{"id":38590,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/change-in-control-agreement-the-southern-co-southern-energy3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement-the-southern-co-southern-energy3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement-the-southern-co-southern-energy3.html","title":{"rendered":"Change in Control Agreement &#8211; The Southern Co., Southern Energy Inc., Southern Energy Resources Inc. and S. Marce Fuller"},"content":{"rendered":"<pre>                           CHANGE IN CONTROL AGREEMENT\n\n         THIS AMENDED AND  RESTATED  CHANGE IN CONTROL  AGREEMENT  (\"Agreement\")\nmade and entered into by and between The Southern Company (\"Southern\"), Southern\nEnergy, Inc. (\"SEI\"), Southern Energy Resources, Inc. (the \"Company\") and Ms. S.\nMarce  Fuller  (\"Ms.  Fuller\")  (hereinafter  collectively  referred  to as  the\n\"Parties\")  is effective as of the date of  execution of this  Agreement  unless\notherwise provided herein.\n\n                                W I T N E S S E T H:\n\n         WHEREAS,  Ms.  Fuller is the  Chief  Executive  Officer  of SEI and the\nCompany,  and the Company serves as the employer with respect to assets held\nby SEI;\n\n         WHEREAS,  the  Parties  entered  into a  Change  in  Control  Agreement\neffective  December 10, 1998 (the  \"Original  Agreement\")  to provide to Ms.\nFuller certain severance  benefits under certain  circumstances  following a\nchange in control (as defined herein) of Southern or the Company;\n\n         WHEREAS,  the parties  subsequently  entered into a Change in Control \nAgreement,  effective  December 10, 1998 and executed June 17, 1999,  \nwhich superseded the Original  Agreement (the \"Second  Agreement\") to \nclarify benefits under this Agreement related to the Southern Energy \nResources,  Inc. Deferred  Incentive  Compensation Plan;\n\n         WHEREAS,  pursuant to Section 6(d) of the Second Agreement, the Parties\nmay amend the Second Agreement by written agreement;\n\n         WHEREAS,  the  Parties  wish to enter into this  Amended  and  Restated\nChange in Control Agreement pursuant to the provisions of such Section 6(d),\nto (i) change certain  references  from normal market bonus to target bonus,\n(ii)  incorporate  by  reference  the  definition  of \"change in control\" as\nprovided  under the  Change in Control  Benefit  Plan  Determination  Policy\nadopted by the board of directors of SEI,  (iii) reflect SEI's  guarantee of\nbenefits   under  the  Agreement,   (iv)  reference  an  Omnibus   Incentive\nCompensation Plan which may be adopted by SEI in the future, and (v) certain\nother technical and miscellaneous modifications;\n\n         NOW, THEREFORE, in consideration of the premises, and the agreements of\nthe  parties  set  forth in this  Agreement,  and  other  good and  valuable\nconsideration, the receipt and sufficiency of which are hereby acknowledged,\nthe parties hereby agree as follows:\n\n       1. Definitions.  For  purposes of this  Agreement,  the  following  \n    terms  shall have the  following meanings:\n\n         (a) \"Annual  Compensation\"  shall mean Ms. Fuller's highest annual base\n    salary rate for the twelve (12) month period immediately  preceding the date\n    of the Change in Control plus target bonus.\n\n         (b) \"Board\" shall mean the board of directors of the Company.\n\n         (c) \"Change in  Control\"  shall  have the  meaning of such term as set\n    forth in the  Change  in  Control  Benefit  Plan  Determination  Policy,  as\n    approved  by the board of  directors  of SEI,  as such Policy may be amended\n    from time to time in accordance with the provisions  therein.  However,  any\n    amendment to the Policy which causes the  definition  of \"Change in Control\"\n    to be more  restrictive than such definition in effect on the Effective Date\n    shall not be taken into  account  for  purposes  of this  Agreement,  unless\n    approved  by the  board  of  directors  of SEI or a  compensation  committee\n    thereof and agreed to in writing by Ms. Fuller.\n\n         (d) \"COBRA Coverage\" shall mean any  continuation  coverage to which \n    Ms. Fuller or her dependents may\n    be entitled pursuant to Code Section 4980B.\n\n         (e) \"Code\" shall mean the Internal Revenue Code of 1986, as amended.\n\n         (f) \"Company\" shall mean Southern Energy Resources, Inc., its \n    successors and assigns.\n\n         (g) \"DIC Plan\" shall mean the Southern Energy Resources,  Inc. \n    Deferred  Incentive  Compensation Plan or replacement thereto, as \n    such plans may be amended from time to time.\n\n         (h) \"Effective Date\" shall mean the date of execution of this \n    Agreement,  unless  otherwise  provided herein.\n\n         (i) \"Employee  Outplacement Program\" shall mean the program established\n    by the Company from time to time for the purpose of  assisting  participants\n    covered  by the plan in finding  employment  outside  of the  Company  which\n    provides for the following services:\n\n             (i)  self-assessment,  career decision and goal setting;  \n\n            (ii)  job market  research and job  sources; \n \n           (iii)  networking  and interviewing   skills;  \n \n            (iv)  planning  and   implementation strategy; \n \n             (v)  resume writing,  job hunting methods and salary negotiation; \n                  and \n\n            (vi)  office support and job search resources.\n\n         (j \"Exchange Act\" shall mean the Securities Exchange Act of 1934, \n    as amended.\n\n         (k) \"Good Reason\" shall mean,  without Ms. Fuller's express written\n    consent,  after  written  notice to the Board,  and after a thirty  (30) day\n    opportunity  for the Board to cure, the continuing  occurrence of any of the\n    following events:\n\n              (i)  Inconsistent  Duties. A meaningful and detrimental  \n          alteration in Ms. Fuller's position or in the nature or status of \n          her responsibilities from those in effect immediately prior to the \n          Change in Control;\n\n             (ii)  Reduced  Salary.  