{"id":38735,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/deferred-compensation-agreement-the-southern-co-southern3.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"deferred-compensation-agreement-the-southern-co-southern3","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/deferred-compensation-agreement-the-southern-co-southern3.html","title":{"rendered":"Deferred Compensation Agreement &#8211; The Southern Co., Southern Energy Resources Inc. and S. Marce Fuller"},"content":{"rendered":"<pre>                        DEFERRED COMPENSATION AGREEMENT\n\n         THIS DEFERRED COMPENSATION AGREEMENT (\"Agreement\") made and entered\ninto by and between The Southern Company (\"Southern\"), Southern Energy\nResources, Inc. (the \"Company\") and S. Marce Fuller (\"Ms. Fuller\").\n\n                                   WITNESSETH:\n\n         WHEREAS, Ms. Fuller is an Officer of the Company;\n\n         WHEREAS, the Company and Southern wish to encourage Ms. Fuller to\nincrease the profitability of the Company and to provide Ms. Fuller an interest\nin the Company's overall profitability, and to provide Ms. Fuller with\nadditional deferred compensation for service she has or will provide the\nCompany;\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.       Retention Bonus.\n\n                  a.       General Nature of Award. Subject to the terms and\n         conditions of this Agreement, the Company shall establish and maintain\n         on behalf of Ms. Fuller an account on the Company's books and records\n         (the \"Account\") which, if Ms. Fuller continues to be an employee of the\n         Company, or any affiliate or subsidiary of Southern (as set forth in\n         Paragraph 4 hereof), shall entitle Ms. Fuller to receive on July 1,\n         2003 (the period from the effective date of the Agreement through July\n         1, 2003 to be referred to as the \"Performance Period\") an amount equal\n         to the then Market Value (as defined below) of the equivalent of Four\n         Hundred Thousand Dollars ($400,000.00) of Market Value of\n\n\n   2\n\n         Southern's common stock deemed to have been purchased as of the\n         effective date of this Agreement, including reinvested dividends\n         thereon, increased, if certain profitability goals are met, by\n         estimated income tax expenses.\n\n                  b.       Investment.\n\n                           (1)      As of the date hereof, the Company shall\n                  credit to Ms. Fuller's Account that number of deemed shares\n                  (including fractional shares) of Southern's common stock\n                  (\"Common Stock\") as shall equal $400,000.00 in Market Value\n                  (as defined herein) determined as of the effective date of\n                  this Agreement (such hypothetical shares to be referred to\n                  herein as the \"Phantom Stock\"). For purposes of this\n                  Agreement, \"Market Value\" shall mean the average closing\n                  price of the Common Stock as reported by the New York Stock\n                  Exchange for the ten trading days immediately preceding the\n                  respective valuation date.\n\n                           (2)      As of the day of each calendar quarter in\n                  which occurs the payment of dividends on Common Stock, there\n                  shall be credited to Ms. Fuller's Account such additional\n                  shares of Phantom Stock (including fractional shares) as\n                  could have been purchased at the Market Value on such day as\n                  follows:\n\n                                    (a)      In the case of cash dividends, such\n                           additional shares of Phantom Stock as could have been\n                           purchased with the dividends payable on the number of\n                           shares of Phantom Stock credited to the Account\n                           immediately prior to the dividend;\n\n                                    (b)      In the case of dividends payable in\n                           property other than cash or Common Stock, such\n                           additional shares of Phantom Stock as could have been\n                           purchased with the fair market value of the property\n                           which would have\n\n\n                                        2\n   3\n\n                           been payable as dividends on the number of shares of\n                           Phantom Stock credited to the Account immediately\n                           prior to the dividend; or\n\n                                    (c)      In the case of dividends payable in\n                           Common Stock, such additional shares of Phantom Stock\n                           as would have been payable on the number of shares of\n                           Phantom Stock credited to the Account immediately\n                           prior to the dividend.\n\n                           (3)      In the event that the number of outstanding\n                  shares of Common Stock is changed through merger,\n                  consolidation, reorganization, recapitalization,\n                  reincorporation, stock split, stock dividend (in excess of 2%)\n                  or other change in the capital structure of Southern without\n                  consideration, or upon the occurrence of any other\n                  extraordinary corporate event involving the Common Stock\n                  causing a reduction in the value of the Common Stock, such as\n                  a corporate spin off or split up, the number of shares of\n                  Phantom Stock credited to the Account shall be proportionately\n                  adjusted by the Company so as to preserve the value of the\n                  Account immediately prior to such event.