Exhibit 10(a)73
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN COMPANY SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
January 1, 1996
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN COMPANY SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
Page
ARTICLE I - PURPOSE AND ADOPTION OF PLAN........................... 1
1.1 Adoption......................................... 1
1.2 Purpose.......................................... 1
ARTICLE II DEFINITIONS............................................. 2
2.1 "Account......................................... 2
2.2 "Affiliated Employer............................. 2
2.3 "Beneficiary..................................... 2
2.4 "Board of Directors.............................. 2
2.5 "Code............................................ 2
2.6 "Common Stock.................................... 2
2.7 "Company......................................... 2
2.8 "Deferred Compensation Plan...................... 2
2.9 "Effective Date.................................. 2
2.10 "Employee........................................ 3
2.11 "Employing Company............................... 3
2.12 "ESOP............................................ 3
2.13 "Non-Pension Benefit............................. 3
2.14 "Participant..................................... 3
2.15 "Pension Benefit................................. 3
2.16 "Pension Plan.................................... 3
i
2.17 "Plan............................................ 3
2.18 "Plan Year....................................... 3
2.19 "Savings Plan.................................... 3
ARTICLE III ADMINISTRATION OF PLAN................................. 4
3.1 Administrator.................................... 4
3.2 Powers........................................... 4
3.3 Duties of the Board of Directors................. 5
3.4 Indemnification.................................. 6
ARTICLE IV ELIGIBILITY............................................. 6
4.1 Eligibility Requirements......................... 6
4.2 Determination of Eligibility..................... 7
ARTICLE V BENEFITS................................................. 7
5.1 Pension Benefit.................................. 7
5.2 Non-Pension Benefit.............................. 9
5.3 Distribution of Benefits......................... 11
5.4 Funding of Benefits.............................. 14
5.5 Withholding...................................... 14
ARTICLE VI MISCELLANEOUS........................................... 15
6.1 Assignment....................................... 15
6.2 Amendment and Termination........................ 15
6.3 No Guarantee of Employment....................... 15
6.4 Construction..................................... 15
ii
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN ELECTRIC SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
1
ARTICLE I - PURPOSE AND ADOPTION OF PLAN
1.1 Adoption: Southern Company Services, Inc. and Southern
Electric International, Inc. hereby adopt and establish the
Supplemental Benefit Plan for Southern Company Services, Inc. and
Southern Electric International, Inc. 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 certain retirement and
other deferred compensation benefits primarily for a select group of management
or highly compensated employees which are not otherwise payable or cannot
otherwise be provided by the Employing Companies (1) under the Pension Plan for
Employees of Southern Company Services, Inc., The Southern Company Employee
Savings Plan, and The Southern Company Employee Stock Ownership Plan, as a
result of the limitations set forth under Sections 401(a)(17), 401(k), 401(m),
402(g), or 415 of the Internal Revenue Code of 1986, as amended from time to
time and (2) to compensate for lost benefits resulting from participation in The
Southern Company Deferred Compensation Plan, as amended from time to time.
1
ARTICLE II DEFINITIONS
2
2.1 "Account" shall mean the account or accounts established and
maintained by an Employing Company to reflect the interest of a Participant in
the Plan resulting from a Participant's Non- Pension Benefit calculated in
accordance with Section 5.2.
2.2 "Affiliated Employer" shall mean any corporation which is a member
of the controlled group of corporations of which The Southern Company is the
common parent corporation.
2.3 "Beneficiary" shall mean any person, estate, trust, or organization
entitled to receive any payment under the Plan upon the death of a Participant.
2.4 "Board of Directors" shall mean the Board of Directors of
the Company.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
2.6 "Common Stock" shall mean common stock of The Southern
Company.
2.7 "Company" shall mean Southern Company Services, Inc.
2.8 "Deferred Compensation Plan" shall mean The Southern
Company Deferred Compensation Plan, as amended from time to time, following its
adoption by the Boards of Directors of Employing Companies.
2.9 "Effective Date" shall mean January 1, 1983. The Effective Date of
this amendment and restatement shall mean January 1, 1996.
2
2.10 "Employee" shall mean any person who is currently
employed by an Employing Company.
2.11 "Employing Company" shall mean the Company, Southern Electric
International, Inc., and any affiliate or subsidiary of The Southern Company
which the Board of Directors may from time to time determine to bring under the
Plan and which shall adopt the Plan, and any successor of any of them.
2.12 "ESOP" shall mean The Southern Company Employee Stock Ownership
Plan, as amended from time to time.
2.13 "Non-Pension Benefit" shall mean the benefit described in
Section 5.2.
2.14 "Participant" shall mean an Employee or former Employee of an
Employing Company who is eligible pursuant to Sections 4.1 and 4.2.
2.15 "Pension Benefit" shall mean the benefit described in
Section 5.1.