A reduction of five percent (5%) or more by\n          the Company in either of the following:  \n                   (i) Ms. Fuller's annual base salary rate as in effect  \n             immediately  prior to the Change in Control (except for a less than\n             ten  percent  (10%), across-the-board  annual  base  salary  rate \n             reduction  similarly affecting at least  ninety-five  percent  \n             (95%) of the Executive Employees of the Company);  or \n\n                  (ii) the sum of Ms. Fuller's annual base  salary  rate \n             plus target  bonus  under the  Company's Short Term Plan \n             (except for a less than ten percent  (10%),  across-the-board \n             reduction  of annual  base  salary  rate plus target  bonus  under\n             the Short  Term Plan similarly  affecting at least  ninety-five \n             percent  (95%) of the  Executive Employees of the Company);\n\n                 (iii) Pension and Compensation  Plans. The failure by the \n             Company to continue in effect any pension or  compensation  plan \n             or  agreement in which Ms.  Fuller  participates  or is a party  \n             as of the  date of the  Change  in Control or the elimination of \n             Ms. Fuller's participation  therein,  (except for  across-the-board\n             plan changes or terminations  similarly  affecting at least \n             ninety-five percent (95%) of the Executive Employees of the \n             Company); For purposes of this Paragraph  1.(k),  a \"pension plan \n             or agreement\"  shall mean any  written  arrangement  executed  \n             by an  authorized  officer of the Company which  provides for \n             payments upon  retirement;  and a \"compensation plan or  \n             arrangement\"  shall mean any  written arrangement  executed  \n             by an authorized   officer  of  the   Company which   provides   \n             for   periodic,  non-discretionary compensatory payments in the \n             nature of bonuses.\n\n               (iv)  Relocation.  A change  in Ms.  Fuller's  work  location  \n             to a location  more than fifty (50)  miles  from the office  \n             where Ms. Fuller is located at the time of the Change in Control,  \n             unless such new work location is within fifty (50) miles from Ms. \n             Fuller's principal place of residence at the time of the Change \n             in Control. The acceptance,  if any, by Ms. Fuller of employment \n             by the Company at a work location which is outside the fifty \n             mile radius set forth in this  Paragraph  1.(k)\n\n               (iv)  shall not be a waiver of Ms.Fuller's  right to refuse  \n             subsequent  transfer by the Company to a location which is more \n             than fifty (50) miles  from Ms.Fuller's  principal  place of \n             residence  at the  time  of the Change  in  Control,  and  \n             such  subsequent unconsented transfer shall be \"Good Reason\" \n             under this Agreement; or\n\n                (v)  Benefits  and  Perquisites.  The  taking of any  action by\n             the Company which would  directly or indirectly  materially  \n             reduce the benefits enjoyed  by Ms.  Fuller  under the  Company's  \n             retirement, life insurance, medical, health and accident,  \n             disability,  deferred compensation or savings plans in which Ms. \n             Fuller was participating immediately prior to the Change in \n             Control;  or the  failure by the Company to provide Ms.  \n             Fuller with the number of paid vacation days to which Ms. Fuller \n             is entitled on the basis of years of service with\n             the Company in accordance  with the  Company's  normal vacation \n             policy in effect immediately prior to the Change in Control (except\n             for  across-the-board  plan or vacation policy changes or plan  \n             terminations similarly  affecting at least  ninety-five  percent  \n             (95%) of the  Executive Employees of the Company).\n\n               (vi) For  purposes of this  Paragraph  1.(k),  the term  \n             \"Executive Employee\"  shall mean  employees of the Company  \n             whose annual base salary is $130,000 or more.\n\n\n         (l) \"Group  Health Plan\" shall mean the group health plan  covering \n    Ms. Fuller, as such plan may be amended from time to time.\n\n         (m) \"Group Life  Insurance  Plan\"  shall mean the group life  insurance\n    program covering Ms. Fuller, as such plan may be amended from time to time.\n\n         (n) \"Month of Service\"  shall mean any calendar  month during which Ms.\n    Fuller has worked at least one (1) hour or was on approved  leave of absence\n    while in the  employ  of the  Company  or any  affiliate  or  subsidiary  of\n    Southern.\n\n         (o) \"Pension  Plan\" shall mean The Southern  Company  Pension  Plan, as\n    such plan may be amended from time to time.\n\n         (p)  \"Performance  Dividend  Plan\"  shall  mean  the  Southern  Company\n    Performance  Dividend Plan or any replacement  thereto, as such plans may be\n    amended from time to time.\n\n         (q)   \"Performance   Stock  Plan\"  shall  mean  the  Southern   Company\n    Performance  Stock  Plan or any  replacement  thereto,  as such plans may be\n    amended from time to time.\n\n         (r) \"Southern\" shall mean The Southern Company, its successors and \n    assigns.\n\n         (s) \"Southern Board\" shall mean the board of directors of Southern.\n\n         (t) \"SEI\" shall mean Southern Energy, Inc., its successors and assigns.\n\n         (u) \"Southern Subsidiary\" shall mean any corporation or other entity \n    Controlled by Southern.\n\n         (v) \"Termination  for Cause\" or \"Cause\" shall mean the termination of \n    Ms. Fuller's  employment by the Company upon the occurrence of any of \n    the following:\n\n             (i) The willful and continued  failure by Ms. Fuller  substantially\n         to  perform  her  duties  with the  Company  (other  than  any such  \n         failure resulting from Ms. Fuller's Total Disability or from Ms. \n         Fuller's retirement or any such actual or anticipated  failure \n         resulting from termination by Ms. Fuller for Good Reason) after a \n         written demand for  substantial  performance is  delivered  to her \n         by  the  Southern  Board,  which  demand  specifically identifies  \n         the manner in which the Southern Board believes that she has not\n         substantially performed her duties; or\n\n             (ii)  The  willful  engaging  by Ms. Fuller  in  conduct  that  is\n         demonstrably  and  materially  injurious  to  the  Company,   \n         monetarily or otherwise, including, but not limited to any of the \n         following:\n\n                  (A) any willful act involving  fraud or dishonesty  in the \n             course of Ms.  