Exhibit 10(c)68
DEFERRED COMPENSATION PLAN
FOR DIRECTORS OF
GEORGIA POWER COMPANY
Amended and Restated Effective January 13, 2003
SECTION 1
Definitions
1.1 "Beneficial Ownership" means beneficial ownership within the meaning of
Rule 13d-3 promulgated under the Exchange Act.
1.2 "Board" or "Board of Directors" means the Board of Directors of the
Company.
1.3 "Business Combination" means a reorganization, merger or consolidation
or sale of Southern, or a sale of all or substantially all of Southern's assets.
1.4 "Cash Compensation" means the annual retainer fees and meeting fees
payable to a Director in cash.
1.5 "Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
1.6 "Committee" means the Compensation and Executive Committees of the
Board, or such other committee as may be designated by the Board to be
responsible for administering the Plan.
1.7 "Common Stock" means the common stock of Southern, including any shares
into which it may be split, subdivided, or combined.
1.8 "Company" means the Georgia Power Company, or any successor thereto.
1.9 "Company Change in Control" means the following:
(a) The Consummation of an acquisition by any Person of Beneficial
Ownership of 50% or more of the combined voting power of the then
outstanding Voting Securities of the Company; provided, however,
that for purposes of this Section 1.9, any acquisition by an
Employee, or Group composed entirely of Employees, any qualified
pension plan, any publicly held mutual fund or any employee
benefit plan (or related trust) sponsored or maintained by
Southern or any corporation Controlled by Southern shall not
constitute a Change in Control;
(b) Consummation of a reorganization, merger or consolidation of the
Company (a "Company Business Combination"), in each case, unless,
following such Company Business Combination, Southern Controls
the corporation surviving or resulting from such Company Business
Combination; or
(c) Consummation of the sale or other disposition of all or
substantially all of the assets of the Company to an entity which
Southern does not Control.
1.10 "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.
1.11 "Consummation" means the completion of the final act necessary to
complete a transaction as a matter of law, including, but not limited to, any
required approvals by the corporation's shareholders and board of directors, the
transfer of legal and beneficial title to securities or assets and the final
approval of the transaction by any applicable domestic or foreign governments or
agencies.
1.12 "Control" means, in the case of a corporation, Beneficial Ownership of
more than 50% of the combined voting power of the corporation's Voting
Securities, or in the case of any other entity, Beneficial Ownership of more
than 50% of such entity's voting equity interests.
1.13 "Deferred Cash Trust" means the Deferred Cash Compensation Trust for
Directors of The Southern Company and its Subsidiaries.
1.14 "Deferred Compensation Account" means the Prime Rate Investment
Account, the Phantom Stock Investment Account, the Deferred Stock Account,
and/or the Subsidiary Company Investment Account.
1.15 "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.
1.16 "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).
1.17 "Deferred Stock Trust" means the Deferred Stock Trust for Directors of
The Southern Company and its Subsidiaries.
1.18 "Director" means a member of the Board.
1.19 "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
pursuant to Section 5.4.
1.20 "Effective Date" of this amendment and restatement means January 13,
2003.
1.21 "Employee" means an employee of Southern or any of its subsidiaries
that are "employing companies" as defined in the Southern Company Deferred
Compensation Plan as amended and restated February 23, 2001, and as may be
amended from time to time.
1.22 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
1.23 "Group" has the meaning set forth in Section 14(d) of the Exchange
Act.
1.24 "Incumbent Board" means those individuals who constitute the Southern
board of directors as of October 19, 1998, plus any individual who shall become
a director subsequent to such date whose election or nomination for election by
Southern's shareholders was approved by a vote of at least 75% of the directors
then comprising the Incumbent Board. Notwithstanding the foregoing, no
individual who shall become a director of the Southern board of directors
subsequent to October 19, 1998, whose initial assumption of office occurs as a
result of an actual or threatened election contest (within the meaning of Rule
14a-11 of the regulations promulgated under the Exchange Act) with respect to
the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Southern board
of directors shall be a member of the Incumbent Board.
1.25 "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).
1.26 "Participant" means a Director or former Director who has an unpaid
Deferred Compensation Account balance under the Plan.
1.27 "Participating Companies" means those companies whose boards of
directors have authorized the establishment of trust(s) for the funding of their
respective directors' Deferred Compensation Accounts under their respective
Deferred Compensation Plans for Directors, including the Company.