2.16 "Pension Plan" shall mean the defined benefit pension plan
maintained by an Employing Company or Affiliated Employer, as amended from time
to time.
2.17 "Plan" shall mean the Supplemental Benefit Plan for
Southern Company Services, Inc. and Southern Electric
International, Inc., as amended from time to time.
2.18 "Plan Year" shall mean the calendar year.
2.19 "Savings Plan" shall mean The Southern Company Employee Savings
Plan, as amended from time to time.
3
Where the context requires, the definitions of all terms set forth in
the Pension Plan, the ESOP, the Savings Plan and the Deferred Compensation 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
3.1 Administrator. The general administration of the Plan
shall be placed in the Board of Directors.
3.2 Powers. The Board of Directors 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 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.
4
3.3 Duties of the Board of Directors.
(a) The Board of Directors is responsible for the daily
administration of the Plan. It may appoint other persons or entities to perform
any of its fiduciary functions. The Board of Directors and any such appointee
may employ advisors and other persons necessary or convenient to help it carry
out its duties, including its fiduciary duties. The Board of Directors shall
have the right to remove any such appointee from his position. Any person, group
of persons or entity may serve in more than one fiduciary capacity.
(b) The Board of Directors shall maintain accurate and
detailed records and accounts of Participants and of their rights under the Plan
and of all receipts, disbursements, transfers and other transactions concerning
the Plan. Such accounts, books and records relating thereto shall be open at all
reasonable times to inspection and audit by persons designated by the Board of
Directors.
(c) The Board of Directors shall take all steps necessary to
ensure that the Plan complies with the law at all times. These steps shall
include such items as the preparation and filing of all documents and forms
required by any governmental agency; maintaining of adequate Participants'
records; recording and transmission of all notices required to be given to
Participants and their Beneficiaries; the receipt and dissemination, if
required, of all reports and information received from an Affiliated Employer;
securing of such fidelity bonds as may
5
be required by law; and doing such other acts necessary for the proper
administration of the Plan. The Board of Directors shall keep a record of all of
its proceedings and acts, and shall keep all such books of account, records and
other data as may be necessary for proper administration of the Plan.
3.4 Indemnification. The Employing Companies shall indemnify the Board
of Directors against any and all claims, losses, damages, expenses and liability
arising from an action or failure to act, except when the same is finally
judicially determined to be due to gross negligence or willful misconduct. The
Employing Companies may purchase at their own expense sufficient liability
insurance for the Board of Directors to cover any and all claims, losses,
damages and expenses arising from any action or failure to act in connection
with the execution of the duties as Board of Directors. No member of the Board
of Directors who is also an Employee of the Employing Companies shall receive
any compensation from the Plan for his services in administering the Plan.
ARTICLE IV ELIGIBILITY
4
4.1 Eligibility Requirements. All Employees (a) who are determined
eligible to participate in accordance with Section 4.2; (b) whose benefits under
the Pension Plan of their Employing Company are limited by the limitations set
forth in Sections 401(a)(17) or 415 of the Code, (c) for whom contributions by
their Employing Company to the Savings Plan are limited by the
6
limitations set forth in Sections 401(a)(17), 401(k), 401(m), 402(g) or 415 of
the Code, (d) for whom contributions by their Employing Company to the ESOP are
limited by the limitations set forth in Sections 401(a)(17) or 415 of the Code
or (e) who after December 31, 1995, make deferrals under the Deferred
Compensation Plan, shall be eligible to receive benefits under the Plan.
4.2 Determination of Eligibility. The Board of Directors shall
determine which Employees are eligible to participate. Upon becoming a
Participant, an Employee shall be deemed to have assented to the Plan and to any
amendments hereafter adopted. The Board of Directors shall be authorized to
rescind the eligibility of any Participant if necessary to insure that the Plan
is maintained primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees under the Employee
Retirement Income Security Act of 1974, as amended.
ARTICLE V BENEFITS
5
5.1 Pension Benefit.
(a) If a Participant has Accredited Service with respect to
the Pension Plan of his Employing Company, but not with respect to the Pension
Plan of any other Employing Company or Affiliated Employer, he shall be entitled
to a Pension Benefit equal to that portion of his Retirement Income under the
Pension Plan of his Employing Company which is not payable under such Pension
Plan as
7
a result of the limitations imposed by Sections 401(a)(17), 415(b),
or 415(e) of the Code.
