{"id":40669,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/supplemental-executive-retirement-plan-southern-energy.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"supplemental-executive-retirement-plan-southern-energy","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/supplemental-executive-retirement-plan-southern-energy.html","title":{"rendered":"Supplemental Executive Retirement Plan &#8211; Southern Energy Resources Inc."},"content":{"rendered":"<pre>                         SOUTHERN ENERGY RESOURCES, INC.\n                     SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN\n\n\n\n\n\n\n\n\n                              Troutman Sanders LLP\n                          NationsBank Plaza, Suite 5200\n                           600 Peachtree Street, N.E.\n                             Atlanta, Georgia 30308\n\n\n\n\n\n                             Effective June 25, 1998\n\n\n\n\n\n                         SOUTHERN ENERGY RESOURCES, INC.\n                     SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN\n\n                    ARTICLE I - PURPOSE AND ADOPTION OF PLAN\n         1.1 As of the Effective  Date,  Southern  Energy Resources, Inc. hereby\nadopts  and  establishes  the  Southern   Energy  Resources,  Inc.  Supplemental\nExecutive Retirement Plan. The Plan shall be an unfunded  deferred  compensation\narrangement whose benefits  shall be  paid solely from the general assets of the\nCompany.\n         1.2 The Plan is  designed  to provide  deferred  compensation  benefits\nprimarily for a select group of management or highly compensated employees which\nare not otherwise payable under the Southern Company Pension Plan as a result of\nthe exclusion of incentive  pay from the  definition of earnings set forth under\nsuch plan.\n                            ARTICLE II - DEFINITIONS\n         2.1  \"Accrued  SERP  Benefit\"  shall  mean the  actuarially  determined\npresent  value of a  Participant's  monthly  SERP Benefit  determined  as of the\nParticipant's  retirement  date  under  the  Pension  Plan  or,  if  later,  the\nResolution Date, or, in the case of Plan  termination or amendment,  the date of\nsuch Plan termination or amendment.\n\n         2.2  \"Administrative  Committee\" shall mean the committee  appointed by\nthe Board of Directors under Section 3.1 hereof to administer the Plan.\n\n\n\n         2.3 \"Affiliated  Employer\" shall mean any  corporation,  other than the\nCompany,  which is a member of the controlled group of corporations of which The\nSouthern Company is the common parent corporation,  which the Board of Directors\nmay from time to time determine to identify under the Plan. The initial group of\nAffiliated Employers shall be as follows:\n\n                  Alabama Power Company\n                  Georgia Power Company\n                  Gulf Power Company\n                  Mississippi Power Company\n                  Savannah Electric and Power Company\n                  Southern Nuclear Operating Company, Inc.\n                  Southern Company Services, Inc.\n                  Southern Company Energy Solutions, Inc.\n                  Southern Communications Services, Inc.\n\n         2.4 \"Affiliated  Employer  Incentive Pay\" shall mean such incentive pay\npaid  to a  Participant  by an  Affiliated  Employer  which  the  Administrative\nCommittee  shall from time to time  identify  as  incentive  pay under the Plan,\nincluding,  but not limited to any incentive pay paid under the Southern Company\nPerformance Pay Plan, the Southern Company  Executive  Productivity  Improvement\nPlan and the Southern Company  Productivity  Improvement Plan, as such plans may\nbe  amended  from time to time,  provided,  however,  that  Affiliated  Employer\nIncentive  Pay shall not  include  any  post-employment  payments to an employee\nwhose  employment  has been  transferred to a  \"Non-Adopting  Employer,\" as such\npayments  are  identified  under the  provisions  of Section 2.4 of the Southern\nCompany Productivity Improvement Plan.\n\n\n         2.5 \"Base Pay Percentage\"  shall mean the percentage of a Participant's\nbase pay for purposes of Section  5.1(b)(3)  hereof, as established by the Board\nof Directors upon the  recommendation of the  Administrative  Committee for each\nPlan Year prior to the  beginning of such Plan Year. In the event that the Board\nof Directors does not consider the Base Pay  Percentage for any particular  Plan\nYear,  the Base Pay Percentage for such Plan Year shall be deemed to be the Base\nPay  Percentage in effect for the  immediately  preceding Plan Year. The initial\nBase Pay  Percentage  for the  Company's  Chief  Executive  Officer shall be ten\npercent (10%) and for all other Participants shall be fifteen percent (15%).\n\n         2.6 \"Beneficiary\" shall mean any person,  estate, trust or organization\nentitled to receive any payment under the Plan upon the death of a Participant.