{"id":38816,"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-southern-energy-resources-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employee-retention-agreement-southern-energy-resources-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employee-retention-agreement-southern-energy-resources-inc-and.html","title":{"rendered":"Employee Retention Agreement &#8211; Southern Energy Resources Inc. and Frederick D. Kuester"},"content":{"rendered":"<pre>                              AMENDED AND RESTATED\n                     EMPLOYMENT RETENTION AGREEMENT FOR SERI\n\n         THIS AMENDED AND RESTATED EMPLOYMENT RETENTION AGREEMENT (\"Agreement\")\nmade and entered into by and between Southern Energy Resources, Inc. (\"SERI\")\nand Frederick D. Kuester (the \"Employee\") on January 7, 2000, to be effective as\nof December 9, 1999 (the \"Effective Date\").\n\n                                   WITNESSETH:\n\n         WHEREAS, the Employee is the CEO, Asia of SERI; and\n\n         WHEREAS, SERI and the Employee entered into an Employment Retention\nAgreement on December 9, 1999 (the \"Original Agreement\"); and\n\n         WHEREAS, SERI and the Employee wish to supersede the Original Agreement\nwith this Agreement; and\n\n         WHEREAS, this Agreement clarifies that the Share Value of SERI shall be\nused in the determination of the Value Award and the Partial Value Award; and\n\n         WHEREAS, SERI wishes to continue to encourage the Employee to remain\nwith SERI and to provide the Employee with an interest in SERI's overall\nprofitability.\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.       General Award. Subject to the terms and conditions of this\nAgreement, SERI shall pay to the Employee an amount equal to $100,000 (the \"Base\nAward\") plus an additional\n\n\n   2\n\namount calculated as provided in Section 3 below (the \"Value Award\")\n(collectively referred to as the \"Award Amount\").\n\n         2.       Vesting of Award Amount. Payment of the Award Amount is\nsubject to Employee satisfying the following vesting requirements. The Award\nAmount shall vest on the earlier of: (1) January 1, 2003 (the \"Vesting Period\"),\nprovided the Employee is then an employee of SERI, or an affiliate or subsidiary\nof the Southern Company; or (2) upon a Change of Control as defined in the\nSouthern Company Executive Change in Control Severance Plan (collectively the\n\"Vesting Date\").\n\n         3.       Value Award. The Value Award shall be calculated by\nmultiplying the Base Award times a percentage that is equal to the increase\n(expressed as a percentage) in the Share Value of Southern Energy, Inc.\n(\"Southern Energy\") as determined first on the most recent Valuation Date\npreceding the Effective Date and then again on the most recent Valuation Date\npreceding the Vesting Date. Notwithstanding the above, in the event of\ntermination of employment under Section 6, the Employee, or his estate in the\nevent of death, shall be entitled to a partial payment of the Value Award (the\n\"Partial Value Award\"). The Partial Value Award shall be calculated by\nmultiplying the Base Award by a percentage that is equal to the increase\n(expressed as a percentage) in the Share Value of Southern Energy as determined\nfirst on the most recent Valuation Date preceding the Effective Date and then\nagain on the most recent Valuation Date preceding the date of termination of\nemployment. Notwithstanding the above, the payment of any Value Award or Partial\nValue Award under this Section 3 is expressly conditioned upon the determination\nthat the Share Value of Southern Energy immediately preceding the Vesting Date\nor the date of termination of employment, whichever is applicable, is greater\nthan the Share Value of Southern Energy on the Effective Date. The terms \"Share\nValue\"\n\n\n                                       2\n   3\n\nand \"Valuation Date\" shall have the meaning set forth in the Amended and\nRestated Southern Energy Resources, Inc. Value Creation Plan (the \"SERI Value\nPlan\"), the defined terms of which are incorporated in this Section 3 by\nreference thereto.\n\n         4.       Payment of Account Balance. Provided that the Employee is then\nan employee of SERI, or an affiliate or subsidiary of the Southern Company, SERI\nshall pay to the Employee the value of his Award Amount, in cash, within ten\n(10) days of the Vesting Date.\n\n         5.       Election to Defer. If eligible and permitted under The\nSouthern Company Deferred Compensation Plan, by written election timely filed\nwith the Deferred Compensation Plan Committee, the Employee may defer all or a\nportion of the amount to be received under this Agreement, by having such amount\ncontributed on his account in accordance with the terms and conditions of such\nPlan.\n\n         6.       Death, Permanent Disability or Termination Without Cause. In\nthe event of the Employee's termination of employment with SERI, prior to the\npayout of the Award Amount, for reasons of death, permanent disability or\ntermination by SERI without Cause (as defined in Section 7), SERI shall pay,\nwithin a reasonable time after such event, to the Employee, or his estate in the\nevent of death, the Base Amount and the applicable Partial Value Amount\ndetermined under Section 3 as of the date of such termination.\n\n         7.       