{"id":38815,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employee-retention-agreement-mirant-services-llc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employee-retention-agreement-mirant-services-llc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employee-retention-agreement-mirant-services-llc.html","title":{"rendered":"Employee Retention Agreement &#8211; Mirant Services LLC"},"content":{"rendered":"<pre>                          FORM OF AMENDED AND RESTATED\n                         EMPLOYMENT RETENTION AGREEMENT\n                             FOR MIRANT SERVICES LLC\n\n\n         This Amended and Restated Employment Retention Agreement (\"Agreement\")\nis made and entered into by and between Mirant Services LLC (the \"Company\") and\n__________________________ (the \"Employee\") on ______________, 2001, to be\neffective as of ______________.\n\n                              W I T N E S S E T H:\n\n         WHEREAS, the Employee is an employee of the Company or another Mirant \nSubsidiary; and\n\n         WHEREAS, the Company and the Employee entered into an Employment\nRetention Agreement (the \"Original Agreement\") effective as of December 9, 1999;\nand\n\n         WHEREAS, the Company and the Employee subsequently entered into an\nAmended and Restated Employment Retention Agreement on January 7, 2000 (the\n\"First Amended Agreement\"); and\n\n         WHEREAS, in acknowledgement of the spin-off of Mirant Corporation from\nSouthern Company, and the conversion of awards under the former Southern Energy\nResources, Inc. Value Creation Plan into phantom units of Mirant common stock,\nthe Company and the Employee wish to supersede the Original Agreement and the\nFirst Amended Agreement and any other amendments to such agreements with this\nAgreement; and\n\n         WHEREAS, the Company wishes to continue to encourage the Employee to\nremain with the Company and to provide the Employee with an interest in the\nCompany's overall profitability.\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 \nshall have the following meanings:\n\n          (a)  \"Award  Amount\"  shall mean the  retention  award  payable to the\n               Employee pursuant to Section 3 of this Agreement.\n\n          (b)  \"Change in  Control\"  shall have the  meaning of such term as set\n               forth in the Change in Control Benefit Plan Determination Policy.\n\n\n\n          (c)  \"Change in Control Benefit Plan Determination  Policy\" shall mean\n               the   Mirant   Corporation   Change  in  Control   Benefit   Plan\n               Determination  Policy,  as approved by the Board of  Directors of\n               Mirant,  as  such  policy  may be  amended  from  time to time in\n               accordance with the provisions therein.\n\n          (d)  \"Company\"  shall mean Mirant  Services  LLC, its  successors  and\n               assigns.\n\n          (e)  \"Disability\"  shall have the meaning of such term as set forth in\n               the Change in Control Benefit Plan Determination Policy.\n\n          (f)  \"Effective  Date\"  shall  mean  the  date  of  execution  of this\n               Agreement, unless otherwise provided herein.\n\n          (g)  \"Fair  Market  Value\" of the Mirant  Common  Stock,  on any date,\n               means the closing  sales price on the New York Stock  Exchange on\n               such  date as  reported  in the Wall  Street  Journal  or, in the\n               absence of reported  sales on such date,  the closing sales price\n               on the immediately preceding date on which sales were reported.\n\n          (h)  \"Mirant\" shall mean Mirant Corporation,  a Delaware  corporation,\n               its successors and assigns.\n\n          (i)  \"Mirant Common Stock\" shall mean the $0.01 par value common stock\n               of Mirant.\n\n          (j)  \"Mirant  Subsidiary\"  shall have the  meaning of such term as set\n               forth in the Change in Control Benefit Plan Determination Policy.\n\n          (k)  \"Mirant Stock Unit\" means a  hypothetical  unit of value equal to\n               the Fair Market  Value of one share of Mirant  Common  Stock from\n               time to time.  Mirant Stock Units are recorded in book entry form\n               only,  and are credited to the Employee as described in Section 2\n               of this Agreement.\n\n          (l)  \"Termination for Cause\" or \"Cause\" shall have the meaning of such\n               term  as  set  forth  in  the  Change  in  Control  Benefit  Plan\n               Determination Policy.\n\n          (m)  \"Value  Creation  Plan\" or \"VCP\"  shall mean the former  Southern\n               Energy  Resources,   Inc.  Value  Creation  Plan,  as  in  effect\n               immediately prior to the termination thereof.\n\n          (n)  Vesting  Date\"  shall mean the  earliest  of (i) January 1, 2003,\n               (ii)  the  occurrence  of a  Change  in  Control,  or  (iii)  the\n               termination of Employee's  employment with the Company or another\n               Mirant  Subsidiary  due to the  Employee's  death,  Disability or\n               termination by the employer without Cause.\n\n                                       2\n\n\n         2. Conversion of Awards under the Value Creation Plan. Employee's\nawards under the Value Creation Plan, as outstanding immediately prior to the\ntermination of the VCP, have been converted to 6,483.5 Mirant Stock Units for\npurposes of calculating the Award Amount under Section 3 of this Agreement.\n\n         3. Payment of Award Amount. Provided the Employee shall have remained\nas an employee of the Company or another Mirant Subsidiary from the Effective\nDate to the Vesting Date, the Company shall pay to the Employee or his estate in\ncash, within thirty (30) days after the Vesting Date, an amount equal to the\ngreater of $100,000 or the product of (i) the number of Mirant Stock Units\ncredited to the Employee under this Agreement, times (ii) the Fair Market Value\nof one share of Mirant Common Stock as of the Vesting Date.\n\n         4. Election to Defer. If eligible and permitted under the Mirant\nCorporation Deferred Compensation Plan for Directors and Select Employees, by\nwritten election timely filed with the administrator of such plan, the Employee\nmay defer all or a portion of the amount payable under this Agreement in\naccordance with the terms and conditions of such plan.\n\n         5. Termination for Cause or Resignation by Employee. In the event of\n(i) the Employee's Termination for Cause, (ii) the Employee's resignation for\nany reason, or (iii) the Employee's retirement, prior to the Vesting Date, the\nEmployee shall forfeit the entire Award Amount and the Company shall have no\nfurther obligations with respect to any amount under this Agreement.