\n\n                  c.       Vesting of Account. The Market Value of Ms. Fuller's\n         Account shall vest on July 1, 2003 (the \"Vesting Date\"), provided Ms.\n         Fuller is then an employee of the Company, Southern, or an affiliate or\n         subsidiary of Southern.\n\n                  d.       Valuation of Account. The value of Ms. Fuller's\n         Account on any date shall be based on the Market Value on such date\n         multiplied by the number of shares of Phantom Stock then credited to\n         the Account, provided, however, that if the profitability goals\n         established for the Company and for Ms. Fuller by the Chief Executive\n         Officer of Southern have been equaled or exceeded during the\n         Performance Period as set forth on\n\n\n                                       3\n   4\n\n         Exhibit A, and as annually documented on Exhibit B of this Agreement\n         (the \"Profitability Goals\"), the value of the Account shall be\n         increased upon payout to cover Ms. Fuller's federal and state income\n         tax expense as reasonably estimated by the Company for the year of\n         payout (the \"Tax Gross-up\"). Failure to meet the Profitability Goals\n         for the Performance Period shall result in the forfeiture of the Tax\n         Gross-up, provided, however, that the Chief Executive Officer of\n         Southern may, in his sole discretion, determine after the close of the\n         Performance Period, that as a result of overall Company profitability\n         and individual performance during the entire Performance Period, all or\n         a portion of the value of the Tax Gross-up shall nevertheless be paid.\n\n                  e.       Payment of Account Balance. Provided that Ms. Fuller\n         is then an employee of the Company, Southern, or an affiliate or\n         subsidiary of Southern, and, with respect to the Tax Gross-up amount,\n         has also achieved the Profitability Goals, the Company shall pay to Ms.\n         Fuller the value of her Account, and, if applicable, the Tax Gross-up\n         amount, in cash within ten (10) days of the Vesting Date.\n\n                  f.       Election to Defer. By written election filed with\n         Southern's Vice President, Human Resources no less than thirteen (13)\n         months prior to the Vesting Date, Ms. Fuller may defer all or a portion\n         of the amount to be received under this Agreement by having such amount\n         contributed on her account to The Southern Company Deferred\n         Compensation Plan, in accordance with the terms and conditions of such\n         Plan.\n\n                  g.       Death, Permanent Disability, Termination Without\n         Cause, Termination for Good Reason, or Continued Employment Following a\n         Change in Control. In the event of Ms. Fuller's termination of\n         employment with the Company prior to the payout of the value of the\n         Account for reasons of death, permanent disability, termination by the\n         Company\n\n\n                                       4\n   5\n\n         without Cause, or termination of employment by Ms. Fuller for Good\n         Reason following a Change in Control, or, if prior to the payout of the\n         value of the Account Ms. Fuller continues employment with the Company,\n         any Southern Subsidiary, or any employer that succeeds to all or\n         substantially all of the assets of the Company, Southern, or any\n         Southern Subsidiary following a Change in Control, the Company shall\n         pay to Ms. Fuller, or her estate in the event of death, the value of\n         the Account determined as of the date of such termination or Change in\n         Control, plus, if the Profitability Goals have been met as of such\n         date, the Tax Gross-up amount. For purposes of this Paragraph 1.g., the\n         terms Cause, Change in Control, Good Reason, and Southern Subsidiary\n         shall have the meaning set forth in that certain Change in Control\n         Agreement, dated June 17, 1999, as amended from time to time, between\n         Southern, the Company and Ms. Fuller (the \"Change in Control\n         Agreement\"), the defined terms of which are incorporated in this\n         Paragraph 1.g. by reference thereto.\n\n                  h.       Assignability. Neither Ms. Fuller, her estate, her\n          beneficiaries, nor her legal representative shall have any rights to\n          commute, sell, assign, transfer or otherwise convey the right to\n          receive the payment under this Paragraph 1, which payment and the\n          rights thereto are expressly declared to be nonassignable and\n          nontransferable. Any attempt to assign or transfer the right to such\n          payment shall be void and have no effect.\n\n         2.       Publicity; No Disparaging Statement. Except as otherwise\nprovided in Paragraph 5 hereof, Ms. Fuller, Southern and the Company covenant\nand agree that they shall not engage in any communications which shall disparage\none another or interfere with their existing or prospective business\nrelationships.\n\n\n                                       5\n   6\n\n         3.       Non-Disclosure.\n\n                  a.       Definitions. For purposes of this Paragraph 3, the\n         following terms shall have the following meanings:\n\n                           (1)      \"Entity\" shall mean any business,\n                  individual, partnership, joint venture, agency, governmental\n                  subdivision, association, firm, corporation or other entity.