\n         \n         2.7 \"Business Unit Pay\" shall mean, with respect to Participants who do\nnot participate in the Short Term Plan, the amount paid in cash to a Participant\nfrom his or her  respective  Company  business  unit bonus plan for a respective\nPlan Year, not to exceed the maximum amount the Participant  could have received\nunder  the terms of the Short  Term Plan for his Job  Category,  as such term is\ndefined in Section 4.1 of the Short Term Plan.\n\n         2.8  \"Board of Directors\" shall mean the Board of Directors of Southern\nEnergy, Inc.\n\n         2.9  \"Code\" shall mean the  Internal Revenue  Code of 1986, as  amended\nfrom time to time.\n\n         2.10 \"Company\"   shall  mean  Southern  Energy   Resources,  Inc.,  its\nsuccessors and assigns.\n\n         2.11 \"Effective Date\" shall mean June 25, 1998.\n\n         2.12  \"Employee\"  shall  mean  any  person  who is an  employee  of the\nCompany, excluding any person represented by a collective bargaining agent.\n\n\n         2.13 \"Incentive Pay\" shall mean those incentive  awards, if any, earned\nby an  Employee  under the  terms of the Short  Term  Plan,  Business  Unit Pay,\nProject Pay and such other incentive awards as may be approved from time to time\nby the Board of Directors.\n\n         2.14  \"Participant\"  shall mean an Employee or former  Employee  who is\neligible to participate in the Plan pursuant to Section 4.1 hereof.\n\n         2.15 \"Pension  Plan\" shall mean The Southern  Company  Pension Plan, as\namended from time to time.\n\n         2.16 \"Plan\" shall mean the Southern Energy Resources, Inc. Supplemental\nExecutive Retirement Plan, as amended from time to time.\n\n         2.17 \"Plan Year\" shall mean the calendar year.\n\n         2.18 \"Project Incentive Plan\"  shall  mean the  Southern  Energy,  Inc.\nProject Incentive Plan, as amended from time to time.\n\n         2.19     \"Project Pay\" shall mean amounts received by a Participant for\nany given Plan Year under the Project Incentive Plan not  to  exceed  the amount\nthe  Participant would have received under the Short Term Plan using the maximum\nIndividual Component plus the actual Corporate Component for such Plan Year,  as\nsuch terms are defined in Section 4.1 of the Short Term Plan.\n\n         2.20  \"Resolution  Date\"  shall mean the first date on which all of the\namount  deferred  with respect to a  Participant  under this Plan is  reasonably\nascertainable within the meaning of Treasury Regulation 31.3121(v)(2).\n\n         2.21  \"SERP  Benefit\"  shall  mean  the  supplemental  pension  benefit\ndescribed in Section 5.1 hereof.\n\n         2.22  \"Short Term Plan\" shall mean the Southern Energy, Inc. Short Term\n Incentive Plan, as amended from time to time.\n\n\n         2.23  \"Southern Company\" shall mean The Southern Company.\n\n         2.24 \"Southern SERP Benefit\"  shall mean the pension  benefit,  if any,\nthat is  payable  to a  Participant  under  the  Southern  Company  Supplemental\nExecutive Retirement Plan, as amended from time to time.\n\n         2.25 \"Southern Excess Benefit\" shall mean the pension benefit,  if any,\nthat is payable to a participant under the Southern Company Supplemental Benefit\nPlan, as amended from time to time.\n\n         Where the context  requires,  the definitions of all terms set forth in\nthe  Pension  Plan  shall  apply with equal  force and  effect for  purposes  of\ninterpretation  and  administration of the Plan, unless said terms are otherwise\nspecifically  defined in the Plan.  The masculine  pronoun shall be construed to\ninclude the feminine  pronoun and the singular  shall include the plural,  where\nthe context so requires.\n\n\n                      ARTICLE III - ADMINISTRATION OF PLAN\n\n         3.1 Administrative  Committee.  The general administrative functions of\nthe Plan shall be managed by the Administrative Committee appointed by the Board\nof Directors.  The initial members of the Administrative  Committee shall be the\nChief  Financial  Officer of the Southern  Company,  the Vice President of Human\nResources of the Southern  Company,  the Chief Financial Officer of the Company,\nthe Vice President of  Administration  of the Company and such other officers of\nthe  Company  as the  Board  of  Directors  shall  appoint  from  time to  time.\nAdministrative  Committee  members  shall serve at the  pleasure of the Board of\nDirectors and may be removed and appointed as the Board of Directors in its sole\ndiscretion shall determine.\n\n         3.2 Powers. The  Administrative  Committee shall administer the Plan in\naccordance  with its terms and shall have all powers  necessary to carry out the\nprovisions of the Plan more  particularly set forth herein.  The  Administrative\nCommittee shall have the discretionary authority to interpret the Plan and shall\ndetermine  all  questions  arising  in the  administration,  interpretation  and\napplication  of the Plan. Any such  determination  by it shall be conclusive and\nbinding on all persons.  It may adopt such regulations as it deems desirable for\nthe conduct of its affairs. It may appoint such accountants, counsel, actuaries,\nspecialists  and other persons as it deems  necessary or desirable in connection\nwith the  administration of this Plan, and shall be the agent for the service of\nprocess.\n\n\n         3.3      Duties of the Administrative Committee.\n                  (a) The Administrative  Committee is responsible for the daily\n         administration of the Plan. It may appoint other persons or entities to\n         perform any of its fiduciary  functions.  The Administrative  Committee\n         and any such appointee may employ advisors and other persons  necessary\n         or convenient to help it carry out its duties,  including its fiduciary\n         duties. The Administrative Committee shall have the right to remove any\n         such  appointee  from his  position.  Any  person,  group of persons or\n         entity may serve in more than one fiduciary capacity.\n                  (b) The  Administrative  Committee shall maintain accurate and\n         detailed records and accounts of Participants and of their rights under\n         the  Plan  and of all  receipts,  disbursements,  transfers  and  other\n         transactions  concerning  the Plan.  Such  accounts,  books and records\n         relating  thereto shall be open at all  reasonable  times to inspection\n         and audit by persons designated by the Administrative Committee.\n                  (c)  The   Administrative   Committee  shall  take  all  steps\n         necessary to ensure that the Plan  complies  with the law at all times.\n         These steps shall include such items as the  preparation  and filing of\n         all  documents  and  forms   required  by  any   governmental   agency;\n         maintaining adequate Participants' records;  recording and transmission\n         of  all  notices  required  to  be  given  to  Participants  and  their\n         Beneficiaries;  securing of such  fidelity  bonds as may be required by\n         law; and doing such other acts necessary for the proper  administration\n         of the Plan. The Administrative Committee shall keep a record of all of\n         its  proceedings  and acts,  and shall keep all such books of  account,\n         records and other data as may be necessary for proper administration of\n         the Plan.\n\n\n         3.4  Indemnification.  The Company shall  indemnify the  Administrative\nCommittee against any and all claims,  losses,  damages,  expenses and liability\narising  from an action  or  failure  to act,  except  when the same is  finally\njudicially   determined  to  be  the  result  of  gross  negligence  or  willful\nmisconduct.  The Company may  purchase at its own expense  sufficient  liability\ninsurance for the Administrative  Committee to cover any and all claims, losses,\ndamages and  expenses  arising  from any action or failure to act in  connection\nwith the execution of the duties of the Administrative  Committee.  No member of\nthe  Administrative  Committee shall receive any compensation  from the Plan for\nhis or her service as such.\n\n                            ARTICLE IV - ELIGIBILITY\n\n         4.1 Determination of Participation. The Administrative Committee in its\nsole and  absolute  discretion  shall  determine  those  Employees  who shall be\neligible to  participate in the Plan.  Upon being named as a  Participant,  such\nParticipant  shall be deemed to have assented to the Plan and to any  amendments\nhereafter adopted.  The Administrative  Committee shall be authorized to rescind\nthe  eligibility  of any  Participant  if  necessary  to ensure that the Plan is\nmaintained  primarily for the purpose of providing  deferred  compensation  to a\nselect group of management or highly compensated employees within the meaning of\nthe Employee Retirement Income Security Act of 1974, as amended.\n\n         4.2 Eligibility for Benefits.  Any Participant whose benefits under the\nPension Plan are limited by the exclusion of all or a portion of Incentive  Pay,\nBusiness  Unit Pay,  Project Pay or Affiliated  Employer  Incentive Pay from the\ndefinition of Earnings  thereunder (or his spouse,  as the case may be) shall be\neligible to receive  benefits  under the Plan provided such  Participant  (a) is\nparticipating  in the Plan (or is deemed to have  participated  in the Plan,  as\ndetermined by the  Administrative  Committee in its sole discretion) at the time\nof termination of employment  with the Company while  retirement  eligible,  (b)\nparticipated in the Plan within ten (10) years of termination of employment with\nan Affiliated  Employer  while  retirement  eligible under the Pension Plan, (c)\ndies  while in  active  service  with the  Company  or (d) dies  while in active\nservice  with an  Affiliated  Employer  within  ten (10)  years of  transfer  of\nemployment from the Company to such Affiliated Employer, provided in the case of\ndeath such  Employee's  spouse is eligible to receive a survivor  benefit  under\nArticle VII of the Pension Plan.