Fuller's  employment by the\n             Company;\n\n                  (B) the  willful  carrying  out of any  activity  or the  \n             making of any statement  which  would  materially  prejudice  or \n             impair  the good name and standing of the Company,  SEI, Southern \n             or any Southern  Subsidiary or would bring the  Company,  SEI,  \n             Southern or any other  Southern  Subsidiary  into\n             contempt,  ridicule or would  reasonably  shock or offend any  \n             community  in which the Company, SEI, Southern or such Southern \n             Subsidiary is located;\n\n                   (C) attendance  at  work  in  a  state  of\n             intoxication  or otherwise  being found in possession\n             at her workplace of any prohibited drug or substance,\n             possession  of  which  would  amount  to  a  criminal\n             offense;\n\n                   (D) violation of the  Company's  policies on\n             drug and alcohol usage, fitness for duty requirements\n             or similar policies as may exist from time to time as\n             adopted by the Company's safety officer;\n\n                   (E) assault or other act of violence  against any person  \n             during the course of employment; or\n\n                   (F) indictment of any felony or any misdemeanor involving \n             moral turpitude.\n\n          No act or failure to act by Ms.  Fuller shall be deemed  \"willful\" \n unless done, or omitted to be done,  by Ms.  Fuller not in good faith and \n without  reasonable  belief that her action or omission was in the best \n interest of the Company.\n\n          Notwithstanding the foregoing,  Ms. Fuller shall not be deemed\n to have been  terminated  for Cause  unless and until  there shall have\n been  delivered  to her a copy  of a  resolution  duly  adopted  by the\n affirmative  vote  of not  less  than  three  quarters  of  the  entire\n membership  of the Southern  Board at a meeting of the  Southern  Board\n called and held for such purpose (after reasonable notice to Ms. Fuller\n and an opportunity for her,  together with counsel,  to be heard before\n the Southern  Board),  finding  that,  in the good faith opinion of the\n Southern  Board,  Ms.  Fuller was guilty of conduct  set forth above in\n clause  (i)  or  (ii)  of  this  Paragraph  1.(v)  and  specifying  the\n particulars thereof in detail.\n\n         (w)  \"Termination  Date\"  shall  mean the  date on  which  Ms.\n      Fuller's employment with the Company is terminated;  provided, however,\n      that solely for purposes of Paragraph  2.(c)  hereof,  the  Termination\n      Date shall be the  effective  date of her  retirement  pursuant  to the\n      terms of the Pension Plan.\n\n         (x)  \"Total  Disability\"  shall mean Ms. Fuller's total disability  \n      within the meaning of the Pension Plan.\n\n         (y)  \"Value  Creation  Plan\" shall mean the Southern  Energy  \n      Resources,  Inc. Value Creation Plan, or any replacement thereto, \n      as such plans may be amended from time to time.\n\n         (z)  \"Waiver and Release\" shall mean the Waiver and Release attached \n      hereto as Exhibit A.\n                 \n         (aa) \"Year of  Service\"  shall mean Ms.  Fuller's  Months of Service \n      divided by twelve  (12) rounded to the nearest whole year,  rounding up \n      if the remaining number of months is seven (7) or greater and  rounding  \n      down if the  remaining number of months is less than seven (7).  If Ms.  \n      Fuller has a break in her  service  with the  Company,  she will  receive\n      credit  under this Agreement  for service  prior to the break in service \n      only if the break in service is less than five years.\n\n      2. Severance Benefits.\n         (a)  Eligibility.   Except  as  otherwise   provided  in  this\n      Paragraph 2.(a), if Ms. Fuller's employment is involuntarily terminated\n      by the  Company at any time  during  the two year  period  following  a\n      Change in Control  for  reasons  other  than  Cause,  or if Ms.  Fuller\n      voluntarily  terminates her employment with the Company for Good Reason\n      at any time during the two year  period  following a Change in Control,\n      Ms. Fuller shall be entitled to receive the benefits  described in this\n      Agreement  upon  the  Company's  receipt  of an  effective  Waiver  and\n      Release.  Notwithstanding  anything to the contrary herein,  Ms. Fuller\n      shall not be eligible to receive  benefits  under this Agreement if Ms.\n      Fuller:\n               (i) voluntarily  terminates  her  employment  with the \n           Company for other than Good Reason;\n\n              (ii) has her employment terminated by the Company for Cause;\n\n             (iii) accepts  the  transfer  of her  employment  to\n           Southern,   any  Southern  Subsidiary  or  any  employer  that\n           succeeds  to all or  substantially  all of the  assets of SEI,\n           Southern or any Southern Subsidiary;\n\n              (iv)  refuses an offer of continued  employment  with\n           the Company,  any Southern  Subsidiary,  or any employer  that\n           succeeds  to all or  substantially  all of the  assets of SEI,\n           Southern, or any Southern Subsidiary under circumstances where\n           such  refusal  would not amount to Good  Reason for  voluntary\n           termination of employment; or\n\n              (v)  elects  to  receive  the  benefits  of any other\n           voluntary or involuntary severance or separation program, plan\n           or  agreement  maintained  by the  Company in lieu of benefits\n           under this Agreement;  provided  however,  that the receipt of\n           benefits  under the terms of any  retention  plan or agreement\n           shall  not  be  deemed  to be  the  receipt  of  severance  or\n           separation benefits for purposes of this Agreement.\n\n           (b) Severance  Benefits.  If Ms. Fuller meets the  eligibility\n       requirements of Paragraph 2.(a) hereof, she shall be entitled to a cash\n       severance  benefit  in an  amount  equal  to  three  times  her  Annual\n       Compensation (the \"Severance Amount\").  