1.28 "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 Wachovia Bank of
Georgia Prime Interest Rate from the Termination Date, until such amount is
invested in Deferred Compensation Accounts pursuant to the provisions of Section
5.3.
1.29 "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.
1.30 "Phantom Stock Investment Account" means the bookkeeping account
established pursuant to Section 6.2 in which a Director may elect to defer Cash
Compensation or make investments, and includes amounts credited thereto to
reflect the reinvestment of dividends.
1.31 "Plan" means the Deferred Compensation Plan for Directors of Georgia
Power Company as from time to time in effect.
1.32 "Plan Period" means the period designated in Section 4.
1.33 "Person" means any individual, entity or group within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act.
1.34 "Preliminary Change in Control" means the occurrence of any of the
following as determined by the Southern Committee:
(a) Southern or the Company has entered into a written agreement,
such as, but not limited to, a letter of intent, which, if
Consummated, would result in a Southern Change in Control or a
Company Change in Control, as the case may be;
(b) Southern, the Company or any Person publicly announces an
intention to take or to consider taking actions which, if
Consummated, would result in a Southern Change in Control or a
Company Change in Control under circumstances where the
Consummation of the announced action or intended action is
legally and financially possible;
(c) Any Person becomes the Beneficial Owner of fifteen percent (15%)
or more of the Common Stock; or
(d) The Southern board of directors or the board of directors of the
Company has declared that a Preliminary Change in Control has
occurred.
1.35 "Prime Interest Rate" means the prime rate of interest as listed with
the Wachovia Bank of Georgia, or its successor on the 1st day of each quarter.
1.36 "Prime Rate Investment Account" means the bookkeeping account
established pursuant to Section 6.1 in which a Director may elect to defer Cash
Compensation or make investments, the investment return on which is computed at
the Prime Interest Rate.
1.37 "Southern" means The Southern Company.
1.38 "Southern Change in Control" means any of the following:
(a) The Consummation of an acquisition by any Person of Beneficial
Ownership of 20% or more of Southern's Voting Securities;
provided, however, that for purposes of this subsection (a), the
following acquisitions of Southern's Voting Securities shall not
constitute a Change in Control:
(i) any acquisition directly from Southern,
(ii) any acquisition by Southern,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by Southern or any
corporation controlled by Southern,
(iv) any acquisition by a qualified pension plan or publicly held
mutual fund,
(v) any acquisition by an Employee or Group composed exclusively
of Employees, or (vi) any Business Combination which would
not otherwise constitute a Change in Control because of the
application of clauses (i), (ii) and (iii) of Section
1.37(c);
(b) A change in the composition of Southern's board of directors
whereby individuals who constitute the Incumbent Board cease for
any reason to constitute at least a majority of Southern's board
of directors; or
(c) Consummation of a Business Combination, unless, following such
Business Combination, all of the following three conditions are
met:
(i) all or substantially all of the individuals and entities who
held Beneficial Ownership, respectively, of Southern's
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, 65% or
more of the combined voting power of the Voting Securities
of the corporation surviving or resulting from such Business
Combination, (including, without limitation, a corporation
which as a result of such transaction holds Beneficial
Ownership of all or substantially all of Southern's Voting
Securities or all or substantially all of Southern's assets)
(such surviving or resulting corporation to be referred to
as "Surviving Company"), in substantially the same
proportions as their ownership, immediately prior to such
Business Combination, of Southern's Voting Securities;
(ii) no Person (excluding any corporation resulting from such
Business Combination, any qualified pension plan, publicly
held mutual fund, Group composed exclusively of employees or
employee benefit plan (or related trust) of Southern, its
subsidiaries, or Surviving Company) holds Beneficial
Ownership, directly or indirectly, of 20% or more of the
combined voting power of the then outstanding Voting
Securities of Surviving Company except to the extent that
such ownership existed prior to the Business Combination;
and
(iii) at least a majority of the members of the board of
directors of Surviving Company were members of the Incumbent
Board at the earlier of the date of execution of the initial
agreement, or of the action of the Southern board of
directors, providing for such Business Combination.
1.39 "Southern Committee" means Chairman of the Southern board of
directors, Chief Financial Officer of Southern, General Counsel of Southern, and
the Chairman of the "Administrative Committee", as defined in Section 3.1 of the
Southern Company Deferred Compensation Plan, as restated and amended effective
February 23, 2001, and as may be amended from time to time.
