{"id":39765,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-retention-agreement-southern-energy-resources-llc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-retention-agreement-southern-energy-resources-llc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-retention-agreement-southern-energy-resources-llc.html","title":{"rendered":"Employment Retention Agreement &#8211; Southern Energy Resources LLC"},"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,  L.L.C. (\"SERI\")\nand                          (the \"Employee\") on                   , 2000, to be\n   --------------------------                    ------------------\neffective as of                , 2000 (the \"Effective Date\").\n                ---------------\n\n                              W I T N E S S E T H:\n                               - - - - - - - - - -\n         WHEREAS, the Employee is the            (insert title)     of SERI; and\n                                      -----------------------------\n         WHEREAS, SERI and the Employee  entered  into an  Employment  Retention\nAgreement  on                          , 1999 (the  \"Original  Effective  Date\")\n              ------------------------\n(the \"Original Agreement\"); and\n         WHEREAS, SERI and the Employee subsequently entered into an Amended and\nRestated  Employment  Retention  Agreement on                        (the \"First\n                                              -----------------------\nAmended Agreement\"); and\n         WHEREAS, SERI and the Employee wish to supersede the Original Agreement\nand the First Amended Agreement with this Agreement; and\n         WHEREAS,  this  Agreement  incorporates  the definition of a \"Change in\nControl\" from the Southern Energy Resources, Inc. Change in Control Benefit Plan\nDetermination   Policy,  and  replaces   references  to  Southern  Company  with\nreferences to Southern Energy,  Inc.  (\"Southern Energy\") due to the spin-off of\nSouthern Energy from Southern Company; and\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\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         1.  General  Award.  Subject  to  the  terms  and  conditions  of  this\nAgreement, SERI shall pay to the Employee an amount equal to ______________ (the\n\"Base  Award\") plus an  additional  amount  calculated  as provided in Section 3\nbelow (the \"Value Award\") (collectively referred to as the \"Award Amount\").\n         2. Vesting of Award  Amount.  Payment of the Award Amount is subject to\nEmployee satisfying the following vesting  requirements.  The Award Amount shall\nvest on the earlier of: (1) January 1, 2003 (the \"Vesting Period\"), provided the\nEmployee is then an employee of SERI,  or an affiliate or subsidiary of Southern\nEnergy;  or (2) upon a Change in  Control  as  defined  in the  Southern  Energy\nResources,  Inc. Change in Control Benefit Plan Determination Policy, as amended\nfrom time to time in accordance with the provisions  therein  (collectively  the\n\"Vesting Date\").\n         3. Value Award.  The Value Award shall be calculated by multiplying the\nBase Award times a  percentage  that is equal to the  increase  (expressed  as a\npercentage)  in the Share Value of  Southern  Energy as  determined  on the most\nrecent  Valuation Date preceding the Original  Effective  Date, this Share Value\nconverted in a manner  consistent with the conversion  under the former Southern\nEnergy  Resources,  Inc. Value Creation Plan, as in effect  immediately prior to\nthe termination  thereof (the \"VCP\"), and the increase in this \"converted\" Share\nValue  attributable  to the  increase,  if any, in the common  stock of Southern\nEnergy  as  determined  on the  Vesting  Date.  In the event of  termination  of\nemployment  under Section 6, the Employee,  or his estate in the event of death,\n\n\n\nshall be entitled to a partial  payment of the Value Award (the  \"Partial  Value\nAward\").  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 as of the Vesting  Date or the date of\ntermination  of employment,  whichever is applicable,  is greater than the Share\nValue of Southern  Energy on the Original  Effective  Date. The \"Share Value\" on\nthe Original Effective Date shall be determined under the VCP; the \"Share Value\"\non the Vesting Date or the date of termination  of employment  shall be the fair\nmarket value of the common stock of Southern  Energy on the Valuation Date on or\nimmediately preceding the Vesting Date or the date of termination of employment,\nas applicable.  The \"Valuation Date\" with respect to the Original Effective Date\nshall be  determined  under the VCP;  the  \"Valuation  Date\" with respect to the\nVesting Date or the date of termination of employment  shall be each day the New\nYork Stock Exchange conducts business.\n         4.  Payment of Account Balance. Provided that  the Employee is  then an\nemployee of SERI, or an affiliate or subsidiary of Southern Energy,  SERI  shall\npay to the Employee the value of his Award Amount, in cash, within ten (10) days\nof the Vesting Date.\n         5.  Election to Defer.  If eligible  and  permitted  under the Southern\nEnergy, Inc. Deferred  Compensation Plan for Directors and Select Employees,  by\nwritten election timely filed with the Deferred Compensation Plan Committee, the\nEmployee  may defer all or a portion  of the  amount to be  received  under this\nAgreement,  by having such amount  contributed on his account in accordance with\nthe terms and conditions of such Plan.\n         6. Death,  Permanent  Disability or Termination  Without Cause.  In the\nevent of the Employee's termination of employment with SERI, prior to the payout\nof the Award Amount, for reasons of death,  permanent  disability or termination\nby SERI  without  Cause (as  defined in  Section  7),  SERI shall pay,  within a\n\n\n\nreasonable time after such event, to the Employee, or his estate in the event of\ndeath, the Base Amount and the applicable  Partial Value Amount determined under\nSection 3 as of the date of such termination.\n         7.  Termination  for Cause or Resignation by Employee.  In the event of\nthe  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 SERI; the final conviction of a felony or misdemeanor involving\nmoral turpitude; the carrying out of any activity or the making of any statement\nwhich would  prejudice  the good name and  standing of SERI,  or an affiliate or\nsubsidiary of Southern Energy  (collectively \"SEI Group\") or would bring the SEI\nGroup into contempt,  ridicule or would reasonably shock or offend any community\nin  which  the  SEI  Group  is  located;  a  material  breach  of the  fiduciary\nobligations  owed  by an  officer  and an  employee  to the  SEI  Group;  or the\nEmployee's unsatisfactory performance of the duties and services required by his\nor her  employment  provided  that  SERI has given  the  Employee  notice of his\nunsatisfactory  performance and the actions required on the part of the Employee\nto make such  performance  satisfactory and the Employee has not improved his or\nher performance to a satisfactory level within a ninety (90) day period.\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\n\n\n\nemployment with SERI,  Southern Energy, or its affiliates.  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. 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         9. 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         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         11.  Guarantee  of  Southern  Energy.  If SERI fails or refuses to make\npayments under this Agreement, the Employee may have the right to obtain payment\nby Southern Energy pursuant to the terms of the \"Guarantee  Agreement Concerning\nSouthern Energy Resources,  Inc.  Compensation and Benefit Arrangements\" entered\ninto by SERI  and  Southern  Energy.  The  Employee's  right to  payment  is not\nincreased  as a result of this  Guarantee.  The  Employee  has the same right to\n\n\n\npayment from Southern  Energy as from SERI. Any demand to enforce this Guarantee\nshould be made in writing and should  reasonably and briefly  specify the manner\nand the amount SERI has failed to pay. Such writing  given by personal  delivery\nor mail shall be effective upon actual receipt. Any writing given by telegram or\ntelecopier  shall be effective upon actual receipt if received  during  Southern\nEnergy's  normal  business  hours,  or at the beginning of the next business day\nafter receipt,  if not received during Southern  Energy's normal business hours.\nAll  arrivals  by telegram  or  telecopier  shall be  confirmed  promptly  after\ntransmission in writing by certified mail or personal delivery.\n         12. 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         13. 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 SERI.\n         14. 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 SERI to such governmental authority for the account\nof the Employee.\n         15.  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 Energy  Resources  Employee Savings Plan, or the\nSouthern  Energy  Resources  Pension  Plan.  Distributions  from the  Employee's\nAccount shall not be considered wages,  salaries or compensation under any other\nemployee benefit plan.\n\n\n\n         16.  No Guarantee of Employment. No provision of  this Agreement  shall\nbe construed to  affect in  any  manner the  existing rights of SERI to suspend,\nterminate, alter, modify, whether  or not for Cause, the employment relationship\nof the Employee and SERI.\n         17.  Transfer  of  Employment  to a Southern  Energy  Subsidiary  or an\nAffiliate.  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 another subsidiary or an affiliate of Southern Energy, SERI shall assign this\nAgreement to such  subsidiary or affiliate;  such  subsidiary or affiliate shall\naccept such  assignment  or cause such  affiliate or  subsidiary  to accept such\nassignment;  such assignee shall become \"SERI\" for all purposes  hereunder;  and\nthis Agreement 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 SERI.\n         18.   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         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                                             SOUTHERN ENERGY RESOURCES, INC.\n\n\n                                             By: ______________________________\n\n                                             EMPLOYEE\n\n\n                                             ------------------------------\n                                             [Name of Employee]\nAttest:\n\nBy:                                         \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-39765","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\/39765","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=39765"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39765"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39765"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39765"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}