If any portion of the Severance\n       Amount  constitutes  an  \"excess  parachute  payment\"  (as such term is\n       defined  under Code Section 280G  (\"Excess  Parachute  Payment\")),  the\n       Company  shall pay to Ms.  Fuller an  additional  amount  calculated by\n       determining  the  amount  of tax  under  Code  Section  4999  that  she\n       otherwise would have paid on any Excess Parachute  Payment with respect\n       to the  Change  in  Control  and  dividing  such  amount  by a  decimal\n       determined  by adding  the tax rate under Code  Section  4999  (\"Excise\n       Tax\"), the hospital insurance tax under Code Section 3101(b) (\"HI Tax\")\n       and federal and state income tax measured at the highest marginal rates\n       (\"Income Tax\") and subtracting such result from the number one (1) (the\n       \"280G  Gross-up\");  provided,  however,  that no 280G Gross-up shall be\n       paid unless the Severance Amount plus all other \"parachute payments\" to\n       Ms. Fuller under Code Section 280G exceeds three (3) times Ms. Fuller's\n       \"base  amount\" (as such term is defined  under Code Section 280G (\"Base\n       Amount\")) by ten percent (10%) or more;  provided  further,  that if no\n       280G Gross-up is paid,  the  Severance  Amount shall be capped at three\n       (3) times Ms. Fuller's Base Amount, less all other \"parachute payments\"\n       (as such term is  defined  under Code  Section  280G)  received  by Ms.\n       Fuller,  less one dollar (the \"Capped  Amount\"),  if the Capped Amount,\n       reduced by HI Tax and Income Tax,  exceeds  what  otherwise  would have\n       been the  Severance  Amount,  reduced by HI Tax,  Income Tax and Excise\n       Tax.\n             For purposes of this Paragraph 2.(b), whether any amount would\n       constitute an Excess  Parachute  Payment and any other  calculations of\n       tax,  e.g.,  Excise Tax, HI Tax,  Income Tax,  etc., or other  amounts,\n       e.g., Base Amount,  Capped Amount, etc., shall be determined by the tax\n       department of the independent  public  accounting firm then responsible\n       for preparing  Southern's  consolidated  federal income tax return, and\n       such calculations or  determinations  shall be binding upon the parties\n       hereto.\n               \n            (c) Welfare  Benefits.  If Ms. Fuller meets the eligibility  \n       requirements of Paragraph 2.(a) hereof and is not otherwise  eligible to \n       receive retiree medical and life insurance  benefits  provided to certain\n       retirees  pursuant to the terms of the  Pension  Plan,  the Group  \n       Health Plan and the Group Life Insurance Plan, she shall be entitled to \n       the benefits set forth in this Paragraph 2.(c).\n               \n                (i) Ms. Fuller shall be eligible to participate for a\n            period  not to exceed  five (5) years in the  Company's  Group\n            Health  Plan,  upon  payment  of both  the  Company's  and her\n            monthly  premium  under  such  plan,  for a period  of six (6)\n            months  for  each of Ms.  Fuller's  Years of  Service.  If Ms.\n            Fuller elects to receive this extended medical  coverage,  she\n            shall  also be  entitled  to elect  coverage  under  the Group\n            Health Plan for her dependents who were  participating  in the\n            Group Health Plan on Ms.  Fuller's  Termination  Date (and for\n            such other dependents as may be entitled to coverage under the\n            provisions   of   the   Health   Insurance   Portability   and\n            Accountability  Act of 1996) for the duration of Ms.  Fuller's\n            extended medical coverage under this Paragraph 2.(c)(i) to the\n            extent such dependents remain eligible for dependent  coverage\n            under the terms of the Group Health Plan.\n\n                     (A) The extended medical  coverage  afforded\n                 to Ms. Fuller pursuant to Paragraph 2.(c)(i), as well\n                 as  the  premiums  to  be  paid  by  Ms.   Fuller  in\n                 connection  with such coverage shall be determined in\n                 accordance  with the terms of the Group  Health  Plan\n                 and shall be subject to any  changes in the terms and\n                 conditions  of the Group  Health  Plan as well as any\n                 future  increases in premiums  under the Group Health\n                 Plan.  The  premiums  to be  paid  by Ms.  Fuller  in\n                 connection  with this extended  coverage shall be due\n                 on the first day of each  month;  provided,  however,\n                 that if she fails to pay her  premium  within  thirty\n                 (30) days of its due  date,  such  extended  coverage\n                 shall be terminated.\n\n                    (B) Any Group Health Plan coverage  provided\n                 under  Paragraph  2.(c)(i) shall be a part of and not\n                 in addition to any COBRA Coverage which Ms. Fuller or\n                 her dependent may elect. In the event that Ms. Fuller\n                 or her dependent  becomes eligible to be covered,  by\n                 virtue  of   re-employment   or  otherwise,   by  any\n                 employer-sponsored  group  health plan or is eligible\n                 for coverage  under any  government-sponsored  health\n                 plan  during  the above  period,  coverage  under the\n                 Company's  Group Health Plan  available to Ms. Fuller\n                 or her  dependent  by  virtue  of the  provisions  of\n                 Paragraph  2.(c)(i)  shall  terminate,  except as may\n                 otherwise  be  required  by  law,  and  shall  not be\n                 renewed. (ii) Ms. Fuller shall be entitled to receive\n                 cash in an amount equal to the Company's  and Ms.  Fuller's\n                 cost of  premiums  for three (3) years of coverage  under \n                 the Group  Health Plan and Group Life Insurance  Plan in \n                 accordance  with the terms of such plans as of the date of \n                 the Change in Control.\n\n         (d) Incentive  Plans.  If Ms. Fuller meets the  eligibility  \n      requirements of Paragraph 2.(a) hereof she shall be entitled to the \n      following benefits under the Company's incentive plans:\n\n             (i) Stock Option Plan.