Exhibit 10.22
MIRANT SERVICES
SUPPLEMENTAL BENEFIT (PENSION)
PLAN
MIRANT SERVICES
SUPPLEMENTAL BENEFIT (PENSION)
PLAN
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Page
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ARTICLE
I
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PURPOSE AND
ADOPTION OF PLAN
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1
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1.1.
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Adoption
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1
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1.2.
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Purpose
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1
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ARTICLE II
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DEFINITIONS
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1
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2.1.
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“Beneficiary”
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1
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2.2.
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“Board” or “Board of
Managers”
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1
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2.3.
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“Code”
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1
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2.4.
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“Committee”
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1
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2.5.
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“Company”
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1
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2.6.
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“Deferred
Compensation Plans”
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1
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2.7.
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“Effective Date”
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1
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2.8.
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“Employee”
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2
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2.9.
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“Employing Company”
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2
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2.10.
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“Mirant”
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2
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2.11.
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“Participant”
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2
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2.12.
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“Payment
Commencement Date”
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2
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2.13.
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“Pension
Benefit”
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2
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2.14.
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“Pension
Plan”
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2
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2.15.
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“Plan”
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2
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2.16.
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“Plan
Year”
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2
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2.17.
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“Resolution Date”
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2
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2.18.
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“SERP
Benefit”
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2
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2.19.
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“Trust”
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2
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ARTICLE III
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ADMINISTRATION
OF PLAN
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3
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3.1.
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Administrator
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3
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3.2.
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Powers
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3
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3.3.
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Duties of the
Committee
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3
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3.4.
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Indemnification
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4
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ARTICLE IV
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ELIGIBILITY
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4
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4.1.
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Eligibility
Requirements
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4
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4.2.
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Determination
of Eligibility
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4
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ARTICLE V
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BENEFITS
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4
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5.1.
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Pension
Benefit
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4
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5.2.
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Distribution of
Benefits
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5
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5.3.
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Funding of
Benefits
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6
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5.4.
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Withholding
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6
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-i-
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5.5.
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Recourse
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6
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5.6.
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Compliance with
Section 409A
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6
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ARTICLE VI
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MISCELLANEOUS
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7
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6.1.
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Assignment
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7
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6.2.
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Amendment and
Termination
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7
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6.3.
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No Guarantee of
Employment
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7
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6.4.
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Construction
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7
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-ii-
MIRANT
SERVICES
SUPPLEMENTAL BENEFIT (PENSION)
PLAN
ARTICLE I
PURPOSE AND ADOPTION OF
PLAN
1.1. Adoption . The Mirant
Services Supplemental Benefit Plan is hereby amended and restated
effective as of January 1, 2009 as two separate
plans – The Mirant Services Supplemental Benefit
(Pension) Plan and the Mirant Services Supplemental Benefit
(Savings) Plan. This Plan is a continuation of the defined benefit
portion of the Mirant Services Supplemental Benefit Plan which was
originally adopted effective January 1, 2001. The Mirant
Services Supplemental Benefit (Savings) Plan is a continuation of
the defined contribution portion of the Mirant Services
Supplemental Benefit Plan.
1.2. Purpose . The Plan is
designed to provide certain retirement and other deferred
compensation benefits primarily for a select group of management or
highly compensated employees which (1) are not otherwise
payable or cannot otherwise be provided under the Pension Plan as a
result of the limitations set forth under Sections 401(a)(17)
or 415 of the Code and (2) compensate for lost benefits
resulting from participation in the Deferred Compensation Plans.
The Plan shall be an unfunded deferred compensation arrangement
whose benefits shall be paid solely from the general assets of the
Employing Companies.
ARTICLE II
DEFINITIONS
2.1. “ Beneficiary
” shall mean any person, estate, trust, or organization
entitled to receive any payment under the Plan upon the death of a
Participant.
2.2. “ Board ” or
“ Board of Managers ” shall mean the Board of
Managers of the Company.
2.3. “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.4. “ Committee
” shall mean the committee as designated by the Board to be
responsible for administering the Plan, and as referred to in
Section 3.1 hereof.
2.5. “ Company ”
shall mean Mirant Services, LLC, its successors and
assigns.
