FIFTH AMENDMENT TO
THE SOUTHERN COMPANY
PENSION PLAN
WHEREAS, the Board of Directors of Southern Company Services, Inc. (the
"Company") heretofore adopted The Southern Company Pension Plan, as amended and
restated (the "Plan"), effective January 1, 1997; and
WHEREAS, the Company desires to amend the Plan to clarify offset
provisions applicable to the benefits provided to former Scott Paper Company
employees; and
WHEREAS, the Company desires to amend the Plan to clarify offset
provisions applicable to the benefits provided to certain employees formerly
employed by Commonwealth Energy System; and
WHEREAS, the Company desires to amend the Plan to clarify the benefit
and offset provisions applicable to certain employees formerly employed by
Commonwealth Edison of Indiana; and
WHEREAS, the Company is authorized pursuant to Section 13.1 of the Plan
to amend the Plan at any time.
NOW, THEREFORE, the Company hereby amends the Plan as follows to be
effective as provided herein:
1.
Effective January 1, 1995, Section 16.1(a) of the Plan shall be amended
by deleting such subsection (a) in its entirety and substituting the following
in lieu thereof:
(a) Former Scott Paper Company Employees. Effective January 1,
1995, notwithstanding any other provision of the Plan to the contrary,
with respect to a former, non-collective bargaining unit employee of
Scott Paper Company who was employed by Southern Electric
International, Inc. as of December 17, 1994 as set forth on Schedule
2.1 of the Employee Transition Agreement entered into by and among
Mobile Energy Services Company, Inc., Southern Electric International,
Inc. and Scott Paper Company (hereinafter referred to in this Section
16.1(a) as the "Scott Scheduled Employee"):
(1) Such Scott Scheduled Employee shall be eligible
to participate in the Plan effective January 1, 1995.
(2) Such Scott Scheduled Employee, if and when he
attains his Early Retirement Date, Normal Retirement Date, or
Deferred Retirement Date, or terminates service for any other
reason subject to the requirements of Section 8.1 or 8.2,
shall be entitled to receive Retirement Income based on both
his Accredited Service with an Employing Company and the
service accrued under the Scott Paper Company Pension Plan for
Salaried Employees (the "Scott Salaried Plan") which shall be
treated as if Accredited Service under this Plan. To calculate
such Scott Scheduled Employee's Retirement Income, the Scott
Scheduled Employee's Accrued Retirement Income, as determined
in accordance with Section 5.1, shall first be reduced by the
applicable reductions, if any, set forth in Article V, Section
8.1 and Section 8.2, as appropriate. Thereafter, such Scott
Salaried Employee's Accrued Retirement Income shall be reduced
by such Employee's accrued benefit in the Scott Salaried Plan,
as set forth in Schedule A attached hereto (the "Scheduled
Benefit"). Prior to the subtraction of the Scheduled Benefit
from the Scott Scheduled Employee's Accrued Retirement Income,
the Scheduled Benefit will be reduced to reflect the age at
which the Employee's Retirement Income is scheduled to
commence (the "Southern Commencement Date") in accordance with
the applicable reduction factors set forth in Schedule A.
(3) For purposes of calculating the Social Security
Offset and the level income option set forth in the last
paragraph of Section 5.5, the actual salary history of a Scott
Scheduled Employee with Scott Paper Company shall be included.
If the actual salary history is not available from Scott Paper
Company, such history shall be estimated in accordance with
Section 5.4.
(4) For vesting purposes, such Scott Scheduled
Employee shall be entitled to receive Vesting Years of Service
as provided in Section 1.41 and, in addition, shall be
entitled to vesting service equal to the sum of the years of
vesting service accrued under each defined benefit pension
plan maintained by Scott Paper Company in which such Scott
Scheduled Employee participated.
2.
Effective January 1, 1998, Section 16.1(b) of the Plan, as amended by
the First Amendment and Second Amendment to the Plan, is further amended by
deleting such subsection (b) in its entirety and substituting the following in
lieu thereof:
(b) Former Commonwealth Edison of Indiana Employees. Effective
January 1, 1998, notwithstanding any other provision of the Plan to the
contrary, any former employee of Commonwealth Edison of Indiana
("ComEd") who was employed by Southern Energy Resources, Inc. on or
before December 31, 1997 and is set forth on a schedule of employees
acknowledged by the Retirement Board (hereafter "January 1 ComEd
Employees") shall be eligible to participate in the Plan effective
January 1, 1998. In addition, any former employee of ComEd who becomes
employed by Southern Energy Resources, Inc. on or after January 1, 1998
but prior to April 1, 1998 (hereafter "Date of Employment") and is set
forth on the schedule of employees acknowledged by the Retirement Board
(hereafter "Pre-April 1 ComEd Employees") shall become a participant as
of the first day of the month coincident with or next following such
employee's Date of Employment. The following provisions of this
subparagraph (b) shall also apply with respect to all January 1 ComEd
Employees and Pre-April 1 ComEd Employees (hereafter jointly referred
to as "ComEd Scheduled Employees"):
(1) Such ComEd Scheduled Employee, if and when he
attains his Early Retirement Date, Normal Retirement Date, or
Deferred Retirement Date, or terminates service for any reason
subject to the requirements of Section 8.1 or 8.2, shall be
entitled to receive the greater of A or B below:
(A) Retirement Income based on both his Accredited
Service with an Employing Company and the service
accrued under the Commonwealth Edison Company of
Indiana Service Annuity System Plan (the "ComEd
Plan") which shall be treated as if Accredited
Service under this Plan. To calculate such ComEd
Scheduled Employee's Retirement Income under this
subsection (A), the ComEd Scheduled Employee's
Accrued Retirement Income, as determined in
accordance with Section 5.1, subject to the
provisions of Article XV of the Plan, shall first be
reduced by the Employee's accrued benefit in the
ComEd Plan, determined as if he retired from ComEd at
his normal retirement age, as that term is defined in
the ComEd Plan on December 31, 1997 and as set forth
on Schedule B attached hereto (the "ComEd Reduction
Amount"). For each full year of Accredited Service
with an Employing Company earned by a ComEd Scheduled
Employee, up to a maximum of 10 years, the ComEd
Reduction Amount shall be reduced by 5% with the
maximum reduction equal to 50% of the original ComEd
Reduction Amount. Thereafter, such Employee's
Retirement Income shall be subject to applicable
reductions, if any, in accordance with Article V
(subject to the provisions in Article XV), Section
8.1 and Section 8.2, as appropriate.
(B) Retirement Income based on his Accredited Service
with an Employing Company and disregarding any
service accrued under the ComEd Plan, subject to
applicable reductions, if any, in accordance with
Article V (subject to the provisions in Article XV),
Section 8.1 and Section 8.2, as appropriate.
(2) For purposes of calculating the level income
option set forth in the last paragraph of Section 5.5, the
actual salary history of a ComEd Scheduled Employee with ComEd
shall be included. If the actual salary history is not
available from ComEd, such history shall be estimated in
accordance with Section 5.4.
(3) For vesting purposes, such ComEd Scheduled
Employee shall be entitled to receive Vesting Years of Service
as provided in Section 1.41 and, in addition, shall be
entitled to vesting service equal to the years of service
accrued under the ComEd Plan.
3.
Effective January 1, 1999, Section 16.1(c) of the Plan, as added by the
Third Amendment to the Plan and amended by the Fourth Amendment to the Plan,
shall be amended by deleting such subsection (c) in its entirety and
substituting the following in lieu thereof:
(c) Former Commonwealth Energy System Employees.
(1) Effective January 1, 1999, notwithstanding any
other provision of the Plan to the contrary, any former
employees of Commonwealth Energy System ("CES") who were
employed by Southern Energy Resources, Inc. and are set forth
on Schedule C attached hereto (hereinafter "CES Employees")
shall be included in the Plan as of the first day of the month
coincident with or next following the later of the CES
Employee's employment date or the date on which he first
completes an Eligibility Year of Service as provided in
Paragraph (5) below.
(2) CES Employees who (A) were actively employed by
CES on January 1, 1997 and (B) attain their fortieth (40th)
birthday on or before January 1, 2002 shall not be subject to
provisions of Article XV of the Plan.
(3) If and when a CES Employee attains his Early
Retirement Date, Normal Retirement Date, or Deferred
Retirement Date, or terminates service for any reason subject
to the requirements of Section 8.1 or 8.2, he shall be
entitled to receive Retirement Income based on both his
Accredited Service with an Employing Company and the Credited
Service as defined under The Pension Plan for Employees of
Commonwealth Energy System and Subsidiary Companies (the "CES
Plan") which shall be treated as Accredited Service under this
Plan. However, after applicable reductions for early
commencement as provided in Article V, Section 8.1 and Section
8.2, as appropriate, but prior to adjustments for forms of
payment, a CES Employee's Accrued Retirement Income will be
reduced by the benefit attributable to Credited Service
accrued by a CES Employee under the CES Plan as set forth in
Schedule C attached hereto (the "Scheduled Benefit"). Prior to
the Scheduled Benefit being subtracted from a CES Employee's
Retirement Income, it will be reduced to reflect the age at
which the CES Employee's Retirement Income is scheduled to
commence (the "Southern Commencement Date"). Such early
retirement reductions shall be determined (A) for a CES
Employee who is at least age 55 but not yet 65 on his Southern
Commencement Date, by applying the factors set forth in the
definition of Actuarial Equivalent contained in Section 8 of
Schedule D attached hereto for each calendar month by which
the Southern Commencement Date precedes his sixty-fifth (65th)
birthday; and (B) for a CES Employee who is under age 55 on
his Southern Commencement Date, by first applying the
reduction factors in (A) for ages 55 to 65 and then applying
an additional reduction equal to one-third of one-percent
(.333%) for each calendar month by which the Southern
Commencement Date precedes his fifty-fifth (55th) birthday.
Notwithstanding the above, the Scheduled Benefit of CES
Employees who are specifically designated on Schedule C to
have 75 points shall not be subject to the early retirement
reductions described in (A) above but shall be subject to
those reductions described in (B) above (relating to those CES
Employees with a Commencement Date that precedes their
fifty-fifth (55th) birthday), if applicable.
(4) For purposes of calculating Retirement Income,
such CES Employee's actual salary history with CES shall be
included. With respect to determining the Social Security
Offset and the level income option set forth in the last
paragraph of Section 5.5, if the actual salary history is not
available from CES, such history shall be estimated in
accordance with Section 5.4.
(5) For vesting and participation purposes, such CES
Employee shall be entitled to receive Vesting and Eligibility
Years of Service as provided under the Plan and, in addition,
shall be entitled to vesting and eligibility service equal to
the years of service as defined and accrued under the CES
Plan.
(6) Notwithstanding any provision in this Plan to the
contrary, a CES Employee's Retirement Income will not be less
than the greater of (A) his Retirement Allowance or (B) his
vested benefit, as described in Schedule D attached hereto
which summarizes the benefit provisions provided by the CES
Plan on December 31, 1998, as of the earlier of his
retirement, termination of employment, or December 31, 2001.
Such determination will be made prior to any adjustment for
forms of payments.
(7) For purposes of this 16.1(c), Earnings shall mean
the following:
(A) With respect to Paragraph (3) above, for
periods on and after January 1, 1999,
Earnings is defined in Paragraph 1.13 and
for periods before January 1, 1999, Earnings
shall have the same meaning as the term
"Compensation" as provided under the CES
Plan during the applicable period.
