{"id":38591,"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-energy4.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"change-in-control-agreement-the-southern-co-southern-energy4","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/change-in-control-agreement-the-southern-co-southern-energy4.html","title":{"rendered":"Change in Control Agreement &#8211; The Southern Co., Southern Energy Inc., Southern Energy Resources Inc. and Raymond Dunlap Hill"},"content":{"rendered":"<pre>                              AMENDED AND RESTATED\n                           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 Mr.\nRaymond Dunlap Hill (\"Mr. Hill\")  (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,  Mr. Hill is the Executive Vice President and Chief  Financial\nOfficer of the Company  which 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 Mr. Hill\ncertain  severance  benefits under certain  circumstances  following a change in\ncontrol (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, which  \nsuperseded the Original  Agreement (the \"Second  Agreement\") to clarify  \nbenefits under this Agreement  related to the Southern Energy Resources, Inc. \nDeferred 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)  \ncertain other 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, the\nparties hereby agree as follows:\n\n     1. Definitions. For purposes of this Agreement, the following terms \n     shall have the following meanings:\n\n           (a) \"Annual  Compensation\"  shall mean Mr.  Hill's  highest  annual\n        base  salary rate for the twelve (12) month\n        period immediately preceding the date of the Change in Control plus \n        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\n        set forth in the Change in Control Benefit Plan  Determination  Policy,\n        as  approved  by the board of  directors  of SEI, as such Policy may be\n        amended from time to time in accordance  with the  provisions  therein.\n        However,  any  amendment to the Policy which causes the  definition  of\n        \"Change in  Control\" to be more  restrictive  than such  definition  in\n        effect on the  Effective  Date  shall  not be taken  into  account  for\n        purposes of this  Agreement,  unless approved by the board of directors\n        of SEI or a compensation  committee thereof and agreed to in writing by\n        Mr. Hill.\n\n          (d) \"COBRA  Coverage\" shall mean any  continuation  coverage to which\n        Mr. Hill or his dependents may be entitled pursuant to Code Section \n        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,  \n        Inc.  Deferred  Incentive  Compensation  Plan or replacement thereto, \n        as 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 \n        established by the Company from time to time for the\n        purpose  of  assisting  participants  covered  by the  plan in  finding\n        employment  outside of the Company  which  provides  for the  following\n        services:\n             (i)  self-assessment,   career   decision  and  goal\n          setting;  \n        \n            (ii)  job market  research  and job sources;\n\n           (iii)  networking  and  interviewing   skills;   \n            (iv)  planning  and  implementation  strategy;  \n             (v)  resume writing, job hunting methods and salary negotiation;\n                  and \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 Mr.  Hill's  express\n        written consent,  after written notice to the Board, and after a thirty\n        (30) day opportunity  for the Board to cure, the continuing  occurrence\n        of any of the following events:\n\n             (i) Inconsistent  Duties.  A meaningful  and  detrimental  \n          alteration in Mr. Hill's  position or in the nature or status of \n          his responsibilities from those in effect immediately prior to the \n          Change in Control;\n\n            (ii) Reduced Salary. A reduction of five percent (5%)\n          or more by the  Company  in either of the  following:  (i) Mr.\n          Hill's annual base salary rate as in effect  immediately prior\n          to the Change in Control  (except  for a less than ten percent\n          (10%),  across-the-board  annual base  salary  rate  reduction\n          similarly  affecting at least ninety-five percent (95%) of the\n          Executive  Employees of the  Company);  or (ii) the sum of Mr.\n          Hill's  annual base  salary  rate plus target  bonus under the\n          Company's  Short Term Plan (except for a less than ten percent\n          (10%),  across-the-board  reduction of annual base salary rate\n          plus  target  bonus  under  the  Short  Term  Plan   similarly\n          affecting at least ninety-five  percent (95%) of the Executive\n          Employees of the Company);\n\n             (iii) Pension and Compensation  Plans. The failure by\n          the Company to continue in effect any pension or  compensation\n          plan or agreement in which Mr. Hill participates or is a party\n          as of the date of the Change in Control or the  elimination of\n          Mr. Hill'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\n          plan 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 by an\n          authorized officer of the Company which provides for periodic,\n          non-discretionary  compensatory  payments  in  the  nature  of\n          bonuses.