2.6. “ Deferred
Compensation Plans ” shall mean the Mirant Corporation
Deferred Compensation Plan for Directors and Select Employees and
the Mirant Corporation Deferred Compensation Plan, as amended from
time to time, and any successor to such plans.
2.7. “ Effective Date
” of this Plan shall mean January 1, 2009. The Mirant
Services Supplemental Benefit Plan, as the predecessor to this
Plan, was originally effective January 1, 2001.
2.8. “ Employee ”
shall mean an employee of an Employing Company, not covered by a
collective bargaining agreement between the Employing Company and a
union or other employee representative.
2.9. “ Employing
Company ” shall mean the Company, any United States
subsidiary or affiliate of Mirant, or any other subsidiary or
affiliate of Mirant, which the Board may from time to time
determine to bring under the Plan and which shall adopt the Plan,
and any successor of any of them.
2.10. “ Mirant ”
shall mean Mirant Corporation (f/k/a Southern Energy, Inc.), its
successors and assigns.
2.11. “ Participant
” shall mean an Employee or former Employee who is eligible
and participates in the Plan pursuant to Sections 4.1 and
4.2.
2.12. “ Payment
Commencement Date ” shall mean, for each Participant, the
January 1, April 1, July 1 or October 1 that
immediately follows the later of (a) the date such Participant
separates from service (within the meaning of Section 409A of
the Code), (b) the date such Participant reaches age 50, or
(c) January 1, 2009.
2.13. “ Pension Benefit
” shall mean the benefit described in
Section 5.1.
2.14. “ Pension Plan
” shall mean the Mirant Services Pension Plan, as amended
from time to time.
2.15. “ Plan ”
shall mean the Mirant Services Supplemental Benefit (Pension) Plan,
as amended from time to time.
2.16. “ Plan Year
” shall mean the calendar year.
2.17. “ Resolution Date
” shall mean the first date on which all of the amount
deferred with respect to a Participant under this Plan is
reasonably ascertainable within the meaning of Treasury Regulation
31.3121(v)(2).
2.18. “ SERP Benefit
” shall mean the benefit, if any, payable to a Participant
under the Second Amended and Restated Mirant Services Supplemental
Executive Retirement Plan.
2.19. “ Trust ”
shall mean the Mirant Corporation Benefit Security Trust Agreement
(adopted effective April 2, 2007).
Where the context requires, the
definitions of all terms set forth in the Pension Plan and the
Deferred Compensation Plans shall apply with equal force and effect
for purposes of interpretation and administration of the Plan,
unless said terms are otherwise specifically defined in the Plan.
The masculine pronoun shall be construed to include the feminine
pronoun and the singular shall include the plural, where the
context so requires.
2
ARTICLE III
ADMINISTRATION OF
PLAN
3.1. Administrator . The
general administration of the Plan shall be placed in the
Committee. The Committee shall consist of the members of the
Company’s Mirant Benefits Committee. Any member may resign or
may be removed by the Board of Managers and new members may be
appointed by the Board of Managers at such time or times as the
Board of Managers in its discretion shall determine. The Committee
shall be chaired by the Chairman of the Mirant Benefits Committee
and may select a Secretary (who may, but need not, be a member of
the Committee) to keep its records or to assist it in the discharge
of its duties. A majority of the members of the Committee shall
constitute a quorum for the transaction of business at any meeting.
Any determination or action of the Committee may be made or taken
by a majority of the members present at any meeting thereof, or
without a meeting by resolution or written memorandum concurred in
by a majority of the members.
3.2. Powers . The Committee
shall administer the Plan in accordance with its terms and shall
have all powers necessary to carry out the provisions of the Plan
more particularly set forth herein. It shall have the discretion to
interpret the Plan and shall determine all questions arising in the
administration, interpretation and application of the Plan. Any
such determination by it shall be conclusive and binding on all
persons. It may adopt such regulations as it deems desirable for
the conduct of its affairs. It may appoint such accountants,
counsel, actuaries, specialists and other persons as it deems
necessary or desirable in connection with the administration of
this Plan, and shall be the agent for the service of
process.
3.3. Duties of the Committee
.
(a) The Committee