(B) With respect to determining the minimum
benefit provided in Paragraph (6) above,
Earnings shall have the same meaning as
Compensation as provided under the CES Plan
prior to January 1, 1999 and from the period
January 1, 1999 to December 31, 2001 shall
mean the authorized basic rate of
compensation at Southern Energy Resources,
Inc. ("SERI") as in effect on January 1 each
year, converted to an annual basis,
exclusive of all compensation in the form of
pay for overtime, commissions, bonuses and
the like; but inclusive of amounts deferred
under a salary reduction agreement for that
year. Notwithstanding anything contained
herein to the contrary, a CES Employee's
Compensation for any Plan Year as determined
under the preceding sentence shall not
exceed $150,000.00 (or such higher limit as
determined by the Secretary of the Treasury
under Section 401(a)(17) of the Code).
IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly
authorized officer, has adopted this Fifth Amendment to The Southern Company
Pension Plan pursuant to resolutions of the Board of Directors of Southern
Company Services, Inc. this ____ day of , 2000, to be effective as stated
herein.
SOUTHERN COMPANY SERVICES, INC.
By:
--------------------------------------------------
Title:
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ATTEST
By: ________________________
Its: ________________________
SIXTH AMENDMENT TO
THE SOUTHERN COMPANY
PENSION PLAN
WHEREAS, the Board of Directors of Southern Company Services, Inc. (the
"Company") heretofore adopted The Southern Company Pension Plan, as amended and
restated (the "Plan"), effective January 1, 1997;
WHEREAS, Southern Energy, Inc. ("SEI"), an Employing Company under the
Plan, will through a subsidiary 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 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 Company desires to amend the Plan to exclude the former
SCEM employees from participation in the Plan by virtue of their employment with
SEI;
WHEREAS, the Company desires to amend the Plan to address the spin-off
of SEI from Southern, including making such changes as are pursuant to the
Agreement;
WHEREAS, the Company desires to amend the Plan to authorize
participation by employees represented by the International Brotherhood of
Electrical Workers Local 1208 and Office and Professional Employees
International Union Local 455, pursuant to negotiated collective bargaining
agreements;
WHEREAS, the Company desires to amend the Plan to clarify the
Accredited Service awarded under the Prior Plans;
WHEREAS, the Company desires to amend the Plan to make certain
technical changes and to reflect recent changes in the law; and
WHEREAS, the Company is authorized, pursuant to Section 13.1 of the
Plan, to amend the Plan at any time.
NOW, THEREFORE, the Company hereby amends the Plan as follows,
effective as of January 1, 1997, unless indicated otherwise below:
1.
The first paragraph of Section 1.36, "Social Security Offset," shall be
amended, effective January 1, 1998, to read as follows:
1.36 "Social Security Offset" shall mean an amount equal to
one-half (1/2) of the amount, if any, of the Federal primary Social
Security benefit (primary old age insurance benefit) to which it is
estimated that an Employee will become entitled in accordance with the
Social Security Act in force as provided in subparagraphs (a) through
(e) below which shall exceed $168 per month on and after January 1,
1989, $250 per month on and after January 1, 1991, for Employees who
(a) are not covered by the terms of a collective bargaining agreement
or (b) are covered by the terms of a collective bargaining agreement
but where the bargaining unit representative and an Employing Company
have mutually agreed to participation in the Plan as amended, $325 per
month on and after January 1, 1996, and for Employees who are covered
under a collective bargaining agreement with IBEW Local 1208, $350 per
month on and after January 1, 1998, multiplied by a fraction not
greater than one, the numerator of which shall be the Employee's total
Accredited Service, and the denominator of which shall be such total
Accredited Service plus the Accredited Service the Employee could have
accumulated if he had continued his employment from the date he
terminates service with any Affiliated Employer until his Normal
Retirement Date. For purposes of determining the estimated Federal
primary Social Security benefit used in the Social Security Offset, an
Employee shall be deemed to be entitled to receive Federal primary
Social Security benefits after retirement or death, if earlier,
regardless of the fact that he may have disqualified himself to receive
payment thereof. In addition to the foregoing, the calculation of the
Social Security benefit shall be based on the salary history of the
Employee as provided in Section 5.4 and shall be determined pursuant to
the following, as applicable:
2.
Article II, "Eligibility," shall be amended by adding the following new
Section 2.8 to the end:
2.8 Exclusion of Certain Employees of Southern Energy Resources, Inc.
Notwithstanding any other provision of this Article II, the following
Employees who would otherwise be eligible to participate in the Plan by
virtue of their employment by Southern Energy Resources, Inc. ("SERI")
shall not be eligible to participate in the Plan:
(a) individuals employed by Southern Company Energy Marketing,
L.P. ("SCEM") on December 22, 2000;
(b) Employees hired by SERI on or after December 23, 2000, who
are employed in the Americas Group and whose job function is
listed on Attachment A attached hereto.
3.
Section 2.8, "Exclusion of Certain Employees of Southern Energy
Resources, Inc.," shall be amended to read as follows, effective as of the Group
Status Change Date as defined in the Agreement:
2.8 Exclusion of Certain Employees of Southern Energy, Inc.
Notwithstanding any other provision of this Article II, Employees who
are eligible to participate in the Plan by virtue of their employment
by Southern Energy, Inc. or any subsidiary or affiliate thereof shall
not be eligible to participate in the Plan.
4.
Section 4.1, "Accredited Service pursuant to Prior Plan," shall be
deleted in its entirety and replaced with the following:
4.1 Accredited Service pursuant to Prior Plan.
(a) Each Employee who participated in the Prior Plans shall be
credited with such Accredited Service, if any, earned under
such Prior Plans as of December 31, 1996.
(b) In addition to any Accredited Service credited under Section
4.1(a), an Employee shall be entitled to Accredited Service
determined under the Prior Plans, without regard to the age
requirement for eligibility to participate in the Prior Plans,
in excess of the Accredited Service determined under the Prior
Plans (including the age requirement for eligibility to
participate in the Prior Plans). Such Accredited Service shall
be considered Accredited Service after December 31, 1985 for
purposes of calculating an Employee's Retirement Income under
Articles V, XV or XVII.
5.
