\nARTICLE 1. ESTABLISHMENT, OBJECTIVES, AND DURATION……………………………………………….1<\/p>\nARTICLE 2. DEFINITIONS………………………………………………………………………..1<\/p>\n
ARTICLE 3. ADMINISTRATION……………………………………………………………………..6<\/p>\n
ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS………………………………………….7<\/p>\n
ARTICLE 5. ELIGIBILITY AND PARTICIPATION………………………………………………………..8<\/p>\n
ARTICLE 6. STOCK OPTIONS………………………………………………………………………8<\/p>\n
ARTICLE 7. STOCK APPRECIATION RIGHTS…………………………………………………………..10<\/p>\n
ARTICLE 8. RESTRICTED STOCK…………………………………………………………………..11<\/p>\n
ARTICLE 9. PERFORMANCE UNITS, PERFORMANCE SHARES,
\n AND CASH-BASED AWARDS………………………………………………………………12<\/p>\n
ARTICLE 10. PERFORMANCE MEASURES………………………………………………………………14<\/p>\n
ARTICLE 11. BENEFICIARY DESIGNATION……………………………………………………………15<\/p>\n
ARTICLE 12. DEFERRALS………………………………………………………………………..15<\/p>\n
ARTICLE 13. RIGHTS OF EMPLOYEES\/DIRECTORS………………………………………………………15<\/p>\n
ARTICLE 14. CHANGE IN CONTROL AND TERMINATION EVENT……………………………………………..15<\/p>\n
ARTICLE 15. AMENDMENT, MODIFICATION, AND TERMINATION…………………………………………….17<\/p>\n
ARTICLE 16. WITHHOLDING………………………………………………………………………18<\/p>\n
ARTICLE 17. INDEMNIFICATION…………………………………………………………………..19<\/p>\n
ARTICLE 18. SUCCESSORS……………………………………………………………………….19<\/p>\n
ARTICLE 19. GENERAL PROVISIONS………………………………………………………………..19
\n<\/c><\/c><\/s><\/caption>\n<\/table>\n
3<\/p>\n
SOUTHERN ENERGY, INC. OMNIBUS INCENTIVE COMPENSATION PLAN<\/p>\n
ARTICLE 1. ESTABLISHMENT, OBJECTIVES, AND DURATION<\/p>\n
1.1. ESTABLISHMENT OF THE PLAN. Southern Energy, Inc., a Delaware
\ncorporation (hereinafter referred to as the “Company”), hereby establishes an
\nincentive compensation plan to be known as the “Southern Energy, Inc. Omnibus
\nIncentive Compensation Plan” (hereinafter referred to as the “Plan”), as set
\nforth in this document. The Plan permits the grant of Nonqualified Stock
\nOptions, Incentive Stock Options, Stock Appreciation Rights, Restricted Stock,
\nPerformance Shares, Performance Units, and Cash-Based Awards.<\/p>\n
Subject to approval by the Company’s stockholders, the Plan shall
\nbecome effective as of April 17, 2000 (the “Effective Date”) and shall remain
\nin effect as provided in Section 1.3 hereof.<\/p>\n
1.2. OBJECTIVES OF THE PLAN. The objectives of the Plan are to
\noptimize the profitability and growth of the Company through annual and
\nlong-term incentives which are consistent with the Company’s goals and which
\nlink the personal interests of Participants to those of the Company’s
\nstockholders; to provide Participants with an incentive for excellence in
\nindividual performance; and to promote teamwork among Participants.<\/p>\n
The Plan is further intended to provide flexibility to the Company in
\nits ability to motivate, attract, and retain the services of Participants who
\nmake significant contributions to the Company’s success and to allow
\nParticipants to share in the success of the Company.<\/p>\n
1.3. DURATION OF THE PLAN. The Plan shall commence on the Effective
\nDate, as described in Section 1.1 hereof, and shall remain in effect, subject
\nto the right of the Board of Directors to amend or terminate the Plan at any
\ntime pursuant to Article 15 hereof, until all Shares subject to it shall have
\nbeen purchased or acquired according to the Plan’s provisions. However, in no
\nevent may an Award be granted under the Plan on or after April 17, 2010.<\/p>\n
ARTICLE 2. DEFINITIONS<\/p>\n
Whenever used in the Plan, the following terms shall have the meanings
\nset forth below, and when the meaning is intended, the initial letter of the
\nword shall be capitalized:<\/p>\n
2.1. “AFFILIATE” shall mean any Person affiliated with the Company
\n as determined by the Committee.<\/p>\n
2.2. “AWARD” means, individually or collectively, a grant under
\n Plan of Nonqualified Stock Options, Incentive Stock Options,
\n Stock Appreciation Rights, Restricted Stock, Performance
\n Shares, Performance Units, or Cash-Based Awards.<\/p>\n
1
\n 4<\/p>\n
2.3. “AWARD AGREEMENT” means an agreement entered into by the
\n Company and each Participant setting forth the terms and
\n provisions applicable to Awards granted under this Plan.<\/p>\n
2.4. “BASE VALUE” shall mean the Fair Market Value of a Stock
\n Appreciation Right on the date of grant.<\/p>\n
2.5. “BENEFICIAL OWNER” or “BENEFICIAL OWNERSHIP” shall have the
\n meaning ascribed to such term in Rule 13d-3 of the General
\n Rules and Regulations under the Exchange Act.<\/p>\n
2.6. “BOARD” or “BOARD OF DIRECTORS” means the Board of Directors
\n of the Company.<\/p>\n
2.7. “BUSINESS COMBINATION” shall mean a reorganization (except
\n spin-off or initial public offering), merger or consolidation
\n or sale of the Southern Company or sale of all or
\n substantially all of Southern Company’s assets.<\/p>\n
2.8. “CASH-BASED AWARD” means an Award granted to a Participant,
\n as described in Article 9 herein.<\/p>\n
2.9. “CHANGE IN CONTROL” of the Company shall be deemed to have
\n occurred as determined by the Committee and unless specified
\n otherwise in the Award Agreement shall mean a SEI Change of
\n Control until such time that Change in Control is defined
\n differently by the Committee or Board for purposes of this
\n Plan, which change in definition is expected to occur after
\n the spin-off of the Company to holders of the Southern
\n Company shares.<\/p>\n
2.10. “CODE” means the Internal Revenue Code of 1986, as amended
\n from time to time.<\/p>\n
2.11. “COMMITTEE” means the Board or any committee or committees
\n appointed by the Board to administer Awards to Employees, as
\n specified in Article 3 herein. To the extent deemed
\n appropriate by the Board, any such committee may be comprised
\n of Directors who constitute “outside directors” under Code
\n Section 162(m) and “Non-Employee Directors” under Rule 16b-3
\n of the Exchange Act.<\/p>\n
2.12. “COMMON STOCK” shall mean the common stock of the Company.<\/p>\n
2.13. “COMPANY” means Southern Energy, Inc., a Delaware
\n corporation, including any and all Subsidiaries and
\n Affiliates, and any successor thereto as provided in Article
\n 18 herein.<\/p>\n
2.14. “CONSUMMATION” shall mean the completion of the final act
\n necessary to complete a transaction as a matter of law,
\n including, but not limited to, any required approvals by the
\n corporation’s shareholders and board of directors, the<\/p>\n
2
\n 5<\/p>\n
transfer of legal and beneficial title to securities or
\n assets and the final approval of the transaction by any
\n applicable domestic or foreign governments or agencies.<\/p>\n
2.15. “CONTROL” shall mean, in the case of a corporation,
\n Beneficial Ownership of more than 50% of the combined voting
\n power of the corporation’s Voting Securities, or in the case
\n of any other entity, Beneficial Ownership of more than 50% of
\n such entity’s voting equity interests.<\/p>\n
