Exhibit 10(d)41
DEFERRED COMPENSATION PLAN
FOR
DIRECTORS OF GULF POWER COMPANY
Amended and Restated Effective January 1, 1987
Article I
Definitions
1.1 "Account" shall mean the Deferred Compensation Account established
for each Director electing to participate in the Plan pursuant to
Article VI.
1.2 "Board of Directors" or "Board" shall mean the Board of Directors of
Gulf Power Company.
1.3 "Common Stock" shall mean the common stock of The Southern Company.
1.4 "Company" shall mean Gulf Power Company.
1.5 "Compensation" shall mean the compensation payable to the Directors
of the Company, including retainer fees and meeting fees, as
determined from time to time by the Board of Directors.
1.6 "Deferral Election" shall mean the written election by a Director to
defer payment of all or a portion of his Compensation under the Plan
pursuant to Article VI.
1.7 "Director" shall mean a member of the Board of Directors and shall
include an Advisory Director.
1.8 "Investment Election" shall mean the written election by a Director
to have his Deferred Compensation invested pursuant to Section 7.2 or
Section 7.3.
1.9 "Market Value" shall mean the average of the high and low prices of
the Common Stock, as Published in the Wall Street Journal in its
report of New York Stock Exchange composite transactions, on the date
such Market Value is to be determined, as specified herein (or the
average of the high and low sale prices on the trading day
immediately preceding such date if the Common Stock is not traded on
the New York Stock Exchange on such date).
1.10 "Plan" shall mean the Deferred Compensation Plan for Directors of Gulf
Power Company.
1.11 "Plan Period" shall mean the period designated in
Article V.
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Article II
Purpose
2.1 The Plan provides a method of deferring payment to a Director of his
Compensation until a date following the termination of his membership
on the Board of Directors.
Article III
Eligibility
3.1 An individual who serves as a Director and is not otherwise actively
employed by the Company or any of its subsidiaries or affiliates
shall be eligible to participate in the Plan.
Article IV
Administration
4.1 The Plan shall be administered by the Compensation Committee of the
Board of Directors, as appointed from time to time. The Compensation
Committee shall have the power to interpret the Plan and, subject to
its provisions, to make all determinations necessary or desirable for
the Plan's administration.
Article V
Plan Periods
5.1 The first Plan Period shall commence June 1, 1981. Said first Plan
Period shall be a seven-month period and all subsequent Plan Periods
shall be on a calendar year basis, except that the initial Plan
Period applicable to any person elected to fill a vacancy on the
Board of Directors who was not a Director on the preceding December
31 shall begin on the first day of such Director's membership on the
Board of Directors.
Article VI
Participation
6.1 Prior to the beginning of any Plan Period, a Director may elect to
participate in the Plan by directing that payment of all or any part
of the Compensation which would otherwise be paid to the Director in
the next succeeding Plan period be deferred until the Director
terminates his membership on the Board of Directors and elects to
commence distribution of his Deferred Compensation Account pursuant
to the terms of the Plan.
6.2 The Deferral Election shall be in writing on a form prescribed by the
Compensation Committee and shall state (a) that the Director wishes
to make an election to defer payment of his Compensation, (b) the
percentage/dollar amount of Compensation to be deferred, (c) the
method of
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payment, which shall be the payment of a lump sum or a series of annual
payments not to exceed ten (10), and (d) the time for commencement of
distribution of his Account balance, which shall be not later than the
first day of the month coinciding with or next following the second
anniversary of the termination of his membership on the Board of
Directors. Each Director making a Deferral Election in accordance with
the terms of the Plan, and his successors, heirs and assigns shall be
bound as to any action taken pursuant to the terms thereof and to the
terms of the Plan.
6.3 The Deferral Election shall be made by written notice delivered to
the Corporate Secretary of the Company prior to the first day of the
next succeeding Plan Period and shall be effective on the first day
of such succeeding Plan Period. The Deferral Election made in
accordance with this Article shall be irrevocable during that Plan
Period. Such Deferral Election shall continue from Plan Period to
Plan Period unless the Director terminates participation or changes
the Deferral Election regarding future payments by submitting a
written request to the Corporate Secretary of the Company on a form
prescribed by the Compensation Committee. Any such termination or
change shall become effective as of the first day of the Plan Period
next following the Plan Period in which such request is given. A
termination of participation in the Plan or change in Deferral
Election regarding future payments shall not affect amounts
previously deferred. The initial Deferral Election made after the
effective date of this Amendment and Restatement with respect to (a)
the method of payment, whether it be lump sum or installments,
including the number of installments selected, and (b) the time for
commencement of distribution of a Participants Account may not be
revoked and shall govern the distribution of a Participant's Account,
except as provided in Section 6.5.
