Exhibit 10.18
SECOND
AMENDED AND
RESTATED
MIRANT SERVICES
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
SECOND AMENDED AND
RESTATED
MIRANT SERVICES
SUPPLEMENTAL EXECUTIVE RETIREMENT
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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“Accrued
SERP Benefit”
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1
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2.2.
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“Administrative
Committee”
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1
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2.3.
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“Affiliated Employer”
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1
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2.4.
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“Affiliated Employer Incentive
Pay”
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1
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2.5.
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“Base Pay
Percentage”
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1
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2.6.
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“Beneficiary”
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2
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2.7.
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“Board of
Managers”
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2
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2.8.
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“Code”
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2
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2.9.
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“Company”
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2
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2.10.
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“Effective Date”
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2
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2.11.
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“Employee”
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2
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2.12.
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“Employing Company”
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2
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2.13.
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“Excess
Benefit”
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2
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2.14.
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“Incentive Pay”
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2
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2.15.
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“Omnibus
Plan”
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2
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2.16.
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“Participant”
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2
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2.17.
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“Payment
Commencement Date”
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3
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2.18.
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“Pension
Plan”
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3
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2.19.
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“Plan”
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3
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2.20.
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“Plan
Year”
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3
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2.21.
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“Resolution Date”
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3
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2.22.
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“SERP
Benefit”
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3
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2.23.
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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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Administrative
Committee
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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
Administrative 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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Determination
of Participation
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4
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4.2.
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Eligibility for
Benefits
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5
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i
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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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SERP
Benefit
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5
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5.2.
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Distribution of
Benefits
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7
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5.3.
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FICA
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8
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5.4.
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FICA
Adjustment
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8
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5.5.
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Funding of
Benefits
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8
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5.6.
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Withholding
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8
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5.7.
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Recourse
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8
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5.8.
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Compliance with
Section 409A
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8
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Article VI
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MISCELLANEOUS
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9
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6.1.
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Assignment
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9
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6.2.
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Amendment and
Termination
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9
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6.3.
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No Guarantee of
Employment
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9
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6.4.
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Construction
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9
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ii
SECOND AMENDED AND
RESTATED
MIRANT SERVICES
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
ARTICLE I
PURPOSE AND ADOPTION OF
PLAN
1.1. Adoption . Mirant
Services, LLC (f/k/a Southern Energy Resources, L.L.C.) hereby
amends and restates for a second time the Mirant Services
Supplemental Executive Retirement Plan, effective as of
January 1, 2009. The Plan was originally adopted effective
June 25, 1998. The Plan shall be an unfunded deferred
compensation arrangement whose benefits shall be paid solely from
the general assets of the Employing Companies.
1.2. Purpose . The Plan is
designed to provide deferred compensation benefits primarily for a
select group of management or highly compensated employees which
are not otherwise payable under the Pension Plan as a result of the
exclusion of incentive pay from certain definitions of earnings set
forth under such plan.
ARTICLE II
DEFINITIONS
2.1. “ Accrued SERP
Benefit ” shall mean the actuarially determined present
value of a Participant’s SERP Benefit determined as of a
given date.
2.2. “ Administrative
Committee ” shall mean the committee appointed by the
Board of Managers under Section 3.1 hereof to administer the
Plan.
2.3. “ Affiliated
Employer ” shall mean any corporation, other than the
Company, which is a member of the controlled group of corporations
of which Mirant Corporation is the common parent corporation, which
the Board of Managers may from time to time determine to identify
under the Plan.
2.4. “ Affiliated Employer
Incentive Pay ” shall mean such incentive pay paid (or
which would have been paid except for the deferral of such amounts
under the Mirant Corporation Deferred Compensation Plan for
Directors and Select Employees, the Mirant Corporation Deferred
Compensation Plan, or any successor plan) to a Participant by an
Affiliated Employer which the Administrative Committee shall from
time to time identify as incentive pay under the Plan, including
but not limited to any incentive pay paid under the Omnibus Plan,
to the extent such payments do not exceed 200% of the
Participant’s base pay (as determined for purposes of
Section 2.4 herein); provided, however, any payment received
by the Participant under the Mirant Services Supplemental
Compensation Plan shall be specifically excluded.