\n\n                           (2)      \"Affiliate\" shall mean the following\n                  Entities: (a) any Entity which owns an Interest (as defined\n                  below) in the Company either directly or indirectly through\n                  any other Entity, (b) any Entity an Interest in which is owned\n                  directly or indirectly by any Entity which owns directly or\n                  indirectly an Interest in the Company or (c) any Entity in\n                  which the Company owns an Interest either directly or\n                  indirectly through any other Entity. For purposes of this\n                  Agreement, the term \"Interest\" shall include any equity\n                  interest in an Entity in an amount equal to or greater than\n                  30% of the Entity's total outstanding equity interests.\n\n                           (3)      \"Confidential Information\" shall mean\n                  proprietary and confidential data or information other than\n                  Trade Secrets (as defined below), which is valuable to, and\n                  related to the business of, the Company, its Affiliates or\n                  non-affiliated Entities with whom the Company or its\n                  Affiliates has or have business relationships (collectively,\n                  \"Third Parties\"), and the details of which are generally\n                  unknown to the public or to the Company's competitors,\n                  including, without limitation, information regarding the\n                  Company's employees, business strategies, models and systems,\n                  customers, suppliers, partners and affiliates, gained by Ms.\n                  Fuller as a result of her affiliation with the Company or its\n                  Affiliates, and other\n\n\n                                       6\n   7\n\n                  items that the Company or its Affiliates may from time to time\n                  mark or otherwise identify as confidential.\n\n                           (4)      \"Trade Secrets\" shall mean information of or\n                  related to the Company, its Affiliates or Third Parties which\n                  (a) derives economic value, actual or potential, from not\n                  being generally known to, and not being readily ascertainable\n                  by proper means by, other persons who can obtain economic\n                  value from its disclosure or use; and (b) is the subject of\n                  efforts that are reasonable under the circumstances to\n                  maintain its secrecy; it being agreed that such information\n                  includes, without limitation, technical and non-technical\n                  data, a formula, a pattern, a compilation, a program, a\n                  device, a method, a technique, a drawing, a process, financial\n                  data, financial plans, product plans or a list of actual or\n                  potential customers or suppliers.\n\n                           (5)      \"Intellectual Property\" shall mean all work\n                  product, property, data, documentation, \"know-how\", concepts\n                  or plans, inventions, discovery, compositions, innovations,\n                  computer programs, improvements, techniques, processes,\n                  designs, article of manufacture or information of any kind, or\n                  any new or useful improvements of any of the foregoing and any\n                  Trade Secrets, patents, copyrights, Confidential Information,\n                  mask work, trademark or service mark, relating in any way to\n                  the Company or its Affiliates and its or their business\n                  prepared, conceived, revised, discovered, developed, or\n                  created by Ms. Fuller for the Company or its Affiliates or by\n                  using the Company's or its Affiliates' time, personnel,\n                  facilities, equipment, knowledge, information, resources, or\n                  material.\n\n\n                                       7\n   8\n\n                  b.       Nondisclosure; Ownership of Proprietary Property.\n\n                           (1)      Nondisclosure. In recognition of the\n                  Company's need to protect its legitimate business interests,\n                  Ms. Fuller hereby acknowledges that she has been given access\n                  to valuable Trade Secrets and Confidential Information; and\n                  she hereby covenants and agrees that she will use the Trade\n                  Secrets and Confidential Information for the Company's\n                  business purposes only, and that she will not for any reason,\n                  in any fashion, form or manner, other than as instructed by a\n                  duly authorized representative of the Company, copy, disclose,\n                  disseminate, communicate, transfer or otherwise convey to any\n                  Entity any item: (a) which is a Trade Secret, for so long as\n                  such item remains a trade secret under applicable law; or (b)\n                  which is Confidential Information, other than Trade Secrets,\n                  for a period of three (3) years from her termination.\n\n                           (2)      Notification of Unauthorized Disclosure. Ms.\n                  Fuller shall exercise her best efforts to ensure the continued\n                  confidentiality of all Trade Secrets and Confidential\n                  Information known by, disclosed or made available to her. She\n                  shall immediately notify the Company of any unauthorized\n                  disclosure or use of any Trade Secrets or Confidential\n                  Information of which she becomes aware. Ms. Fuller shall\n                  assist the Company, to the extent necessary, in the\n                  procurement or protection of the Company's or its Affiliates'\n                  rights to or in any Intellectual Property, Trade Secrets or\n                  Confidential Information and, upon the Company's request,\n                  shall assist, to the extent necessary, in the procurement or\n                  protection of any Third Party's rights to or in any\n                  Intellectual Property, Trade Secrets or Confidential\n                  Information.