6.4 A Director who has filed a termination of Deferral Election may
thereafter file a new Deferral Election to participate for Plan
Periods subsequent to the Plan Period of the filing of such Deferral
Election. The new Deferral Election shall not affect amounts
previously deferred.
6.5 With the approval of the Compensation Committee, a Director may amend
a prior Deferral Election on a form prescribed by the Compensation
Committee not prior to the 390th day nor later than the 360th day
prior to his termination on the Board of Directors in order to change
(a) the form, and/or (b) the time for commencement of the
distribution of his Deferred Compensation Account in accordance with
the terms of the Plan. Any such amendment to a prior Deferral
Election, as described in this Section 6.5, shall be contingent upon
the Director's completion of his term of membership on the Board of
Directors, except in the event of the disability or death of such
Director.
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Article VII
Deferred Compensation Accounts
7.1 An Account shall be established on the Company books for
each Director electing to defer all or a portion of his
compensation, which shall be credited with (a) any Compensation
deferred in accordance with Article VI and (b) pursuant to each
Director's Investment Election, the amounts computed in
accordance with Section 7.2 and/or the number of shares
computed in accordance with Section 7.3.
7.2 The Deferred Compensation Account of each Director electing to invest
his Deferred Compensation for a Plan Period pursuant to this Section
7.2 shall be credited with an amount computed by the Company by
treating the amount deferred as a sum certain to which the Company
will add in lieu of interest an amount equal to the prime rate of
interest set by the First National Bank of Atlanta. Interest shall be
computed as if credited from the date such Compensation would
otherwise have been paid and shall be compounded quarterly at the end
of each calendar quarter. The prime rate in effect on the first day
of each calendar quarter shall be deemed the prime rate in effect for
each calendar quarter. Interest will be treated as if accrued and
will be compounded on any balance until such amount is fully
distributed.
7.3 The Deferred Compensation Account of each Director electing to invest
his Deferred Compensation for a Plan Period pursuant to this Section
7.3 shall be credited with the number of shares (including fractional
shares) of Common Stock which could have been Purchased on the date
such Deferred Compensation otherwise would have been paid based upon
the Common Stock's Market Value. As of each date of payment of
dividends on the Common Stock, there shall be credited with respect
to shares of Common Stock in the Director's Deferred Compensation
Account such additional shares (including fractional shares) of
Common Stock as follows:
(a) In the case of cash dividends, such additional shares as
could be purchased at the Market Value as of the dividend
payment date with the dividends which would have been
payable if the credited shares had been outstanding;
(b) In the case of dividends payable in property other than
cash or Common Stock, such additional shares as could be
purchased at the Market Value as of the payment date with
the fair market value of the property which would have been
payable if the credited shares had been outstanding; or
(c) 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.
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7.4 The Investment Election by a Director with respect to his Deferred
Compensation Account shall be made in writing on a form prescribed by
the Compensation Committee and delivered to the Corporate Secretary
of the Company prior to the first day of the next succeeding Plan
Period and shall be effective on the first day of such succeeding
Plan Period. The Investment Election made in accordance with this
Article VII shall be irrevocable during that Plan Period. Such
Investment Election shall continue from Plan Period to Plan Period
unless the Director changes the Investment Election regarding future
deferred Compensation by submitting a written request to the
Corporate Secretary of the Company on a form prescribed by the
Compensation Committee. Any such change shall become effective as of
the first day of the Plan Period next following the Plan Period in
which such request is given.
7.5 At the end of each Plan Period, a report shall be issued to each
Director who has a Deferred Compensation Account which sets forth the
amount and Market Value of any shares of Common Stock (and fractions
thereof) reflected in such Account.
Article VIII
Distribution of Accounts
8.1 When a Director terminates his membership on the Board of Directors,
said Director shall be entitled to receive the entire amount and the
Market Value of any shares of Common Stock (and fractions thereof)
reflected in his Deferred Compensation Account payable in cash in
accordance with his Deferral Election. No portion of a Director's
Deferred Compensation Account shall be distributed in Common Stock.
In the event a Director shall have elected to receive the balance of
his Deferred Compensation Account in a lump sum, distribution shall
be made on the first day of the month selected by the Director in
accordance with the terms of the Plan, or as soon as reasonably
possible thereafter. In the event the Director shall have elected to
receive annual installments, the first payment shall be on the first
day of the month selected by a Director, or as soon as reasonably
possible thereafter, and shall be paid an amount equal to the balance
in the Director's Account on such date divided by the number of
annual installment payments. Each subsequent annual payment shall be
an amount equal to the balance in the Director's Account on the
payment date divided by the number of remaining annual payments and
shall be paid on the anniversary of the preceding payment date.