1.40 "Stock Retainer" means the annual Board retainer fee that is paid to
the Director in the form of Common Stock.
1.41 "Subsidiary Company Investment Account" means the bookkeeping
account(s) established pursuant to section 6.4 on behalf of a Director that is
credited with shares of stock, other than Common Stock, distributed to holders
of record of Common Stock on account of a spin-off of a Southern Company
subsidiary.
1.42 "Termination Date" means January 1, 1997, the date as of which The
Southern Company Outside Directors Pension Plan was effectively terminated.
1.43 "Transferred Amount" means an amount equal to the value of a
Director's accounts under the applicable deferred compensation plan for
directors of The Southern Company or one of its subsidiaries or affiliates,
which has been transferred to the Plan in connection with the Director's
transfer from the board of directors of The Southern Company or one of its
subsidiaries or affiliates to the Board.
1.44 "Transferred Amount Investment Date" means the date as of which a
Director's Transferred Amount will be credited to a Deferred Compensation
Account in accordance with Section 5.4.
1.45 "Trust Administrator" means the individual or committee that is
established in the Deferred Stock Trust and the Deferred Cash Trust, to
administer such trusts on behalf of the Participating Companies.
1.46 "Voting Securities" means the outstanding voting securities of a
corporation entitling the holder thereof to vote generally in the election of
such corporation's directors.
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.
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
Except as pertains to a Director's initial Plan Period, all Plan Periods
shall be on a calendar year basis. 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 Phantom Stock
Investment Account, or, effective with compensation payable on or
after January 1, 2001, (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
payable in a future Plan Period prior to the beginning of such
future Plan Period. The new deferral election should not affect
amounts previously deferred.
(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
(a) Prior to the beginning of a Plan Period, a Director may direct
that payment of all or none of the Stock Retainer that otherwise
would be paid to the Director for the Plan Period, be deferred by
the Directors, and credited to his Deferred Stock Account, such
deferred 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.
(b) An election to defer the Stock Retainer is irrevocable. Such an
election shall continue from Plan Period to Plan Period unless
the Director changes his election to defer Stock Retainer paid in
a future Plan Period prior to the beginning of such future Plan
Period. The new deferral election should not affect amounts
previously deferred.
(c) Stock Retainer deferred under this Section 5.2 shall be invested
in Deferred Stock Account as directed by the Director on the
Compensation Payment Date.
5.3 Deferred Pension Election
Any Director, who had a Pension Benefit as of the Termination Date, made a
single one-time election, to credit all of his Pension Benefit into (i) a Prime
Rate Investment Account or (ii) a Phantom Stock Investment Account. Upon the
Director's termination from the Board, 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 made in accordance with Section 5.4(b) and the provisions of Section 7.
5.4 Distribution Election
(a) Except as set forth in Section 5.4(b) and (c), prior to the
initial establishment of a Deferred Compensation Account for a
Director, the Director must elect, in writing, 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 lump sum 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) Any Director who made a Deferred Pension Election in accordance
with Section 5.3 made a Distribution Election at the time the
Deferred Pension Election was made, attributable to the Pension
Benefit and any accumulated investment return.
(c) In the event a Director terminates from the Board with Deferred
Compensation Accounts established under Section 6.5, the
Transferred Amounts and accumulated investment return held in
such Accounts shall be distributed to the Director in accordance
with the Director's distribution election in effect under the
applicable deferred compensation plan for directors of The
Southern Company or one of its subsidiaries or affiliates on the
date the Director is transferred to the Board and the provisions
of Section 7, unless such election is changed pursuant to Section
5.4(d).
(d) Distribution Elections made under Sections 5.4 (a), (b) and (c)
are irrevocable except that a Director may amend any of the
Distribution Elections then in effect while the Director is still
a director of the Company as required under Section 9.5 and not
later than the 361st day prior to the date of the earliest
distribution elected and in place under the Plan. Any amendment
to a Director's Distribution Election pursuant to the preceding
sentence shall not accelerate the commencement of the Director's
distribution to a date which is prior to the 13th month following
the date of such amendment. In addition, any amendment to a
Distribution Election must be made on a form prescribed by the
Compensation Committee and delivered to the Secretary or
Assistant Secretary.
5.5 Beneficiary Designation
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 designation 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 or Assistant Secretary of the Company
on a form or forms available upon request of the Secretary or Assistant
Secretary.