\n\n            (iv) Relocation. A change in Mr. Hill's work location\n          to a location more than fifty (50) miles from the office where\n          Mr.  Hill is  located  at the time of the  Change in  Control,\n          unless such new work  location is within fifty (50) miles from\n          Mr.  Hill's  principal  place of  residence at the time of the\n          Change in  Control.  The  acceptance,  if any,  by Mr. Hill of\n          employment by the Company at a work location  which is outside\n          the fifty mile  radius set forth in this  Paragraph  1.(k)(iv)\n          shall not be a waiver of Mr. Hill's right to refuse subsequent\n          transfer by the Company to a location which is more than fifty\n          (50) miles from Mr. Hill's principal place of residence at the\n          time of the Change in Control, and such subsequent unconsented\n          transfer shall be \"Good Reason\" under this Agreement; or\n\n              (v) Benefits  and  Perquisites.  The  taking  of any\n          action by the  Company  which  would  directly  or  indirectly\n          materially  reduce the benefits  enjoyed by Mr. Hill under the\n          Company's  retirement,  life  insurance,  medical,  health and\n          accident,  disability,  deferred compensation or savings plans\n          in which Mr. Hill was  participating  immediately prior to the\n          Change in  Control;  or the  failure by the Company to provide\n          Mr.  Hill with the number of paid  vacation  days to which Mr.\n          Hill is  entitled  on the basis of years of  service  with the\n          Company  in  accordance  with the  Company's  normal  vacation\n          policy in effect  immediately  prior to the  Change in Control\n          (except for  across-the-board  plan or vacation policy changes\n          or plan terminations  similarly affecting at least ninety-five\n          percent (95%) of the Executive Employees of the Company).\n           (vi) For purposes of this Paragraph  1.(k),  the term  \"Executive  \n          Employee\" shall mean employees of the Company whose annual base \n          salary is $130,000 or more.\n\n         (l) \"Group  Health  Plan\" shall mean the group health plan  \n       covering Mr. Hill,  as such plan may be amended from time to time.\n\n         (m)  \"Group  Life  Insurance  Plan\"  shall mean the group life\n       insurance  program  covering Mr. Hill, as such plan may be amended from\n       time to time.\n\n         (n) \"Month of Service\"  shall mean any  calendar  month during\n       which Mr.  Hill has  worked  at least  one (1) hour or was on  approved\n       leave of absence while in the employ of the Company or any affiliate or\n       subsidiary of 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 \n       be 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 \n       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       Mr. Hill's  employment by the Company upon the occurrence of any of the \n       following:\n                           \n             (i) The  willful  and  continued  failure by Mr. Hill\n          substantially  to perform his duties  with the Company  (other\n          than  any  such  failure   resulting  from  Mr.  Hill's  Total\n          Disability or from Mr. Hill's retirement or any such actual or\n          anticipated failure resulting from termination by Mr. Hill for\n          Good   Reason)   after  a  written   demand  for   substantial\n          performance is delivered to him by the Southern  Board,  which\n          demand  specifically   identifies  the  manner  in  which  the\n          Southern  Board   believes  that  he  has  not   substantially\n          performed his duties; or\n\n            (ii) The willful engaging by Mr. Hill in conduct that\n          is demonstrably  and  materially  injurious  to the  Company,\n          monetarily or otherwise,  including, but not limited to any of\n          the following:\n\n               (A) any willful act involving  fraud or  dishonesty  in the \n            course of Mr. Hill's  employment by the Company;\n\n               (B) the willful carrying out of any activity\n            or the making of any statement which would materially\n            prejudice or impair the good name and standing of the\n            Company,  SEI, Southern or any Southern Subsidiary or\n            would bring the Company,  SEI,  Southern or any other\n            Southern Subsidiary into contempt,  ridicule or would\n            reasonably shock or offend any community in which the\n            Company, SEI, Southern or such Southern Subsidiary is\n            located;\n\n               (C) attendance  at  work  in  a  state  of\n            intoxication  or otherwise  being found in possession\n            at his 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\n            any person during the course of  employment; or  \n\n               (F)  indictment  of  any  felony  or any misdemeanor \n            involving moral turpitude.