Exhibit 10(a)76
SEVENTH AMENDMENT TO THE
SOUTHERN COMPANY
PERFORMANCE SHARING PLAN
WHEREAS, Southern Company Services, Inc. ("Company") heretofore adopted
The Southern Company Performance Sharing Plan ("Plan"), effective as of January
1, 1997; and
WHEREAS, the Performance Sharing Plan Committee ("Committee") desires
to amend the Plan in order to clarify that certain transferred employees are not
eligible to participate in the Plan; and
WHEREAS, the Committee desires to amend the Plan to exclude certain
former employees of Orange and Rockland Utilities, Inc. who became employed by
Southern Energy Resources, Inc.; and
WHEREAS, the Committee desires to amend the Plan to clarify the
forfeiture provisions in the Plan; and
WHEREAS, the Committee desires to amend the Plan to allow audit fees
incurred by the Plan and the Trust to be paid from the Trust assets; and
WHEREAS, the Committee desires to amend the Plan to clarify Plan
language concerning the delegation of authority to appoint and remove investment
managers; and
WHEREAS, the Committee desires to amend the Plan to revise the list of
incentive pay treated as compensation under the Plan; and
WHEREAS, the Committee is authorized pursuant to Section 12.1 of the
Plan to amend the Plan at any time, provided that the amendment does not involve
a substantial increase in cost to any Employing Company or is necessary or
desirable to comply with the laws and regulations applicable to the Plan.
NOW, THEREFORE, the Committee hereby amends the Plan as follows, to be
effective as provided herein:
I.
Effective January 1, 1999, Article II, Section 2.19 shall be amended by
adding new Sections (u) and (v) after the phrase ""Eligible Employee" shall not
include:" as follows:
(u) an Employee who is described in Section 3.8 of the Plan;
(v) an Employee who has been previously employed by an Employing
Company, transferred to Southern Company Energy Marketing, L.P.,
subsequently transfers back to an Employing Company, and is not
described in paragraph (a) of Section 15.1 of The Southern Company
Pension Plan;
II.
Effective as of the date hereof, Article III of the Plan shall be
amended by adding a new Section 3.8 thereto as follows:
3.8 Former Orange and Rockland Utilities, Inc. Employees.
Notwithstanding any other provision of the Plan to the contrary, a
former employee of Orange and Rockland Utilities, Inc. ("O&R") who is
employed by Southern Energy Resources, Inc. and who is set forth on a
schedule of employees acknowledged by the Committee shall not be
eligible to participate in the Plan. In the event any such employee is
allowed to participate in the Plan in the future, such employee shall
be entitled, for vesting purposes hereunder, to years of vesting
service accrued under the Employees' Retirement Plan of Orange and
Rockland Utilities, Inc. ("O&R Pension Plan") on or after January 1,
1997, in addition to any Years of Service accrued under this Plan.
III.
Effective as of January 1, 1999, Section 8.2 shall be amended by
deleting such Section in its entirety and replacing it with the following:
8.2 Forfeitures. That portion of the Account to which the
Participant is not entitled shall be credited to the Suspense Account
(which will always share in earnings or losses of the Trust) and shall
be used to offset future Employer Contributions. Such offset shall take
place as of the last day of the Plan Year in which the Forfeiture
occurs.
IV.
Effective as of March 25, 1999, Section 10.12 shall be amended by
deleting such Section in its entirety and replacing it with the following:
10.12 Expenses of Plan and Trust Fund. The expenses of
establishment and administration of the Plan and the Trust Fund shall
be paid by the Company or the Employing Companies. Notwithstanding the
foregoing, to the extent provided in the Trust Agreement, certain
administrative expenses may be paid from the Trust Fund either directly
or through reimbursement of the Company or the Employing Companies. All
fees of the auditors related to the audit of the Plan or the Trust Fund
shall be paid from the Trust Fund either directly or through
reimbursement of the Company or the Employing Companies. Any expenses
directly related to the investments of the Trust Fund, such as stock
transfer taxes, brokerage commissions, or other charges incurred in the
acquisition or disposition of such investments, shall be paid from the
Trust Fund (or from the particular Investment Fund to which such fees
or expenses relate) and shall be deemed to be part of the cost of such
securities or deducted in computing the proceeds therefrom, as the case
may be. Investment management fees for the Investment Funds shall be
paid from the particular Investment Fund to which they relate either
directly or through reimbursement of the Company or the Employing
Companies unless the Company or the Employing Companies do not elect to
receive reimbursement for payment of such expenses. Taxes, if any, on
any assets held or income received by the Trustee shall be charged
appropriately against the Accounts of Participants as the Committee
shall determine. Any expenses paid by the Company pursuant to Section
10.11 and this section shall be subject to reimbursement by other
Employing Companies of their proportionate shares of such expenses as
determined by the Committee.