2.16. “COVERED EMPLOYEE” means a Participant who, as of the date of
\n vesting and\/or payout of an Award, as applicable, is one
\n of the group of “covered employees,” as defined in the
\n regulations promulgated under Code Section 162(m), or any
\n successor statute.<\/p>\n
2.17. “DIRECTOR” means any individual who is a member of the Board
\n of Directors of the Company or any Subsidiary or Affiliate;
\n provided, however, that any Director who is employed by the
\n Company or any Subsidiary or Affiliate shall be considered an
\n Employee under the Plan.<\/p>\n
2.18. “DISABILITY” shall have the meaning ascribed to such term in
\n the Participant’s governing long-term disability plan, or if
\n no such plan exists, at the discretion of the Committee.<\/p>\n
2.19. EFFECTIVE DATE” shall have the meaning ascribed to such term
\n in Section 1.1 hereof.<\/p>\n
2.20. “EMPLOYEE” means any employee of the Company or its
\n Subsidiaries or Affiliates. Directors who are employed by the
\n Company shall be considered Employees under this Plan.<\/p>\n
2.21. “EXCHANGE ACT” means the Securities Exchange Act of 1934, as
\n amended from time to time, or any successor act thereto.<\/p>\n
2.22. “FAIR MARKET VALUE” shall be determined on the basis of the
\n opening sale price on the principal securities exchange on
\n which the Shares are traded or, if there is no such sale on
\n the relevant date, then on the last previous day on which a
\n sale was reported; if the Shares are not listed for trading
\n on a national securities exchange, the fair market value of
\n the Shares shall be determined by the Committee in good
\n faith.<\/p>\n
2.23. “FREESTANDING SAR” means an SAR that is granted independently
\n of any Options, as described in Article 7 herein.<\/p>\n
2.24. “GROUP” shall have the meaning ascribed to such term in
\n Section 13(d)(3) or 14(d)(2) of the Exchange Act.<\/p>\n
3
\n 6<\/p>\n
2.25. “INCENTIVE STOCK OPTION” or “ISO” means an option to purchase
\n Shares granted under Article 6 herein and which is designated
\n as an Incentive Stock Option and which is intended to meet
\n the requirements of Code Section 422.<\/p>\n
2.26. “INSIDER” shall mean an individual who is, on the relevant
\n date, an officer, director or ten percent (10%) beneficial
\n owner of any class of the Company’s equity securities that is
\n registered pursuant to Section 12 of the Exchange Act, all as
\n defined under Section 16 of the Exchange Act.<\/p>\n
2.27. “NONQUALIFIED STOCK OPTION” or “NQSO” means an option to
\n purchase Shares granted under Article 6 herein and which is
\n not intended to meet the requirements of Code Section 422.<\/p>\n
2.28. “NORMAL RETIREMENT AGE” means age sixty-five (65) or such
\n other age as the Committee shall determine.<\/p>\n
2.29. “OPTION” means an Incentive Stock Option or a Nonqualified
\n Stock Option, as described in Article 6 herein.<\/p>\n
2.30. “OPTION PRICE” means the price at which a Share may be
\n purchased by a Participant pursuant to an Option.<\/p>\n
2.31. “PARTICIPANT” means an Employee or Director who has been
\n selected to receive an Award or who has outstanding an Award
\n granted under the Plan.<\/p>\n
2.32. “PERFORMANCE-BASED EXCEPTION” means the performance-based
\n exception from the tax deductibility limitations of Code
\n Section 162(m).<\/p>\n
2.33. “PERFORMANCE SHARE” means an Award granted to a Participant,
\n as described in Article 9 herein.<\/p>\n
2.34. “PERFORMANCE UNIT” means an Award granted to a Participant,
\n as described in Article 9 herein.<\/p>\n
2.35. “PERIOD OF RESTRICTION” means the period during which the
\n transfer of Shares of Restricted Stock is limited in some way
\n (based on the passage of time, the achievement of performance
\n goals, or upon the occurrence of other events as determined
\n by the Committee, at its discretion), and the Shares are
\n subject to a substantial risk of forfeiture, as provided in
\n Article 8 herein.<\/p>\n
2.36. “PERSON” shall have the meaning ascribed to such term in
\n Section 3(a)(9) of the Exchange Act and used in Sections
\n 13(d) and 14(d) thereof, including a “group” within the
\n meaning of Section 13(d)(3) or 14(d)(2) thereof.<\/p>\n
2.37. “RESTRICTED STOCK” means an Award granted to a Participant
\n pursuant to Article 8 herein.<\/p>\n
4
\n 7<\/p>\n
2.38. “RETIREMENT” means termination of employment on or after
\n Normal Retirement Age for reasons other than cause, as
\n determined by the Committee.<\/p>\n
2.39. “SEI CHANGE IN CONTROL” shall mean the following:<\/p>\n
(a) The Consummation of an acquisition by any Person of
\n Beneficial Ownership of 50% or more of the combined
\n voting power of the then outstanding Voting
\n Securities of the Company; provided, however, that
\n for purposes of this definition, any acquisition by
\n an Employee, or Group composed entirely of
\n Employees, any qualified pension plan, any publicly
\n held mutual fund or any employee benefit plan (or
\n related trust) sponsored or maintained by Southern
\n Company or any corporation Controlled by Southern
\n Company shall not constitute an SEI Change in
\n Control;<\/p>\n
(b) Consummation of a reorganization (except a spin-off
\n or initial public offering), merger or consolidation
\n of the Company, in each case, unless, following such
\n Business Combination, Southern Company Controls the
\n corporation surviving or resulting from such
\n Business Combination; or<\/p>\n
(c) Consummation of the sale or other disposition of all
\n or substantially all of the assets of the Company to
\n an entity which Southern Company does not Control.<\/p>\n
2.40. “SHARES” means the shares of common stock of the Company.<\/p>\n
2.41. “SOUTHERN BOARD” shall mean the board of directors of
\n Southern Company.<\/p>\n
2.42. “SOUTHERN COMPANY” shall mean Southern Company, its
\n successors and assigns.<\/p>\n
2.43. “SOUTHERN TERMINATION” shall mean the following:<\/p>\n
(a) The Consummation of a reorganization (except a
\n spin-off or initial public offering), merger or
\n consolidation of Southern Company under
\n circumstances where either (i) Southern Company is
\n not the surviving corporation or (ii) Southern
\n Company’s Voting Securities are no longer publicly
\n traded;<\/p>\n
(b) The sale or other disposition of all or
\n substantially all of Southern Company’s assets; or<\/p>\n
(c) The Consummation of an acquisition by any Person of
\n Beneficial Ownership of all of Southern Company’s
\n Voting Securities such that Southern Company’s
\n Voting Securities are no longer publicly traded.<\/p>\n
5
\n 8<\/p>\n
2.44. “STOCK APPRECIATION RIGHT” or “SAR” means an Award, granted
\n alone or in connection with a related Option, designated as
\n an SAR, pursuant to the terms of Article 7 herein.<\/p>\n
2.45. “SUBSIDIARY” means any corporation, partnership, joint
\n venture, or other entity in which the Company has a voting