\n                 (A) Any of Ms.  Fuller's  Options  and Stock\n             Appreciation  Rights under the Performance Stock Plan\n             (the defined terms of which are  incorporated in this\n             Paragraph    2.(d)(i)   by   reference)   which   are\n             outstanding as of the Termination  Date and which are\n             not then  exercisable and vested,  shall become fully\n             exercisable  and  vested  to the full  extent  of the\n             original grant; provided, that in the case of a Stock\n             Appreciation  Right,  if Ms.  Fuller  is  subject  to\n             Section   16(b)  of  the  Exchange  Act,  such  Stock\n             Appreciation  Right shall not become fully vested and\n             exercisable  at such time if such action would result\n             in liability to Ms. Fuller under Section 16(b) of the\n             Exchange Act, provided further, that any such actions\n             not taken as a result of the rules of  Section  16(b)\n             of the  Exchange  Act  shall be  effective  as of the\n             first date that such activity  would no longer result\n             in liability under Section 16(b) of the Exchange Act.\n\n                (B)  The    restrictions    and    deferral\n             limitations   applicable  to  any  of  Ms.   Fuller's\n             Restricted  Stock as of the  Termination  Date  shall\n             lapse, and such Restricted Stock shall become free of\n             all  restrictions  and  limitations  and become fully\n             vested  and  transferable  to the full  extent of the\n             original grant.\n\n                 (C) The    restrictions    and    deferral\n             limitations  and other  conditions  applicable to any\n             other Awards held by Ms. Fuller under the Performance\n             Stock Plan as of the  Termination  Date shall  lapse,\n             and  such  other  Awards  shall  become  free  of all\n             restrictions,  limitations  or conditions  and become\n             fully vested and  transferable  to the full extent of\n             the original grant.\n\n             (ii) Performance  Dividend Plan.  Provided Ms. Fuller\n          is not  entitled to benefits  under the  Performance  Dividend\n          Plan  (the  defined  terms of which are  incorporated  in this\n          Paragraph 2.(d)(ii) by reference), if the Performance Dividend\n          Plan is in place through Ms. Fuller's  Termination Date and to\n          the extent Ms. Fuller is entitled to participate  therein, Ms.\n          Fuller  shall be entitled to receive  cash for each Award held\n          by Ms.  Fuller  on  her  Termination  Date,  based  on  actual\n          performance under Section 4.1 of the Performance Dividend Plan\n          determined as of the most recently  completed calendar quarter\n          of the Performance  Period in which the Termination Date shall\n          have occurred,  and the Annual Dividend  declared prior to the\n          Termination Date.\n\n             (iii)  Value  Creation  Plan.  Any  of  Ms.  Fuller's\n          Appreciation Rights or Indexed Rights under the Value Creation\n          Plan  (the  defined  terms of which are  incorporated  in this\n          Paragraph 2.(d)(iii) by reference) which are outstanding as of\n          the  Termination  Date and which are not then  exercisable and\n          vested, shall become fully exercisable and fully vested to the\n          full extent of the original grant. Notwithstanding anything in\n          the Value  Creation  Plan to the  contrary,  Share  Value with\n          respect to any  Appreciation  Rights or Indexed Rights held by\n          Ms.  Fuller  following her  Termination  Date shall be no less\n          than the Share  Value as of the date of the  Change in Control\n          of  Southern  or  SEI,  as  the  case  may  be.  In  addition,\n          notwithstanding   any  provision  in  this  Agreement  to  the\n          contrary,  Ms. Fuller's rights and benefits under the terms of\n          the Value Creation Plan will not be prejudiced by execution of\n          this Agreement.\n\n            (iv) Other Short Term Incentive Plans. The provisions\n          of this Paragraph  2.(d)(iv)  shall apply if and to the extent\n          that Ms.  Fuller is a  participant  in any other  \"short  term\n          compensation  plan\" not  otherwise  previously  referred to in\n          this  Paragraph  2.(d).  Provided Ms.  Fuller is not otherwise\n          entitled  to  a  plan  payout  under  any  change  of  control\n          provisions  of such  plans,  if the \"short  term  compensation\n          plan\" is in place as of the Termination Date and to the extent\n          Ms.  Fuller is entitled to  participate  therein,  Ms.  Fuller\n          shall  receive  cash in an amount equal to her award under the\n          Company's   \"short  term   incentive   plan\"  for  the  annual\n          performance  period in which the  Termination  Date shall have\n          occurred,   at  Ms.  Fuller's  target  performance  level  and\n          prorated by the number of months  which have passed  since the\n          beginning   of  the  annual   performance   period  until  her\n          Termination Date. For purposes of this Paragraph 2.(d)(iv) the\n          term \"short term incentive  compensation  plan\" shall mean any\n          incentive  compensation plan or arrangement adopted in writing\n          by  the  Company   which   provides   for  annual,   recurring\n          compensatory   bonuses  based  upon  articulated   performance\n          criteria.\n\n            (v) DIC Plan.  Provided Ms. Fuller is not entitled to\n          benefits under Article V of the DIC Plan (the defined terms of\n          which  are  incorporated   into  this  Paragraph   2(d)(v)  by\n          reference),  if the DIC Plan is in place through Ms.  Fuller's\n          Termination Date and to the extent that Ms. Fuller is entitled\n          to participate  therein,  any of Ms. Fuller's Awards as of the\n          Termination  Date which are not then vested shall become fully\n          vested and Ms. Fuller shall be entitled to receive cash in the\n          amount  equal to Ms.  Fuller's  Account as of her  Termination\n          Date.   