\n\n         6. Confidentiality and Legal Process. The Employee represents and\nagrees that he will keep the terms, amount and fact of this Agreement\nconfidential and that he will not hereafter disclose any information concerning\nthis Agreement to anyone other than his personal agents, including, but not\nlimited to, any past, present, or prospective employee or applicant for\nemployment with the Company or any Mirant Subsidiary. Notwithstanding the\nforegoing, nothing in this Agreement is intended to prohibit the Employee from\nperforming any duty or obligation that shall arise as a matter of law.\nSpecifically, the Employee shall continue to be under a duty to truthfully\nrespond to matters of law and shall continue to be under a duty to truthfully\nrespond to any legal and valid subpoena or other legal process. This Agreement\nis not intended in any way to proscribe the Employee's right and ability to\nprovide information to any federal, state or local government in the lawful\nexercise of such government's governmental functions.\n\n         7. Assignability. Neither the Employee, his estate, his beneficiaries,\nnor his legal representative shall have any rights to commute, sell, assign,\ntransfer or otherwise convey the right to receive any payments hereunder, which\npayments and the rights thereto are expressly declared to be nonassignable and\nnontransferable. Any attempt to assign or transfer the right to payments of this\nAgreement shall be void and have no effect.\n\n                                       3\n\n\n         8. Unsecured General Creditor. Unless the Company shall in its \ndiscretion determine otherwise, the benefits payable to the Employee under this \nAgreement shall not be funded in any manner and shall be paid by the Company out\nof its general assets, which assets are subject to the claims of the Company's \ncreditors.\n\n         9. Guarantee of Mirant. If the Company fails or refuses to make\npayments under this Agreement, the Employee may have the right to obtain payment\nby Mirant pursuant to the terms of the \"Guarantee Agreement Concerning Mirant\nServices LLC Compensation and Benefit Arrangements\" entered into by the Company\nand Mirant. The Employee's right to payment is not increased as a result of this\nGuarantee. The Employee has the same right to payment from Mirant as from the\nCompany. Any demand to enforce this Guarantee should be made in writing and\nshould reasonably and briefly specify the manner and the amount the Company has\nfailed to pay. Such writing given by personal delivery or mail shall be\neffective upon actual receipt. Any writing given by telegram or telecopier shall\nbe effective upon actual receipt if received during Mirant's normal business\nhours, or at the beginning of the next business day after receipt, if not\nreceived during Mirant's normal business hours. All arrivals by telegram or\ntelecopier shall be confirmed promptly after transmission in writing by\ncertified mail or personal delivery.\n\n         10. Amendment; Modification; Termination. Except as otherwise provided \nherein, this Agreement may be amended, modified, or terminated only by a writing\nexecuted by the parties hereto.\n\n         11. No Effect On Other Arrangements. It is expressly understood and\nagreed that the payments made in accordance with this Agreement are in addition\nto any other benefits or compensation to which the Employee may be entitled or\nfor which he may be eligible, whether funded or unfunded, by reason of his\nemployment with the Company.\n\n         12. Tax  Withholding. There shall be deducted from each payment under \nthis Agreement the amount of any tax required by any governmental authority to \nbe withheld and paid over by the Company to such governmental authority for the \naccount of the Employee.\n\n         13. Compensation. Any compensation contributed on behalf of the\nEmployee under this Agreement shall not be considered \"compensation\", as the\nterm is defined in the Mirant Services LLC Employee Savings Plan, or the Mirant\nServices LLC Pension Plan. Payment of the Award Amount to the Employee shall not\nbe considered wages, salaries or compensation under any other employee benefit\nplan.\n\n         14. No Guarantee of Employment. No provision of this Agreement shall be\nconstrued to affect in any manner the existing rights of the Company to suspend,\nterminate, alter, modify, whether or not for Cause, the employment relationship \nof the Employee and the Company.\n\n                                       4\n\n\n         15. Transfer of Employment to Mirant or another Mirant Subsidiary. In\nthe event that the Employee's employment by the Company is terminated prior to\nthe Vesting Date and the Employee shall become immediately re-employed by Mirant\nor another Mirant Subsidiary, the Company shall assign this Agreement to Mirant\nor such Mirant Subsidiary; Mirant or such Mirant Subsidiary shall accept such\nassignment or cause such Mirant Subsidiary to accept such assignment; such\nassignee shall become the \"Company\" for all purposes hereunder; and this\nAgreement shall be amended to appropriately reflect the performance of such\nassignee. In the event of such assignment, the expense of this Agreement shall\nbe the sole responsibility of the Company.\n\n         16. Governing Law. This Agreement, and all its rights under it, shall \nbe governed by and construed in accordance with the laws of the State of \nGeorgia.\n\n         IN WITNESS WHEREOF, this Agreement has been executed by the parties\nfirst listed above on the date first listed above, to be effective as of the\nEffective Date.\n\n                                            MIRANT SERVICES LLC\n\n\n                                            By:      \/s\/                        \n                                               ---------------------------------\n\n\n                                    EMPLOYEE:\n\n\n                                                     \/s\/                        \n                                             -----------------------------------\nAttest:\n\n\nBy:      \/s\/               \n   ------------------------\n\n\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-38815","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\/38815","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=38815"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38815"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38815"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38815"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}