\n\n\n                                       8\n   9\n\n                           (3)      Ownership. To the greatest extent possible,\n                  any and all Intellectual Property shall be deemed to be \"work\n                  made for hire\" (as defined in the Copyright Act, 17 U.S.C.A.\n                  ss.ss. 101 et seq.), and Ms. Fuller hereby unconditionally and\n                  irrevocably transfers and assigns to the Company or its\n                  Affiliates all rights, title and interest she currently has or\n                  in the future may have by operation of law or otherwise in or\n                  to any Intellectual Property, including, without limitation,\n                  all patents, copyrights, trademarks, service marks and other\n                  Intellectual Property rights and agrees that the Company or\n                  its Affiliates shall have the exclusive world-wide ownership\n                  of such Intellectual Property, and that no Intellectual\n                  Property shall be treated as or deemed to be a \"joint work\"\n                  (as defined by the Copyright Act) of Ms. Fuller and the\n                  Company, its Affiliates or otherwise. Ms. Fuller agrees to\n                  execute and deliver to the Company or its Affiliates any\n                  transfers, assignments, documents or other instruments which\n                  the Company or its Affiliates may deem necessary or\n                  appropriate to vest complete title and ownership of any\n                  Intellectual Property, and all rights therein, exclusively in\n                  the Company or its Affiliates, as the case may be.\n\n                           (4)      Return of Materials. Upon Ms. Fuller's\n                  termination, or at any point after that time upon the specific\n                  request of the Company, she shall return to the Company all\n                  written or descriptive materials of any kind belonging or\n                  relating to the Company or its Affiliates, including, without\n                  limitation, any Intellectual Property, Confidential\n                  Information and Trade Secrets, in her possession.\n\n         4.       Transfer of Employment to Southern or a Southern Subsidiary or\nAffiliate. In the event that Ms. Fuller's employment by the Company is\nterminated and she shall become\n\n\n                                       9\n   10\n\nimmediately re-employed by Southern or a subsidiary or an affiliate of Southern,\nthe Company shall assign this Agreement to Southern or such subsidiary or\naffiliate, Southern shall accept such assignment or cause such affiliate or\nsubsidiary to accept such assignment, such assignee shall become the \"Company\"\nfor all purposes hereunder, and the profitability goals set forth on Exhibit A\nhereof shall be amended to appropriately reflect the performance of such\nassignee. In the event of such assignment, the expense of this Agreement shall\nbe shared pro rata by the Company and any such assignee based upon the number of\nmonths after the effective date of this Agreement that Ms. Fuller is employed by\nthe Company, and\/or Southern and\/or such affiliate or subsidiary of Southern, as\nthe case may be.\n\n         5.       Confidentiality and Legal Process. Ms. Fuller represents and\nagrees that she will keep the terms, amount and fact of this Agreement\nconfidential and that she will not hereafter disclose any information concerning\nthis Agreement to any one other than her personal agents, including, but not\nlimited to, any past, present, or prospective employee or applicant for\nemployment with Company. Notwithstanding the foregoing, nothing in this\nAgreement is intended to prohibit Ms. Fuller from performing any duty or\nobligation that shall arise as a matter of law. Specifically, Ms. Fuller shall\ncontinue to be under a duty to truthfully respond to matter of law.\nSpecifically, Ms. Fuller shall continue to be under a duty to truthfully respond\nto any legal and valid subpoena or other legal process. This Agreement is not\nintended in any way to proscribe Ms. Fuller's right and ability to provide\ninformation to any federal, state or local government in the lawful exercise of\nsuch governments' governmental functions.\n\n\n                                       10\n   11\n\n         6.       Successors And Assigns; Applicable Law. Except as otherwise\nprovided in Paragraph l.h., this Agreement shall be binding upon and inure to\nthe benefit of Ms. Fuller and her heirs, administrators, representatives,\nexecutors, successors and assigns, and shall be binding upon and inure to the\nbenefit of Southern, the Company and their officers, directors, employees,\nagents, shareholders, parent corporation and affiliates, and their respective\npredecessors, successors, assigns, heirs, executors and administrators and each\nof them, and to their heirs, administrators, representatives, executors,\nsuccessors and assigns. This Agreement shall be construed and interpreted in\naccordance with the laws of the State of Georgia, United States of America\n(without giving effect to principles of conflicts of laws).\n\n         7.       