\n interest.<\/p>\n
2.46. “TANDEM SAR” means an SAR that is granted in connection with
\n a related Option pursuant to Article 7 herein, the exercise
\n of which shall require forfeiture of the right to purchase a
\n Share under the related Option (and when a Share is purchased
\n under the Option, the Tandem SAR shall similarly be
\n canceled).<\/p>\n
2.47. “TERMINATION EVENT” shall be deemed to have occurred as
\n determined by the Committee and unless specified otherwise in
\n the Award Agreement shall mean a Southern Termination until
\n such time that Termination Event is defined differently by
\n the Committee or Board for purposes of this Plan, which
\n change in definition is expected to occur after the spin-off
\n of the Company to holders of the Southern Company shares.<\/p>\n
2.48. “VOTING SECURITIES” shall mean the outstanding voting
\n securities of a corporation entitling the holder thereof to
\n vote generally in the election of such corporation’s
\n directors.<\/p>\n
ARTICLE 3. ADMINISTRATION<\/p>\n
3.1. GENERAL. The Plan shall be administered by the Board or the
\ncommittee appointed by the Board to administer the Plan. The members of the
\nCommittee shall be appointed from time to time by, and shall serve at the
\ndiscretion of, the Board of Directors. The Board may delegate to the Committee
\nany or all of the administration of the Plan; provided, however, that the
\nadministration of the Plan with respect to Awards granted to Directors may not
\nbe so delegated. To the extent that the Board has delegated to the Committee
\nany authority and responsibility under the Plan, all applicable references to
\nthe Board in the Plan shall be to the Committee. The Committee shall have the
\nauthority to delegate administrative duties to officers, Directors, or
\nEmployees of the Company.<\/p>\n
3.2. AUTHORITY OF THE COMMITTEE. Except as limited by law or by the
\nArticles of Incorporation or Bylaws of the Company, and subject to the
\nprovisions herein, the Committee shall have full power to select Employees and
\nDirectors who shall participate in the Plan; determine the sizes and types of
\nAwards; determine the terms and conditions of Awards in a manner consistent
\nwith the Plan; certify satisfaction of performance goals for purposes of
\nsatisfying the requirements of Code Section 162(m); construe and interpret the
\nPlan and any agreement or instrument entered into under the Plan; establish,
\namend, or waive rules and regulations for the Plan’s administration; to
\nauthorize conversion or substitution under the Plan of any or all outstanding
\noption or other awards held by service providers of an entity acquired by the
\nCompany on terms determined by the Committee (without regard to limitations set
\nforth in<\/p>\n
6
\n 9<\/p>\n
Section 6.3 and 7.6); and (subject to the provisions of Articles 14 and 15
\nherein) amend the terms and conditions of any outstanding Award as provided in
\nthe Plan. Further, the Committee shall make all other determinations which may
\nbe necessary or advisable for the administration of the Plan. To the extent
\npermitted by law and applicable rules of a stock exchange, the Committee may
\nallocate all or any portion of its responsibilities and powers to any one or
\nmore of its members and may delegate all or any part of its responsibilities
\nand powers to any person or persons selected by it.<\/p>\n
3.3. DECISIONS BINDING. All determinations and decisions made by the
\nCommittee pursuant to the provisions of the Plan and all related orders and
\nresolutions of the Committee shall be final, conclusive and binding on all
\npersons, including the Company, its stockholders, Directors, Employees,
\nParticipants, and their estates and beneficiaries.<\/p>\n
ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS<\/p>\n
4.1. NUMBER OF SHARES AVAILABLE FOR GRANTS. Subject to adjustment as
\nprovided in Section 4.2 herein, the number of Shares hereby reserved for
\nissuance to Participants under the Plan shall be 32,000,000, no more than
\n32,000,000 of which may be granted in the form of Restricted Shares and no more
\nthan 32,000,000 of which may be granted in the form of Incentive Stock Options.
\nThe Committee shall determine the appropriate methodology for calculating the
\nnumber of shares issued pursuant to the Plan. Unless and until the Committee
\ndetermines that an Award to a Covered Employee shall not be designed to comply
\nwith the Performance-Based Exception, the following rules shall apply to grants
\nof such Awards under the Plan:<\/p>\n
(a) STOCK OPTIONS: The maximum aggregate number of Shares that
\n may be granted in the form of Stock Options, pursuant to any
\n Award granted in any one fiscal year to any one single
\n Participant shall be 3,200,000.<\/p>\n
(b) SARS: The maximum aggregate number of Shares that may be
\n granted in the form of Stock Appreciation Rights, pursuant to
\n any Award granted in any one fiscal year to any one single
\n Participant shall be 3,200,000.<\/p>\n
(c) RESTRICTED STOCK: The maximum aggregate grant with respect to
\n Awards of Restricted Stock granted in any one fiscal year to
\n any one Participant shall be 3,200,000.<\/p>\n
(d) PERFORMANCE SHARES\/PERFORMANCE UNITS AND CASH-BASED AWARDS:
\n The maximum aggregate payout (determined as of the end of the
\n applicable performance period) with respect to Cash-Based
\n Awards or Awards of Performance Shares or Performance Units
\n granted in any one fiscal year to any one Participant shall
\n be equal to the value of 3,200,000 Shares.<\/p>\n
4.2. ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any change in
\ncorporate capitalization, such as a stock split, or a corporate transaction,
\nsuch as any merger, consolidation, separation, including a spin-off, or other
\ndistribution of stock or property of the<\/p>\n
7
\n 10<\/p>\n
Company, any reorganization (whether or not such reorganization comes within
\nthe definition of such term in Code Section 368) or any partial or complete
\nliquidation of the Company, such adjustment may be made in the number and class
\nof Shares which may be delivered under Section 4.1, in the number and class of
\nand\/or price of Shares subject to outstanding Awards granted under the Plan,
\nand in the Award limits set forth in subsections 4.1(a) and 4.1(b), as may be
\ndetermined to be appropriate by the Committee, in its sole discretion;
\nprovided, however, that the number of Shares subject to any Award shall always
\nbe a whole number, except as otherwise determined by the Committee.<\/p>\n
ARTICLE 5. ELIGIBILITY AND PARTICIPATION<\/p>\n
5.1. ELIGIBILITY. Persons eligible to participate in this Plan include
\nall Employees and Directors.<\/p>\n
5.2. ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the
\nCommittee may, from time to time, select from all eligible Employees and
