Exhibit 10(a)83
FIRST AMENDMENT TO
DEFERRED COMPENSATION AGREEMENT
THIS FIRST AMENDMENT TO DEFERRED COMPENSATION AGREEMENT ("Agreement")
made and entered into by and between The Southern Company ("Company") and
William L. Westbrook ("Mr. Westbrook"), effective as of the day of
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W I T N E S S E T H:
WHEREAS, the parties entered into that certain Deferred Compensation
Agreement on February 15, 2001 ("Deferred Compensation Agreement"); and
WHEREAS, the parties wish to amend the Deferred Compensation Agreement
to expressly provide Mr. Westbrook with the value of the Award of Non-Qualified
Stock Options Mr. Westbrook would have received under The Southern Company
Performance Stock Plan on April 16, 2001 if he had been an employee of the
Company on such date.
NOW, THEREFORE, in consideration of the premises, and the agreements of
the parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. Paragraph 2 of the Deferred Compensation Agreement is amended by
deleting the last paragraph and inserting the following in lieu thereof:
(d) Subject to the terms and conditions of this Agreement,
Company shall grant to Employee, as of his Early Retirement Date,
Fifty-Six Thousand Five Hundred Twenty-Three (56,523) Stock
Appreciation Rights ("SARs") and shall issue to Employee a Certificate
evidencing his rights hereunder in the form attached hereto as Exhibit
2. Employee shall be 100% vested in the SARs on his Early Retirement
Date. The SARs shall expire on the fifth anniversary of Employee's
Early Retirement Date ("Expiration Date").
The SARs may be exercised in whole or in part at any time on or before
the Expiration Date. During the Employee's lifetime, only the Employee may
exercise the SARs granted under Paragraph 2(d) of this Agreement. If the
Employee dies without having exercised all of the SARs granted hereunder, the
balance of the SARs may be exercised, to the extent the SARs could have been
exercised on the date of Employee's death, by the estate or a person who
acquired the right to exercise the SARs by bequest or inheritance from or by
reason of the death of the Employee. The SARs shall be exercised by delivering
to the Vice President, Human Resources of the Company on any business day a
Notice of Exercise in the form attached hereto as Exhibit 3.
Upon the exercise of a SAR, Employee shall be entitled to receive a
payment from the Company of an amount ("SAR Exercise Amount") equal to the
product determined by multiplying (i) the number of SARs being exercised, by
(ii) an amount equal to the excess of (A) the Exercise Value per Share on the
date of the exercise of the SAR over (B) the Base Value per Share for the SAR.
For purposes of the preceding sentence, "Exercise Value per Share" shall mean
the average of the high and low prices at which a share of the common stock of
the Company shall have been traded on the date of exercise, or if there is no
sale on the exercise date, then on the last previous day on which a sale
occurred, as reported on the New York Stock Exchange-Composite Transactions
Listing, and "Base Value per Share" shall mean $22.425. The Company shall pay
the SAR Exercise Amount in cash as soon as practicable after receiving a Notice
of Exercise from the Employee in accordance with this Paragraph 2(d).
The SARs granted under this Paragraph 2(d) may be transferred by the
Employee in the same manner as Awards other than Incentive Stock Options under
Article VIII of The Southern Company Performance Stock Plan ("PSP") and upon
Employee's death by will or by the laws of descent and distribution. Except as
provided above, the SARs and the rights and privileges conferred hereby, shall
not be assigned, pledged or hypothecated in any way and shall not be subject to
execution, attachment or similar process.
The SARs shall be used solely as a device for the measurement and
determination of the amount to be paid to Employee under this Paragraph 2(d).
The SARs shall not constitute or be treated as property or as a trust fund of
any kind. All amounts at any time attributable to the SARs shall be and remain
the sole property of the Company, and Employee's rights under this Paragraph
2(d) are limited to the rights to receive payment. The Employee, or any
transferee of the SARs, shall have no rights as a shareholder with respect to
any shares of common stock of the Company with respect to which the SAR's value
is measured.
In the event of a stock split, stock dividend, reclassification,
reorganization, or other capital adjustment of shares of common stock of the
Company, the number of SARs granted to Employee in this Paragraph 2(d) shall be
adjusted in a manner to place Employee in the same economic position after such
event as he held immediately prior thereto.
(e) Subject to the terms and conditions of this Agreement,
Company shall pay to Employee amounts ("Supplemental PDP Amounts")
equal to the Awards the Employee would have received under The Southern
Company Performance Dividend Plan ("PDP") in 2002, 2003 and 2004 if the
SARs granted to Employee under Paragraph 2(d) above constituted an
Award of Non-Qualified Stock Options under the PSP paid on April 16,
2001. The Supplemental PDP Amounts shall be paid to the Employee in the
same manner and on the same dates as the Awards the Employee would have
received under the PDP in 2002, 2003 and 2004.
(f) In accordance with Paragraph 16 hereof, Employee shall be
responsible for all state and federal income taxes and his share of
FICA taxes owed on the amounts payable in accordance with subparagraphs
(a), (b), (c), (d) and (e) of this Paragraph 2, and Company shall make
appropriate withholding of these amounts.
2. The Agreement shall be amended by adding Exhibits 2 and 3 in the
forms attached hereto as Schedules 1 and 2 to the end thereof.
3. Except as specifically amended above, the Deferred Compensation
Agreement shall remain unchanged and, as amended herein, shall continue in full
force and effect.
IN WITNESS WHEREOF, this First Amendment to Deferred Compensation
Agreement has been executed by the parties first listed above, this _______ day
of ___________________, 2001.
THE SOUTHERN COMPANY
By:
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MR. WESTBROOK
William L. Westbrook
Schedule 1
Exhibit 2 to Deferred
Compensation Agreement
with William L. Westbrook
SAR GRANT CERTIFICATE
This Certificate, which is issued pursuant to, and subject to, the
Deferred Compensation Agreement with William L. Westbrook, credits William L.
Westbrook with 56,523 Stock Appreciation Rights.
The Southern Company
By:
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Its:
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Date:
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ACCEPTED:
Grantee
Date
1st Amendment to Deferred Comp. Agree_Westbrook.DOC
Schedule 2
Exhibit 3 to Deferred
Compensation Agreement
with William L. Westbrook
NOTICE OF EXERCISE
The Southern Company
Attention: Vice President, Human Resources
I hereby exercise my rights under Paragraph 2(d) of the Deferred
Compensation Agreement entered into by and between The Southern Company and me,
as amended (the "Agreement"), and granted as of _________________________,
subject to all of the terms and conditions of the Agreement, with respect to the
following number of SARs:
Number of SAR(s) -
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If this Notice of Exercise involves fewer than all of the SARs which
are the subject of Paragraph 2(d) of the Agreement, I retain the right to
exercise my rights for the balance of the SARs remaining subject to said
Agreement, all in accordance with the terms of the Agreement.
I hereby authorize The Southern Company (the "Company") (and any of its
subsidiaries) to withhold from any extraordinary pay from the Company (and any
of its subsidiaries) and/or any payment with respect to my exercise of the
aforesaid SARs, the applicable amount of any taxes required by law or the
Agreement to be withheld as a result to this exercise.
My current address and my Social Security Number are as follows:
Address:
Social Security Number:
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Date:
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Name