(b) If a Participant has Accredited Service with respect to
the Pension Plan of his Employing Company and with respect to the Pension Plan
of any other Employing Company or one or more Affiliated Employers, his Pension
Benefit payable by his Employing Company, his former Employing Company, and/or
Affiliated Employer(s) shall be equal to that portion of his combined Retirement
Income under each Pension Plan which is not payable under any of such Pension
Plans as a result of the limitations described by Sections 401(a)(17), 415(b),
or 415(e) of the Code, multiplied by a fraction, the sum of the individual
fractions not to exceed one (1), the numerator of which is his years of
Accredited Service under the Pension Plan of each Employing Company or
Affiliated Employer and the denominator which is his total years of Accredited
Service under the Pension Plans of all of his Employing Companies and Affiliated
Employers.
(c) For purposes of this Section 5.1, the Pension Benefit of a
Participant shall be calculated based on the Participant's Earnings that are
considered under the Pension Plan of his Employing Company in calculating his
Retirement Income, without regard to the limitation of Section 401(a)(17) of the
Code, including any portion of his compensation he may have elected to defer
under the Deferred Compensation Plan but excluding Incentive Pay he deferred
under such Deferred Compensation Plan.
8
(d) To the extent that a Participant's Retirement Income under
a Pension Plan is recalculated as a result of an amendment to such Pension Plan
in order to increase the amount of his Retirement Income, the Participant's
Pension Benefit shall also be recalculated in order to properly reflect such
increase in determining payments of the Participant's Pension Benefit made on or
after the effective date of such increase.
5.2 Non-Pension Benefit.
(a) A Participant shall be entitled to a Non-Pension Benefit
which is determined under this Section 5.2. An Account shall be established for
the Participant by his Employing Company, as of his initial Plan Year of
participation in the Plan, and by each other Employing Company by which the
Participant is subsequently employed. Each Plan Year such Account shall be
credited with an amount equal to the amount that his Employing Company is
prohibited from contributing (1) to the Savings Plan on behalf of the
Participant as a result of the limitations imposed by Sections 401(a)(17),
401(k), 401(m), 402(g), 415(c), or 415(e) of the Code and (2) to the ESOP on
behalf of the Participant as a result of the limitations imposed by Sections
401(a)(17), 415(c), or 415(e) of the Code.
(b) For purposes of this Section 5.2, the Non-Pension Benefit
of a Participant shall be calculated based on the Participant's compensation
that would have been considered in calculating allocations to his accounts under
the Savings Plan and ESOP, without regard to the limitations of Section
401(a)(17) or
9
Section 402(g) of the Code, including any portion of his compensation he may
have elected to defer under the Deferred Compensation Plan but excluding
Incentive Pay he deferred under the Deferred Compensation Plan.
(c) All amounts so credited to the Account of the Participant
shall be deemed to be invested in the Common Stock at the same time that such
amounts would have been so invested if they had been contributed by his
Employing Company to the Savings Plan or the ESOP, as the case may be. In
addition, such Account shall be credited with respect to shares of Common Stock
allocated to the Participant's Account as follows:
(1) In the case of cash dividends, such additional
shares as could be purchased with the dividends which would have been
payable if the credited shares had been outstanding;
(2) In the case of dividends payable in property
other than cash or Common Stock, such additional shares as could be
purchased with the fair market value of the property which would have
been payable if the credited shares had been outstanding; or
(3) In the case of dividends payable in Common Stock,
such additional shares as would have been payable on the credited
shares if they had been outstanding.
(d) As soon as practicable following the first day of his
eligibility to have benefits credited to his Account, a Participant shall
designate in writing on a form to be prescribed by the Company the method of
payment of his Account, which shall be
10
the payment of a single lump sum or a series of annual installments not to
exceed twenty (20). The method of distribution initially designated by a
Participant shall not be revoked and shall govern the distribution of each
Account established for the benefit of the Participant by his Employing
Companies. Notwithstanding, in the sole discretion of the Board of Directors
upon application by the Participant, the method of distribution designated by
such Participant may be modified not prior to 395 days nor later than 365 days
prior to a Participant's date of separation from service in order to change the
form of distribution of his Account in accordance with the terms of the Plan.
Each Participant, his Beneficiary, and legal representative shall be bound as to
any action taken pursuant to the method of distribution elected by a Participant
and the terms of the Plan.
5.3 Distribution of Benefits.
(a) The Pension Benefit, as determined in accordance with
Section 5.1, shall be payable in monthly increments on the first day of the
month concurrently with and in the same manner as the Participant's Retirement
Income under the Pension Plan. The Beneficiary of a Participant's Pension
Benefit shall be the same as the beneficiary of the Participant's Retirement
Income under the Pension Plan.
(b) When a Participant terminates his employment with an
Employing Company, said Participant shall be entitled to receive the market
value of any shares of Common Stock (and fractions thereof) reflected in any
Account maintained by an Employing
11
Company for his benefit under the Plan in a single lump sum distribution or
annual installments not to exceed twenty (20). Such distribution shall be made
not later than sixty (60) days following the close of the calendar quarter in
which his termination of employment occurs, or as soon as reasonably practicable
thereafter. The transfer by a Participant between companies within The Southern
Company shall not be deemed to be a termination of employment with an Employing
Company. No portion of a Participant's Account shall be distributed in Common
Stock.
