Exhibit 10(a)65
DEFERRED COMPENSATION PLAN FOR
DIRECTORS OF THE SOUTHERN COMPANY
Amended and Restated Effective February 17, 1997
SECTION I
Definitions
1.1 "Beneficiary Election" means the designation by the Director of the
person or persons to whom distributions are made from the Plan upon the
death of the director pursuant to Section 7.
1.2 "Board" or "Board of Directors" means the Board of Directors of the
Company.
1.3 "Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
1.4 "Committee" means the Governance Committee of the Board, or such other
committee as may be designated by the Board to be responsible for
administering the Plan.
1.5 "Common Stock" means the common stock of the Company, including any
shares into which it may be split, subdivided, or combined.
1.6 "Common Stock Investment Account" means the bookkeeping account
established pursuant to Section 6.2 in which a Director may elect to
defer compensation or make investments, and includes amounts credited
thereto to reflect the reinvestment of dividends.
1.7 "Company" means The Southern Company, and any successor thereto.
1.8 "Compensation Payment Date" means the date on which compensation,
including cash retainer, meeting fees, and the Stock Retainer, is
payable to a Director or compensation would otherwise be payable to a
Director if an election to defer such compensation had not been made.
1.9 "Deferred Compensation Account" means the Prime Rate Investment
Account, the Common Stock Investment Account, and/or the Deferred Stock
Account.
1.10 "Deferred Pension Election" means the election by a Director under
Section 5.3 in connection with the deferral of receipt of the
Director's Pension Benefit until termination from the Board.
1.11 "Deferred Stock Account" means the bookkeeping account established
under Section 6.3 on behalf of a Director and includes shares of Common
Stock credited thereto to reflect the reinvestment of dividends
pursuant to Section 6.3(a)(iii).
1.12 "Director" means a member of the Board.
1.13 "Directors' Stock Trust" means The Southern Company Directors' Deferred
Stock Trust established between the Company and Reliance Trust Company.
1.14 "Distribution Election" means the designation by a Director of the
manner of distribution of the amounts and quantities held in the
Director's Deferred Compensation Accounts upon the director's
termination from the Board of Directors pursuant to Section 5.4.
1.15 "Market Value" means 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).
1.16 "Pension Benefit" means the U.S. dollar amount of the
actuarially-determined present value of benefits based on a Director's
expected service at the required retirement date under The Southern
Company Outside Directors Pension Plan, as calculated as of the
Termination Date, plus accrued earnings on such amount calculated as if
invested at the Prime Interest Rate from the Termination Date, until
such amount is invested in Deferred Compensation Accounts pursuant to
the provisions of Section 5.3.
1.17 "Pension Benefit Investment Date" means the date to be determined by
the Committee, as of which the Director's Pension Benefit will be
credited to a Deferred Compensation Account in accordance with the
director's Deferred Pension Election under Section 5.3.
1.18 "Plan" means the Deferred Compensation Plan for Directors of The
Southern Company as from time to time in effect.
1.19 "Plan Period" shall mean the period designated in Section 4.
1.20 "Prime Interest Rate" means the prime rate of interest as published in
the Wall Street Journal.
1.21 "Prime Rate Investment Account" means the bookkeeping account
established pursuant to Section 6.1 in which a Director may elect to
defer compensation or make investments, the investment return on which
is computed at the Prime Interest Rate.
1.22 "Stock Retainer" means the annual Board retainer fee that the Board has
determined to credit to a Director's Deferred Stock Account.
1.23 "Termination Date" means January 1, 1997, the date as of which The
Southern Company Outside Directors Pension Plan was effectively
terminated.
Where the context requires, words in the masculine gender shall include the
feminine gender, words in the singular shall include the plural, and words in
the plural shall include the singular.
SECTION 2
Purpose
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.
SECTION 3
Eligibility
An individual who serves as a Director and is not otherwise actively employed by
the Company or any of its subsidiaries or affiliates is eligible to participate
in the Plan.
SECTION 4
Plan Periods
The first Plan Period under this amended and restated plan shall begin April 1,
1997. Said first Plan Period shall be a nine-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 the Board who was not a Director on
the preceding December 31, shall begin on the first day of such Director's
membership on the Board.
SECTION 5
Elections
5.1 Cash Compensation
(a) Prior to the beginning of a Plan Period, a Director may direct
that payment of all or any portion of cash compensation that
otherwise would be paid to the Director for the Plan Period,
be deferred in amounts as designated by the Director, and
credited to (i) a Prime Rate Investment Account, (ii) a Common
Stock Investment Account, or (iii) a Deferred Stock Account.
Upon the Director's termination from the Board of Directors,
such deferred compensation and accumulated investment return
held in the Director's Deferred Compensation Accounts shall be
distributed to the Director in accordance with the Director's
Distribution Election and the provisions of Section 7.
(b) An election to defer cash compensation is irrevocable. Such an
election shall continue from Plan Period to Plan Period unless
the Director changes his election to defer cash compensation
paid in a future Plan Period prior to the beginning of such
future Plan Period.
(c) Cash compensation deferred under this Section 5.1 shall be
invested in Deferred Compensation Accounts as directed by the
Director on the Compensation Payment Date.
5.2 Stock Retainer
Director compensation designated as Stock Retainer shall be credited to
the Director's Deferred Stock Account as of the Compensation Payment
Date. Upon the Director's termination from the Board of Directors, such
compensation and accumulated investment return held in the Director's
Deferred Stock Account shall be distributed to the Director in
accordance with the Director's Distribution Election and the provisions
of Section 7.
5.3 Deferred Pension Election
Any Director, who has a Pension Benefit as of the Termination Date,
must make a single one-time election, on or before March 31, 1997, to
credit all of his Pension Benefit into a Deferred Compensation Account.
The Pension Benefit will be credited on the Pension Benefit Investment
Date, at the election of the Director, to (i) a Prime Rate Investment
Account, (ii) a Common Stock Investment Account, or (iii) a Deferred
Stock Account. Upon the Director's termination from the Board of
Directors, such Pension Benefit and accumulated investment return held
in the Director's Deferred Compensation Accounts shall be distributed
to the Director in accordance with the Director's Distribution Election
and the provisions of Section 7.
5.4 Distribution Election
(a) Prior to the establishment of a Deferred Compensation Account
for a Director under this amended and restated plan, the
Director may elect that upon termination from the Board of
Directors the values and quantities held in the Directors
Deferred Compensation Accounts be distributed to the Director,
pursuant to the provisions of Section 7, in a single
distribution or in a series of annual installments not to
exceed ten (10). The time for the commencement of distribution
shall not be later than the first day of the month coinciding
with or next following the second anniversary of termination
of Board membership.
(b) A Distribution Election is irrevocable except that a Director
may amend the Distribution Election then in effect not prior
to the 390th day nor later than the 360th day prior to his
termination of Board membership.
5.5 Beneficiary Election
A Director or former Director may designate a beneficiary to receive
distributions from the Plan in accordance with the provisions of
Section 7 upon the death of the director. The Beneficiary Election may
be changed by a Director or former Director at any time, and without
the consent of the prior Beneficiary.
5.6 Form of Election
All elections pursuant to the provisions of this Section 5 of the Plan
shall be made in writing to the Secretary of the Company on a form or
forms available upon request from the Secretary.
SECTION 6
Accounts
6.1 Prime Rate Investment Account
A Prime Rate Investment Account shall be established for each Director
electing deferral or investment at the Prime Interest Rate. The amount
directed by the Director to such account shall be credited to it as of
the Pension Benefit Investment Date or Compensation Payment Date, as
applicable, and credited thereafter with interest computed using the
Prime Interest Rate. Interest shall be computed from the date such
compensation is credited to the account and compounded quarterly at the
end of each calendar quarter. The Prime Interest Rate in effect on the
first day of a calendar quarter shall be deemed the Prime Interest Rate
in effect for that entire quarter. Interest shall accrue and compound
on any balance until the amount credited to the account is fully
distributed.
6.2 Common Stock Investment Account
The Common Stock Investment Account established for each Director
electing deferral or investment at the Common Stock investment rate
shall be credited with the number of shares (including fractional
shares rounded to the nearest ten-thousandth) of Common Stock which
could have been purchased on the Pension Benefit Investment Date or the
Compensation Payment Date, as applicable, based on the Market Value as
of such date. On the date of the payment of dividends on the Common
Stock, the Director's Common Stock Investment Account shall be credited
with additional shares (including fractional shares rounded to the
nearest ten-thousandth) of Common Stock, as follows:
(a) In the case of cash dividends, such additional shares as would
have been purchased as of the Common Stock dividend payment
date as if the credited shares had been outstanding and
dividends reinvested thereon under the Southern Investment
Plan;
(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 date of payment with the fair
market value of the property which would have been payable if
the credited shares had been outstanding; and
(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.