\n\n           No act or failure to act by Mr. Hill shall be deemed \"willful\"\n  unless done,  or omitted to be done,  by Mr. Hill not in good faith and\n  without  reasonable  belief that his action or omission was in the best\n  interest of the Company.\n\n           Notwithstanding the foregoing, Mr. Hill shall not be deemed to\n  have been  terminated  for Cause unless and until there shall have been\n  delivered to him a copy of a resolution duly adopted by the affirmative\n  vote of not less than three  quarters of the entire  membership  of the\n  Southern  Board at a meeting of the Southern  Board called and held for\n  such purpose  (after  reasonable  notice to Mr. Hill and an opportunity\n  for him, together with counsel, to be heard before the Southern Board),\n  finding that, in the good faith opinion of the Southern Board, Mr. Hill\n  was  guilty of  conduct  set forth  above in clause (i) or (ii) of this\n  Paragraph 1.(v) and specifying the particulars thereof in detail.\n\n         (w) \"Termination Date\" shall mean the date on which Mr. Hill's\n       employment  with the Company is  terminated;  provided,  however,  that\n       solely for purposes of Paragraph  2.(c) hereof,  the  Termination  Date\n       shall be the effective date of his retirement  pursuant to the terms of\n       the Pension Plan.\n\n         (x) \"Total Disability\" shall mean Mr. Hill's total disability\n     within the meaning of the Pension Plan.\n\n         (y) \"Value  Creation  Plan\"  shall  mean the  Southern  \n     Energy  Resources,  Inc.  Value  Creation  Plan,  or any replacement \n     thereto, as such plans may be amended from time to time.\n\n         (z) \"Waiver and Release\" shall mean the Waiver and Release \n     attached hereto as Exhibit A.\n\n         (aa) \"Year of Service\"  shall mean Mr.  Hill's  Months \n     of Service  divided by twelve (12)  rounded to the nearest\n     whole year,  rounding up if the remaining  number of months is seven (7) \n     or greater and rounding down if the remaining  number of months is less \n     than seven (7). If Mr. Hill has a break in his service with the Company,  \n     he will receive  credit under this Agreement for service prior to the \n     break in service 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 Mr. Hill'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 Mr.  Hill\n     voluntarily  terminates his employment with the Company for Good Reason\n     at any time during the two year  period  following a Change in Control,\n     Mr. Hill 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,  Mr. Hill\n     shall not be eligible to receive  benefits  under this Agreement if Mr.\n     Hill:\n               (i)  voluntarily  terminates his employment  with the\n            Company  for  other  than Good  Reason;  \n\n              (ii)  has his employment terminated by the Company for Cause; \n\n             (iii)  accepts the transfer of his  employment  to Southern,\n            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 Mr.  Hill meets the  eligibility\n     requirements of Paragraph 2.(a) hereof,  he shall be entitled to a cash\n     severance  benefit  in an  amount  equal  to  three  times  his  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 Mr.  Hill an  additional  amount  calculated  by\n     determining the amount of tax under Code Section 4999 that he otherwise\n     would have paid on any Excess  Parachute  Payment  with  respect to the\n     Change in Control and dividing  such amount by a decimal  determined by\n     adding  the tax rate  under  Code  Section  4999  (\"Excise  Tax\"),  the\n     hospital  insurance  tax under  Code  Section  3101(b)  (\"HI  Tax\") and\n     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     Mr. Hill under Code  Section 280G  exceeds  three (3) times Mr.  Hill'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 Mr. Hill's Base Amount,  less all other \"parachute  payments\"\n     (as such term is defined under Code Section 280G) received by Mr. Hill,\n     less one dollar (the \"Capped Amount\"), if the Capped Amount, reduced by\n     I Tax and  Income  Tax,  exceeds  what  otherwise  would have been the\n     severance Amount, reduced by HI Tax, Income Tax and Excise Tax.\n\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     thereto.\n          \n      (c) Welfare  Benefits.  If Mr. Hill meets the  eligibility  requirements  \n     of Paragraph 2.