Notwithstanding  anything  in  the  DIC  Plan  to  the\n          contrary,  the investment  return on the Awards  determined in\n          accordance  with Section 3.1 of the DIC Plan for any Plan Year\n          following  a  Change  in  Control  shall  be no less  than the\n          investment return determined in accordance with Section 3.1 of\n          the DIC Plan as of the date of such  Change  in  Control  with\n          respect to those Accounts which are outstanding as of the date\n          of such Change in Control.\n\n             (vi)  Omnibus  Incentive  Compensation  Plan.  In  the  event  \n          of an  initial  public offering of SEI and the adoption of the \n          Southern  Energy,  Inc.  Omnibus  Incentive  Compensation Plan (the\n          \"Omnibus  Plan\"),  Ms.  Fuller's  right to receive  incentive  \n          compensation  under the Omnibus  Plan in the event of a \"change in  \n          control,\"  as defined  therein,  shall be governed by the terms of \n          such Omnibus Plan and the award(s) granted thereunder.\n          \n         (e) Payment of  Benefits.  Any  amounts  due under this  Agreement \n      shall be paid in one (1) lump sum payment as soon as administratively  \n      practicable following the later of: (i) Ms. Fuller's  Termination Date, \n      or (ii) upon Ms. Fuller's tender of an effective Waiver and Release to \n      the Company in the form of Exhibit  A  attached  hereto  and  the  \n      expiration  of  any  applicable revocation  period  for such  waiver.  \n      In the event of a  dispute  with respect  to  liability  or  amount of \n      any  benefit  due  hereunder,  an  effective  Waiver and  Release\n      shall be  tendered at the time of final resolution of any such \n      dispute when payment is tendered by the Company.\n      Effective  May 10,  2000,  if the  Company  fails  or  refuses  to make\n      payments under the  Agreement,  Ms. Fuller may have the right to obtain\n      payment  by SEI  pursuant  to the  terms  of the  \"Guarantee  Agreement\n      Concerning  Southern Energy  Resources,  Inc.  Compensation and Benefit\n      Arrangements\"  entered into by the Company and SEI. Ms.  Fuller's right\n      to payment is not increased as a result of this SEI Guarantee.  She has\n      the same right to payment  from SEI as she would have from the Company.\n      Any demand to enforce this SEI Guarantee  should be made in writing and\n      should  reasonably  and  briefly  specify the manner and the amount the\n      Company has failed to pay. Such writing  given by personal  delivery or\n      mail shall be  effective  upon actual  receipt.  Any  writing  given by\n      telegram  or  telecopier  shall be  effective  upon  actual  receipt if\n      received during SEI's normal business hours, or at the beginning of the\n      next business day after  receipt,  if not received  during SEI's normal\n      business  hours.  All  arrivals  by  telegram  or  telecopier  shall be\n      confirmed  promptly after  transmission in writing by certified mail or\n      personal delivery.\n\n          (f)  Benefits  in the  Event  of  Death.  In the  event of Ms.\n      Fuller's  death  prior to the  payment  of all  amounts  due under this\n      Agreement,  Ms. Fuller's estate shall be entitled to receive as due any\n      amounts  not yet paid  under  this  Agreement  upon the  tender  by the\n      executor  or  administrator  of the estate of an  effective  Waiver and\n      Release.\n\n          (g) Legal Fees.  In the event of a dispute  between Ms. Fuller\n      and the  Company  with  regard to any  amounts  due  hereunder,  if any\n      material  issue in such  dispute is finally  resolved  in Ms.  Fuller's\n      favor,  the Company shall  reimburse Ms.  Fuller's  legal fees incurred\n      with  respect to all issues in such  dispute in an amount not to exceed\n      fifty thousand dollars ($50,000).\n\n          (h) Employee  Outplacement  Services.  Ms.  Fuller shall be eligible \n      to  participate  in the Employee  Outplacement  Program,  which  program \n      shall not be less than six (6) months  duration  measured\n      from Ms. Fuller's Termination Date.\n               \n         (i) Non-qualified  Retirement and Deferred Compensation Plans.\n      The Parties agree that subsequent to a Change in Control, any claims by\n      Ms.  Fuller  for  benefits  under  any of the  Company's  non-qualified\n      retirement  or deferred  compensation  plans shall be resolved  through\n      binding  arbitration  in accordance  with the provisions and procedures\n      set  forth in  Paragraph  5 hereof  and if any  material  issue in such\n      dispute is finally  resolved in Ms. Fuller's  favor,  the Company shall\n      reimburse Ms.  Fuller's legal fees in the manner  provided in Paragraph\n      2.(g) hereof.\n      \n  3. Transfer of Employment. In the event that Ms. Fuller's employment by\nthe  Company is  terminated  during the two year  period  following  a Change in\nControl and Ms. Fuller accepts employment by Southern, a Southern Subsidiary, or\nany employer  that  succeeds to all or  substantially  all of the assets of SEI,\nSouthern or any Southern Subsidiary,  the Company shall assign this Agreement to\nSouthern, such Southern Subsidiary, or successor employer, Southern shall accept\nsuch  assignment  or cause such  Southern  Subsidiary  or successor  employer to\naccept such  assignment,  and such  assignee  shall become the \"Company\" for all\npurposes hereunder.\n\n  4. No  Mitigation.  If Ms. Fuller is otherwise  eligible to receive  benefits\nunder  Paragraph 2 of this Agreement,  she shall have no duty or obligation to \nseek other employment  following her Termination Date and, except as otherwise\nprovided in Paragraph  2.(a)(iii)  hereof,  the amounts due Ms. Fuller  \nhereunder shall not be reduced or suspended if Ms. Fuller accepts such \nsubsequent employment.\n\n  5. Arbitration.\n        (a)  Any  dispute,  controversy  or  claim  arising  out of or\n     relating to the Company's  obligations to pay severance  benefits under\n     this Agreement,  or the breach  thereof,  shall be settled and resolved\n     solely by  arbitration in accordance  with the  Commercial  Arbitration\n     Rules  of  the  American  Arbitration  Association  (\"AAA\")  except  as\n     otherwise  provided  herein.  The  arbitration  shall  be the  sole and\n     exclusive forum for resolution of any such claim for severance benefits\n     and the arbitrators'  award shall be final and binding.  