Section 4.4, "Accrual of Retirement Income during period of total
disability," shall be amended by adding the following new subsection (e) (and
redesignating the current subsection (e) as subsection (f)):
(e) (i) If an Employee's Disability Leave terminates on
or after his Normal Retirement Date and he fails to
return to the employment of an Employing Company
within sixty (60) days after the termination of such
leave, his service shall be deemed to have terminated
upon the termination of his Disability Leave and such
termination of service shall be deemed to constitute
his retirement under Section 3.3.
(ii) An Employee whose Disability Leave continues
beyond his Normal Retirement Date based on
entitlement to long-term disability benefits under a
long-term disability plan of an Employing Company
shall have payment of his Retirement Income suspended
pursuant to Code Section 411(a)(3)(B) until he is no
longer eligible under a long-term disability plan of
an Employing Company. Such Employee shall then
receive Retirement Income determined as of the date
such eligibility ends. However, if the Employee's
Disability Leave continues after the date the
Employee ceases to be eligible for the long-term
disability plan of an Employing Company based on
entitlement to Social Security Disability benefits,
his Retirement Income for the period after his Normal
Retirement Date shall be determined under Subsection
(iii).
(iii) An Employee whose Disability Leave continues
for any period after his Normal Retirement Date based
solely on his entitlement to Social Security
Disability benefits shall receive Retirement Income
as of his Deferred Retirement Date. However, if his
Deferred Retirement Date occurs in a Plan Year
subsequent to the Plan Year in which occurs his
Normal Retirement Date, his Retirement Income shall
not be less than his Retirement Income adjusted for
commencement after his Normal Retirement Date. For
the Plan Year following the Plan Year in which occurs
the Employee's Normal Retirement Date, his adjusted
Retirement Income shall be equal to the greater of
his Retirement Income determined as of such date or
the Actuarial Equivalent of his Retirement Income
computed as of his Normal Retirement Date. For the
next Plan Year, his adjusted Retirement Income shall
be equal to the greater of his Retirement Income
determined as of such Plan Year or the Actuarial
Equivalent of his adjusted Retirement Income computed
as of the end of the prior Plan Year. This process
shall be repeated each Plan Year until the
termination of his Disability Leave.
6.
Section 5.7, "Payment of Retirement Income," shall be amended,
effective January 1, 2000, by adding the following to the end of the second
paragraph:
However, if an Employee fails to make an election pursuant to this
Section 5.7 within the thirty (30) day period immediately preceding his
Retirement Date, his Retirement Income shall be determined as of his
Retirement Date and payment thereof shall commence as soon as
administratively feasible following his election to retire, provided
his election occurs not more than ninety (90) days after his Retirement
Date. If the election is made more than ninety (90) days following an
Employee's Retirement Date, his benefits shall commence as soon as
administratively feasible and his Retirement Income shall be determined
as of the first day of the month following submission of his election.
7.
Subsection (3) of Section 5.9(b), "Required minimum distributions,"
shall be deleted in its entirety and replaced with the following:
(3) With respect to an Employee who retires after attaining age
70-1/2 and who has not previously commenced receipt of his
Retirement Income pursuant to this Section 5.9(b) while an
Employee of an Affiliated Employer, the amount of his
Retirement Income shall be computed as of the end of the Plan
Year the Employee attains age 70-1/2 and shall be recomputed
as of the close of each Plan Year thereafter and preceding his
Deferred Retirement Date. With respect to each Plan Year
following the Plan Year the Employee attains age 70-1/2, his
Retirement Income shall equal the greater of his Retirement
Income determined as of such Plan Year or the Actuarial
Equivalent of his Retirement Income computed as of the end of
the Plan Year he attains age 70-1/2. For the next Plan Year,
his adjusted Retirement Income shall be equal to the greater
of his Retirement Income determined as of such Plan Year or
the Actuarial Equivalent of his adjusted Retirement Income
computed as of the end of the prior Plan Year. This process
shall be repeated each Plan Year until his Deferred Retirement
Date.
8.
Section 5.9(b), "Required minimum distributions," shall be amended by
adding a new subsection (4) as follows:
(4) If a former Employee who is receiving Retirement Income shall
be reemployed by any Affiliated Employer as an Employee and
his Retirement Income is suspended in accordance with Section
5.10(b), the Retirement Income payable upon his subsequent
retirement shall be adjusted in accordance with Section
5.9(b)(3) if his subsequent retirement occurs after he attains
age 70-1/2, but shall be reduced by the Actuarial Equivalent
of any Retirement Income he received prior to his reemployment
in accordance with Section 5.10(b).
9.
Section 5.10, "Suspension of Retirement Income for reemployment," shall
be renamed "Suspension of Retirement Income," and shall be amended to read as
follows:
5.10 Suspension of Retirement Income.
(a) The Retirement Income of an Employee who remains
in active service after his Normal Retirement Date
shall be suspended for each calendar month after his
Normal Retirement Date during which he completes
forty (40) or more Hours of Service, pursuant to
ERISA Section 203(a)(3)(B) ("ERISA Section
203(a)(3)(B) Service").
(b) If a former Employee who is receiving Retirement
Income shall be reemployed by any Affiliated Employer
as an Employee and shall not elect to waive his right
to participate under the Plan or the pension plan of
the Affiliated Employer, whichever applies, his
Retirement Income shall be suspended for each
calendar month after his reemployment during which he
is employed in ERISA Section 203(a)(3)(B) Service.
The Retirement Income payable upon his subsequent
retirement shall be reduced by the Actuarial
Equivalent of any Retirement Income he received prior
to his reemployment.
(c) No payment shall be suspended by the Plan
pursuant to this Section 5.10 unless the Plan
notifies the Employee by personal delivery or first
class mail during the first calendar month in which
the Plan withholds payments that his Retirement
Income is suspended.
(d) If the payment of Retirement Income has been
suspended, payments shall resume no later than the
first day of the third calendar month after the
calendar month in which the Employee ceases to be
employed in ERISA Section 203(a)(3)(B) service. The
initial payment upon resumption shall include the
payment scheduled to occur in the calendar month when
payments resume and any amounts withheld during the
period between the cessation of ERISA Section
203(a)(3)(B) service and the resumption of payments.
10.
Effective for plan years beginning on or after January 1, 2000, Section
6.4, "Limitation on benefits from multiple plans," Section 6.5, "Special rules
for plans subject to overall limitations under Code Section 415(e)," and Section
6.6, "Combination of plans," shall be deleted in their entirety and replaced
with the following (and Section 6.7 shall be renumbered as Section 6.5):
6.4 Limitations on benefits from multiple plans.
(a) For purposes of the limitations described in
Section 6.1 of the Plan and Section 415 of the Code,
all defined benefit plans (whether or not terminated)
maintained by an Affiliated Employer shall be treated
as one defined benefit plan.
(b) Notwithstanding any provisions contained herein
to the contrary, in the event that an Employee
participates in another defined benefit plan required
to be aggregated with this Plan under Code Section
415(g) and the combined benefits with respect to an
Employee exceed the limitations contained in Code
Section 415(b), corrective adjustments shall first be
made under this Plan.
11.
Subsection (c) of Section 8.5, "Calculation of present value for
cash-out of benefits and for determining amount of benefits," shall be deleted
in its entirety and replaced with the following, effective as of January 1,
2001:
(c) For purposes of this Section 8.5, "Applicable
Interest Rate" shall be calculated by using the
annual rate of interest on 30-year Treasury
securities for the month of August in the Plan Year
which precedes the Plan Year in which such present
value is determined and by using the prevailing
commissioners' standard table used to determine
reserves for group annuity contracts in effect on the
date as of which the present value is being
determined. Notwithstanding the foregoing, for the
Plan Year beginning January 1, 2001, the Applicable
Interest Rate shall be calculated using the annual
rate of interest on 30-year Treasury securities for
the month of August, or for the month of November, in
the Plan Year which precedes such Plan Year,
whichever month produces the greater amount.
12.
Effective on and after the date this amendment is adopted, Article XVII
of the Plan shall be amended in its entirety to read as set forth below:
Article XVII
17.1 Definition of Terms Used in this Article XVII and the
SEPCO Schedule.
(a) "SEPCO" shall mean Savannah Electric and Power
Company.
(b) "SEPCO Plan" shall mean the Employees' Retirement
Plan of Savannah Electric and Power Company, as
amended and restated January 1, 1997.
(c) "SEPCO Schedule" shall mean the Schedule attached
to the Plan and made a part thereof containing the
provisions of the SEPCO Plan as merged into the Plan
effective January 1, 1998 which shall apply to SEPCO
Employees and Covered SEPCO Employees.
(d) "SEPCO Employee" shall mean an Employee as
defined in the SEPCO Plan having an Hour of Service
under the SEPCO Plan on or after January 1, 1997.
This shall include persons represented by a
collective bargaining agent where such agent and
SEPCO have mutually agreed to participate in the
Plan. This shall not include employees who are hired
or rehired at SEPCO after December 31, 1997 or
rescind a waiver of participation under Section 3.8
of the SEPCO Plan or SEPCO Schedule on or after
January 1, 1998 that was in effect on December 31,
1997. Notwithstanding anything to the contrary above,
Covered SEPCO Employees shall be considered SEPCO
Employees unless otherwise provided in this Article
XVII or otherwise required by law.
(e) "Covered SEPCO Employee" shall mean an Employee
or former Employee who is or was represented by the
International Brotherhood of Electrical Workers
("IBEW") Local 1208 or the Office and Professional
Employees International Union ("OPEIU") Local 455,
who has an Hour of Service under the SEPCO Plan or
SEPCO Schedule on or after January 1, 1997. An
Employee who is represented by IBEW Local 1208 and is
hired or re-hired on or after January 1, 1999 or who
is represented by OPEIU Local 455 and is hired or
re-hired on or after January 1, 2000 shall not be
considered a Covered SEPCO Employee. Rather, such
Employee shall be treated only as an Employee under
the Plan.
17.2 [RESERVED]
17.3 SEPCO Employees Eligibility in the New Pension
Program
(a) The following SEPCO Employees shall be subject to
this Section 17.3 of the Plan:
(1) SEPCO Employees, including Covered SEPCO
Employees, who are actively employed by
SEPCO on January 1, 1997 but who will not
attain their fortieth (40th) birthday on or
before January 1, 2002, or
(2) SEPCO Employees, including Covered SEPCO
Employees, who are hired or re-hired by
SEPCO after January 1, 1997, or
(3) SEPCO Employees who are not members of
an eligible class of SEPCO Employees on or
after January 1, 1997 and have not
previously participated in the SEPCO Plan.
(b) The monthly Retirement Income payable as a single
life annuity to a SEPCO Employee described in Section
17.3(a) (or his Provisional Payee) who retires from
the service of SEPCO or another Employing Company at
his Normal Retirement Date or Deferred Retirement
Date (before adjustment for a Provisional Payee
designation, if any) after January 1, 1997, subject
to the limitations in Article VI, shall be the
greater of (1) and (2) below:
(1) 1.0% of his Average Monthly Earnings
multiplied by his years (and fraction of a
year) of Accredited Service, without
application of the limitation described in
Section 4.2(e), to his Normal Retirement
Date or Deferred Retirement Date; or
(2) $25 multiplied by his years (and
fraction of a year) of Accredited Service,
without application of the limitation
described in Section 4.2(e), to his Normal
Retirement Date or Deferred Retirement Date.
(c) Notwithstanding paragraph (b) above, if the
Allowance of a SEPCO Employee determined under the
SEPCO Schedule as of the earlier of his retirement or
termination of employment with SEPCO or December 31,
2001 would be greater, such SEPCO Employee shall be
entitled when eligible to receive payments of such
greater Allowance upon his retirement or termination
of employment with SEPCO or another Employing
Company.