\n\n\n                              ARTICLE V - BENEFITS\n\n         5.1      SERP Benefit.\n                  (a)  Subject to Article XV of the Pension Plan, a  Participant\n         shall be entitled to a monthly SERP Benefit equal to:\n\n                           (1) 1.70%  (1.0% if the  Participant  is  subject  to\n                  Article XV of the Pension Plan) of the  Participant's  Average\n                  Monthly  Earnings  multiplied  by his years (and fraction of a\n                  year) of Accredited  Service to his Retirement  Date, death or\n                  other  termination  of service,  including  a Social  Security\n                  Offset,  as  adjusted,  if  necessary,  under the terms of the\n                  Pension  Plan  for  commencement  prior  to the  Participant's\n                  Normal Retirement Date; less\n                            (2) such Participant's  Retirement  Income  that  is\n                  payable under the Pension Plan; less\n                            (3) such Participant's Southern Excess Benefit; less\n                            (4) such Participant's Southern SERP Benefit; less\n                            (5) the pension benefit, if any, that is payable  to\n                                a Participant under  any  other  group    and\/or\n                  individual supplemental  benefit  plan  of the  Company  or an\n                  Affiliated Employer; less\n                            (6) the amount determined under Section 5.4 hereof.\n\n\n\n                  (b) For  purposes  of  Section  5.1(a)(1),  the  Participant's\n         Average Monthly Earnings shall be calculated based on the Participant's\n         Earnings that are considered  under the Pension Plan in calculating his\n         Retirement  Income,  but without  regard to the  limitation  of Section\n         401(a)(17) of the Code, and including the following additional amounts:\n                            (1) any  portion of such Participant's base pay that\n                  he may  have  elected  to  defer  under  the Southern  Company\n                  Deferred  Compensation  Plan  or  the  Southern  Energy,  Inc.\n                  Deferred Compensation Plan  but excluding  any  Incentive Pay,\n                  Project Pay or Business Unit Pay he deferred under such plans;\n                           (2) any  Affiliated  Employer  Incentive Pay that was\n                  earned as of the  applicable  Plan Year while  employed  by an\n                  Affiliated  Employer in excess of twenty-five percent (25%) of\n                  the Participant's base pay for such Plan Year; and\n                           (3) any Incentive  Pay,  Project Pay or Business Unit\n                  Pay that was earned as of the  applicable  Plan Year in excess\n                  of the  Participant's  Base Pay Percentage for such Plan Year.\n                  In  addition,  to determine  the Plan Years which  produce the\n                  highest monthly average to calculate Average Monthly  Earnings\n                  under the Plan, a  Participant's  Earnings shall include those\n                  additional  amounts  provided for in this Section 5.1(b).\n                  (c) For purposes of Section 5.1(a)(1), the Participant's years\n         of Accredited Service  shall  include  any  deemed  Accredited  Service\n         provided  under  the   terms  of any  agreement concerning supplemental\n         pension  payments  between  the  Participant  and  the  Company  or any\n         Affiliated Employer.\n                  (d) To the extent that a Participant's Retirement Income under\n         the Pension  Plan is  recalculated  as a result of an  amendment to the\n         Pension Plan in order to increase the amount of his Retirement  Income,\n         the  Participant's  SERP Benefit shall also be recalculated in order to\n         properly   reflect  such  increase  in  determining   payments  of  the\n         Participant's  SERP Benefit made on or after the effective date of such\n         increase.\n\n\n         5.2 The SERP Benefit,  as  determined  in  accordance  with Section 5.1\nhereof,  shall be payable in  monthly  increments  on the first day of the month\nconcurrently  with the  Participant's  Retirement Income under the Pension Plan.\nThe form in which the SERP  Benefit  is paid shall be the same as elected by the\nParticipant  under the Pension Plan.  The  Beneficiary of a  Participant's  SERP\nBenefit shall be the same as the Provisional Payee, if any, of the Participant's\nRetirement Income under the Pension Plan.