Termination for Cause or Resignation by Employee. In the\nevent of the Employee's termination of employment for Cause, or the Employee's\nresignation (which includes the Employee's retirement), prior to the Vesting\nDate, the Employee shall forfeit the entire Award Amount and SERI shall have no\nfurther obligations with respect to any amount under this Agreement. As used in\nthis Agreement, the term \"Cause\" shall mean gross negligence or willful\nmisconduct in the performance of the duties and services required in the course\nof employment by\n\n\n                                       3\n   4\n\nSERI; the final conviction of a felony or misdemeanor involving moral turpitude;\nthe carrying out of any activity or the making of any statement which would\nprejudice the good name and standing of SERI, or an affiliate or subsidiary of\nthe Southern Company (collectively \"Southern\") or would bring Southern into\ncontempt, ridicule or would reasonably shock or offend any community in which\nSouthern is located; a material breach of the fiduciary obligations owed by an\nofficer and an employee to Southern; or the Employee's unsatisfactory\nperformance of the duties and services required by his or her employment\nprovided that SERI has given the Employee notice of his unsatisfactory\nperformance and the actions required on the part of the Employee to make such\nperformance satisfactory and the Employee has not improved his or her\nperformance to a satisfactory level within a ninety (90) day period.\n\n         8.       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 SERI, the Southern Company, or its affiliates. Notwithstanding\nthe foregoing, nothing in this Agreement is intended to prohibit the Employee\nfrom performing 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. Specifically, the Employee shall continue to be under\na duty to truthfully respond to any legal and valid subpoena or other legal\nprocess. This Agreement is not intended in any way to proscribe the Employee's\nright and ability to provide information to any federal, state or local\ngovernment in the lawful exercise of such government's governmental functions.\n\n\n                                       4\n   5\n\n         9.       Assignability. Neither the Employee, his estate, his\nbeneficiaries, nor his legal representative shall have any rights to commute,\nsell, assign, transfer or otherwise convey the right to receive any payments\nhereunder, which payments and the rights thereto are expressly declared to be\nnonassignable and nontransferable. Any attempt to assign or transfer the right\nto payments of this Agreement shall be void and have no effect.\n\n         10.      Unsecured General Creditor. SERI shall neither reserve nor\nspecifically set aside funds for the payment of its obligations under this\nAgreement, and such obligations shall be paid solely from the general assets of\nSERI. Notwithstanding that the Employee may be entitled to receive the Award\nAmount under the terms and conditions of this Agreement, the assets from which\nsuch amount may be paid shall at all times be subject to the claims of SERI's\ncreditors.\n\n         11.      Amendment; Modification; Termination. Except as otherwise\nprovided herein, this Agreement may be amended, modified, or terminated only by\na writing executed by the parties hereto.\n\n         12.      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 the Employee may be\nentitled or for which he may be eligible, whether funded or unfunded, by reason\nof his employment with the SERI.\n\n         13.      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 SERI to such governmental authority\nfor the account of the Employee.\n\n         14.      Compensation. Any compensation contributed on behalf of the\nEmployee under this Agreement shall not be considered \"compensation,\" as the\nterm is defined in The Southern Company Employee Savings Plan, The Southern\nCompany Employee Stock Ownership Plan, The\n\n\n                                       5\n   6\n\nSouthern Company Performance Sharing Plan, or The Southern Company Pension Plan.\nDistributions from the Employee's Account shall not be considered wages,\nsalaries or compensation under any other employee benefit plan.\n\n         15.      No Guarantee of Employment. No provision of this Agreement\nshall be construed to affect in any manner the existing rights of SERI to\nsuspend, terminate, alter, modify, whether or not for Cause, the employment\nrelationship of the Employee and SERI.\n\n         16.      Transfer of Employment to Southern or a Southern Subsidiary or\nan Affiliate. In the event that the Employee's employment by SERI is terminated\nduring the Vesting Period and the Employee shall become immediately re-employed\nby the Southern Company or a subsidiary or an affiliate of the Southern Company,\nSERI shall assign this Agreement to the Southern Company or such subsidiary or\naffiliate; the Southern Company or such subsidiary or affiliate shall accept\nsuch assignment or cause such affiliate or subsidiary to accept such assignment;\nsuch assignee shall become \"SERI\" for all purposes hereunder; and this Agreement\nshall be amended to appropriately reflect the performance of such assignee. In\nthe event of such assignment, the expense of this Agreement shall be the sole\nresponsibility of SERI.\n\n         17.      Governing Law. This Agreement, and all its rights under it,\nshall be governed by and construed in accordance with the laws of the State of\nGeorgia.\n\n\n                                       6\n   7\n\n                  IN WITNESS WHEREOF, this Agreement has been executed by the\nparties first listed above on the date first listed above, to be effective as of\nthe Effective Date.\n\n\n                                             SOUTHERN ENERGY RESOURCES, INC.\n\n                                             By: \/s\/ V N Booker\n                                                --------------------------------\n\n\n                                             EMPLOYEE\n\n\n                                              \/s\/ Frederick D. Kuester\n                                             -----------------------------------\n                                             Frederick D. Kuester\n\nAttest:\n\n\nBy: \/s\/ Ginger M. Sanford\n   ---------------------------\n\n\n                                       7\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-38816","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\/38816","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=38816"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38816"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38816"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38816"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}