Notwithstanding a Director's election to receive his Deferred
Compensation Account balance in annual installments, the Compensation
Committee, in its sole discretion upon request of the Director or his
legal representative, may accelerate the payment of any such
installments for cause. The Market Value of any shares of Common
Stock credited to a Director's Deferred Compensation Account shall be
determined as of the twenty-fifth (25th) day of the month immediately
preceding the date of any lump sum or installment distribution.
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8.2 Upon the death of a Director, or a former Director prior to the
payment of all amounts and the Market Value of any shares of Common
Stock (and fractions thereof) credited to said Director's Account,
the unpaid balance shall be paid in the sole discretion of the
Compensation Committee (a) in a lump sum to the designated
beneficiary of such Director or former Director within thirty (30)
days of the date of death (or as soon as reasonably possible
thereafter) or (b) in accordance with the Deferral Election made by
such Director or former Director. In the event a beneficiary
designation has not been made, or the designated beneficiary is
deceased or cannot be located, payment shall be made to the estate of
the Director or former Director. The Market Value of any shares of
Common Stock credited to a Director's Deferred Compensation Account
shall be determined as of the twenty-fifth (25th) day of the month
immediately preceding the date of any lump sum or installment
distribution.
8.3 The beneficiary designation referred to above may be changed by a
Director or former Director at any time, and without the consent of
the prior beneficiary, on a form to be provided by the Corporate
Secretary of the Company.
Article IX
Miscellaneous
9.1 No Director or beneficiary shall have any right to sell, assign,
transfer, encumber or otherwise convey the right to receive payment
of any benefit payable hereunder, which payment and the right thereto
are expressly declared to be nonassignable and non-transferable. Any
attempt to do so shall be null and void and of no effect.
9.2 The Company shall not reserve or otherwise set aside funds for the
payment of its obligations hereunder, which obligations will be paid
from the general assets of the Company. Notwithstanding that Director
shall be entitled to receive the entire amount in his Deferred
Compensation Account as provided in Section 8.1, any amounts credited
to a Director's Account to be paid to such Director shall at all
times be subject to the claims of the Company's creditors.
9.3 The Board of Directors may terminate the Plan at any time or may,
from time to time, amend the Plan; provided, however, that no such
amendment or termination shall impair any rights to payments which
had been deferred under the Plan prior to the termination or
amendment.
9.4 This Plan shall be construed in accordance with and governed by the
laws of the State of Florida.
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FIRST AMENDMENT
TO THE DEFERRED COMPENSATION PLAN
FOR DIRECTORS OF GULF POWER COMPANY
WHEREAS, the Board of Directors of Gulf Power Company (the "Company")
heretofore adopted the amendment and restatement of the Deferred Compensation
Plan for Directors of Gulf Power Company (the "Plan") effective as of January
16, 1987; and
WHEREAS, the Board of Directors of the Company desires to amend the
Plan to comply with changes in the Securities and Exchange Act of 1934; and
WHEREAS, under Section 9.3 of the Plan, the Board of Directors has the
authority to amend the Plan at any time.
NOW THEREFORE, effective as of the date of execution, the Board of
Directors hereby amends the Plan as follows:
1.
Section 6.5 of the Plan shall be amended by deleting said Section in
its entirety and substituting therefore the following language:
6.5 Except as provided below, with the approval of the Compensation
Committee, a Director may amend a prior Deferral Election on a form prescribed
by the Compensation Committee not prior to the 390th day nor later than the
360th day prior to his termination of membership on the Board of Directors in
order to change (a) the form, and/or (b) the time for commencement of the
distribution of his Deferred Compensation Account in accordance with the terms
of the Plan; provided, however, that any Director who is required to file
reports pursuant to Section 16(a) of the Securities and Exchange Act of 1934, as
amended, with respect to equity securities of The Southern Company shall not be
permitted to amend his Deferral Election during any time period for which such
Director is required to file any such reports with respect to the portion of his
Deferred Compensation Account invested in accordance with the provisions of
Section 7.3 of the Plan. Any such amendment to a prior Deferral Election, as
described in this Section 6.5, shall be contingent upon the Director's
completion of his term of membership on the Board of Directors, except in the
event of the disability or death of such Director.
2.
Except as amended herein by this First Amendment, the Plan shall remain
in full force and effect as adopted and amended by the Company prior to the
adoption of this First Amendment.
IN WITNESS WHEREOF, this First Amendment has been executed pursuant to
resolutions of the Board of Directors of Gulf Power Company this 1st day of
February, 1993, to be effective as of the date of execution.