\n\n         5.3 If all or a portion of the  Participant's  Accrued SERP Benefit has\nnot yet been \"taken into account\" for employment tax purposes within the meaning\nof Treasury  Regulation  31.3121(v)(2),  the Participant's  initial monthly SERP\nBenefit or, if such \"taking into account\" occurs  thereafter,  his first monthly\nSERP Benefit  following the  Resolution  Date,  shall be increased by the amount\nnecessary to pay the  Participant's  Hospital  Insurance  portion of the tax due\nunder the Federal Insurance  Contributions Act with respect to the amount of the\nParticipant's Accrued SERP Benefit then required to be \"taken into account\" (\"HI\nTax\"),  if any,  increased  by the  amount  necessary  to pay the  Participant's\nfederal and state income tax (at a combined estimated rate of forty-five percent\n(45%)) upon such HI Tax and upon such increase.\n\n         5.4 In the event of a one-time increase in a Participant's SERP Benefit\nunder Section 5.3 hereof,  the Company shall thereafter reduce the Participant's\nAccrued SERP Benefit by the  aggregate  amounts,  if any, paid under Section 5.3\nhereof,  and  calculate,  based upon such  reduced  Accrued  SERP  Benefit,  the\ndifference  between  the  Participant's  monthly  SERP  Benefit  prior  to  such\nreduction and the SERP Benefit the  Participant  would have received  based upon\n\n\n\nthe reduced Accrued SERP Benefit  determined on an actuarially  equivalent basis\nin accordance  with the terms of the Pension Plan,  taking into account the form\nof benefit elected by the Participant under the Pension Plan.\n\n         5.5  Funding  of  Benefits.  The  Company  shall  neither  reserve  nor\notherwise set aside funds for the payment of its obligations under the Plan, and\nsuch  obligations  shall be paid solely from the general  assets of the Company,\nunless the  Administrative  Committee  in its sole  discretion  shall  determine\notherwise.\n\n         5.6  Withholding.  There shall be deducted from the payment of any SERP\nBenefit due under the Plan the amount of any tax  required  by any  governmental\nauthority  to be  withheld  and paid over by the  Company  to such  governmental\nauthority for the account of the  Participant  or  Beneficiary  entitled to such\npayment.\n\n                           ARTICLE VI - MISCELLANEOUS\n\n         6.1 Assignment.  Neither the Participant, his Beneficiary nor his legal\nrepresentative  shall have any rights to sell,  assign,  transfer  or  otherwise\nconvey the right to receive the payment of any SERP Benefit due hereunder, which\npayment and the right thereto are  expressly  declared to be  nonassignable  and\nnontransferable.  Any  attempt to assign or  transfer  the right to any  payment\nunder the Plan shall be null and void and of no effect.\n\n         6.2 Amendment and Termination. The Plan may be amended or terminated at\nany time by the Board of Directors,  provided  that no amendment or  termination\nshall cause a forfeiture  or  reduction  in any Accrued SERP  Benefits as of the\ndate of such amendment or termination.\n\n\n         6.3 No Guarantee of Employment.  Participation  hereunder  shall not be\nconstrued  as  creating  any  contract of  employment  between the Company and a\nParticipant,  nor shall it limit the right of the Company to suspend, terminate,\nalter or modify,  whether or not for cause, the employment  relationship between\nthe Company and a Participant.\n\n         6.4  Construction.  This Plan shall be construed in accordance with and\ngoverned  by the laws of the State of  Georgia,  excluding  any law which  would\nrequire the use of the laws of any other State,  and to the extent such laws are\nnot otherwise superseded by the laws of the United States.\n\n         IN WITNESS  WHEREOF,  the  Plan has  been  executed by duly  authorized\nofficers of Southern Energy, Inc.and Southern Energy Resources, Inc. pursuant to\nresolutions  of  the  Board  of  Directors of Southern Energy, Inc. and Southern\nEnergy  Resources,  Inc. this ____ day of July, 1999.\n\n                                          SOUTHERN ENERGY, INC.\n\n\n                                          By: _________________________________\n\n\nATTEST: _____________________________\n\n\n                                          SOUTHERN ENERGY RESOURCES, INC.\n\n\n                                          By: _________________________________\n\n\nATTEST: _____________________________\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":[9539,9550],"class_list":["post-40669","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__retirement"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40669","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=40669"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40669"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40669"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40669"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}