(d) Notwithstanding paragraphs (b) and (c) above,
Retirement Income or Allowance, as the case may be,
determined with respect to a SEPCO Employee under
this Article XVII who retires on his Normal
Retirement Date or Deferred Retirement Date shall not
be less than the Retirement Income or Allowance which
would have been payable with respect to such SEPCO
Employee commencing on his earlier Retirement Date
had (1) the SEPCO Employee retired on his earlier
Retirement Date which would have resulted in the
greatest Retirement Income or Allowance and (2) such
Retirement Income or Allowance commencing on such
earlier Retirement Date been payable in the same form
as his Retirement Income or Allowance commencing on
his Normal Retirement Date or Deferred Retirement
Date.
(e) With respect to SEPCO Employees described in this
Section 17.3 who retire before their Normal
Retirement Date, the monthly amount of Retirement
Income provided in paragraph (b) above shall be
reduced in accordance with Section 5.5.
(f) With respect to Covered SEPCO Employees described
in this Section 17.3 (or their Provisional Payees),
the monthly amount of Retirement Income provided in
paragraphs (b) through (e) above shall become payable
as of the later of (i) the first of the month
following the Covered SEPCO Employee's retirement, or
(ii) January 1, 1998.
(g) Covered SEPCO Employees who retired or terminated
employment prior to (i) July 1, 1999 for Covered
SEPCO Employees represented by IBEW and (ii) February
9, 2000 for Covered SEPCO Employees represented by
OPEIU, and who commenced payment of an Allowance
under the SEPCO Schedule shall receive a lump sum
payment which is the actuarial equivalent of the
difference, if any, between the Retirement Income
payable pursuant to paragraphs (b) through (e) above
and the Allowance they have previously received
determined from their date of retirement to the
earlier of their date of death or the date payment
under this paragraph (g) is made. Such lump sum
payments shall be made as soon as administratively
feasible following adoption of these provisions. The
monthly payments pursuant to paragraphs (b) through
(e), if greater than the Covered SEPCO Employee's
Allowance, shall be made thereafter.
(h) The Provisional Payees of Covered SEPCO Employees
described in Section 17.3 who died prior to (i) July
1, 1999 for Covered SEPCO Employees represented by
IBEW and (ii) February 9, 2000 for Covered SEPCO
Employees represented by OPEIU, after having
commenced payment of an Allowance under the SEPCO
Schedule, shall receive a lump sum payment that is
the actuarial equivalent of the difference, if any,
between the survivor benefits under the Plan and the
survivor benefits under the SEPCO Schedule that the
Provisional Payees have previously received
determined from the date of the Covered SEPCO
Employee's death through the earlier of (i) the
Provisional Payee's date of death, or (ii) the date
payment is made under this paragraph (h) to the
Provisional Payee. Thereafter, monthly payments shall
be made to the Provisional Payee in accordance with
Section 17.5(h) of this Article XVII.
(i) For purposes of subsections (g) and (h) of this
Section 17.3, actuarial equivalent shall mean the
value of such lump sum payment determined as of the
date of distribution of the lump sum applying the
Applicable Interest Rate as defined in Section 8.5(c)
of the Plan and using the prevailing commissioners'
standard table used to determined reserves for group
annuity contracts in effect on the date as of which
the present value is being determined.
17.4 SEPCO Employees Not Described in 17.2 or 17.3. SEPCO Employees not
described in Section 17.2 or 17.3 above shall be eligible for a benefit
under the Plan as described in this Section 17.4, notwithstanding any
other provision of the Plan or SEPCO Schedule to the contrary.
(a) A SEPCO Employee shall be eligible to participate in the
Plan and receive Retirement Income thereunder as determined
under the Plan's terms and this Article XVII. Notwithstanding
the preceding sentence, if such SEPCO Employee's Allowance
determined as of the earlier of his retirement or termination
of employment with SEPCO or December 31, 2001 would be
greater, such SEPCO Employee shall be entitled when eligible
to commence payments of such greater Allowance upon his
retirement or termination of employment with SEPCO or another
Employing Company.
(b) Notwithstanding paragraph (a) above, only with respect to
SEPCO Employees who have attained age fifty (50) and have ten
(10) or more years of Credited Service on or before January 1,
1997 or who have attained age 55 on or before January 1, 1997,
such SEPCO Employees shall be entitled to receive the greater
of their Allowance or Retirement Income upon retirement.
(c) Covered SEPCO Employees who are described in this Section
17.4 (or their Provisional Payees) shall receive the monthly
benefit described in paragraph (a) for months beginning on the
later of (i) the first of the month following their
retirement, or (ii) January 1, 1998.
(d) A Covered SEPCO Employee who retires or terminates
employment prior to (i) July 1, 1999 for Covered SEPCO
Employees represented by IBEW and (ii) February 9, 2000 for
Covered SEPCO Employees represented by OPEIU, and who
commences payment of an Allowance under the SEPCO Schedule
before such date shall receive a lump sum payment which is the
actuarial equivalent of the difference, if any, between the
benefits payable pursuant to paragraph (a) above and the
Allowance they have previously received determined from their
date of retirement to the earlier of their date of death or
the date a lump sum payment is made pursuant to this paragraph
(d). Such lump sum payments shall be made as soon as
administratively feasible following adoption of these
provisions. The monthly payments pursuant to paragraph (a)
shall be made thereafter.
(e) The Provisional Payee of a Covered SEPCO Employee
described in this Section 17.4 who died prior to (i) July 1,
1999 for Covered SEPCO Employees represented by IBEW, and (ii)
February 9, 2000 for Covered SEPCO Employees represented by
OPEIU, after having commenced payment of an Allowance under
the SEPCO Schedule shall receive a lump sum payment that is
the actuarial equivalent of the difference, if any, between
the survivor benefits under the Plan and the survivor benefits
under the SEPCO Schedule that the Provisional Payee has
previously received determined from the date of the Covered
SEPCO Employee's death through the earlier of (i) the
Provisional Payee's date of death, or (ii) the date payment is
made to the Provisional Payee under this paragraph (e).
Thereafter, monthly payments shall be made in accordance with
Section 17.5(h) of this Article XVII.