The provisions\n     of this  Paragraph 5 are not  intended to apply to any other  disputes,\n     claims or  controversies  arising out of or  relating  to Ms.  Fuller's\n     employment by the Company or the termination thereof.\n\n        (b) Arbitration  shall be  initiated by serving a written  notice of \n     demand for  arbitration to Ms. Fuller, in the case of the Company, or \n     to the Southern Board, in the case of Ms. Fuller.\n\n        (c) The  arbitration  shall be held in Atlanta,  Georgia.  The\n     arbitrators shall apply the law of the State of Georgia,  to the extent\n     not preempted by federal law, excluding any law which would require the\n     application of the law of another state.\n\n        (d) The parties shall appoint  arbitrators within fifteen (15)\n     business  days  following  service of the demand for  arbitration.  The\n     number of arbitrators shall be three. One arbitrator shall be appointed\n     by Ms. Fuller,  one arbitrator  shall be appointed by the Company,  and\n     the two arbitrators  shall appoint a third.  If the arbitrators  cannot\n     agree on a third arbitrator  within thirty (30) business days after the\n     service  of  demand  for  arbitration,  the third  arbitrator  shall be\n     selected by the AAA.\n\n         (e) The  arbitration  filing fee shall be paid by Ms.  Fuller.\n     All other costs of arbitration shall be borne equally by Ms. Fuller and\n     the Company,  provided,  however, that the Company shall reimburse such\n     fees and costs in the  event  any  material  issue in such  dispute  is\n     finally  resolved in Ms.  Fuller's  favor and Ms.  Fuller is reimbursed\n     legal fees under Paragraph 2.(g) hereof.\n\n         (f) The parties  agree that they will  faithfully  observe the\n     rules that govern any arbitration  between them, they will abide by and\n     perform any award rendered by the arbitrators in any such  arbitration,\n     including  any award of  injunctive  relief,  and a judgment of a court\n     having jurisdiction may be entered upon an award.\n\n         (g) The  parties  agree that  nothing in this  Paragraph  5 is\n     intended to preclude  any court  having  jurisdiction  from issuing and\n     enforcing  in any lawful  manner  such  temporary  restraining  orders,\n     preliminary injunctions, and other interim measures of relief as may be\n     necessary to prevent harm to a party's interests or as otherwise may be\n     appropriate pending the conclusion of arbitration  proceedings pursuant\n     to this Agreement regardless of whether an arbitration proceeding under\n     this  Paragraph 5 has begun.  The parties  further  agree that  nothing\n     herein  shall  prevent any court from  entering  and  enforcing  in any\n     lawful manner such judgments for permanent  equitable  relief as may be\n     necessary to prevent harm to a party's interests or as otherwise may be\n     appropriate  following the issuance of arbitral awards pursuant to this\n     Agreement.\n\n     6. Miscellaneous.\n \n       (a) Funding of Benefits.  Unless the Board,  in its discretion\n     shall  determine  otherwise,  the benefits  payable to Ms. Fuller under\n     this  Agreement  shall not be funded in any manner and shall be paid by\n     the Company out of its general assets,  which assets are subject to the\n     claims of the Company's creditors.\n\n        (b) Withholding.  There  shall be  deducted  from the  payment of any \n     benefit due under this Agreement  the amount of any tax  required by any  \n     governmental  authority to be withheld and paid over by the Company to \n     such governmental authority for the account of Ms. Fuller.\n              \n        (c) Assignment.  Ms. Fuller shall have no rights to sell,  assign,  \n     transfer,  encumber,  or otherwise  convey the right to receive the \n     payment of any benefit  due  hereunder,  which  payment and the\n     rights  thereto are  expressly  declared to be  nonassignable  and  \n     nontransferable.  Any attempt to do so shall be null and void and of no \n     effect.\n                  \n        (d) Amendment  and  Termination.  The  Agreement  may be  amended  \n     or  terminated  only by a writing executed by the parties.\n\n        (e)  Construction.   This  Agreement  shall  be  construed  in\n     accordance  with and  governed by the laws of the State of Georgia,  to\n     the extent not preempted by federal law,  disregarding any provision of\n     law which would require the application of the law of another state.\n\n        (f)  Pooling  Accounting.   Notwithstanding  anything  to  the\n     contrary herein, if, but for any provision of this Agreement,  a Change\n     in  Control   transaction   would  otherwise  be  accounted  for  as  a\n     pooling-of-interests  under APB  No.16  (\"Pooling  Accounting\")  (after\n     giving  effect to any and all other facts and  circumstances  affecting\n     whether   such  Change  in  Control   transaction   would  use  Pooling\n     Accounting,),  such  provision or  provisions of this  Agreement  which\n     would  otherwise  cause  the  Change  in  Control   transaction  to  be\n     ineligible for Pooling Accounting shall be void and ineffective in such\n     a manner  and to the  extent  that by  eliminating  such  provision  or\n     provisions of this Agreement,  Pooling Accounting would be required for\n     such Change in Control transaction.\n\n\n\n\n\n         IN WITNESS WHEREOF,  the parties hereto have executed this Agreement \nthis ____ day of  __________________, 2000.\n                                     \n                                      THE SOUTHERN COMPANY\n\n\n                             By:      ____________________________________\n\n\n                                      SOUTHERN ENERGY RESOURCES, INC.\n\n\n                             By:      ____________________________________\n\n\n                                      SOUTHERN ENERGY, INC.\n\n\n                             By:      ____________________________________\n\n\n                                      MS. FULLER\n\n\n                                      -----------------------------\n                                      \/s\/ Marce Fuller\n                                      S. Marce Fuller\n\n\n\n\n\n\n\nmarcefuller\n25\n\n\n                                    Exhibit A\n\n                           CHANGE IN CONTROL AGREEMENT\n\n                               Waiver and Release\n\n\n         The  attached  Waiver and Release is to be given to Ms. S. Marce Fuller\nupon the occurrence of an event that triggers eligibility for severance benefits\nunder the Change in Control  Agreement,  as described in Paragraph  2(a) of such\nagreement.