(a) hereof and is no otherwise eligible to receive retiree \n     medical and life insurance benefits provided to certain retirees pursuant\n     to the terms of the Pension Plan, the Group Health Plan and the Group Life\n     Insurance  Plan, he shall be entitled to the benefits set forth in this \n     Paragraph 2.(c).\n                   \n            (i) Mr. Hill 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 his\n          monthly  premium  under  such  plan,  for a period  of six (6)\n          months for each of Mr.  Hill's  Years of Service.  If Mr. Hill\n          elects to receive this  extended  medical  coverage,  he shall\n          also be entitled to elect coverage under the Group Health Plan\n          for his dependents who were  participating in the Group Health\n          Plan on Mr.  Hill's  Termination  Date  (and  for  such  other\n          dependents as may be entitled to coverage under the provisions\n          of the Health Insurance  Portability and Accountability Act of\n          1996) for the duration of Mr. Hill's extended medical coverage\n          under this  Paragraph  2.(c)(i) to the extent such  dependents\n          remain eligible for dependent  coverage under the terms of the\n          Group Health Plan.\n                  (A) The extended medical  coverage  afforded\n               to Mr. Hill pursuant to Paragraph  2.(c)(i),  as well\n               as the premiums to be paid by Mr. Hill in  connection\n               with such coverage  shall be determined in accordance\n               with the terms of the Group  Health Plan and shall be\n               subject to any changes in the terms and conditions of\n               the Group Health Plan as well as any future increases\n               in premiums under the Group Health Plan. The premiums\n               to be  paid  by Mr.  Hill  in  connection  with  this\n               extended  coverage  shall be due on the  first day of\n               each month;  provided,  however,  that if he fails to\n               pay his  premium  within  thirty (30) days of its due\n               date, such extended coverage 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 Mr. Hill or\n               his dependent  may elect.  In the event that Mr. Hill\n               or his 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 Mr. Hill or\n               his   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.\n\n           (ii) Mr. Hill shall be entitled to receive cash in an\n         amount equal to the  Company's and Mr. Hill's cost of premiums\n         for three (3) years of  coverage  under the Group  Health Plan\n         and Group Life Insurance Plan in accordance  with the terms of\n         such plans as of the date of the Change in Control.\n      \n    (d) Incentive  Plans.  \n If Mr. Hill meets the  eligibility  requirements  of  Paragraph  2.(a) hereof \n he shall be entitled to the following benefits under the Company's incentive \n plans:\n           (i) Stock Option Plan.\n              (A)  Any of Mr.  Hill'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 Mr. Hill is subject to Section\n           16(b) of the Exchange  Act,  such Stock  Appreciation\n           Right shall not become fully  vested and  exercisable\n           at such time if such action would result in liability\n           to Mr. Hill under  Section 16(b) of the Exchange Act,\n           provided further,  that any such actions not taken as\n           a  result  of  the  rules  of  Section  16(b)  of the\n           Exchange  Act shall be effective as of the first date\n           that  such   activity   would  no  longer  result  in\n           liability under Section 16(b) of the Exchange Act.\n\n              (B) The    restrictions    and    deferral\n           limitations   applicable   to  any   of  Mr.   Hill'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 Mr. Hill 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 Mr. Hill is\n      not entitled to benefits under the  Performance  Dividend Plan\n      (the defined terms of which are incorporated in this Paragraph\n      2.(d)(ii) by reference),  if the Performance  Dividend Plan is\n      in place through Mr. Hill's Termination Date and to the extent\n      Mr. Hill is entitled to participate therein, Mr. Hill shall be\n      entitled  to receive  cash for each Award held by Mr.  Hill on\n      his  Termination  Date,  based  on  actual  performance  under\n      Section 4.1 of the Performance  Dividend Plan determined as of\n      the  most   recently   completed   calendar   quarter  of  the\n      Performance  Period in which the  Termination  Date shall have\n      occurred,  and  the  Annual  Dividend  declared  prior  to the\n      Termination Date.\n\n         (iii)  Value   Creation   Plan.  Any  of  Mr.  Hill'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      Mr. Hill following his Termination  Date shall be no less than\n      the Share  Value as of the date of the  Change in  Control  of\n      Southern   or  SEI,   as  the  case  may  be.   