V.
Effective as of March 25, 1999, Section 10.14 of the Plan shall be
amended by deleting such Section in its entirety and replacing it with the
following:
10.14 Management of Assets. The Committee shall not have
responsibility with respect to control or management of the assets of
the Plan. The Trustee shall have the sole responsibility for the
administration of the assets of the Plan as provided in the Trust
Agreement, except to the extent that an investment advisor (who
qualifies as an Investment Manager as defined in ERISA) who is
appointed by the Pension Fund Investment Review Committee shall have
responsibility for the management of the assets of the Plan, or some
part thereof (including powers to acquire and dispose of the assets of
the Plan, or some part thereof).
VI.
Effective as of the date hereof, Section 11.1 of the Plan shall be
amended by deleting such Section in its entirety and replacing it with the
following:
11.1 Trustee. The Company has entered into a Trust Agreement
with the Trustee to hold the funds necessary to provide the benefits
set forth in the Plan. If the Board of Directors so determines, the
Company may enter into a Trust Agreement or Trust Agreements with
additional trustees. Any Trust Agreement may be amended by the Company
from time to time in accordance with its terms. Any Trust Agreement
shall provide, among other things, that all funds received by the
Trustee thereunder will be held, administered, invested, and
distributed by the Trustee, and that no part of the corpus or income of
the Trust held by the Trustee shall be used for or diverted to purposes
other than for the exclusive benefit of Participants or their
Beneficiaries, except as otherwise provided in the Plan. Any Trust
Agreement may also provide that the investment and reinvestment of the
Trust Fund, or any part thereof may be carried out in accordance with
directions given to the Trustee by any Investment Manager or Investment
Managers (as defined in ERISA) who are appointed by the Pension Fund
Investment Review Committee. The Board of Directors may remove any
Trustee or any successor Trustee, and any Trustee or any successor
Trustee may resign. Upon removal or resignation of a Trustee, the Board
of Directors shall appoint a successor Trustee.
VII.
Effective as of January 1, 1999, Appendix B shall be modified in the
form attached hereto.
Except as amended herein by this Seventh Amendment, the Plan shall
remain in full force and effect.
IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly
authorized members of the Performance Sharing Committee, has adopted this
Seventh Amendment to The Southern Company Performance Sharing Plan this _____
day of ________________, 1999, to be effective as of such date unless stated
otherwise herein.
PERFORMANCE SHARING PLAN COMMITTEE:
Christopher C. Womack
Robert A. Bell
W. Dean Hudson
APPENDIX B - INCENTIVE PAY PLANS
Effective as of January 1, 1999, all awards under the following
incentive pay plans shall be counted as compensation for purposes of Section
2.12 of the Plan:
o The Southern Company Performance Pay Plan
o The Southern Company Productivity Improvement Plan
o The Southern Company Executive Productivity Improvement Plan
o Georgia Power Company Customer Choice Group Incentive Compensation Plan
o Georgia Power Company Customer Partnership Teams Incentive Plan
o Georgia Power Company Residential Customer Partnership Team Incentive Plan
o Merchandise Sales Business Unit Incentive Plan (APC/Gulf)
o Southern Company Energy Solutions Officer and Staff Incentive
Compensation Plan
o Southern Company Energy Solutions PowerCall Security Incentive Compensation
Plan (Installation & Service Technicians)
o Southern Company National Accounts Incentive Compensation Plan
o Southern LINC Annual Incentive Plan
o Southern LINC Regional Sales Managers Incentive Plan