EIGHTH AMENDMENT TO THE
SOUTHERN COMPANY
PERFORMANCE SHARING PLAN
WHEREAS, Southern Company Services, Inc. heretofore adopted The
Southern Company Performance Sharing 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 Performance Sharing Plan Committee ("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 12.1 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 2.13 and 2.14 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 2.19 of the Plan shall be amended to read as follows, effective
as of December 22, 2000:
2.19 "Eligible Employee" shall mean an Employee who is
employed by an Employing Company and who is classified by the Employing
Company as a regular full-time, regular part-time or cooperative
education employee who:
(a) was actively employed on December 31, 1996 but who
will not attain his fortieth (40th) birthday on or
before January 1, 2002 or who was not a member of an
eligible class of employees under a pension plan of
an Employing Company on December 31, 1996 and has not
previously participated in any such pension plan;
(b) was actively employed on December 31, 1996 and
properly elects to participate in this Plan pursuant
to the procedures established under the Plan for
making such election; or
(c) was employed or reemployed on or after January 1,
1997 or who rescinded a waiver of participation in
The Southern Company Pension Plan pursuant to Section
2.7 thereof on or after January 1, 1997 that was in
effect on December 31, 1996.
"Eligible Employee" shall not include:
(t) any individual, who would otherwise be eligible to
participate in the Plan by virtue of his employment
by SERI, but who (i) is 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;
(u) an Employee who is described in Section 3.8 of the
Plan;
(v) an Employee who has been previously employed by an
Employing Company, transferred to Southern Company
Energy Marketing, L.P., subsequently transfers back
to an Employing Company, and is not described in
paragraph (a) of Section 15.1 of The Southern Company
Pension Plan;
(w) 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;
(x) 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;
(y) any individual or Employee who is classified by the
Employing Company as a temporary employee or as an
independent contractor, regardless of prior inclusion
under the Plan or whether such classification is
determined to be in error; or
(z) any individual or Employee who has voluntarily waived
participation in the Plan for any reason, including
any individual or Employee who has waived benefits
upon employment by the Employing Company.
3.
Paragraph (t) of Section 2.19 of the Plan shall be amended to read as
follows, effective as of the Group Status Change Date as defined in the
Agreement:
(t) an individual who is employed by SERI;
4.
Two new definition Sections shall be added to the Plan to read as
follows, effective as of December 22, 2000:
2.54 "SCEM" shall mean Southern Company Energy Marketing,
L.P.
2.55 "SERI" shall mean Southern Energy Resources, Inc.
5.
A new definition Section shall be added to the Plan to read as follows,
effective as of the Group Status Change Date as defined in the Agreement:
2.56 "SEI" shall mean Southern Energy, Inc., any subsidiary of
Southern Energy, Inc., or any successor thereto.
6.
Section 5.1 of the Plan shall be amended to read as follows, effective
as of January 1, 2000:
5.1 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)).
7.
Section 5.3 of the Plan shall be amended to read as follows, effective
as of January 1, 2000:
5.3 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
5.1, corrective adjustments shall be made first under The Southern
Company Employee Savings Plan and then, to the extent necessary, under
this Plan and then, to the extent necessary, under the Southern Company
Employee Stock Ownership Plan.
8.
The phrase ", as provided in regulations prescribed by the Secretary of
the Treasury" shall be added to the end of the last sentence in the second
paragraph of Section 12.1 of the Plan, effective as of September 5, 2000.
9.
Section 13.5 of the Plan shall be deleted in its entirety, effective as
of January 1, 2000.
10.
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 active 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.
11.
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.
12.
Except as amended herein by this Eighth Amendment, the Plan shall
remain in full force and effect as amended and restated by the Company prior to
the adoption of this Eighth Amendment.
IN WITNESS WHEREOF, Southern Company Services, Inc., through the duly
authorized members of the Performance Sharing Plan Committee, has adopted this
Eighth Amendment to The Southern Company Performance Sharing Plan this ____ day
of ___________________, 2000.
PERFORMANCE SHARING PLAN COMMITTEE: