SIXTH 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;
WHEREAS, Southern Energy Resources, Inc. ("SERI"), an Employing Company
under the Plan, will become the employer of certain individuals currently
employed by Southern Company Energy Marketing, L.P. ("SCEM") following a
reorganization of SCEM;
WHEREAS, the Southern Company ("Southern") anticipates that in 2001 it
will distribute pro rata to the Southern shareholders all of the stock of
Southern Energy, Inc. ("SEI") held by Southern pursuant to a tax-free spin-off
under Section 355 of the Internal Revenue Code;
WHEREAS, in connection with such transaction, Southern and SEI have
entered into an Employee Matters Agreement ("Agreement") to allocate between
them assets, liabilities and responsibilities with respect to certain employee
compensation, benefit plans and programs, and certain employment matters;
WHEREAS, the Committee desires to amend the Plan to exclude the former
employees of SCEM from participating in the Plan by virtue of their employment
with SERI;
WHEREAS, the Committee desires to amend the Plan to address the
spin-off of SEI from Southern, including making such changes as are necessary
pursuant to the Agreement;
WHEREAS, the Committee desires to amend the Plan to make certain other
technical changes and to reflect 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 of the dates indicated:
1.
Sections 2.20 and 2.21 of the Plan shall be eliminated in their
entirety, effective as of January 1, 2001. Each subsequent Section in Article II
shall remain as currently numbered until such time as the Plan is amended and
restated.
2.
Section 2.27 of the Plan shall be amended to read as follows, effective
as of December 22, 2000:
2.27 "Eligible Employee" shall mean an Employee who is
employed by an Employing Company and (a) who was eligible to be
included in the Plan on January 1, 1991, or (b) who is a regular
full-time, regular part-time, or cooperative education employee other
than:
(1) an Employee who is treated as such solely by reason
of the "leased employee" rules of Code Section 414(n)
such that, pursuant to an agreement between an
Employing Company and any other person, such
individual has performed services for the Employing
Company (or the Employing Company and related persons
as described in Code Section 414(n)(6)) on a
substantially full-time basis for a period of at
least one year and such services were performed under
the primary direction or control of the Employing
Company;
(2) any Employee who is represented by a collective
bargaining agent unless the representatives of his
bargaining unit and the Employing Company mutually
agree to participation in the Plan subject to its
terms by members of his bargaining unit;
(3) an individual who is a cooperative education employee
and who first performs an Hour of Service on or after
January 1, 1995;
(4) an individual who is classified by the Employing
Company as a temporary employee (who was not eligible
to be included in the Plan on January 1, 1991) or an
independent contractor, regardless of whether such
classification is determined to be in error.
Effective September 1, 1998, any individual
classified by the Employing Company as a temporary
employee shall be excluded from the Plan, regardless
of any prior inclusion in the Plan and regardless of
whether the "temporary employee" classification is
determined to be in error; and
(5) an individual, who would otherwise be eligible to
participate in the Plan by virtue of his employment
by SERI, but who (i) was an employee of SCEM on
December 22, 2000, (ii) was hired by SERI on or after
December 23, 2000, and who was a former employee of
SCEM, or (iii) was hired by SERI on or after December
23, 2000, who is employed in the Americas Group and
whose job function is indicated on Exhibit A attached
hereto.
3.
Paragraph (5) of Section 2.27 of the Plan shall be amended to read as
follows, effective as of the Group Status Change Date as defined in the
Agreement:
(5) an individual who is employed by SERI.
4.
Section 2.48 of the Plan shall be amended to read as follows, effective
as of the Group Status Change Date as defined in the Agreement:
2.48 "Participant" shall mean (a) an Eligible Employee who has
elected to participate in the Plan as provided in Article III and whose
participation in the Plan at the time of reference has not been
terminated as provided in the Plan, (b) an Employee or former Employee
who has ceased to be a Participant under (a) above, but for whom an
Account is maintained under the Plan, (c) an Eligible Employee who has
made a Rollover Contribution to this Plan to the extent that the
Provisions of the Plan apply to such Rollover Contribution of the
Eligible Employee, and (d) an Employee or former Employee for whom a
Transferred ESOP Account is maintained under the Plan.
5.
The second paragraph of Section 2.66, "Year of Service", including
subsections (a) and (b) of such paragraph, shall be eliminated in its entirety,
effective as of January 1, 2001.