\n\n\n\n\n\n                           CHANGE IN CONTROL AGREEMENT\n\n                               Waiver and Release\n\n\n         I, S. Marce  Fuller,  understand  that I am  entitled  to  receive  the\nseverance  benefits  described  in Section 2 of the Change in Control  Agreement\n(the \"Agreement\") if I execute this Waiver and Release (\"Waiver\").  I understand\nthat the benefits I will receive  under the  Agreement  are in excess of those I\nwould have received  from The Southern  Company and Southern  Energy  Resources,\nInc. (collectively, the \"Company\") if I had not elected to sign this Waiver.\n\n         I recognize that I may have a claim against the Company under the Civil\nRights Act of 1964 and 1991,  the Age  Discrimination  in  Employment  Act,  the\nRehabilitation  Act of 1973, the Energy  Reorganization Act of 1974, as amended,\nthe Americans with Disabilities Act or other federal, state and local laws.\n\n         In exchange for the benefits I elect to receive,  I hereby  irrevocably\nwaive and release all claims,  of any kind whatsoever,  whether known or unknown\nin connection with any claim which I ever had, may have, or now have against The\nSouthern  Company,  Alabama Power  Company,  Georgia Power  Company,  Gulf Power\nCompany,  Mississippi  Power  Company,  Savannah  Electric  and  Power  Company,\nSouthern Communication Services, Inc., Southern Company Services, Inc., Southern\nEnergy  Resources,  Inc.,  Southern  Company Energy  Solutions,  Inc.,  Southern\nNuclear Operating Company, Inc. and other direct or indirect subsidiaries of The\nSouthern  Company  and their  past,  present  and  future  officers,  directors,\nemployees,  agents and  attorneys.  Nothing in this Waiver shall be construed to\nrelease  claims or causes of action under the Age  Discrimination  in Employment\nAct or the Energy  Reorganization  Act of 1974,  as amended,  which arise out of\nevents occurring after the execution date of this Waiver.\n\n         In further  exchange for the benefits I elect to receive,  I understand\nand agree that I will respect the  proprietary  and  confidential  nature of any\ninformation  I have obtained in the course of my service with the Company or any\nsubsidiary or affiliate of The Southern Company. However, nothing in this Waiver\nshall prohibit me from engaging in protected  activities under applicable law or\nfrom communicating,  either voluntary or otherwise, with any governmental agency\nconcerning any potential violation of the law.\n\n         In signing this Waiver, I am not releasing claims to benefits that I am\nalready entitled to under any workers' compensation laws or under any retirement\nplan or welfare  benefit  plan  within the  meaning of the  Employee  Retirement\nIncome Security Act of 1974, as amended, which is sponsored by or adopted by the\nCompany and\/or any of its direct or indirect subsidiaries; however, I understand\nand  acknowledge  that  nothing  herein is intended to or shall be  construed to\nrequire the Company to  institute or continue in effect any  particular  plan or\nbenefit  sponsored by the Company and the Company  hereby  reserves the right to\namend or terminate any of its benefit  programs at any time in  accordance  with\nthe procedures set forth in such plans.\n\n         In signing  this  Waiver,  I realize  that I am waiving and  releasing,\namong other things,  any claims to benefits under any and all bonus,  severance,\nworkforce reduction, early retirement,  outplacement,  or any other similar type\nplan sponsored by the Company.\n\n         I have been  encouraged  and  advised in writing  to seek  advice  from\nanyone of my choosing  regarding  this Waiver,  including  my  attorney,  and my\naccountant or tax advisor.  Prior to signing this Waiver,  I have been given the\nopportunity and sufficient time to seek such advice,  and I fully understand the\nmeaning and contents of this Waiver.\n\n         I understand  that I may take up to  twenty-one  (21)  calendar days to\nconsider  whether  or not I desire  to enter  this  Waiver.  I was not  coerced,\nthreatened  or otherwise  forced to sign this  Waiver.  I have made my choice to\nsign this Waiver voluntarily and of my own free will.\n\n         I understand that I may revoke this Waiver at any time during the seven\n(7) calendar day period after I sign and deliver this Waiver to the Company.  If\nI revoke  this  Waiver,  I must do so in writing  delivered  to the  Company.  I\nunderstand  that this Waiver is not effective until the expiration of this seven\n(7) calendar day  revocation  period.  I understand  that upon the expiration of\nsuch seven (7) calendar day revocation period this entire Waiver will be binding\nupon me and will be irrevocable.\n\n         I  understand  that by signing  this Waiver I am giving up rights I may\nhave.\n\n         IN WITNESS  WHEREOF,  the undersigned  hereby executes this Waiver \nthis ____ day of  ____________________, in the year _____.\n\n\n                                                  \/s\/ S. Marce Fuller          \n                                                  S. Marce Fuller\n\nSworn to and subscribed to me this\n____ day of ____________, _____.\n\n                                            \nNotary Public\n\nMy Commission Expires:\n\n                                    \n(Notary Seal)\n\n         Acknowledged and Accepted by the Company, as defined in the Waiver.\n\nBy:                                         \n         -----------------------------------\nDate:                                       \n         -----------------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8237,8872],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9539,9551],"class_list":["post-38590","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mirant-corp","corporate_contracts_companies-southern-co","corporate_contracts_industries-utilities__electric","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38590","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38590"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38590"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38590"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38590"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}