\nDirectors, those to whom Awards shall be granted and shall determine the nature
\nand amount of each Award.<\/p>\n
ARTICLE 6. STOCK OPTIONS<\/p>\n
6.1. GRANT OF OPTIONS. Subject to the terms and provisions of the
\nPlan, Options may be granted to Participants in such number, and upon such
\nterms, and at any time and from time to time as shall be determined by the
\nCommittee.<\/p>\n
6.2. AWARD AGREEMENT. Each Option grant shall be evidenced by an Award
\nAgreement that shall specify the Option Price, the duration of the Option, the
\nnumber of Shares to which the Option pertains, and such other provisions as the
\nCommittee shall determine. The Award Agreement also shall specify whether the
\nOption is intended to be an ISO within the meaning of Code Section 422, or an
\nNQSO whose grant is intended not to fall under the provisions of Code Section
\n422.<\/p>\n
6.3. OPTION PRICE. The Option Price for each grant of an Option under
\nthis Plan shall be at least equal to one hundred percent (100%) of the Fair
\nMarket Value of a Share on the date the Option is granted.<\/p>\n
6.4. DURATION OF OPTIONS. Each Option granted to a Participant shall
\nexpire at such time as the Board shall determine at the time of grant;
\nprovided, however, that no Option shall be exercisable later than the tenth
\n(10th) anniversary date of its grant.<\/p>\n
6.5. EXERCISE OF OPTIONS. Options granted under this Article 6 shall
\nbe exercisable at such times and be subject to such restrictions and conditions
\nas the Committee shall in each instance approve, which need not be the same for
\neach grant or for each Participant.<\/p>\n
6.6. PAYMENT. Options granted under this Article 6 shall be exercised
\nby the delivery of a written notice of exercise to the Company, setting forth
\nthe number of Shares with respect to which the Option is to be exercised,
\naccompanied by full payment for the Shares.<\/p>\n
8
\n 11<\/p>\n
The Option Price upon exercise of any Option shall be payable to the
\nCompany in full either: (a) in cash or its equivalent, or (b) by tendering
\npreviously acquired Shares having an aggregate Fair Market Value at the time of
\nexercise equal to the total Option Price (provided that the Shares which are
\ntendered must have been held by the Participant for at least six (6) months
\nprior to their tender to satisfy the Option Price), or (c) by a combination of
\n(a) and (b).<\/p>\n
The Board also may allow cashless exercise as permitted under Federal
\nReserve Committee’s Regulation T, subject to applicable securities law
\nrestrictions, or by any other means which the Committee determines to be
\nconsistent with the Plan’s purpose and applicable law.<\/p>\n
Subject to any governing rules or regulations, as soon as practicable
\nafter receipt of a written notification of exercise and full payment, the
\nCompany shall deliver to the Participant, in the Participant’s name, Share
\ncertificates in an appropriate amount based upon the number of Shares purchased
\nunder the Option(s) or make arrangements to have the Shares held at a bank or
\nother appropriate institution in noncertificated form.<\/p>\n
Unless otherwise determined by the Committee, all payments under all
\nof the methods indicated above shall be paid in United States dollars.<\/p>\n
6.7. RESTRICTIONS ON SHARE TRANSFERABILITY. The Board may impose such
\nrestrictions on any Shares acquired pursuant to the exercise of an Option
\ngranted under this Article 6 as it may deem advisable, including, without
\nlimitation, restrictions under applicable federal securities laws, under the
\nrequirements of any stock exchange or market upon which such Shares are then
\nlisted and\/or traded, and under any blue sky or state securities laws
\napplicable to such Shares.<\/p>\n
6.8. TERMINATION OF EMPLOYMENT\/DIRECTORSHIP. Each Participant’s Option
\nAward Agreement shall set forth the extent to which the Participant shall have
\nthe right to exercise the Option following termination of the Participant’s
\nemployment or directorship with the Company. Such provisions shall be
\ndetermined in the sole discretion of the Committee, shall be included in the
\nAward Agreement entered into with each Participant, need not be uniform among
\nall Options issued pursuant to this Article 6, and may reflect distinctions
\nbased on the reasons for termination.<\/p>\n
6.9. NONTRANSFERABILITY OF OPTIONS.<\/p>\n
(a) INCENTIVE STOCK OPTIONS. No ISO granted under the Plan may be
\n sold, transferred, pledged, assigned, or otherwise alienated
\n or hypothecated, other than by will or by the laws of descent
\n and distribution. Further, all ISOs granted to a Participant
\n under the Plan shall be exercisable during his or her
\n lifetime only by such Participant.<\/p>\n
(b) NONQUALIFIED STOCK OPTIONS. Except as otherwise provided in a
\n Participant’s Award Agreement, no NQSO granted under this
\n Article 6 may be<\/p>\n
9
\n 12<\/p>\n
sold, transferred, pledged, assigned, or otherwise alienated
\n or hypothecated, other than by will or by the laws of descent
\n and distribution. Further, except as otherwise provided in a
\n Participant’s Award Agreement, all NQSOs granted to a
\n Participant under this Article 6 shall be exercisable during
\n his or her lifetime only by such Participant.<\/p>\n
ARTICLE 7. STOCK APPRECIATION RIGHTS<\/p>\n
7.1. GRANT OF SARS. Subject to the terms and conditions of the Plan,
\nSARs may be granted to Participants at any time and from time to time as shall
\nbe determined by the Committee. The Committee may grant Freestanding SARs,
\nTandem SARs, or any combination of these forms of SAR.<\/p>\n
The Committee shall have complete discretion in determining the number
\nof SARs granted to each Participant (subject to Article 4 herein) and,
\nconsistent with the provisions of the Plan, in determining the terms and
\nconditions pertaining to such SARs.<\/p>\n
The grant price of a Freestanding SAR shall equal the Fair Market
\nValue of a Share on the date of grant of the SAR. The grant price of Tandem
\nSARs shall equal the Option Price of the related Option.<\/p>\n
7.2. EXERCISE OF TANDEM SARS. Tandem SARs may be exercised for all or
\npart of the Shares subject to the related Option upon the surrender of the
\nright to exercise the equivalent portion of the related Option. A Tandem SAR
\nmay be exercised only with respect to the Shares for which its related Option
\nis then exercisable.<\/p>\n
Notwithstanding any other provision of this Plan to the contrary, with
\nrespect to a Tandem SAR granted in connection with an ISO: (i) the Tandem SAR
\nwill expire no later than the expiration of the underlying ISO; (ii) the value
\nof the payout with respect to the Tandem SAR may be for no more than one
\nhundred percent (100%) of the difference between the Option Price of the
\nunderlying ISO and the Fair Market Value of the Shares subject to the