In   addition,\n      notwithstanding   any  provision  in  this  Agreement  to  the\n      contrary,  Mr. Hill'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  Mr.  Hill is a  participant  in any  other  \"short  term\n      compensation  plan\" not  otherwise  previously  referred to in\n      this  Paragraph  2.(d).  Provided  Mr.  Hill 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      Mr. Hill is entitled to  participate  therein,  Mr. Hill shall\n      receive  cash  in an  amount  equal  to his  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 Mr. Hill's target performance level and prorated\n      by the number of months which have passed since the  beginning\n      of the annual  performance  period until his Termination Date.\n      For purposes of this Paragraph  2.(d)(iv) the term \"short term\n      incentive   compensation   plan\"  shall  mean  any   incentive\n      compensation  plan or  arrangement  adopted  in writing by the\n      Company  which  provides  for annual,  recurring  compensatory\n      bonuses based upon articulated performance criteria.\n\n        (v) DIC Plan.  Provided  Mr. Hill 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  Mr.  Hill's\n      Termination  Date and to the extent  that Mr. Hill is entitled\n      to  participate  therein,  any of Mr.  Hill's Awards as of the\n      Termination  Date which are not then vested shall become fully\n      vested and Mr. Hill shall be  entitled to receive  cash in the\n      amount equal to Mr. Hill's Account as of his Termination Date.\n      Notwithstanding  anything in the DIC Plan to the contrary, the\n      investment  return on the Awards determined in accordance with\n      Section  3.1 of the DIC  Plan for any Plan  Year  following  a\n      Change in Control shall be no less than the investment  return\n      determined in  accordance  with Section 3.1 of the DIC Plan as\n      of the date of such  Change in Control  with  respect to those\n      Accounts  which are  outstanding as of the date of such Change\n      in Control.\n               \n        (vi) Omnibus  Incentive  Compensation  Plan. In the event of \n      an initial  public  offering of SEI and the adoption of the Southern \n      Energy,  Inc. Omnibus Incentive  Compensation Plan (the \"Omnibus Plan\"), \n      Mr. Hill's right to receive  incentive  compensation  under the Omnibus \n      Plan in the event of a \"change in  control,\" as defined  therein,\n      shall be governed by the terms of such Omnibus Plan and the award(s) \n      granted thereunder.\n\n      (e) Payment of Benefits.  Any amounts due under this Agreement shall be \n   paid in one (1) lump sum payment as soon as administratively  practicable \n   following the later of: (i) Mr. Hill's Termination Date, or (ii) upon Mr. \n   Hill's tender of an effective Waiver and Release to the Company in the form \n   of Exhibit A attached hereto and the expiration of any applicable  \n   revocation period for such waiver. In the event of a  dispute  with  respect\n   to  liability  or amount of any benefit  due  hereunder,  an  effective  \n   Waiver  and  Release  shall be tendered  at the time of final  resolution  \n   of any  such  dispute  when payment is tendered by the  Company.  \n   Effective  May 10,  2000,  if the Company fails or refuses to make payments \n   under the Agreement, Mr. Hill may have the right to obtain  payment by SEI  \n   pursuant  to the terms of the \"Guarantee  Agreement  Concerning  Southern \n   Energy Resources,  Inc. Compensation and Benefit  Arrangements\" entered \n   into by the Company and SEI. Mr.  Hill's right to payment is not  increased \n   as a result of this SEI  Guarantee.  He has the same right to payment  \n   from SEI as he would have from the Company.  Any demand to enforce this SEI \n   Guarantee should be made in writing and should reasonably and briefly \n   specify the manner and the amount the Company  has failed to pay.  Such  \n   writing  given by personal  delivery or mail shall be effective upon actual \n   receipt.  Any writing given by telegram or telecopier  shall be effective \n   upon actual receipt if received  during  SEI's  normal  business  hours,  \n   or at the beginning  of the next  business  day after  receipt,  if not  \n   received during  SEI's  normal  business  hours.  All  arrivals  by  \n   telegram or telecopier shall be confirmed promptly after transmission in \n   writing by certified mail or personal delivery.\n            \n      (f) Benefits in the Event of Death. In the event of Mr. Hill's\n   death prior to the payment of all amounts due under this Agreement, Mr.\n   Hill's  estate  shall be entitled to receive as due any amounts not yet\n   paid  under  this   Agreement  upon  the  tender  by  the  executor  or\n   administrator of the estate of an effective Waiver and Release.