(c) In the event a Participant elects to receive the
distribution of his Account in annual installments, the first payment shall be
made not later than sixty (60) days following the close of the calendar quarter
in which his termination of employment occurs, or as soon as reasonably
practicable thereafter, and shall be an amount equal to the balance in the
Participant's Account divided by the number of annual installment payments. Each
subsequent annual payment shall be an amount equal to the balance in the
Participant's Account divided by the number of the remaining annual payments and
shall be due on the anniversary of the preceding payment date. No portion of a
Participant's Account shall be distributed in Common Stock.
(d) Upon the death of a Participant, or a former Participant
prior to the payment of all amounts credited to said Participant's Account, the
unpaid balance shall be paid in the sole discretion of the Board of Directors
(1) in a lump sum to the designated Beneficiary of a Participant or former
Participant
12
within sixty (60) days following the close of the calendar quarter in which the
Board of Directors is provided evidence of the Participant's death (or as soon
as reasonably practicable thereafter) or (2) in accordance with the distribution
method chosen by such Participant or former Participant. The Beneficiary
designation may be changed by the Participant or former Participant at any time
without the consent of the prior Beneficiary. In the event a Beneficiary
designation is not on file or the designated Beneficiary is deceased or cannot
be located, payment will be made to the estate of the Participant or former
Participant. No portion of a Participant's Account shall be distributed in
Common Stock.
(e) Upon the total disability of a Participant or former
Participant, as determined by the Social Security Administration, the unpaid
balance of his Account shall be paid in the sole discretion of the Board of
Directors (1) in a lump sum to the Participant or former Participant, or his
legal representative within sixty (60) days following the notification of the
Board of Directors of the determination of disability by the Social Security
Administration (or as soon as reasonably practicable thereafter) or (2) in
accordance with the distribution method elected by such Participant or former
Participant. No portion of a Participant's Account shall be distributed in
Common Stock.
(f) The Board of Directors in its sole discretion upon
application made by the Participant, a designated Beneficiary, or their legal
representative, may determine to accelerate payments or, in the event of death
or total disability (as determined by
13
Social Security Administration), to extend or otherwise make payments in a
manner different from the manner in which such payment would be made under the
method of distribution elected by the Participant in the absence of such
determination.
5.4 Funding of Benefits. Any Employing Company maintaining an Account
for the benefit of a Participant shall not reserve or otherwise set aside funds
for the payment of its obligations under the Plan, and such obligations shall be
paid solely from the general assets of the Employing Companies. Notwithstanding
that a Participant shall be entitled to receive the balance of his Account under
the Plan, the assets from which such amount shall be paid at all times remain
subject to the claims of the creditors of the Participant's Employing Companies.
5.5 Withholding. There shall be deducted from the payment of any
Pension Benefit or Non-Pension Benefit due under the Plan the amount of any tax
required by any governmental authority to be withheld and paid over by an
Employing Company to such governmental authority for the account of the
Participant or Beneficiary entitled to such payment.
14
ARTICLE VI MISCELLANEOUS
6
6.1 Assignment. Neither the Participant, his Beneficiary, nor his legal
representative shall have any rights to sell, assign, transfer or otherwise
convey the right to receive the payment of any Pension Benefit or Non-Pension
Benefit due hereunder, which payment and the right thereto are expressly
declared to be nonassignable and nontransferable. Any attempt to assign or
transfer the right to payment under the Plan shall be null and void and of no
effect.
6.2 Amendment and Termination. The Plan may be amended or terminated at
any time by the Board of Directors, provided that no amendment or termination
shall cause a forfeiture or reduction in any benefits accrued as of the date of
such amendment or termination.
6.3 No Guarantee of Employment. Participation hereunder shall not be
construed as creating any contract of employment between any Employing Company
and a Participant, nor shall it limit the right of an Employing Company to
suspend, terminate, alter, or modify, whether or not for cause, the employment
relationship between such Employing Company and a Participant.
6.4 Construction. This Plan shall be construed in accordance with and
governed by the laws of the State of Georgia, to the extent such laws are not
otherwise superseded by the laws of the United States.
15
IN WITNESS WHEREOF, the Plan has been executed by duly authorized
officers of Southern Company Services, Inc., pursuant to resolutions of the
Board of Directors of the Company, this day of , 1996.
SOUTHERN COMPANY SERVICES, INC.