2.5. “ Base Pay
Percentage ” shall mean the percentage of a
Participant’s base pay for purposes of Section 5.1(b)(2)
hereof, as established by the Board of Managers upon the
recommendation of the Administrative Committee for each Plan Year
prior to the beginning of
such Plan Year. In the event that the Board of
Managers does not consider the Base Pay Percentage for any
particular Plan Year, the Base Pay Percentage for such Plan Year
shall be deemed to be the Base Pay Percentage in effect for the
immediately preceding Plan Year. The initial Base Pay Percentage
for the Company’s Chief Executive Officer shall be ten
percent (10%) and for all other Participants shall be fifteen
percent (15%).
2.6. “ Beneficiary
” shall mean any person, estate, trust or organization
entitled to receive any payment under the Plan upon the death of a
Participant.
2.7. “ Board of
Managers ” shall mean the Board of Managers of the
Company.
2.8. “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
2.9. “ Company ”
shall mean Mirant Services, LLC, its successors and
assigns.
2.10. “ Effective Date
” of this second and restated Plan shall mean January 1,
2009. The Plan was originally effective June 25, 1998 and was
first amended and restated effective as of April 2,
2001.
2.11. “ Employee
” shall mean any person who is an employee of an Employing
Company, excluding any person represented by a collective
bargaining agent.
2.12. “ Employing
Company ” shall mean the Company and any United States
subsidiary or affiliate of Mirant Corporation, and any other
subsidiary of Mirant Corporation, 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.
2.13. “ Excess Benefit
” shall mean the “pension benefit” (as such term
is defined in the Mirant Services Supplemental Benefit (Pension)
Plan), if any, that is payable to a participant under the Mirant
Services Supplemental Benefit (Pension) Plan, as amended from time
to time.
2.14. “ Incentive Pay
” shall mean those short-term incentive awards, if any, paid
(or which would have been paid except for the deferral of such
amounts under the Mirant Corporation Deferred Compensation Plan for
Directors and Select Employees, the Mirant Corporation Deferred
Compensation Plan, or any successor plans) to a Participant under
the terms of the Omnibus Plan and such other incentive awards as
may be approved from time to time by the Board of Managers, to the
extent such payments do not exceed 200% of the Participant’s
base pay (as determined for purposes of Section 2.4 herein);
provided, however, any payment received by the Participant under
the Mirant Services Supplemental Compensation Plan shall be
specifically excluded.
2.15. “ Omnibus Plan
” shall mean the Mirant Corporation 2005 Omnibus Incentive
Compensation Plan, as amended from time to time.
2.16. “ Participant
” shall mean an Employee or former Employee who is eligible
to participate in the Plan pursuant to Section 4.1
hereof.
2
2.17. “ 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.
2.18. “ Pension Plan
” shall mean the Mirant Services Pension Plan, as amended
from time to time.
2.19. “ Plan ”
shall mean the Second Amended and Restated Mirant Services
Supplemental Executive Retirement Plan, as amended from time to
time.
2.20. “ Plan Year
” shall mean the calendar year.
2.21. “ 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).
2.22. “ SERP Benefit
” shall mean the supplemental pension benefit described in
Section 5.1 hereof.
2.23. “ 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 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. Administrative Committee
. The general administrative functions of the Plan shall be managed
by the Administrative Committee appointed by the Board of Managers.
The initial members of the Administrative Committee shall be the
members of the Company’s Mirant Benefits Committee.
Administrative Committee members shall serve at the pleasure of the
Board of Managers and may be removed and appointed as the Board of
Managers in its sole discretion shall determine.
3.2. Powers . The
Administrative 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. The
Administrative Committee shall have the discretionary authority 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
3.3. Duties of the Administrative
Committee .
(a) The Administrative Committee is
responsible for the daily administration of the Plan. It may
appoint other persons or entities to perform any of its fiduciary
functions. The Administrative Committee and any su