6.3 Deferred Stock Account
(a) A Director's Deferred Stock Account will be credited:
(i) with the number of shares of Common Stock (rounded to
the nearest ten thousandth of a share) determined by
dividing the amount subject to deferral or investment
in the Deferred Stock Account by the average price
paid by the Trustee of the Directors' Stock Trust for
shares of Common Stock with respect to the Pension
Benefit Investment Date or the Compensation Payment
Date, as applicable, as reported by the Trustee, or,
if the Trustee shall not at such time purchase any
shares of Common Stock, by the Market Value on such
date;
(ii) as of the date on which Stock Retainer is paid, with
the number of shares of Common Stock (rounded to the
nearest ten thousandth of a share) determined by
dividing the amount of the Stock Retainer by the
average price paid by the Trustee of the Directors'
Stock Trust for shares of Common Stock with respect
to such payment date, as reported by the Trustee, or,
if the Trustee shall not at such time purchase any
shares of Common Stock, by the Market Value on such
date; and
(iii) as of each date on which dividends are paid on the
Common Stock, with the number of shares of Common
Stock (rounded to the nearest ten thousandth of a
share) determined by multiplying the number of shares
of Common Stock credited in the Director's Deferred
Stock Account on the dividend record date, by the
dividend rate per share of Common Stock, and dividing
the product by the price per share of Common Stock
attributable to the reinvestment of dividends on the
shares of Common Stock held in the Directors' Stock
Trust on the applicable dividend payment date or, if
the Trustee of the Directors' Stock Trust has not
reinvested in shares of Common Stock on the
applicable dividend reinvestment date, the product
shall be divided by the Market Value on the dividend
payment date.
(b) If the Company enters into transactions involving stock
splits, stock dividends, reverse splits or any other
recapitalization transactions, the number of shares of Common
Stock credited to a Director's Deferred Stock Account will be
adjusted (rounded to the nearest ten thousandth of a share) so
that the Director's Deferred Stock Account reflects the same
equity percentage interest in the Company after the
recapitalization as was the case before such transaction.
(c) If at least a majority of the Company's stock is sold or
exchanged by its shareholders pursuant to an integrated plan
for cash or property (including stock of another corporation)
or if substantially all of the assets of the Company are
disposed of and, as a consequence thereof, cash or property is
distributed to the Company's shareholders, each Director's
Deferred Stock Account will, to the extent not already so
credited under this Section 6.3, be (i) credited with the
amount of cash or property receivable by a Company shareholder
directly holding the same number of shares of Common Stock as
is credited to such Director's Deferred Stock Account and (ii)
debited by that number of shares of Common Stock surrendered
by such equivalent Company shareholder.
(d) Each Director who has a Deferred Stock Account also shall be
entitled to provide directions to the Committee to cause the
Committee to similarly direct the Trustee of the Director's
Stock Trust to vote, on any matter presented for a vote to the
shareholders of the Company, that number of shares of Common
Stock held by the Director's Stock Trust equivalent to the
number of shares of Common Stock credited to the Director's
Deferred Stock Account. The Committee shall arrange for
distribution to all Directors in a timely manner of all
communications directed generally to the shareholders of the
Company as to which their votes are solicited.
SECTION 7
Distributions
7.1 Upon termination of a Director's membership on the Board, the amount
credited to a Director's Deferred Compensation Accounts will be paid to
the Director or his beneficiary, as applicable. The amount credited to
a Director's Prime Rate Investment Account and Common Stock Investment
Account shall be paid in cash and the amount credited to his Deferred
Stock Account shall, except as otherwise provided in Section 6.3(c),
Section 8, or to the extent the Company is otherwise, in the reasonable
judgment of the Committee, precluded from doing so, be paid in shares
of Common Stock (with any fractional share interest therein paid in
cash to the extent of the then Market Value thereof). Such payments
shall be from the general assets of the Company (including the
Directors' Stock Trust) in accordance with this Section 7.
7.2 Unless other arrangements are specified by the Committee on a uniform
and nondiscriminatory basis, deferred amounts shall be paid in the form
of (i) a lump sum payment, or (ii) in approximately equal annual
installments, as elected by the Director pursuant to the provision of
Section 5.4; provided, however, that payments shall be made only in a
single lump sum if payment commences due to termination for cause. Such
payments shall be made (or shall commence) as soon as practicable
following the termination of Board membership or, if so elected in the
Distribution Election, up to twenty-four (24) months following such
termination.
In the event a Director elected to receive the balance of his Deferred
Compensation Accounts in a lump sum, distribution shall be made on the
first day of the month selected by the Director on his Distribution
Election, or as soon as reasonably possible thereafter. If the Director
elected to receive annual installments, the first payment shall be made
on the first day of the month selected by a Director, or as soon as
reasonably possible thereafter, and shall be equal to the balance in
the Director's Deferred Compensation Accounts 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
Deferred Compensation Accounts on the date of payment divided by the
number of remaining annual payments and shall be paid on the
anniversary of the preceding date of payment. The Market Value of any
shares of Common Stock credited to a Director's Common Stock Investment
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.