By:
[CORPORATE SEAL] C. Alan Martin
Vice President, Human Resources
Attest:
By:
Tommy Chisholm
Secretary
16
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN COMPANY SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
January 1, 1996
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN COMPANY SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
Page
ARTICLE I - PURPOSE AND ADOPTION OF PLAN........................... 1
1.1 Adoption......................................... 1
1.2 Purpose.......................................... 1
ARTICLE II DEFINITIONS............................................. 2
2.1 "Account......................................... 2
2.2 "Affiliated Employer............................. 2
2.3 "Beneficiary..................................... 2
2.4 "Board of Directors.............................. 2
2.5 "Code............................................ 2
2.6 "Common Stock.................................... 2
2.7 "Company......................................... 2
2.8 "Deferred Compensation Plan...................... 2
2.9 "Effective Date.................................. 2
2.10 "Employee........................................ 3
2.11 "Employing Company............................... 3
2.12 "ESOP............................................ 3
2.13 "Non-Pension Benefit............................. 3
2.14 "Participant..................................... 3
2.15 "Pension Benefit................................. 3
2.16 "Pension Plan.................................... 3
i
2.17 "Plan............................................ 3
2.18 "Plan Year....................................... 3
2.19 "Savings Plan.................................... 3
ARTICLE III ADMINISTRATION OF PLAN................................. 4
3.1 Administrator.................................... 4
3.2 Powers........................................... 4
3.3 Duties of the Board of Directors................. 5
3.4 Indemnification.................................. 6
ARTICLE IV ELIGIBILITY............................................. 6
4.1 Eligibility Requirements......................... 6
4.2 Determination of Eligibility..................... 7
ARTICLE V BENEFITS................................................. 7
5.1 Pension Benefit.................................. 7
5.2 Non-Pension Benefit.............................. 9
5.3 Distribution of Benefits......................... 11
5.4 Funding of Benefits.............................. 14
5.5 Withholding...................................... 14
ARTICLE VI MISCELLANEOUS........................................... 15
6.1 Assignment....................................... 15
6.2 Amendment and Termination........................ 15
6.3 No Guarantee of Employment....................... 15
6.4 Construction..................................... 15
ii
SUPPLEMENTAL BENEFIT PLAN
FOR
SOUTHERN ELECTRIC SERVICES, INC.
AND
SOUTHERN ELECTRIC INTERNATIONAL, INC.
1
ARTICLE I - PURPOSE AND ADOPTION OF PLAN
1.1 Adoption: Southern Company Services, Inc. and Southern
Electric International, Inc. hereby adopt and establish the
Supplemental Benefit Plan for Southern Company Services, Inc. and
Southern Electric International, Inc. 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 certain retirement and
other deferred compensation benefits primarily for a select group of management
or highly compensated employees which are not otherwise payable or cannot
otherwise be provided by the Employing Companies (1) under the Pension Plan for
Employees of Southern Company Services, Inc., The Southern Company Employee
Savings Plan, and The Southern Company Employee Stock Ownership Plan, as a
result of the limitations set forth under Sections 401(a)(17), 401(k), 401(m),
402(g), or 415 of the Internal Revenue Code of 1986, as amended from time to
time and (2) to compensate for lost benefits resulting from participation in The
Southern Company Deferred Compensation Plan, as amended from time to time.
1
ARTICLE II DEFINITIONS
2
2.1 "Account" shall mean the account or accounts established and
maintained by an Employing Company to reflect the interest of a Participant in
the Plan resulting from a Participant's Non- Pension Benefit calculated in
accordance with Section 5.2.
2.2 "Affiliated Employer" shall mean any corporation which is a member
of the controlled group of corporations of which The Southern Company is the
common parent corporation.
2.3 "Beneficiary" shall mean any person, estate, trust, or organization
entitled to receive any payment under the Plan upon the death of a Participant.
2.4 "Board of Directors" shall mean the Board of Directors of
the Company.
2.5 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
2.6 "Common Stock" shall mean common stock of The Southern
Company.
2.7 "Company" shall mean Southern Company Services, Inc.
2.8 "Deferred Compensation Plan" shall mean The Southern
Company Deferred Compensation Plan, as amended from time to time, following its
adoption by the Boards of Directors of Employing Companies.
2.9 "Effective Date" shall mean January 1, 1983. The Effective Date of
this amendment and restatement shall mean January 1, 1996.
2
2.10 "Employee" shall mean any person who is currently
employed by an Employing Company.
2.11 "Employing Company" shall mean the Company, Southern Electric
International, Inc., and any affiliate or subsidiary of The Southern Company
which the Board of Directors may from time to time determine to bring under the
Plan and which shall adopt the Plan, and any successor of any of them.
2.12 "ESOP" shall mean The Southern Company Employee Stock Ownership
Plan, as amended from time to time.
2.13 "Non-Pension Benefit" shall mean the benefit described in
Section 5.2.
2.14 "Participant" shall mean an Employee or former Employee of an
Employing Company who is eligible pursuant to Sections 4.1 and 4.2.