Complete Agreement. This Agreement shall constitute the full\nand complete Agreement between the parties concerning its subject matter and\nfully supersedes any and all other prior Agreements or understandings between\nthe parties concerning the subject matter hereof. This Agreement shall not be\nmodified or amended except by a written instrument signed by both Ms. Fuller and\nan authorized representative of Southern and the Company.\n\n         8.       Severability. The unenforceability or invalidity of any\nparticular provision of this Agreement shall not affect its other provisions,\nand to the extent necessary to give such other provisions effect, they shall be\ndeemed severable.\n\n         9.       Waiver Of Breach; Specific Performance. The waiver of a\nbreach of any provision of this Agreement shall not operate or be construed as a\nwaiver of any other breach. Each of the parties to this Agreement will be\nentitled to enforce its or her rights under this Agreement, specifically, to\nrecover damages by reason of any breach of any provision of this Agreement and\nto exercise all other rights existing in its or her favor. The parties hereto\nagree and acknowledge that money damages may not be an adequate remedy for any\nbreach of the provisions of this Agreement\n\n\n                                       11\n   12\n\nand that any party may in its or her sole discretion apply to any court of law\nor equity of competent jurisdiction for specific performance or injunctive\nrelief in order to enforce or prevent any violations of the provisions of this\nAgreement.\n\n         10.      Unsecured General Creditor. The Company shall neither reserve\nnor specifically set aside funds for the payment of its obligations under this\nAgreement, and such obligations shall be paid solely from the general assets of\nthe Company. Notwithstanding that Ms. Fuller may be entitled to receive the\nvalue of her benefit under the terms and conditions of this Agreement, the\nassets from which such amount may be paid shall at all times be subject to the\nclaims of the Company's creditors.\n\n         11.      No Effect On Other Arrangements. It is expressly understood\nand agreed that the payments made in accordance with this Agreement are in\naddition to any other benefits or compensation to which Ms. Fuller may be\nentitled or for which she may be eligible, whether funded or unfunded, by reason\nof her employment with the Company.\n\n         12.      Tax Withholding. There shall be deducted from each payment\nunder this Agreement the amount of any tax required by any governmental\nauthority to be withheld and paid over by the Company to such governmental\nauthority for the account of Ms. Fuller.\n\n         13.      Compensation. Any compensation contributed on behalf of Ms.\nFuller under this Agreement shall not be considered \"compensation,\" as the term\nis defined in The Southern Company Employee Savings Plan, The Southern Company\nEmployee Stock Ownership Plan, The Southern Company Performance Sharing Plan or\nThe Southern Company Pension Plan. Payments under this Agreement shall not be\nconsidered wages, salaries or compensation under any other employee benefit\nplan.\n\n\n                                       12\n   13\n\n         14.      No Guarantee of Employment. No provision of this Agreement\nshall be construed to affect in any manner the existing rights of the Company to\nsuspend, terminate, alter, modify, whether or not for cause, the employment\nrelationship of Ms. Fuller and the Company.\n\n         IN WITNESS WHEREOF, this Agreement has been executed by the parties\nfirst listed above, effective this 5th day of October, 1999.\n\n                                        THE SOUTHERN COMPANY\n\n\n                                    By: \/s\/ A.W. Dahlberg\n                                        ------------------------------------\n\n                                        SOUTHERN ENERGY RESOURCES, INC.\n\n\n                                    By: \/s\/ V.N. Booker               \n                                        ------------------------------------\n\n                                        Ms. Fuller\n\n\n                                        \/s\/ S. Marce Fuller \n                                        ------------------------------------\n\n\n                                       13\n   14\n\n                                    EXHIBIT A\n                         DEFERRED COMPENSATION AGREEMENT\n                         SCHEDULE OF PROFITABILITY GOALS\n                             FOR PERFORMANCE PERIOD\n\n         The Company shall achieve a Corporate Performance Factor under the\nSouthern Energy Resources, Inc. Short Term Incentive Plan of at least 1.0 for\neach of the calendar years 2000, 2001 and 2002 and an average of 1.5 for such\nthree-year period.\n\n           Achievement of the goals shall be assessed annually by the Chief\nExecutive Officer of Southern and documented in Exhibit B of this Agreement.\n\n\n                                       14\n   15\n\n                                    EXHIBIT B\n                         DEFERRED COMPENSATION AGREEMENT\n                   ANNUAL DOCUMENTATION OF PROFITABILITY GOALS\n                             FOR PERFORMANCE PERIOD\n\n\n                                       15\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8237],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9539,9544],"class_list":["post-38735","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-mirant-corp","corporate_contracts_industries-utilities__electric","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38735","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=38735"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38735"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38735"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38735"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}