Exhibit 10.21
MIRANT SERVICES
SUPPLEMENTAL BENEFIT (SAVINGS)
PLAN
MIRANT SERVICES
SUPPLEMENTAL BENEFIT (SAVINGS)
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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1.3
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Transferred
Accounts
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1
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Article II
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DEFINITIONS
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2
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2.1
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“Account”
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2
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2.2
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“Beneficiary”
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2
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2.3
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“Board” or “Board of
Managers”
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2
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2.4
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“Code”
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2
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2.5
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“Committee”
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2
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2.6
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“Company”
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2
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2.7
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“Deferred
Compensation Plans”
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2
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2.8
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“Effective Date”
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2
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2.9
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“Employee”
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2
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2.10
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“Employing Company”
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2
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2.11
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“Mirant”
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2
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2.12
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“Participant”
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2
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2.13
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“Plan”
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3
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2.14
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“Plan
Year”
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3
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2.15
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“Savings
Benefit”
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3
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2.16
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“Savings
Plan”
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3
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2.17
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“Trust”
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3
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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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4
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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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5
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Article V
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BENEFITS
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5
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5.1
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Savings
Benefit
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5
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5.2
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Distribution of
Benefits
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6
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5.3
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Funding of
Benefits
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7
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5.4
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Withholding
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7
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5.5
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Recourse
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7
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5.6
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Compliance with
Section 409A
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7
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i
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Article VI
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MISCELLANEOUS
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8
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6.1
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Assignment
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8
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6.2
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Amendment and
Termination
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8
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6.3
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No Guarantee of
Employment
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8
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6.4
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Construction
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8
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ii
MIRANT SERVICES
SUPPLEMENTAL BENEFIT (SAVINGS)
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 contribution portion of the Mirant
Services Supplemental Benefit Plan which was originally adopted
effective January 1, 2001. The Mirant Services Supplemental
Benefit (Pension) Plan is a continuation of the defined benefit
portion of such 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 Savings 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.
1.3 Transferred Accounts
.
(a) Funds representing the amounts
in each Participant’s “Supplemental Benefit
Account” (as such term is defined in the Southern Company
Energy Marketing Executive Deferred Compensation and Supplemental
Benefit Plan (the “SCEM Plan”)) under the SCEM Plan, as
determined on the Effective Date of this Plan, were transferred to
the Company’s general assets and are recorded as a
bookkeeping account for such Participant under the Plan (the
“SCEM Accounts”). No further contributions shall be
made to the SCEM Accounts, which shall receive interest at the
prime rate as published in the Wall Street Journal ,
compounded daily. Payments shall be made from the SCEM Accounts at
the same time and in the same manner as a Participant’s
Account under the Plan.
(b) Funds representing the amounts
in each Employee’s “Account” (as such term is
defined in the Southern Company Supplemental Benefit Plan (the
“Southern Plan”)) under the Southern Plan, as
determined on the Effective Date of the Plan, were transferred to
the Company’s general assets. Such amounts are included in
the respective Participant’s Account under the Plan and
payable at the same time and in the same manner as the
Participant’s Account under the Plan. With respect to an
Employee whose Account under the Southern Plan was transferred to
the Plan (the “Southern Account”), but who is not
otherwise a Participant in the Plan, payment of the amounts in such
Southern Account shall be made at the same time and in the same
manner as if such Southern Account were an Account under the
Plan.
ARTICLE II
DEFINITIONS
2.1 “ Account ”
shall mean the total amount credited to the bookkeeping account of
a Participant established by the Employing Company to reflect the
interest of a Participant in the Plan resulting from a
Participant’s Savings Benefit calculated in accordance with
Section 5.1 and Section 1.3.
2.2 “ Beneficiary
” shall mean any person, estate, trust, or organization
entitled to receive any payment under the Plan upon the death of a
Participant.
2.3 “ Board ” or
“Board of Managers” shall mean the Board of Managers of
the Company.
2.4 “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.5 “ 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.
2.6 “ Company ”
shall mean Mirant Services, LLC, its successors and
assigns.
2.7 “ 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.
2.8 “ 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.
2.9 “ 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.
2.10 “ 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.
2.11 “ Mirant ”
shall mean Mirant Corporation (f/k/a Southern Energy, Inc.), its
successors and assigns.
2.12 “ 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
2.13 “ Plan ”
shall mean the Mirant Services Supplemental Benefit (Savings) Plan,
as amended from time to time.
2.14 “ Plan Year
” shall mean the calendar year.
2.15 “ Savings Benefit
” shall mean the benefit described in
Section 5.1.
2.16 “ Savings Plan
” shall mean the Mirant Services Employee Savings Plan, as
amended from time to time.
2.17 “ 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 Savings 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.
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 af