2.15 "Pension Benefit" shall mean the benefit described in
Section 5.1.
2.16 "Pension Plan" shall mean the defined benefit pension plan
maintained by an Employing Company or Affiliated Employer, as amended from time
to time.
2.17 "Plan" shall mean the Supplemental Benefit Plan for
Southern Company Services, Inc. and Southern Electric
International, Inc., as amended from time to time.
2.18 "Plan Year" shall mean the calendar year.
2.19 "Savings Plan" shall mean The Southern Company Employee Savings
Plan, as amended from time to time.
3
Where the context requires, the definitions of all terms set forth in
the Pension Plan, the ESOP, the Savings Plan and the Deferred Compensation 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
3.1 Administrator. The general administration of the Plan
shall be placed in the Board of Directors.
3.2 Powers. The Board of Directors 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 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.
4
3.3 Duties of the Board of Directors.
(a) The Board of Directors is responsible for the daily
administration of the Plan. It may appoint other persons or entities to perform
any of its fiduciary functions. The Board of Directors and any such appointee
may employ advisors and other persons necessary or convenient to help it carry
out its duties, including its fiduciary duties. The Board of Directors shall
have the right to remove any such appointee from his position. Any person, group
of persons or entity may serve in more than one fiduciary capacity.
(b) The Board of Directors shall maintain accurate and
detailed records and accounts of Participants and of their rights under the Plan
and of all receipts, disbursements, transfers and other transactions concerning
the Plan. Such accounts, books and records relating thereto shall be open at all
reasonable times to inspection and audit by persons designated by the Board of
Directors.
(c) The Board of Directors shall take all steps necessary to
ensure that the Plan complies with the law at all times. These steps shall
include such items as the preparation and filing of all documents and forms
required by any governmental agency; maintaining of adequate Participants'
records; recording and transmission of all notices required to be given to
Participants and their Beneficiaries; the receipt and dissemination, if
required, of all reports and information received from an Affiliated Employer;
securing of such fidelity bonds as may
5
be required by law; and doing such other acts necessary for the proper
administration of the Plan. The Board of Directors shall keep a record of all of
its proceedings and acts, and shall keep all such books of account, records and
other data as may be necessary for proper administration of the Plan.
3.4 Indemnification. The Employing Companies shall indemnify the Board
of Directors against any and all claims, losses, damages, expenses and liability
arising from an action or failure to act, except when the same is finally
judicially determined to be due to gross negligence or willful misconduct. The
Employing Companies may purchase at their own expense sufficient liability
insurance for the Board of Directors to cover any and all claims, losses,
damages and expenses arising from any action or failure to act in connection
with the execution of the duties as Board of Directors. No member of the Board
of Directors who is also an Employee of the Employing Companies shall receive
any compensation from the Plan for his services in administering the Plan.
ARTICLE IV ELIGIBILITY
4
4.1 Eligibility Requirements. All Employees (a) who are determined
eligible to participate in accordance with Section 4.2; (b) whose benefits under
the Pension Plan of their Employing Company are limited by the limitations set
forth in Sections 401(a)(17) or 415 of the Code, (c) for whom contributions by
their Employing Company to the Savings Plan are limited by the
6
limitations set forth in Sections 401(a)(17), 401(k), 401(m), 402(g) or 415 of
the Code, (d) for whom contributions by their Employing Company to the ESOP are
limited by the limitations set forth in Sections 401(a)(17) or 415 of the Code
or (e) who after December 31, 1995, make deferrals under the Deferred
Compensation Plan, shall be eligible to receive benefits under the Plan.
4.2 Determination of Eligibility. The Board of Directors shall
determine which Employees are eligible to participate. Upon becoming a
Participant, an Employee shall be deemed to have assented to the Plan and to any
amendments hereafter adopted. The Board of Directors shall be authorized to
rescind the eligibility of any Participant if necessary to insure that the Plan
is maintained primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees under the Employee
Retirement Income Security Act of 1974, as amended.
ARTICLE V BENEFITS
5
5.1 Pension Benefit.
(a) If a Participant has Accredited Service with respect to
the Pension Plan of his Employing Company, but not with respect to the Pension
Plan of any other Employing Company or Affiliated Employer, he shall be entitled
to a Pension Benefit equal to that portion of his Retirement Income under the
Pension Plan of his Employing Company which is not payable under such Pension
Plan as
7
a result of the limitations imposed by Sections 401(a)(17), 415(b),
or 415(e) of the Code.