(f) For purposes of subsections (d) and (e) of this Section
17.4, actuarial equivalent shall mean the value of such lump
sum payment determined as of the date of distribution of the
lump sum applying the Applicable Interest Rate as defined in
Section 8.5(c) of the Plan and using the prevailing
commissioners' standard table used to determined reserves for
group annuity contracts in effect on the date as of which the
present value is being determined.
17.5 Special Transition Rules. Notwithstanding any other
provisions in the Plan to the contrary, SEPCO Employees who
participate in the Plan shall be subject to the following
transition rules.
(a) In determining the greater benefit as required
under Sections 17.3 and 17.4, the form of payment and
any early retirement reductions with respect to the
payment of Retirement Income as set forth in Articles
V and VII of the Plan and of an Allowance as set
forth in Articles 5 and 7 of the SEPCO Schedule shall
be considered. For purposes of making the preceding
determination, (1) the applicable Allowance shall
first be converted to a monthly payment, and (2) the
Retirement Annuities described in Article 2 of the
SEPCO Schedule shall be taken into account consistent
with Section 5.01 of the SEPCO Schedule.
(b) With respect to eligibility to participate in the
Plan, all SEPCO Employees employed by SEPCO on
December 31, 1997 who are not already eligible to
participate in the Plan shall be immediately eligible
to participate in the Plan.
(c) SEPCO Employees who were eligible to participate
in the SEPCO Plan on December 31, 1997 shall have
their Vesting Years of Service determined as if their
anniversary date of hire is January 1. All SEPCO
Employees who participate in the Plan shall be
credited with Vesting Years of Service based upon the
terms of the Plan for periods of service on and after
January 1, 1998, and based upon the Continuous
Service such SEPCO Employees accrued under the SEPCO
Plan prior to January 1, 1998.
(d) (1) For SEPCO Employees (other than Covered
SEPCO Employees):
(A) For periods of service on and
after January 1, 1998, Accredited
Service for SEPCO Employees shall be
determined in accordance with the
Plan.
(B) For periods of service on and
after January 1, 1998, with respect
to any Allowance a SEPCO Employee
may be entitled to under the SEPCO
Schedule, such Allowance shall be
determined using Accredited Service
in place of Credited Service.
(C) For periods of service prior to
January 1, 1998, the Credited
Service of a SEPCO Employee shall be
used to determine such SEPCO
Employee's Allowance and Retirement
Income accrued prior to January 1,
1998.
(D) When calculating a SEPCO
Employee's Retirement Income prior
to June 1, 2000, the maximum amount
of Accredited Service and Credited
Service that will be considered is
forty-three (43) years.
(2) For Covered SEPCO Employees:
(A) For periods of service on and
after January 1, 2001, Accredited
Service for Covered SEPCO Employees
shall be determined in accordance
with the Plan.
(B) For periods of service on and
after January 1, 2001, with respect
to any Allowance a Covered SEPCO
Employee may be entitled to under
the SEPCO Schedule, such Allowance
shall be determined using Accredited
Service in place of Credited
Service.
(C) For periods of service prior to
January 1, 2001, the Credited
Service of a Covered SEPCO Employee
shall be used to determine such
Covered SEPCO Employee's Allowance
and Retirement Income accrued prior
to January 1, 2001. Such Credited
Service shall count as Accredited
Service to determine eligibility for
retirement at age fifty pursuant to
paragraph (g) below.
(D) When calculating a Covered SEPCO
Employee's Retirement Income under
Section 17.4 prior to June 1, 2000,
the maximum amount of Accredited
Service and Credited Service that
will be considered is forty-three
(43) years.
(e) For purposes of calculating Retirement Income for
a SEPCO Employee, Compensation determined under the
SEPCO Plan, excluding unused accrued vacation, shall
be used in place of Earnings for periods of service
prior to January 1, 1998.
(f) The Normal Retirement Date of a SEPCO Employee
shall always be determined in accordance with the
SEPCO Plan prior to January 1, 1998 and the SEPCO
Schedule on and after January 1, 1998.
(g) (1) A SEPCO Employee may retire if he has
either attained age fifty-five (55) or
attained age fifty (50) and has at least ten
(10) years of Accredited Service as
determined under this Article XVII. A SEPCO
Employee who retires because he has attained
age fifty (50) and has ten (10) years of
Accredited Service may not commence receipt
of his Retirement Income or Allowance until
on or after January 1, 1998.
(2) A SEPCO Employee who retires under
paragraph (1) above having at least ten (10)
years of Accredited Service shall be
entitled to the greater of his (A)
Retirement Income determined under Section
5.5 (excluding the third paragraph thereof)
and this Article XVII or (B) Allowance
determined under this Article XVII and in
addition applying a reduction of one-third
of one percent ([OBJECT OMITTED]%) for each
calendar month by which the commencement
date precedes the first day of the month
following any such Employee's attainment of
his fifty-fifth (55th) birthday. However,
effective for SEPCO Employees who retire on
or after June 1, 2000, the term three-tenths
of one percent (0.3%) shall replace
one-third of one percent ([OBJECT OMITTED]%)
in the preceding sentence.
(3) A SEPCO Employee who retires or
terminates under paragraph (1) above after
attaining age 55 having less than ten (10)
years of Accredited Service shall be
entitled to the greater of his (A)
Retirement Income determined under Section
8.2 (without regard to the ten (10) years of
Accredited Service requirement) and this
Article XVII or (B) Allowance determined
under this Article XVII.
(h) On and after January 1, 1998, the Provisional
Payees of SEPCO Employees who are not Covered SEPCO
Employees shall only be entitled to benefits as
provided in Article VII of the Plan. On or after
January 1, 1998 but on or before December 31, 2000,
Provisional Payees of Covered SEPCO Employees shall
be entitled to benefits equal to the greater of (i)
the benefits provided for in Article VII of the Plan,
or (ii) the benefits provided for in Article 7 of the
SEPCO Schedule. Provisional Payees of Covered SEPCO
Employees who retire, terminate employment or die on
or after January 1, 2001 shall only be entitled to
benefits as provided in Article VII of the Plan.