\n\n      (g) Legal Fees. In the event of a dispute between Mr. Hill and\n   the Company with regard to any amounts due  hereunder,  if any material\n   issue in such  dispute is finally  resolved in Mr.  Hill's  favor,  the\n   Company shall  reimburse Mr. Hill's legal fees incurred with respect to\n   all issues in such  dispute in an amount not to exceed  fifty  thousand\n   dollars ($50,000).\n\n      (h) Employee  Outplacement  Services.  Mr. Hill shall be eligible to  \n   participate  in the Employee  Outplacement Program, which program shall not \n   be less than six (6) months duration measured from Mr. Hill's Termination \n   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   Mr.  Hill  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 Mr.  Hill's  favor,  the Company  shall\n   reimburse  Mr.  Hill's  legal fees in the manner  provided in Paragraph\n   2.(g) hereof.\n   \n  3. Transfer of Employment.  In the event that Mr. Hill's  employment by\nthe  Company is  terminated  during the two year  period  following  a Change in\nControl and Mr. Hill 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 Mr. Hill is otherwise  eligible to receive \nbenefits under Paragraph 2 of this Agreement,  he shall have no duty or \nobligation to seek other  employment  following his  Termination Date and,  \nexcept as otherwise  provided in Paragraph 2.(a)(iii)  hereof,  the amounts  \ndue Mr.  Hill  hereunder  shall not be reduced or  suspended  if Mr.  Hill  \naccepts  such  subsequent 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 Mr.  Hill's\n  employment by the Company or the termination thereof.\n    \n     (b) Arbitration  shall be initiated by serving a written  notice of demand\n  for arbitration  to Mr. Hill, in the case of the Company, or to the Southern \n  Board, in the case of Mr. Hill.\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 Mr. Hill, one arbitrator shall be appointed by the Company,  and the\n  two arbitrators shall appoint a third. If the arbitrators  cannot agree\n  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 Mr. Hill. All\n  other costs of  arbitration  shall be borne equally by Mr. Hill and the\n  Company, provided,  however, that the Company shall reimburse such fees\n  and costs in the event any  material  issue in such  dispute is finally\n  resolved  in Mr.  Hill's  favor and Mr. Hill is  reimbursed  legal fees\n  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     (a) Funding of Benefits.  Unless the Board,  in its discretion\n  shall determine otherwise,  the benefits payable to Mr. Hill under this\n  Agreement  shall not be funded in any  manner  and shall be paid by the\n  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 benefit \n  due under this Agreement the amount of any tax required by any  governmental  \n  authority to be withheld  and paid over by the Company to such  governmental \n  authority for the account of Mr. Hill.\n                  \n     (c) Assignment.  \n  Mr. Hill shall have no rights to sell,  assign,  transfer,  encumber,  or \n  otherwise  convey the right to receive the payment of any benefit due \n  hereunder,  which payment and the rights thereto are expressly  declared to be\n  nonassignable and nontransferable. Any attempt to do so shall be null and void\n  and of no effect.\n                  \n     (d) Amendment and  Termination.  The Agreement  may be amended or\n  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 \nAgreement this ____ day of __________________,______.\n\n                                                            \n                                         THE SOUTHERN COMPANY\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                                         MR. HILL\n\n\n                                         -----------------------------\n                                         \/s\/ Raymond Dunlap Hill\n                                         Raymond Dunlap Hill\n\n\n\n\n\n\nrayhill\n26\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 Mr.  Raymond  Dunlap\nHill upon the  occurrence  of an event that triggers  eligibility  for severance\nbenefits under the Change in Control  Agreement,  as described in Paragraph 2(a)\nof such agreement.\n\n\n\n\n\n                           CHANGE IN CONTROL AGREEMENT\n\n                               Waiver and Release\n\n\n         I, Raymond Dunlap Hill,  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\/ Raymond Dunlap Hill       \n                                                Raymond Dunlap Hill\n                                                \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-38591","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\/38591","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=38591"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38591"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38591"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38591"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}