6.
Two new definition Sections shall be added to the Plan to read as
follows, effective as of December 22, 2000:
2.67 "SCEM" shall mean Southern Company Energy Marketing,
L.P.
2.68 "SERI" shall mean Southern Energy Resources, Inc.
7.
Five new definition Sections shall be added to the Plan to read as
follows, effective as of the Group Status Change Date as defined in the
Agreement:
2.69 "SEI" shall mean Southern Energy, Inc., any subsidiary of
Southern Energy, Inc., or any successor thereto.
2.70 "SEI Stock" shall mean the common stock of SEI.
2.71 "SEI Stock Account" shall mean the total amount credited
to the Account of a Participant as described in Section 9.1(c).
2.72 "SEI Stock Fund" shall mean the fund established to hold
SEI Stock as described in Section 8.8.
2.73 "Transferred ESOP Account" shall mean the total amount
credited to the Account of a Participant as described in Section
9.1(d).
8.
Section 3.1 of the Plan shall be amended to read as follows, effective
as of January 1, 2001:
3.1 Eligibility Requirements. Each Eligible Employee who was
an active Participant on December 31, 2000 shall continue to be an
active Participant in the Plan on January 1, 2001, provided he remains
an Eligible Employee. Each other Eligible Employee may elect to
participate in the Plan as of any Enrollment Date after the Employee's
first day of employment as an Eligible Employee or as soon as
administratively practicable thereafter. An Eligible Employee shall
make an election to participate by authorizing deductions from or
reduction of his Compensation as contributions to the Plan in
accordance with Article IV, and directing the investment of such
contributions in accordance with Article VIII. Such Compensation
deduction and/or reduction authorization and investment direction shall
be made in accordance with the procedures established by the Committee.
9.
Section 3.2 of the Plan shall be amended to read as follows, effective
as of January 1, 2001:
3.2 Participation upon Reemployment. If an Employee
terminates his employment with an Affiliated Employer and is
subsequently reemployed as an Eligible Employee, he may elect to become
an active Participant in the Plan as of the date of his reemployment or
as soon as administratively practicable thereafter.
10.
Sections 3.5 through 3.9 of the Plan shall be deleted in their
entirety, and Section 3.10 shall be renumbered as Section 3.5, effective as of
January 1, 2001.
11.
Section 6.1 of the Plan shall be amended to read as follows, effective
as of January 1, 2000:
6.1 Section 415 Limitations. Notwithstanding any provision
of the Plan to the contrary, the total Annual Additions allocated to
the Account (and the accounts under all defined contribution plans
maintained by an Affiliated Employer) of any Participant for any
Limitation Year in accordance with Code Section 415 and the regulations
thereunder, which are incorporated herein by this reference, shall not
exceed the lesser of the following amounts:
(a) twenty-five percent (25%) of the Participant's
compensation (as defined in Code Section 415(c)(3) and any
rulings and regulations thereunder) in the Limitation Year; or
(b) $30,000 (as adjusted pursuant to Code Section
415(d)(1)(C)).
The Annual Addition for any Plan Year beginning before
January 1, 1987 shall not be recomputed to treat all Voluntary
Participant Contributions as an Annual Addition.
12.
Section 6.3 of the Plan shall be amended to read as follows, effective
as of January 1, 2000:
6.3 Combination of Plans. If an Employee participates in
more than one defined contribution plan maintained by an Affiliated
Employer and his Annual Additions exceed the limitations of Section
6.1, corrective adjustments shall be made first under this Plan and
then, to the extent necessary, under The Southern Company Performance
Sharing Plan and then, to the extent necessary, under The Southern
Company Employee Stock Ownership Plan.
13.
A new Section 8.8 shall be added to the Plan to read as follows,
effective as of the Group Status Change Date as defined in the Agreement:
8.8 SEI Stock Fund. All SEI Stock received by the Plan
pursuant to Sections 9.1(c) and 9.1(d) shall be held in a "SEI Stock
Fund." Participants may direct investments out of the SEI Stock Fund
and into the other Investment Funds in accordance with the procedures
of this Article VIII. However, Participants may not direct investments
into the SEI Stock Fund and, should a Participant elect to direct
investments out of the SEI Stock Fund, he may not again direct any
amount attributable to such investments back into the SEI Stock Fund.
In no event shall the SEI Stock Fund remain as an Investment Fund under
the Plan later than the end of the calendar quarter which includes the
five-year anniversary of the date SEI Stock is first held in the SEI
Stock Fund.
14.
New subsections (c) and (d) shall be added to Section 9.1 of the Plan
to read as follows, effective as of the Group Status Change Date as defined in
the Agreement:
(c) Upon the distribution by the Southern Company to its
shareholders of the SEI Stock held by the Southern Company pursuant to
a tax-free spin-off under Code Section 355 or such similar transaction,
the Committee shall establish a subaccount known as a Participant's
"SEI Account" to reflect the Participant's interest in the SEI Stock
received by the Plan (other than SEI Stock transferred to the Plan as
described in Section 9.1(d)) pursuant to such transaction. To the
extent that shares of SEI Stock are attributable to Common Stock in a
Participant's subaccounts which reflect Elective Employer
Contributions, Voluntary Participant Contributions, Employer Matching
Contributions, Rollover Contributions, and amounts in a Participant's
SEPCO Transferred Account, the shares of SEI Stock attributable to each
shall retain their character as Elective Employer Contributions,
Voluntary Participant Contributions, Employer Matching Contributions,
Rollover Contributions, and amounts in a Participant's SEPCO
Transferred Account, respectively, and the Committee shall establish
and maintain such bookkeeping accounts as it deems necessary to account
for such SEI Stock, and any subsequent earnings or losses attributable
thereto, under this Plan.
(d) Upon the transfer to the Plan of the SEI Stock distributed
to The Southern Company Employee Stock Ownership Plan ("ESOP") in
connection with a transaction described in Section 9.1(c), the
Committee shall establish a subaccount known as a Participant's
"Transferred ESOP Account" to reflect the Participant's interest in the
Plan attributable to the SEI Stock transferred to the Plan from the
ESOP. The Committee shall establish and maintain separate bookkeeping
accounts within the Transferred ESOP Account for amounts attributable
to the SEI Stock that was distributed on Common Stock which had been
held in the ESOP for more than two years as of the date of transfer,
amounts attributable to SEI Stock that was distributed on Common Stock
which had been held in the ESOP for more than one year but less than
two years as of the date of transfer, and amounts attributable to SEI
Stock that was distributed on Common Stock which had been held in the
ESOP for less than one year as of the date of transfer, respectively.
15.
Subsection (a) of Section 11.1 of the Plan shall be amended to read as
follows, effective as of the Group Status Change Date as defined in the
Agreement:
(a) Subject to the provisions of Article XII, this Section
11.1, and Sections 11.2 through 11.6, a Participant may make
withdrawals from his Account effective as of any Valuation Date in the
order of priority listed below:
(1) All or a portion of the value of his Account
attributable to Voluntary Participant Contributions (not
including any earnings or appreciation thereon) made prior
to January 1, 1987;
(2) All amounts described above, plus all or a
portion of the value of his Account attributable to
Voluntary Participant Contributions, plus a ratable portion
of the earnings and/or appreciation on Voluntary Participant
Contributions;
(3) All amounts described above, plus effective
April 1, 1997, all or a portion of the value of his Account
attributable to Rollover Contributions (including earnings
and appreciation thereon);
(4) All amounts described above, plus the value of
his Transferred ESOP Account as described in Section 9.1(d);
provided, however, that the amount in his Transferred ESOP
Account attributable to SEI Stock that was distributed on
Common Stock which had been held in the ESOP for less than
two years as of the date of transfer may not be distributed
until the first day of the month following the two-year
anniversary of the date such Common Stock was contributed to
the ESOP;
(5) All amounts described above, plus up to fifty
percent (50%) of the value of his Account attributable to
Employer Matching Contributions (including earnings and
appreciation thereon) allocated to his Account; provided,
however, that said Participant shall have participated in
the Plan for not less than sixty (60) months at the time of
the withdrawal;
(6)(A) For Participants who have not attained age
59 1/2 or separated from service with the Affiliated
Employers (within the meaning of Code Section
401(k)(2)(B)(i)(I)), all amounts described above, plus all
or a portion of the value of his Account attributable to
Elective Employer Contributions (not including any earnings
or appreciation thereon for Plan Years beginning after
December 31, 1988); and
(B) For Participants who have attained age 59 1/2 or
separated from service with the Affiliated Employers (within
the meaning of Code Section 401(k)(2)(B)(i)(I)), all amounts
described above, plus all or a portion of the value of his
Account attributable to any earnings or appreciation on
Elective Employer Contributions.
