Exhibit 10(a)61
FOURTH AMENDMENT TO THE
SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore
adopted the amendment and restatement of The Southern Company Employee Savings
Plan ("Plan"), effective as of January 1, 1997; and
WHEREAS, the Committee desires to amend the Plan to provide for the
participation in the Plan by certain former employees of Orange and Rockland
Utilities, Inc. and Pacific Gas and Electric, Inc. who become employed by
Southern Energy Resources, Inc.; and
WHEREAS, the Committee desires to amend the Plan to allow for the
trust-to-trust transfer of account balances from the Orange and Rockland
Utilities, Inc. Management Employees' Savings Plan; and
WHEREAS, the Committee desires to clarify Plan language concerning the
delegation of authority to appoint investment managers; and
WHEREAS, the Committee desires to amend the definition of "Eligible
Rollover Distribution" to comply with recent changes in the law; and
WHEREAS, the Committee is authorized pursuant to Section 15.1 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 as of the date hereof, Article III shall be amended by adding
a new Section 3.8 thereto as follows and by redesignating existing Section 3.8
as Section 3.10:
3.8 Former Orange and Rockland Utilities, Inc. Employees.
Notwithstanding any other provision of the Plan to the contrary, with
respect to a former employee of Orange and Rockland Utilities, Inc.
("O&R") who is employed by Southern Energy Resources, Inc. and is set
forth on a schedule of employees acknowledged by the Committee, such
employee shall be given credit for service with O&R for eligibility
purposes and may elect to become a Participant as of any Enrollment
Date commencing on or after the date such employee meets the
eligibility requirements under Section 3.1 of the Plan.
II.
Effective as of the date hereof, Article III shall be amended by adding
a new Section 3.9 thereto as follows:
3.9 Former Pacific Gas and Electric, Inc. Employees.
Notwithstanding any other provision of the Plan to the contrary, with
respect to a former employee of Pacific Gas and Electric, Inc. ("PG&E")
who is employed by Southern Energy Resources, Inc. and is set forth on
a schedule of employees acknowledged by the Committee, such employee
shall be given credit for service with PG&E for eligibility purposes
and may elect to become a Participant as of any Enrollment Date
commencing on or after the date such employee meets the eligibility
requirements under Section 3.1 of the Plan.
III.
Effective as of the date hereof, a new Article XIX shall be added as follows:
ARTICLE XIX
SPECIAL REQUIREMENTS FOR ACCOUNT BALANCES
ATTRIBUTABLE TO ACCRUED BENEFITS TRANSFERRED FROM
THE ORANGE AND ROCKLAND UTILITIES, INC.
MANAGEMENT EMPLOYEES' SAVINGS PLAN (THE "O&R PLAN")
19.1 Acceptance of Trust-to-Trust Transfer. The Plan may
accept a trust-to-trust transfer of an account from the O&R Plan for
each Participant who was a participant in the O&R Plan immediately
prior to the date of the acquisition of Orange and Rockland Utilities,
Inc. ("O&R") ("Effective Date"), who becomes employed by Southern
Energy Resources, Inc. immediately thereafter, and who elects on a form
acceptable to the Committee to make such a transfer. Such account shall
be known as the Participant's "O&R Transferred Account" and shall be
subject to the requirements of this Article XIX.
19.2 Treatment of O&R Transferred Account. The O&R Transferred
Account shall not be maintained as a separate bookkeeping account but,
instead, shall be treated as follows:
(a) Voluntary Participant Contributions. The portion
of the Transferred Account attributable to Employee After-Tax
Contributions, as that term is defined under the O&R Plan,
shall be treated as Voluntary Participant Contributions under
this Plan.
(b) Elective Employer Contributions. The portion of
the Transferred Account attributable to (1) Pre-Tax
Contributions, as that term is defined under the O&R Plan; and
(2) Transferred Employer PAYSOP Contributions, as that term is
defined under the O&R Plan; and (3) Hourly Savings Plan
Contributions, as that term is defined under the O&R Plan,
shall be treated as Elective Employer Contributions under this
Plan.
(c) Employer Matching Contributions. The portion of
the Transferred Account attributable to Company Matching
Contributions, as that term is defined under the O&R Plan,
shall be treated as Employer Matching Contributions under this
Plan.
(d) Rollover Contributions. The portion of the
Transferred Account attributable to Rollover Contributions, as
that term is defined under the O&R Plan, shall be treated as
Rollover Contributions under this Plan.
19.3 Investment and In-Service Withdrawals of Employer
Matching Contributions. In determining a Participant's ability to
invest Employer Matching Contributions under Section 8.3(b) and to
withdraw Employer Matching Contributions under Section 11.1(a)(4), a
Participant shall be given credit for any participation in the O&R
Plan.
19.4 Loans from O&R Transferred Accounts. The Transferred
Accounts may include loans made under the O&R Plan and shall be
amortized in accordance with the loan note(s) provided upon transfer.
With respect to Section 11.7(b), any loans transferred shall be
considered in determining the limits thereunder.
19.5 Code Section 411(d)(6) Protected Benefits.
Notwithstanding any of the foregoing, the provisions of this Article
XIX shall not decrease a Participant's accrued benefit, except to the
extent permitted under Section 412(c)(8) of the Code, and shall not
reduce or eliminate Code Section 411(d)(6) protected benefits. The
Committee shall disregard any part of this Article XIX or the Plan to
the extent that application of such would fail to satisfy this
paragraph. If the Committee disregards any portion of this Article XIX
or the Plan because it would eliminate a protected benefit, the
Committee shall maintain a schedule of any such impacted early
retirement option or other optional forms of benefit and the Plan shall
continue such for the affected Participants.