\nunderlying ISO at the time the Tandem SAR is exercised; and (iii) the Tandem
\nSAR may be exercised only when the Fair Market Value of the Shares subject to
\nthe ISO exceeds the Option Price of the ISO.<\/p>\n
7.3. EXERCISE OF FREESTANDING SARS. Freestanding SARs may be exercised
\nupon whatever terms and conditions the Committee, in its sole discretion,
\nimposes upon them.<\/p>\n
7.4. SAR AGREEMENT. Each SAR grant shall be evidenced by an Award
\nAgreement that shall specify the grant price, the term of the SAR, and such
\nother provisions as the committee shall determine.<\/p>\n
7.5. TERM OF SARS. The term of an SAR granted under the Plan shall be
\ndetermined by the Board, in its sole discretion; provided, however, that such
\nterm shall not exceed ten (10) years.<\/p>\n
10
\n 13<\/p>\n
7.6. PAYMENT OF SAR AMOUNT. Upon exercise of an SAR, a Participant
\nshall be entitled to receive payment from the Company in an amount determined
\nby multiplying:<\/p>\n
(a) The difference between the Fair Market Value of a Share on
\n the date of exercise over the grant price; by<\/p>\n
(b) The number of Shares with respect to which the SAR is
\n exercised.<\/p>\n
At the discretion of the Committee, the payment upon SAR exercise may
\nbe in cash, in Shares of equivalent value, or in some combination thereof. The
\nCommittee’s determination regarding the form of SAR payout shall be set forth
\nin the Award Agreement pertaining to the grant of the SAR.<\/p>\n
7.7. TERMINATION OF EMPLOYMENT\/DIRECTORSHIP. Each SAR Award Agreement
\nshall set forth the extent to which the Participant shall have the right to
\nexercise the SAR following termination of the Participant’s employment or
\ndirectorship with the Company. Such provisions shall be determined in the sole
\ndiscretion of the Committee, shall be included in the Award Agreement entered
\ninto with Participants, need not be uniform among all SARs issued pursuant to
\nthe Plan, and may reflect distinctions based on the reasons for termination.<\/p>\n
7.8. NONTRANSFERABILITY OF SARS. Except as otherwise provided in a
\nParticipant’s Award Agreement, no SAR granted under the Plan may be sold,
\ntransferred, pledged, assigned, or otherwise alienated or hypothecated, other
\nthan by will or by the laws of descent and distribution. Further, except as
\notherwise provided in a Participant’s Award Agreement, all SARs granted to a
\nParticipant under the Plan shall be exercisable during his or her lifetime only
\nby such Participant.<\/p>\n
ARTICLE 8. RESTRICTED STOCK<\/p>\n
8.1. GRANT OF RESTRICTED STOCK. Subject to the terms and provisions of
\nthe Plan, the Committee, at any time and from time to time, may grant Shares of
\nRestricted Stock to Participants in such amounts as the Board shall determine.<\/p>\n
8.2. RESTRICTED STOCK AGREEMENT. Each Restricted Stock grant shall be
\nevidenced by a Restricted Stock Award Agreement that shall specify the
\nPeriod(s) of Restriction, the number of Shares of Restricted Stock granted, and
\nsuch other provisions as the Committee shall determine.<\/p>\n
8.3. TRANSFERABILITY. Except as provided in this Article 8, the Shares
\nof Restricted Stock granted herein may not be sold, transferred, pledged,
\nassigned, or otherwise alienated or hypothecated until the end of the
\napplicable Period of Restriction established by the Committee and specified in
\nthe Restricted Stock Award Agreement, or upon earlier satisfaction of any other
\nconditions, as specified by the Committee in its sole discretion and set forth
\nin the Restricted Stock Award Agreement. All rights with respect to the
\nRestricted Stock granted to a Participant under the Plan shall be available
\nduring his or her lifetime only to such Participant.<\/p>\n
11
\n 14<\/p>\n
8.4. OTHER RESTRICTIONS. The Committee shall impose such other
\nconditions and\/or restrictions on any Shares of Restricted Stock granted
\npursuant to the Plan as it may deem advisable including, without limitation, a
\nrequirement that Participants pay a stipulated purchase price for each Share of
\nRestricted Stock, restrictions based upon the achievement of specific
\nperformance goals (Company-wide, divisional, and\/or individual), time-based
\nrestrictions on vesting following the attainment of the performance goals,
\nand\/or restrictions under applicable federal or state securities laws.<\/p>\n
To the extent deemed appropriate by the Committee, the Company may
\nretain the certificates representing Shares of Restricted Stock in the
\nCompany’s possession until such time as all conditions and\/or restrictions
\napplicable to such Shares have been satisfied.<\/p>\n
Except as otherwise provided in this Article 8, Shares of Restricted
\nStock covered by each Restricted Stock grant made under the Plan shall become
\nfreely transferable by the Participant after the last day of the applicable
\nPeriod of Restriction.<\/p>\n
8.5. VOTING RIGHTS. If the Committee so determines, Participants
\nholding Shares of Restricted Stock granted hereunder may be granted the right
\nto exercise full voting rights with respect to those Shares during the Period
\nof Restriction.<\/p>\n
8.6. DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of
\nRestriction, Participants holding Shares of Restricted Stock granted hereunder
\nmay, if the Committee so determines, be credited with regular cash dividends
\npaid with respect to the underlying Shares while they are so held. The
\nCommittee may apply any restrictions to the dividends that the Committee deems
\nappropriate. Without limiting the generality of the preceding sentence, if the
\ngrant or vesting of Restricted Shares granted to a Covered Employee is designed
\nto comply with the requirements of the Performance-Based Exception, the Board
\nmay apply any restrictions it deems appropriate to the payment of dividends
\ndeclared with respect to such Restricted Shares, such that the dividends and\/or
\nthe Restricted Shares maintain eligibility for the Performance-Based Exception.<\/p>\n
8.7. TERMINATION OF EMPLOYMENT\/DIRECTORSHIP. Each Restricted Stock
\nAward Agreement shall set forth the extent to which the Participant shall have
\nthe right to receive unvested Restricted Shares following termination of the
\nParticipant’s employment or directorship with the Company. Such provisions
\nshall be determined in the sole discretion of the Committee, shall be included
\nin the Award Agreement entered into with each Participant, need not be uniform
\namong all Shares of Restricted Stock issued pursuant to the Plan, and may
\nreflect distinctions based on the reasons for termination; provided, however
\nthat, except in the cases connected with a Change in Control or Termination
\nEvent and terminations by reason of death or Disability, the vesting of Shares
\nof Restricted Stock which qualify for the Performance-Based Exception and which