GULF POWER COMPANY
By: /s/ D. L. McCrary
-------------------
Its: President
------------------
Attest:
By: /s/ W. E. Tate
------------------------
Its: Secretary & Treasurer
-----------------------
(CORPORATE SEAL)
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SECOND AMENDMENT TO THE
DEFERRED COMPENSATION PLAN FOR
DIRECTORS OF GULF POWER COMPANY
WHEREAS, the Board of Directors of Gulf Power Company (the
"Company') heretofore adopted the Amendment and Restatement of the Deferred
Compensation Plan for Directors of Gulf Power Company (the "Plan') effective as
of January 16, 1987; and
WHEREAS, the Board of Directors of the Company desires to
amend the Plan to address the payment of compensation in the form of stock to
Participants in the Plan; and
WHEREAS, under Section 9.3 of the Plan, the Board of Directors
has the authority to amend the Plan at any time.
NOW, THEREFORE, effective as of the date of execution set
forth below, the Board of Directors hereby amends the Plan as follows:
1.
Section 1.5 of the Plan shall be amended by deleting said
Section in its entirety and substituting therefore the following language:
1.5 "Compensation" shall mean the compensation payable to
the Directors of the Company, including retainer fees
and meeting fees, but excluding any amount paid in
the form of stock, as determined from time to time by
the Board of Directors.
2.
Section 6.3 of the Plan shall be amended by adding to the end of such
Section the following language:
Notwithstanding the foregoing, if the Compensation paid to a
Director is increased during a Plan Period, such Director
shall receive a Deferral Election Form proscribed by the
Compensation Committee and shall be entitled to make a new
deferral election regarding increased future Compensation
effective as of the date the increase in Compensation occurs.
3.
Except as amended herein by this Second Amendment, the Plan
shall remain in full force and effect as adopted and amended by the Company
prior to adoption of this Second Amendment.
IN WITNESS WHEREOF, this Second Amendment has been executed
pursuant to resolutions of the Board of Directors of Gulf Power Company this
27th day of July, 1994, to be effective as of the date of execution.
GULF POWER COMPANY
By: /s/ Travis J. Bowden
Its: President
--------------------------------
ATTEST:
By: /s/ W. E. Tate
---------------------------------
Its: Secretary/Treasurer
[CORPORATE SEAL]
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THIRD AMENDMENT TO THE
DEFERRED COMPENSATION PLAN FOR
DIRECTORS OF GULF POWER COMPANY
WHEREAS, the Board of Directors of Gulf Power Company (the "Company")
heretofore adopted the amendment and restatement of the Deferred Compensation
Plan for the Directors of Gulf Power Company (the "Plan") effective as of
January 1, 1987; and
WHEREAS, under Section 9.3 of the Plan, the Board of Directors has the
authority to amend the Plan from time to time; and
WHEREAS, the Board of Directors of the Company desires to amend the
Plan to add an additional deferral feature;
NOW, THEREFORE, effective as of April 25, 1997, the Board of Directors
hereby amends the Plan as follows:
1. A new Section 1.15 is hereby added to the Plan and shall read as
follows:
1.15 "Accrued Pension" means the U.S. dollar amount of the
actuarially-determined present value of the accrued and unpaid past
service pension benefits under The Southern Company OutsideDirectors'
Pension Plan (the "Directors Pension Plan ") of a Director acting as
such at and as of December 31, 1996, as calculated as of the
termination date of the Directors Pension Plan (the "Termination
Date"), taking into account the Directors age and years and months of
past service and such other assumptions as shall be reasonable and
uniformly applied to all Directors.
2. A new Section 6.25 is hereby added to the Plan and shall read as
follows:
6.25 Deferred Pension Election
(a) Any Director, who has an Accrued Pension as of the Termination
Date, may make a single one- time election, on or before April
25, 1997 in writing and on a form to be furnished by the
Committee, to convert his or her Accrued Pension into a
deferred pension account under the Plan (a "Deferred Pension
Account").
Upon making a deferred pension election (a "Deferred
Pension Election '), a new Deferred Pension Account
will be established in the Director's name and will
be credited with the amount of his or her Accrued
Pension so converted.
(b) Once made, a Deferred Pension Election cannot be changed or
revoked.
(c) A Deferred Pension Election shall defer the starting date for
the payment of the designated amount of the Director's Accrued
Pension, and any investment return credited thereon, until the
termination of the Director's membership on the Board.
(d) In the event of any such Deferred Pension Election, the form
of payment of any distribution (i.e., in a lump sum or in up
to ten approximately equal annual installments) and the
starting date of such distribution, (which may not be later
than the date which is twenty- four (24) months following the
date of termination of membership on the Board) shall be
elected at the same time. Except as herein provided, such
form-of-payment election shall not be changed or revoked.
IN WITNESS WHEREOF, this Third Amendment has been executed
pursuant to resolutions of the Board of Directors of Gulf Power Company this
25th day of April, 1997, to be effective as of the date of execution.
GULF POWER COMPANY
By: /s/ Travis J. Bowden
Its: President
---------------------
Attest:
By: /s/ W. E. Tate
----------------------
Its: Secretary/Treasurer
(Corporate Seal)
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April 25, 1997