IV.
Effective as of March 25, 1999, Section 13.14 of the Plan shall be
amended by deleting such section in its entirety and replacing it with the
following:
13.14 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 that term is 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).
V.
Effective as of March 25, 1999, Section 14.1 of the Plan shall be
amended by deleting such section in its entirety and replacing it with the
following:
14.1 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 that term is defined in ERISA) who may be 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.
VI.
Effective as of the date hereof, Section 2.30 of the Plan shall be
amended by deleting such section in its entirety and replacing it with the
following:
2.30. "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution does not
include: (a) any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the Distributee, the joint lives (or
joint life expectancies) of the Distributee and the Distributee's
Beneficiary, or for a specified period of 10 years or more; (b) any
distribution to the extent such distribution is required under Section
401(a)(9) of the Code; (c) the portion of any distribution that is not
includable in gross income (determined without regard to the exclusion
from net unrealized appreciation with respect to employer securities);
and (d) for distributions on or after January 1, 2000, any hardship
distribution described in Section 401(k)(2)(B)(i)(IV) of the Code.
Except as amended herein by this Fourth Amendment, the Plan shall
remain in full force and effect as amended and restated by the Company prior to
the adoption of this Fourth Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly
authorized members of the Employee Savings Plan Committee, has adopted this
Fourth Amendment to The Southern Company Employee Savings Plan this ____ day of
_________________________, 1999 to be effective as of such date unless stated
otherwise herein.
EMPLOYEE SAVINGS PLAN COMMITTEE:
Christopher C. Womack
Robert A. Bell
W. Dean Hudson
FIFTH AMENDMENT TO THE
SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
WHEREAS, the Employee Savings Plan Committee ("Committee") heretofore
adopted the amendment and restatement of The Southern Company Employee Savings
Plan ("Plan"), effective as of January 1, 1997; and
WHEREAS, the Committee desires to amend the Plan to allow Eligible
Employees to make a Rollover Contribution to the Plan within 18 months of
employment; and
WHEREAS, the Committee is authorized pursuant to Section 15.1 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 as of January 1, 2000, Section 4.11 of the Plan shall be
amended by deleting such Section and substituting a new Section 4.11 as follows:
4.11 Rollovers from Other Plans. An Eligible Employee who is
hired or rehired on or after April 1, 1997 and has received a
distribution of his interest in a retirement plan of a former employer
under circumstances meeting the requirements of Section 402(c)(4) of
the Code relating to eligible rollover distributions from qualified
trusts may elect to deposit all or any portion (as designated by such
Eligible Employee) of the amount of such distribution as a Rollover
Contribution to this Plan. A Rollover Contribution may be made only
within 60 days following the date the Eligible Employee receives the
distribution from the plan of his former employer (or within such
additional period as may be provided under Section 408 of the Code if
the Eligible Employee shall have made a timely deposit of the
distribution in an individual retirement account) and within 12 months
of the date of his employment or reemployment with an Employing
Company. Notwithstanding the preceding sentence, effective January 1,
2000, a Rollover Contribution may be made only within 60 days following
the date the Eligible Employee receives the distribution from the plan
of his former employer (or within such additional period as may be
provided under Section 408 of the Code if the Eligible Employee shall
have made a timely deposit of the distribution in an individual
retirement account) and within 18 months after the date of his
employment or reemployment with an Employing Company. In addition to
the foregoing, an Eligible Employee described in Section 3.5 may elect
to make a Rollover Contribution to this Plan without regard to his date
of employment, provided that such Rollover Contribution is deposited
with this Plan within the period beginning April 1, 1997 and ending
June 30, 1997 and which otherwise satisfies the requirements of this
Section 4.11.
The Committee shall establish rules and procedures to
implement this Section 4.11, including without limitation, such
procedures as may be appropriate to permit the Committee to verify the
tax qualified status of the plan of the former employer and compliance
with any applicable provisions of the Code relating to such
contributions. The amount contributed to the Trustee pursuant to this
Section 4.11 shall be placed in the Eligible Employee's Rollover
Contribution subaccount for the benefit of the Eligible Employee
pursuant to Section 9.1. The Eligible Employee shall have a fully
vested interest in the balance of his Rollover Contribution subaccount
at all times and such Rollover Contribution subaccount shall share in
the earnings, gains, and losses of the Trust Fund as set forth in
Article IX of the Plan. An Employee shall be entitled to a distribution
of his Rollover Contribution subaccount pursuant to the applicable
provisions of Articles XI and XII hereof.
II.
Except as amended herein by this Fifth Amendment, the Plan shall remain
in full force and effect as amended and restated by the Company prior to the
adoption of this Fifth Amendment.
IN WITNESS WHEREOF, the Employee Savings Plan Committee, through its
duly authorized member, has adopted this Fifth Amendment to The Southern Company
Employee Savings Plan pursuant to a Committee resolution, this ________ day of
______________________, 1999 to be effective as of such date unless stated
otherwise herein.
EMPLOYEE SAVINGS PLAN COMMITTEE:
Christopher C. Womack