\nare held by Covered Employees shall not be accelerated unless the Committee
\ndetermines otherwise.<\/p>\n
ARTICLE 9. PERFORMANCE UNITS, PERFORMANCE SHARES, AND CASH-BASED AWARDS<\/p>\n
12
\n 15<\/p>\n
9.1. GRANT OF PERFORMANCE UNITS\/SHARES AND CASH-BASED AWARDS. Subject
\nto the terms of the Plan, Performance Units, Performance Shares, and\/or
\nCash-Based Awards may be granted to Participants in such amounts and upon such
\nterms, and at any time and from time to time, as shall be determined by the
\nCommittee.<\/p>\n
9.2. VALUE OF PERFORMANCE UNITS\/SHARES AND CASH-BASED AWARDS. Each
\nPerformance Unit shall have an initial value that is established by the
\nCommittee at the time of grant. Each Performance Share shall have an initial
\nvalue equal to the Fair Market Value of a Share on the date of grant. Each
\nCash-Based Award shall have a value as may be determined by the Committee. The
\nBoard shall set performance goals in its discretion which, depending on the
\nextent to which they are met, will determine the number and\/or value of
\nPerformance Units\/Shares and Cash-Based Awards that will be paid out to the
\nParticipant. For purposes of this Article 9, the time period during which the
\nperformance goals must be met shall be called a “Performance Period.”<\/p>\n
9.3. EARNING OF PERFORMANCE UNITS\/SHARES AND CASH-BASED AWARDS.
\nSubject to the terms of this Plan, after the applicable Performance Period has
\nended, the holder of Performance Units\/Shares and Cash-Based Awards shall be
\nentitled to receive payout on the number and value of Performance Units\/Shares
\nand Cash-Based Awards earned by the Participant over the Performance Period, to
\nbe determined as a function of the extent to which the corresponding
\nperformance goals have been achieved.<\/p>\n
9.4. FORM AND TIMING OF PAYMENT OF PERFORMANCE UNITS\/SHARES AND
\nCASH-BASED AWARDS. Payment of earned Performance Units\/Shares and Cash-Based
\nAwards shall be made in a single lump sum or such other form designated by the
\nCommittee following the close of the applicable Performance Period. Subject to
\nthe terms of this Plan, the Committee, in its sole discretion, may pay earned
\nPerformance Units\/Shares and Cash-Based Awards in the form of cash or in Shares
\n(or in a combination thereof) which have an aggregate Fair Market Value equal
\nto the value of the earned Performance Units\/Shares and Cash-Based Awards at
\nthe close of the applicable Performance Period. Such Shares may be granted
\nsubject to any restrictions deemed appropriate by the Board. The determination
\nof the Committee with respect to the form of payout of such Awards shall be set
\nforth in the Award Agreement pertaining to the grant of the Award.<\/p>\n
At the discretion of the Board, Participants may be entitled to
\nreceive any dividends declared with respect to Shares which have been earned in
\nconnection with grants of Performance Units and\/or Performance Shares which
\nhave been earned, but not yet distributed to Participants (such dividends may
\nbe subject to the same accrual, forfeiture, and payout restrictions as apply to
\ndividends earned with respect to Shares of Restricted Stock, as set forth in
\nSection 8.6 herein as determined by the Committee). In addition, Participants
\nmay, at the discretion of the Committee, be entitled to exercise voting rights
\nwith respect to such Shares.<\/p>\n
9.5. TERMINATION OF EMPLOYMENT\/DIRECTORSHIP. In the event that a
\nParticipant’s employment or directorship terminates for any reason, including
\nby reason of death, Disability or Retirement, all Performance Units\/Shares and
\nCash-Based Awards shall be<\/p>\n
13
\n 16<\/p>\n
forfeited by the Participant to the Company unless determined otherwise by the
\nCommittee, as set forth in the Participant’s Award Agreement.<\/p>\n
9.6. NONTRANSFERABILITY. Except as otherwise provided in a
\nParticipant’s Award Agreement, Performance Units\/Shares and Cash-Based Awards
\nmay not be sold, transferred, pledged, assigned, or otherwise alienated or
\nhypothecated, other than by will or by the laws of descent and distribution.
\nFurther, except as otherwise provided in a Participant’s Award Agreement, a
\nParticipant’s rights under the Plan shall be exercisable during the
\nParticipant’s lifetime only by the Participant or the Participant’s legal
\nrepresentative.<\/p>\n
ARTICLE 10. PERFORMANCE MEASURES<\/p>\n
Unless and until the Committee proposes for shareholder vote and
\nshareholders approve a change in the general performance measures set forth in
\nthis Article 10, the attainment of which may determine the degree of payout
\nand\/or vesting with respect to Awards to Covered Employees which are designed
\nto qualify for the Performance-Based Exception, the performance measure(s) to
\nbe used for purposes of such grants shall be chosen from among:<\/p>\n
(a) Earnings per share;<\/p>\n
(b) Net income (before or after taxes);<\/p>\n
(c) Return measures (including, but not limited to, return on
\n assets, equity, or sales);<\/p>\n
(d) Cash flow return on investments which equals net cash flows
\n divided by owners equity;<\/p>\n
(e) Earnings before or after taxes;<\/p>\n
(f) Gross revenues;<\/p>\n
(g) Gross margins; and<\/p>\n
(h) Share price (including, but no limited to, growth measures
\n and total shareholder return).<\/p>\n
The Committee in its sole discretion shall have the ability to set
\nsuch performance measures at the corporate level or the subsidiary\/business
\nunit level or set such other performance measures as it deems appropriate with
\nrespect to individuals who are not reasonably likely to be Covered Employees at
\nthe time of payment and\/or vesting.<\/p>\n
The Committee shall have the discretion to adjust the determinations
\nof the degree of attainment of the preestablished performance goals; provided,
\nhowever, that Awards which are designed to qualify for the Performance-Based
\nException, and which are held by Covered Employee, may not be adjusted upward
\n(the Committee shall retain the discretion to adjust such Awards downward).<\/p>\n
14
\n 17<\/p>\n
In the event that applicable tax and\/or securities laws change to
\npermit Committee discretion to alter the governing performance measures without
\nobtaining shareholder approval of such changes, the Committee shall have sole
\ndiscretion to make such changes without obtaining shareholder approval. In
\naddition, in the event that the Committee determines that it is advisable to
\ngrant Awards which shall not qualify for the Performance-Based Exception, the
\nCommittee may make such grants without satisfying the requirements of Code
\nSection 162(m).<\/p>\n
ARTICLE 11. BENEFICIARY DESIGNATION<\/p>\n
Each Participant under the Plan may, from time to time, name any
\nbeneficiary or beneficiaries (who may be named contingently or successively) to
\nwhom any benefit under the Plan is to be paid in case of his or her death
\nbefore he or she receives any or all of such benefit. Each such designation
\nshall revoke all prior designations by the same Participant, shall be in a form
\nprescribed by the Company, and will be effective only when filed by the
\nParticipant in writing with the Company during the Participant’s lifetime. In
\nthe absence of any such designation, benefits remaining unpaid at the
\nParticipant’s death shall be paid to the Participant’s estate.<\/p>\n
ARTICLE 12. DEFERRALS<\/p>\n
The Committee may permit or require a Participant to defer such
\nParticipant’s receipt of the payment of cash or the delivery of Shares that
\nwould otherwise be due to such Participant by virtue of the exercise of an
\nOption or SAR, the lapse or waiver of restrictions with respect to Restricted
\nStock, or the satisfaction of any requirements or goals with respect to
\nPerformance Units\/Shares. If any such deferral election is required or
\npermitted, the Committee shall, in its sole discretion, establish rules and