Upon the death of a Director, or a former Director prior to the payment
of all amounts credited to the Director's Deferred Compensation
Accounts, the unpaid balance shall be paid in the sole discretion of
the Committee (i) 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 (ii) in
accordance with the Distribution 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
Common Stock Investment 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.
SECTION 8
General Provisions
8.1 The Company shall make no provision for the funding of any Deferred
Compensation Accounts payable hereunder that (i) would cause the Plan
to be a funded plan for purposes of section 404(a)(5) of the Code or
(ii) would cause the Plan to be other than an "unfunded and unsecured
promise to pay money or other property in the future" under Treasury
Regulations ss. 1.83-3(e); and, except to the extent specified in the
Directors' Stock Trust following a "change of control" (as defined in
the Directors' Stock Trust) of the Company, the Company shall have no
obligation to make any arrangement for the accumulation of funds to pay
any amounts under this Plan. Subject to the restrictions of the
preceding sentence and in Section 8.3 herein, the Company, in its sole
discretion, may establish one or more grantor trusts described in
Treasury Regulations ss. 1.677(a)-I(d) to accumulate funds and/or
shares of Common Stock to pay amounts under this Plan, provided that
the assets of such trust shall be required to be used to satisfy the
claims of the Company's general creditors in the event of the Company's
bankruptcy or insolvency.
8.2 In the event that the Company shall decide to establish an advance
accrual reserve on its books against the future expense of payments
from any Deferred Compensation Accounts, such reserve shall not under
any circumstances be deemed to be an asset of this Plan but, at all
times, shall remain a part of the general assets of the Company,
subject to claims of the Company's creditors.
8.3 A person entitled to any amount under this Plan shall be a general
unsecured creditor of the Company with respect to such amount.
Furthermore, a person entitled to a payment or distribution with
respect to a Deferred Compensation Account, shall have a claim upon the
Company only to the extent of the balance in his Deferred Compensation
Accounts.
8.4 All commissions, fees and expenses that may be incurred in operating
the Plan and any related trust established in accordance with Section
8.1 herein (including the Directors' Stock Trust) will be paid by the
Company.
8.5 Notwithstanding any other provision of this Plan: (i) elections under
this Plan may only be made by Directors while they are directors of the
Company; (with the exception of the designation of beneficiaries) and
(ii) distributions otherwise payable to a Director in the form of
Common Stock shall be delayed and/or instead paid in cash in an amount
equal to the fair market value thereof if such payment in Common Stock
would violate any federal or State securities laws (including Section
16(b) of the Securities Exchange Act of 1934, as amended) and/or rules
and regulations promulgated thereunder.
8.6 Directors, their legal representatives and their beneficiaries shall
have no right to anticipate, alienate, sell, assign, transfer, pledge
or encumber their interests in the Plan, nor shall such interests be
subject to attachment, garnishment, levy or execution by or on behalf
of creditors of the Directors or of their beneficiaries.
SECTION 9
Administration
Subject to the express provisions of the Plan, the Committee shall have the
exclusive right to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it and to make all other determinations necessary or
advisable for the administration of the Plan. The decisions, actions and records
of the Committee shall be conclusive and binding upon the Company and all
persons having or claiming to have any right or interest in or under the Plan.
The Committee may delegate to such officers, employees or departments of the
Company such authority, duties, and responsibilities of the Committee as it, in
its sole discretion, considers necessary or appropriate for the proper and
efficient operation of the Plan, including, without limitation, (i)
interpretation of the Plan, (ii) approval and payment of claims, and (iii)
establishment of procedures for administration of the Plan.
SECTION 10
Amendment, Termination and Effective Date
10.1 Amendment of the Plan
Subject to the provisions of Section 10.3 herein, the Plan may be
wholly or partially amended or otherwise modified at any time by
written action of the Board of Directors.
10.2 Termination of the Plan
Subject to the provisions of Section 10.3 herein, the Plan may be
terminated at any time by written action of the Board of Directors.
10.3 No Impairment of Benefits
Notwithstanding the provisions of Sections 10.1 and 10.2, herein no
amendment to or termination of the Plan shall impair any rights to
benefits which have accrued hereunder.
10.4 Governing Law
This Plan shall be construed in accordance with and governed by the
laws of the State of Georgia.
IN WITNESS WHEREOF, the Plan, as amended and restated effective
February 17, 1997, has been executed pursuant to resolutions of the Board of
Directors of The Southern Company, this ____ day of _______________, 1997.
THE SOUTHERN COMPANY
By: ________________________________
Attest:
By: ___________________________