(b) If a Participant has Accredited Service with respect to
the Pension Plan of his Employing Company and with respect to the Pension Plan
of any other Employing Company or one or more Affiliated Employers, his Pension
Benefit payable by his Employing Company, his former Employing Company, and/or
Affiliated Employer(s) shall be equal to that portion of his combined Retirement
Income under each Pension Plan which is not payable under any of such Pension
Plans as a result of the limitations described by Sections 401(a)(17), 415(b),
or 415(e) of the Code, multiplied by a fraction, the sum of the individual
fractions not to exceed one (1), the numerator of which is his years of
Accredited Service under the Pension Plan of each Employing Company or
Affiliated Employer and the denominator which is his total years of Accredited
Service under the Pension Plans of all of his Employing Companies and Affiliated
Employers.
(c) For purposes of this Section 5.1, the Pension Benefit of a
Participant shall be calculated based on the Participant's Earnings that are
considered under the Pension Plan of his Employing Company in calculating his
Retirement Income, without regard to the limitation of Section 401(a)(17) of the
Code, including any portion of his compensation he may have elected to defer
under the Deferred Compensation Plan but excluding Incentive Pay he deferred
under such Deferred Compensation Plan.
8
(d) To the extent that a Participant's Retirement Income under
a Pension Plan is recalculated as a result of an amendment to such Pension Plan
in order to increase the amount of his Retirement Income, the Participant's
Pension Benefit shall also be recalculated in order to properly reflect such
increase in determining payments of the Participant's Pension Benefit made on or
after the effective date of such increase.
5.2 Non-Pension Benefit.
(a) A Participant shall be entitled to a Non-Pension Benefit
which is determined under this Section 5.2. An Account shall be established for
the Participant by his Employing Company, as of his initial Plan Year of
participation in the Plan, and by each other Employing Company by which the
Participant is subsequently employed. Each Plan Year such Account shall be
credited with an amount equal to the amount that his Employing Company is
prohibited from contributing (1) to the Savings Plan on behalf of the
Participant as a result of the limitations imposed by Sections 401(a)(17),
401(k), 401(m), 402(g), 415(c), or 415(e) of the Code and (2) to the ESOP on
behalf of the Participant as a result of the limitations imposed by Sections
401(a)(17), 415(c), or 415(e) of the Code.
(b) For purposes of this Section 5.2, the Non-Pension Benefit
of a Participant shall be calculated based on the Participant's compensation
that would have been considered in calculating allocations to his accounts under
the Savings Plan and ESOP, without regard to the limitations of Section
401(a)(17) or
9
Section 402(g) of the Code, including any portion of his compensation he may
have elected to defer under the Deferred Compensation Plan but excluding
Incentive Pay he deferred under the Deferred Compensation Plan.
(c) All amounts so credited to the Account of the Participant
shall be deemed to be invested in the Common Stock at the same time that such
amounts would have been so invested if they had been contributed by his
Employing Company to the Savings Plan or the ESOP, as the case may be. In
addition, such Account shall be credited with respect to shares of Common Stock
allocated to the Participant's Account as follows:
(1) In the case of cash dividends, such additional
shares as could be purchased with the dividends which would have been
payable if the credited shares had been outstanding;
(2) In the case of dividends payable in property
other than cash or Common Stock, such additional shares as could be
purchased with the fair market value of the property which would have
been payable if the credited shares had been outstanding; or
(3) In the case of dividends payable in Common Stock,
such additional shares as would have been payable on the credited
shares if they had been outstanding.
(d) As soon as practicable following the first day of his
eligibility to have benefits credited to his Account, a Participant shall
designate in writing on a form to be prescribed by the Company the method of
payment of his Account, which shall be
10
the payment of a single lump sum or a series of annual installments not to
exceed twenty (20). The method of distribution initially designated by a
Participant shall not be revoked and shall govern the distribution of each
Account established for the benefit of the Participant by his Employing
Companies. Notwithstanding, in the sole discretion of the Board of Directors
upon application by the Participant, the method of distribution designated by
such Participant may be modified not prior to 395 days nor later than 365 days
prior to a Participant's date of separation from service in order to change the
form of distribution of his Account in accordance with the terms of the Plan.
Each Participant, his Beneficiary, and legal representative shall be bound as to
any action taken pursuant to the method of distribution elected by a Participant
and the terms of the Plan.
5.3 Distribution of Benefits.
(a) The Pension Benefit, as determined in accordance with
Section 5.1, shall be payable in monthly increments on the first day of the
month concurrently with and in the same manner as the Participant's Retirement
Income under the Pension Plan. The Beneficiary of a Participant's Pension
Benefit shall be the same as the beneficiary of the Participant's Retirement
Income under the Pension Plan.
(b) When a Participant terminates his employment with an
Employing Company, said Participant shall be entitled to receive the market
value of any shares of Common Stock (and fractions thereof) reflected in any
Account maintained by an Employing
11
Company for his benefit under the Plan in a single lump sum distribution or
annual installments not to exceed twenty (20). Such distribution shall be made
not later than sixty (60) days following the close of the calendar quarter in
which his termination of employment occurs, or as soon as reasonably practicable
thereafter. The transfer by a Participant between companies within The Southern
Company shall not be deemed to be a termination of employment with an Employing
Company. No portion of a Participant's Account shall be distributed in Common
Stock.