\nprocedures for such payment deferrals.<\/p>\n
ARTICLE 13. RIGHTS OF EMPLOYEES\/DIRECTORS<\/p>\n
13.1. EMPLOYMENT. Nothing in the Plan shall interfere with or limit in
\nany way the right of the Company to terminate any Participant’s employment at
\nany time, nor confer upon any Participant any right to continue in the employ
\nof the Company.<\/p>\n
13.2. PARTICIPATION. No Employee or Director shall have the right to
\nbe selected to receive an Award under this Plan, or, having been so selected,
\nto be selected to receive a future Award.<\/p>\n
13.3 RIGHTS AS A STOCKHOLDER. A Participant shall have none of the
\nrights of a shareholder with respect to shares of Common Stock covered by any
\nAward until the Participant becomes the record holder of such shares.<\/p>\n
ARTICLE 14. CHANGE IN CONTROL AND TERMINATION EVENT<\/p>\n
14.1 OF OUTSTANDING AWARDS.<\/p>\n
15
\n 18<\/p>\n
(a) Change in Control. Notwithstanding any other provision of the
\n Plan to the contrary, unless the Committee specifies
\n otherwise in the Award Agreement, in the event of a Change in
\n Control:<\/p>\n
(i) Any Options and Stock Appreciation Rights held by an
\n Employee which are outstanding as of the date such
\n SEI Change in Control is determined to have
\n occurred, and which are not then exercisable and
\n vested, shall become fully exercisable and vested to
\n the full extent of the original grant; provided,
\n that in the case of a Participant holding a Stock
\n Appreciation Right who is subject to Section 16(b)
\n of the Exchange Act, such Stock Appreciation Right
\n shall not become fully vested and exercisable at
\n such time if such actions would result in liability
\n to the Participant under Section 16(b), provided
\n further, that any such actions not taken as a result
\n of the rules under Section 16(b) shall be effected
\n as of the first date that such activity would no
\n longer result in liability under such section.<\/p>\n
(ii) The restrictions and deferral limitations applicable
\n to any Restricted Stock held by an Employee shall
\n lapse, and such Restricted Stock shall become free
\n of all restrictions and limitations and become fully
\n vested and transferable to the full extent of the
\n original grant.<\/p>\n
(iii) The restrictions and deferral limitations and other
\n conditions applicable to any other Awards held by
\n Employees shall lapse, and such other Awards shall
\n become free of all restrictions, limitations or
\n conditions and become fully vested and transferable
\n to the full extent of the original grant.<\/p>\n
(b) Termination Event. Notwithstanding any other provision ofvthe
\n Plan to the contrary, unless the Committee specifies
\n otherwise in the Award Agreement, in the event of a
\n Termination Event:<\/p>\n
(i) Any Options and Stock Appreciation Rights which are
\n outstanding as of the date such Southern Termination
\n is determined to have occurred, and which are not
\n then exercisable and vested, shall become fully
\n exercisable and vested to the full extent of the
\n original grant.<\/p>\n
(ii) The restrictions and deferral limitations applicable
\n to any Restricted Stock shall lapse, and such
\n Restricted Stock shall become free of all
\n restrictions and limitations and become fully vested
\n and transferable to the full extent of the original
\n grant.<\/p>\n
(iii) The restrictions and deferral limitations and other
\n conditions applicable to any other Awards under the
\n Plan shall lapse, and such other Awards shall become
\n free of all restrictions, limitations or conditions
\n and become fully vested and transferable to the full
\n extent of the original grant.<\/p>\n
16
\n 19<\/p>\n
(iv) Any Options, Stock Appreciation Rights or Restricted
\n Stock which are outstanding as of the date such
\n Southern Termination is determined to have occurred,
\n shall be converted into or replaced by options,
\n stock appreciation rights or restricted stock, as
\n the case may be, in the surviving company, or the
\n corporation which has acquired all of Southern
\n Company’s Common Stock or assets. In the event of
\n such conversion or replacement, the terms of the
\n replacement options or stock appreciation rights
\n shall preserve with respect to each Option and each
\n SAR the spread between the Fair Market Value of the
\n shares subject to the Options or SARs and the Option
\n Price or Base Value, as the case may be, as
\n determined immediately prior to the Southern
\n Termination. Similarly, the terms of replacement
\n restricted stock shall preserve the Fair Market
\n Value of each share of Restricted Stock as
\n determined immediately prior to the Southern
\n Termination. No replacement option, stock
\n appreciation right or share of restricted stock
\n received shall be subject to any terms which are
\n less favorable than those which existed with respect
\n to the original Option, SAR or share of Restricted
\n Stock immediately prior to the Southern Termination.<\/p>\n
(v) In the event that it is not possible to effect the
\n conversion set forth in Section 14.1(b)(iv) hereof,
\n any and all outstanding Options, Stock Appreciation
\n Rights and Restricted Stock as of the date of the
\n Southern Termination which are not so converted
\n shall be terminated and the affected Participants
\n shall receive within thirty (30) days of the
\n Southern Termination cash equal to the difference
\n between the Option Price and Fair Market Value, in
\n the case of Options, the Base Value and Fair Market
\n Value, in the case of SARs and equal to the Fair
\n Market Value, in the case of Restricted Stock. For
\n purposes of this Section 14.1(b)(v), Fair Market
\n Value shall be determined as of the day prior to the
\n date of the Southern Termination].<\/p>\n
14.2. TERMINATION, AMENDMENT, AND MODIFICATIONS OF CHANGE-IN-CONTROL
\nPROVISIONS. Notwithstanding any other provision of this Plan (but subject to
\nthe limitations of Section 15.3 hereof) or any Award Agreement provision, the
\nprovisions of this Article 14 may not be terminated, amended, or modified on or
\nafter the date of a Change in Control to affect adversely any Award theretofore
\ngranted under the Plan without the prior written consent of the Participant
\nwith respect to said Participant’s outstanding Awards; provided, however, the
\nBoard may terminate, amend, or modify this Article 14 at any time and from time
\nto time prior to the date of a Change in Control.<\/p>\n
14.3. POOLING OF INTERESTS ACCOUNTING. Notwithstanding any other
\nprovision of the Plan to the contrary, in the event that the consummation of a
\nChange in Control is contingent on using pooling of interests accounting
\nmethodology, the Board or Committee may take any action necessary to preserve
\nthe use of pooling of interests accounting.<\/p>\n
ARTICLE 15. AMENDMENT, MODIFICATION, AND TERMINATION<\/p>\n
17
\n 20<\/p>\n
15.1. AMENDMENT, MODIFICATION, AND TERMINATION. Subject to the terms
\nof the Plan, the Board may at any time and from time to time, alter, amend,
\nsuspend or terminate the Plan in whole or in part.<\/p>\n
15.2. ADJUSTMENT OF AWARDS UPON THE OCCURRENCE OF CERTAIN UNUSUAL OR
\nNONRECURRING EVENTS. The Committee may make adjustments in the terms and
\nconditions of, and the criteria included in, Awards in recognition of unusual
\nor nonrecurring events (including, without limitation, the events described in
\nSection 4.3 hereof) effecting the Company or the financial statements of the
\nCompany or of changes in applicable laws, regulations, or accounting
\nprinciples, whenever the Committee determines that such adjustments are
\nappropriate; provided that, unless the Committee determines otherwise at the
\ntime such adjustment is considered, no such adjustment shall be authorized to
\nthe extent that such authority would be inconsistent with the Plan’s meeting
\nthe requirements of Section 162(m) of the Code, as from time to time amended.