For purposes of this Section 11.1, any individual who becomes a
Participant solely because a Transferred ESOP Account is established on
behalf of such individual shall be treated as participating in the Plan
as of the date such Transferred ESOP Account is established.
16.
The reference to "Section 11.1(a)(5)(A)" in Section 11.6 shall be
replaced by "Section 11.1(a)(6)(A)", effective as of the Group Status Change
Date as defined in the Agreement:
17.
Subsection (c) of Section 11.7 of the Plan shall be amended to read as
follows, effective as of January 1, 2001:
(c) The principal amount of a loan shall be obtained pro rata
from each Investment Fund in which the Participant's Account is
invested at that time such loan is obtained.
18.
The phrase "and/or SEI Stock" shall be added following the reference to
"Common Stock" in paragraph (2) of subsection (a) of Section 12.1, effective as
of the Group Status Change Date as defined in the Agreement.
19.
Section 12.11 of the Plan shall be amended to read as follows,
effective as of the Group Status Change Date as defined in the Agreement:
12.11 Form of Payment. All distributions under this Article
XII shall be made in the form of cash, provided that the person
entitled to such distribution may demand that the portion of any
distribution which is attributable to Common Stock or SEI Stock be
distributed in the form of such Common Stock or SEI Stock,
respectively, to the extent of the whole number of shares in the
Participant's Account, with a cash adjustment for any fractional
shares.
20.
A new sentence shall be added to the end of Section 14.3 of the Plan to
read as follows, effective as of the Group Status Change Date as defined in the
Agreement:
Procedures similar to those described above shall also apply to voting
the SEI Stock credited to each Participant's Account.
21.
The phrase "or SEI Stock Fund" shall be added to the end of the first
sentence of Section 14.4 of the Plan, effective as of the Group Status Change
Date as defined in the Agreement.
22.
The phrase ", as provided in regulations prescribed by the Secretary of
the Treasury" shall be added to the end of the last sentence of Section 15.1 of
the Plan, effective as of September 5, 2000.
23.
A new Section 15.4 shall be added to the Plan to read as follows,
effective as of the Group Status Change Date as defined in the Agreement:
15.4 Transfer of Plan Assets. Notwithstanding any provision of
the Plan to the contrary, upon the distribution by the Southern Company
to its shareholders of the SEI Stock held by the Southern Company
pursuant to a tax-free spin-off under Code Section 355 or such similar
transaction, the Accounts of certain Participants who shall be
identified in accordance with the Employee Matters Agreement entered
into between the Southern Company and SEI ("Agreement") shall be
transferred to a retirement plan established by SEI which is intended
to constitute a qualified retirement plan under Code Section 401(a).
The Committee shall determine the time of such transfers and shall
establish such rules and procedures as its deems necessary or
appropriate to effect the transfers, except that all actions with
respect to the transfers shall be taken in a manner consistent with the
Agreement.
24.
Section 16.4 of the Plan shall be deleted in its entirety, effective as
of January 1, 2000.
25.
A new sentence shall be added to the end of Section 18.5 of the Plan to
read as follows, effective as of September 5, 2000.
Notwithstanding the foregoing, any optional form of benefit provided
under this Plan solely as a result of the merger of the SEPCO Plan into
this Plan shall be eliminated to the extent permitted and in accordance
with the regulations prescribed by the Secretary of the Treasury under
Code Section 411(d)(6), provided that the elimination of such optional
form of benefit shall not be effective before the earlier of (a) the
90th day after the Participant receives a summary of material
modification describing the elimination of such optional form of
benefit or (b) January 1, 2002.
26.
Southern Energy Resources, Inc. shall be removed as an Employing
Company in Appendix A of the Plan, effective as of the Group Status Change Date
as defined in the Agreement.
27.
Except as amended herein by this Sixth Amendment, the Plan shall remain
in full force and effect as amended and restated by the Company prior to the
adoption of this Sixth Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly
authorized members of the Employee Savings Plan Committee, has adopted this
Sixth Amendment to The Southern Company Employee Savings Plan this ____ day of
___________________, 2000.
EMPLOYEE SAVINGS PLAN COMMITTEE: