extent there is a vacancy in the office of
Independent Trustee and notwithstanding anything contained in
Article VI to the contrary, the VEBA Committee shall select a
successor.
4. The second sentence to Section 3.01 of the Agreement is deleted in
its entirety.
5. Section 4.14 of the Agreement is amended to provide, in its
entirety, as follows:
Section 4.14. VEBA Committee. The Company has established a
committee (the "VEBA Committee") to oversee the operation and
administration of the Voluntary Employee Beneficiary Association Trust
Fund. The names and addresses of the initial members of the VEBA
Committee are set forth at Exhibit "B" to this Amended Agreement. In
the event that Section 1.11 of the Agreement becomes effective, each of
the members of the VEBA Committee immediately preceding the Shareholder
Approval (as defined in Section 1.11) shall continue as such until his
or her death, resignation or permanent disability, and any vacancy so
caused shall be filled by action of a majority of the remaining members
of the VEBA Committee.
6. Section 6.02 of the Agreement is amended to provide, in its
entirety, as follows:
Section 6.02. Removal. Subject to Section 1.11, the Company may
remove the Trustee by a written instrument addressed to the Trustee.
7. The first sentence of Section 6.03 of the Agreement is amended to
provide, in its entirety, as follows:
Upon the resignation or removal of the Trustee and subject to Section
1.11, the Company shall appoint a successor Trustee, which shall have
the same powers and duties as those conferred upon the initial Trustee
hereunder.
8. Section 8.01 of the Agreement is amended to provide, in its
entirety, as follows:
Section 8.01. Amendment. This Amended Agreement may be amended
at any time and from time to time by the Company until there is
Shareholder Approval (as defined in Section 1.11), except that the
duties and liabilities of the Trustee cannot be changed without its
written consent. In the event of Shareholder Approval, this Amended
Agreement may no longer be amended. Under no circumstances shall
an amendment result in the return or repayment to the Corporation of
any part of the corpus or income of the Trust Fund or result in the
distribution of the Trust Fund for the benefit of anyone other than
persons entitled to benefits under the Plans, except as otherwise
provided in Section 2.02 of this Amended Agreement and permitted
under ERISA and under the Code.
9. The first two sentences of Section 8.04 of the Agreement are
amended to provide, in their entirety, as follows:
Until there is Shareholder Approval, this Amended Agreement may be
terminated at any time by the Company. In the event of Shareholder
Approval, this Amended Agreement may be terminated only consistent
with Section 1.11.
10. Section 8.04(c) of the Agreement is deleted in its entirety.
11. The first two sentences of Section 8.05 of the Agreement are
amended to provide, in their entirety, as follows:
Until there is Shareholder Approval (as described in Section 1.11),
Plans may be deleted from the coverage of the trust created by this
Amended Agreement upon the execution by the Company and the Trustee
of an appropriate amendment to this Amended Agreement, which amendment
may include, without limitation, a suitable modification of Appendix 2
and Exhibit "A" to this Amended Agreement. In the event of Shareholder
Approval, a Plan may not be deleted.
This Amendment has been approved this day of , 2000;
provided, however, that this Amendment is conditioned upon the approval by
the Shareholders of IPALCO Enterprises, Inc. of the share exchange
contemplated by the Agreement and Plan of Share Exchange dated as of July 15,
2000 between The AES Corporation and IPALCO Enterprises, Inc.
IPALCO ENTERPRISES, INC.
By: /s/ John R. Hodowal
Its: Chairman and President