\nWithout limiting the foregoing, the Committee shall have the right to
\ntemporarily suspend the right to exercise any Award to facilitate a
\ntransaction, to provide for the continuation of all or a portion of Awards and
\nto make such adjustments by such means as determined by the Committee in its
\ndiscretion, including, without limitation, for example, (a) cancellation of all
\nor a portion of any Award for a cash payment, (b) conversion of all or a
\nportion of Shares subject to an Award into other property or securities, (c)
\nremoval of any or all restrictions and conditions on Award or (d) giving
\nwritten notice to any Participant that his or her Award will become immediately
\nexercisable, notwithstanding any waiting period otherwise prescribed and that
\nthe Award will be cancelled if not exercised within a specified period of days
\nafter such notice.<\/p>\n
15.3. AWARDS PREVIOUSLY GRANTED. Subject to Sections 14.2 and 14.3
\nhereof and changes to the definition of Change in Control and Termination
\nEvent, no termination, amendment, or modification of the Plan shall adversely
\naffect in any material way any Award previously granted under the Plan, without
\nthe written consent of the Participant holding such Award.<\/p>\n
15.4. COMPLIANCE WITH CODE SECTION 162(M). At all times when Code
\nSection 162(m) is applicable, all Awards granted under this Plan to Employees
\nwho are or could reasonably become Covered Employees as determined by the
\nCommittee shall comply with the requirements of Code Section 162(m); provided,
\nhowever, that in the event the Committee determines that such compliance is not
\ndesired with respect to any Award or Awards available for grant under the Plan,
\nthen compliance with Code Section 162(m) will not be required. In addition, in
\nthe event that changes are made to Code Section 162(m) to permit greater
\nflexibility with respect to any Award or Awards available under the Plan, the
\nBoard may, subject to this Article 15, make any adjustments it deems
\nappropriate.<\/p>\n
ARTICLE 16. WITHHOLDING<\/p>\n
16.1. TAX WITHHOLDING. The Company shall have the power and the right
\nto deduct or withhold, or require a Participant to remit to the Company, an
\namount sufficient to satisfy<\/p>\n
18
\n 21<\/p>\n
Federal, state, and local taxes, domestic or foreign, required by law or
\nregulation to be withheld with respect to any taxable event arising as a result
\nof this Plan.<\/p>\n
16.2. SHARE WITHHOLDING. With respect to withholding required upon the
\nexercise of Options or SARs, upon the lapse of restrictions on Restricted
\nStock, or upon any other taxable event arising as a result of Awards granted
\nhereunder, Participants may elect, subject to the approval of the Committee, to
\nsatisfy the withholding requirement, in whole or in part, by having the Company
\nwithhold Shares having a Fair Market Value on the date the tax is to be
\ndetermined equal to the minimum statutory total tax which could be imposed on
\nthe transaction. All such elections shall be irrevocable, made in writing,
\nsigned by the Participant, and shall be subject to any restrictions or
\nlimitations that the Board, in its sole discretion, deems appropriate.<\/p>\n
ARTICLE 17. INDEMNIFICATION<\/p>\n
Each person who is or shall have been a member of the Committee, or of
\nthe Board, shall be indemnified and held harmless by the Company against and
\nfrom any loss, cost, liability, or expense that may be imposed upon or
\nreasonably incurred by him or her in connection with or resulting from any
\nclaim, action, suit, or proceeding to which he or she may be a party or in
\nwhich he or she may be involved by reason of any action taken or failure to act
\nunder the Plan and against and from any and all amounts paid by him or her in
\nsettlement thereof, with the Company’s approval, or paid by him or her in
\nsatisfaction of any judgement in any such action, suit, or proceeding against
\nhim or her, provided he or she shall give the Company an opportunity, at its
\nown expense, to handle and defend the same before he or she undertakes to
\nhandle and defend it on his or her own behalf. The foregoing right of
\nindemnification shall not be exclusive of any other rights of indemnification
\nto which such persons may be entitled under the Company’s Articles of
\nIncorporation or Bylaws, as a matter of law, or otherwise, or any power that
\nthe Company may have to indemnify them or hold them harmless.<\/p>\n
ARTICLE 18. SUCCESSORS<\/p>\n
All obligations of the Company under the Plan with respect to Awards
\ngranted hereunder shall be binding on any successor to the Company, whether the
\nexistence of such successor is the result of a direct or indirect purchase,
\nmerger, consolidation, or otherwise, of all or substantially all of the
\nbusiness and\/or assets of the Company.<\/p>\n
ARTICLE 19. GENERAL PROVISIONS<\/p>\n
19.1. GENDER AND NUMBER. Except where otherwise indicated by the
\ncontext, any masculine term used herein also shall include the feminine; the
\nplural shall include the singular and the singular shall include the plural.<\/p>\n
19.2. SEVERABILITY. In the event any provision of the Plan shall be
\nheld illegal or invalid for any reason, the illegality or invalidity shall not
\naffect the remaining parts of the Plan,<\/p>\n
19
\n 22<\/p>\n
and the Plan shall be construed and enforced as if the illegal or invalid
\nprovision had not been included.<\/p>\n
19.3. REQUIREMENTS OF LAW. The granting of Awards and the issuance of
\nShares under the Plan shall be subject to all applicable laws, rules, and
\nregulations, and to such approvals by any governmental agencies or national
\nsecurities exchanges as may be required.<\/p>\n
19.4. DELIVER OF TITLE. The Company shall have no obligation to issue
\nor deliver evidence of title for shares of Shares under the Plan prior to:<\/p>\n
(a) Obtaining any approvals from governmental agencies that
\n the Company determines are necessary or advisable; and<\/p>\n
(b) Completion of any registration or other qualification of
\n the Shares under any applicable national or foreign law or
\n ruling of any governmental body that the Company determines
\n to be necessary or advisable.<\/p>\n
19.5. SECURITIES LAW COMPLIANCE. With respect to Insiders,
\ntransactions under this Plan are intended to comply with all applicable
\nconditions of Rule 16b-3 or its successors under the 1934 Act unless determined
\notherwise by the Committee. To the extent any provision of the Plan or action
\nby the Committee fails to so comply, it shall be deemed null and void, to the
\nextent permitted by law and deemed advisable by the Board.<\/p>\n
19.6. NO ADDITIONAL RIGHTS. Nothing in the Plan shall interfere with
\nor limit in any way the right of the Company to terminate any Participant’s
\nemployment at any time, or confer upon any Participant any right to continue in
\nthe employ of the Company.<\/p>\n
No employee shall have the right to be selected to receive an Award
\nunder this Plan or having been so selected, to be selected to receive a future
\nAward.<\/p>\n
Neither the Award nor any benefits arising under this Plan shall
\nconstitute part of a Participant’s employment contract with the Company or any
\nAffiliate, and accordingly, this Plan and the benefits hereunder may be
\nterminated at any time in the sole and exclusive discretion of the Committee
\nwithout giving rise to liability on the part of the Company or any Affiliate
\nfor severance payments.<\/p>\n
19.7. EMPLOYEES BASED OUTSIDE OF THE UNITED STATES. Notwithstanding
\nany provision of the Plan to the contrary, in order to comply with provisions
\nof laws in other countries in which the Company, its Affiliates, and its
\nSubsidiaries operate or have Employees, the Board or the Committee, in their
\nsole discretion, shall have the power and authority to:<\/p>\n
(a) Determine which Employees employed outside the United
\n States are eligible to participate in the Plan;<\/p>\n
(b) Modify the terms and conditions of any Award granted to
\n Employees who are employed outside the United States; and<\/p>\n
20
\n 23<\/p>\n
(c) Establish subplans, modified exercise procedures, and
\n other terms and procedures to the extent such actions may be
\n necessary or advisable. Any subplans and modifications to
\n Plan terms and procedures established under this Section 19.7
\n by the Board or the Committee shall be attached to this Plan
\n document as Appendices.<\/p>\n
19.8. GOVERNING LAW. To the extent not preempted by federal law, the
\nPlan, and all agreements hereunder, shall be construed in accordance with and
\ngoverned by the substantive laws (excluding the conflict of laws rules) of the
\nstate of Delaware.<\/p>\n
21<\/p>\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":[9539,9546],"class_list":["post-40229","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__incentive"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40229","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=40229"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40229"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40229"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40229"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}