(c) In the event a Participant elects to receive the
distribution of his Account in annual installments, the first payment shall be
made not later than sixty (60) days following the close of the calendar quarter
in which his termination of employment occurs, or as soon as reasonably
practicable thereafter, and shall be an amount equal to the balance in the
Participant's Account divided by the number of annual installment payments. Each
subsequent annual payment shall be an amount equal to the balance in the
Participant's Account divided by the number of the remaining annual payments and
shall be due on the anniversary of the preceding payment date. No portion of a
Participant's Account shall be distributed in Common Stock.
(d) Upon the death of a Participant, or a former Participant
prior to the payment of all amounts credited to said Participant's Account, the
unpaid balance shall be paid in the sole discretion of the Board of Directors
(1) in a lump sum to the designated Beneficiary of a Participant or former
Participant
12
within sixty (60) days following the close of the calendar quarter in which the
Board of Directors is provided evidence of the Participant's death (or as soon
as reasonably practicable thereafter) or (2) in accordance with the distribution
method chosen by such Participant or former Participant. The Beneficiary
designation may be changed by the Participant or former Participant at any time
without the consent of the prior Beneficiary. In the event a Beneficiary
designation is not on file or the designated Beneficiary is deceased or cannot
be located, payment will be made to the estate of the Participant or former
Participant. No portion of a Participant's Account shall be distributed in
Common Stock.
(e) Upon the total disability of a Participant or former
Participant, as determined by the Social Security Administration, the unpaid
balance of his Account shall be paid in the sole discretion of the Board of
Directors (1) in a lump sum to the Participant or former Participant, or his
legal representative within sixty (60) days following the notification of the
Board of Directors of the determination of disability by the Social Security
Administration (or as soon as reasonably practicable thereafter) or (2) in
accordance with the distribution method elected by such Participant or former
Participant. No portion of a Participant's Account shall be distributed in
Common Stock.
(f) The Board of Directors in its sole discretion upon
application made by the Participant, a designated Beneficiary, or their legal
representative, may determine to accelerate payments or, in the event of death
or total disability (as determined by
13
Social Security Administration), to extend or otherwise make payments in a
manner different from the manner in which such payment would be made under the
method of distribution elected by the Participant in the absence of such
determination.
5.4 Funding of Benefits. Any Employing Company maintaining an Account
for the benefit of a Participant shall not reserve or otherwise set aside funds
for the payment of its obligations under the Plan, and such obligations shall be
paid solely from the general assets of the Employing Companies. Notwithstanding
that a Participant shall be entitled to receive the balance of his Account under
the Plan, the assets from which such amount shall be paid at all times remain
subject to the claims of the creditors of the Participant's Employing Companies.
5.5 Withholding. There shall be deducted from the payment of any
Pension Benefit or Non-Pension Benefit due under the Plan the amount of any tax
required by any governmental authority to be withheld and paid over by an
Employing Company to such governmental authority for the account of the
Participant or Beneficiary entitled to such payment.
14
ARTICLE VI MISCELLANEOUS
6
6.1 Assignment. Neither the Participant, his Beneficiary, nor his legal
representative shall have any rights to sell, assign, transfer or otherwise
convey the right to receive the payment of any Pension Benefit or Non-Pension
Benefit due hereunder, which payment and the right thereto are expressly
declared to be nonassignable and nontransferable. Any attempt to assign or
transfer the right to payment under the Plan shall be null and void and of no
effect.
6.2 Amendment and Termination. The Plan may be amended or terminated at
any time by the Board of Directors, provided that no amendment or termination
shall cause a forfeiture or reduction in any benefits accrued as of the date of
such amendment or termination.
6.3 No Guarantee of Employment. Participation hereunder shall not be
construed as creating any contract of employment between any Employing Company
and a Participant, nor shall it limit the right of an Employing Company to
suspend, terminate, alter, or modify, whether or not for cause, the employment
relationship between such Employing Company and a Participant.
6.4 Construction. This Plan shall be construed in accordance with and
governed by the laws of the State of Georgia, to the extent such laws are not
otherwise superseded by the laws of the United States.
15
IN WITNESS WHEREOF, the Plan has been executed by duly authorized
officers of Southern Company Services, Inc., pursuant to resolutions of the
Board of Directors of the Company, this day of , 1996.
SOUTHERN COMPANY SERVICES, INC.
By:
[CORPORATE SEAL] C. Alan Martin
Vice President, Human Resources
Attest:
By:
Tommy Chisholm
Secretary
16