(i) With respect to the accrual of Retirement Income
or an Allowance during a period of total disability,
SEPCO Employees incurring a disability on and after
January 1, 1998 shall only be subject to the
provisions of Section 4.4 of the Plan.
Notwithstanding the above, a Covered SEPCO
Employee who incurs a disability on or after January
1, 1998 but on or before December 31, 2000 shall
accrue Retirement Income or an Allowance equal to the
greater of : (i) his Retirement Income determined
under Section 4.4 of the Plan, or (ii) his Allowance
determined under the SEPCO Schedule. Covered SEPCO
Employees who become disabled on or after January 1,
2001 shall only be entitled to benefits as provided
in Section 4.4 of the Plan.
(j) (1) The options for payment described in
Sections 7.1(c) and (d) and Sections 7.6(c)
and (d) may be elected by SEPCO Employees
who are not Covered SEPCO Employees and who
retire or terminate on or after January 1,
1998 and by Covered SEPCO Employees who
retire or terminate on or after (i) July 1,
1999 for Covered SEPCO Employees represented
by IBEW, and (ii) February 9, 2000 for
Covered SEPCO Employees represented by
OPEIU.
(2) Notwithstanding Section 17.3, SEPCO
Employees who terminate or retire in 1997
and Covered SEPCO Employees who terminate or
retire prior to January 1, 2001 and commence
receipt of an Allowance shall not be
eligible to change the form of benefit
elected under the SEPCO Plan even if such
SEPCO Employees are entitled to receive
Retirement Income under this Article XVII.
(3) Notwithstanding Section 7.07(a)(Option
ii) of the SEPCO Schedule, SEPCO Employees
who are not Covered SEPCO Employees shall
not be eligible to elect a 75% joint and
survivor annuity. Covered SEPCO Employees,
however, shall be allowed to elect a 75%
joint and survivor annuity pursuant to
Section 7.07(a)(Option ii) before January 1,
2001.
(k) SEPCO Employees may elect in accordance with the
SEPCO Schedule to have their benefit, whether paid as
Retirement Income or an Allowance, adjusted to take
into account their old-age insurance benefit under
Title II of the Social Security Act. In the event
that a SEPCO Employee's Retirement Income is greater
than his Allowance under Section 17.3 or 17.4, the
old age insurance benefit used to compute such
Retirement Income shall be used to determine the
amount payable under Section 5.04 of the SEPCO
Schedule.
(l) Notwithstanding anything in this Article XVII to
the contrary, the Accrued Benefit of any SEPCO
Employee shall not be less than the Accrued Benefit
such SEPCO Employee derived under the SEPCO Plan as
of the earlier of retirement, termination or December
31, 1997.
17.6 Transfers of SEPCO Employees.
(a) With respect to a transfer of employment from an Employing
Company other than SEPCO to SEPCO, (1) occurring prior to
January 1, 1998, the person will be treated as a SEPCO
Employee under this Article XVII or (2) occurring on or after
January 1, 1998, the person will be treated as an Employee
under the terms of the Plan. Notwithstanding the foregoing, a
person transferring to SEPCO as a Covered SEPCO Employee on or
after January 1, 1998 will be treated as a SEPCO Employee.
Only persons transferring to SEPCO as a Covered SEPCO Employee
on or after January 1, 2001 will be treated as an Employee.
(b) With respect to a transfer of employment from SEPCO to an
Employing Company, (1) occurring prior to January 1, 1997, the
person will be treated like an Employee under Sections 4.6(a),
(c) and (d) of the Plan provided that any Retirement Income or
Allowance payable to the Employee shall be determined in
accordance with Section 17.5(a), (g), (j) and (k) or (2)
occurring on or after January 1, 1997, the person will be
treated as a SEPCO Employee or Covered SEPCO Employee,
whichever is applicable, under this Article XVII.
17.7 Application of Plan to SEPCO. To the extent not inconsistent with
the provisions of this Article XVII, all the provisions of the Plan are
applicable to SEPCO Employees and Covered SEPCO Employees.
13.
Section 1.14 of the SEPCO Schedule, the definition of "Employee," shall
be deleted in its entirety and replaced with the following new definition:
1.14 "Employee" shall mean any person regularly employed by
the Company who receives regular stated salary, or wages paid
directly by the Company as (a) a regular full-time employee,
(b) a regular part-time employee, (c) a cooperative education
employee or (d) a temporary employee paid directly or
indirectly by the Company. Notwithstanding the preceding
sentence, on and after January 1, 1998 but before January 1,
2001, "Employee" shall be limited to Covered SEPCO Employees
as defined in Article XVII of the Plan. Thereafter, no person
employed by the Company shall be an "Employee" under this
SEPCO Schedule. For purposes of this Section 1.14, temporary
employee means a full-time or part-time employee who provides
services to the Company for a stated period of time after
which period such employee will be terminated from employment.
The term Employee shall also include Leased Employees within
the meaning of Code ss. 414(n) (2). Notwithstanding the
foregoing, if such Leased Employees constitute less than
twenty percent (20%) of the Employer's non-highly compensated
workforce within the meaning of Code ss. 414(n)(5)(C)(ii), the
term Employee shall not include those Leased Employees covered
under the SEPCO Schedule described in Code ss. 414(n)(5). The
term Employee for participation purposes shall not include any
individual who is classified by the Company as an independent
contractor or temporary employee (unless with respect to a
temporary employee who is grandfathered under this SEPCO
Schedule) regardless of whether such classification is in
error.
14.
Southern Energy, 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.
15.
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 its duly
authorized officer, has adopted this Sixth Amendment to The Southern Company
Pension Plan this ____ day of _________________, 2000, to be effective as stated
herein.
SOUTHERN COMPANY SERVICES, INC.
By: _____________________________________
Title:___________________________________
ATTEST:
By: _________________________________________________________
Title:________________________________________________________