SECTION 6
Accounts
6.1 Prime Rate Investment Account
A Prime Rate Investment Account shall be established for each Director
electing deferral of Cash Compensation for 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, Compensation Payment Date, or
Transferred Amount Investment 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 Phantom Stock Investment Account
The Phantom Stock Investment Account established for each Director electing
deferral of Cash Compensation for 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, the Compensation Payment Date, or
Transferred Amount Investment Date, as applicable, as determined by dividing the
applicable compensation by the Market Value on such date. On the date of the
payment of dividends on the Common Stock, the Director's Phantom 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 record date
as if the credited shares had been outstanding on such date 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 as 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 of Cash Compensation subject to deferral or
investment in the Deferred Stock Account by the average
price paid by the Trustee of the Deferred 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, the shares
of Common Stock payable to the Director as his Stock
Retainer; 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 Deferred Stock Trust on the
applicable dividend payment date or, if the Trustee of the
Deferred 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 Southern 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 Southern after the recapitalization as was the case
before such transaction.
(c) If at least a majority of Southern'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 Southern are disposed of and,
as a consequence thereof, cash or property is distributed to
Southern'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 Southern 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 Southern
shareholder.
(d) Each Director who has a Deferred Stock Account also shall be
entitled to provide directions to the Trust Administrator to
cause such committee to similarly direct the Trustee of the
Deferred Stock Trust to vote, on any matter presented for a vote
to the shareholders of Southern, that number of shares of Common
Stock held by the Deferred Stock Trust equivalent to the number
of shares of Common Stock credited to the Director's Deferred
Stock Account. Such committee shall arrange for distribution to
all Directors in a timely manner of all communications directed
generally to the Southern shareholders as to which their votes
are solicited.
6.4 Subsidiary Company Investment Account
(a) A Director's Subsidiary Company Investment Account will be
credited as of the date on which a distribution is paid to the
Company's common stockholders in stock other than Common Stock
with the number of shares of the other corporation's stock
receivable by a Southern stockholder directly holding the same
number of shares of Common Stock as is credited to such
Director's Deferred Stock Account.
(b) Each Director who has a Subsidiary Company Investment Account
also shall be entitled to provide directions to the Trust
Administrator to similarly direct the Trustee of the Deferred
Stock Trust to vote on any matter presented for a vote to the
applicable corporation's shareholders, that number of shares of
the applicable corporation's common stock held by the Deferred
Stock Trust equivalent to the number of shares credited to the
Director's Subsidiary Company Investment Account. The Trust
Administrator shall arrange for distribution to all Directors in
a timely manner of all communications directed generally to the
applicable corporation's shareholders as to which their votes are
solicited.
6.5 Transferred Amounts
(a) As soon as administratively practicable, the Company shall
establish for a Director transferring to the Board from the board
of directors of The Southern Company or any of its subsidiaries
or affiliates such Deferred Compensation Accounts as are
necessary to implement Section 6.5(b).
(b) Any Transferred Amounts will be credited to the Deferred
Compensation Account(s) established that are comparable to the
deferred compensation accounts to which such amounts were
credited under the applicable deferred compensation plan for
directors of The Southern Company or one of its subsidiaries or
affiliates, as soon as administratively practicable following the
date the Transferred Amounts are transferred to the Plan.
Thereafter, the Transferred Amounts shall be credited with
investment returns as applicable under this Section 6 of the
Plan.
SECTION 7
Distributions
7.1 Upon the 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, in the following manner:
(a) the amount credited to a Director's Prime Rate Investment Account
and Phantom Stock Investment Account shall be paid in cash;
(b) the amount credited to a Director's Deferred Stock Account shall,
except as otherwise provided in Section 6.3 and Section 9.5, 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); and
(c) the amount credited to a Subsidiary Company Investment Account
shall, except as otherwise provided in section 9.5, be paid from
the assets in the Deferred Stock Trust in shares of the
applicable corporation, however if there is not a sufficient
number of shares held in the Trust, the remainder shall be paid
in cash based upon the average of the high and low price of the
stock as reported in the Wall Street Journal on the business day
immediately proceeding the distribution date.
Such payments shall be from the general assets of the Company
(including the Deferred Cash Trust and the Deferred Stock Trust)
in accordance with this Section 7.
Notwithstanding the foregoing, in the event the Company enters into an
agreement described in Section 7.3 with respect to a Director prior to the
Director's termination of membership, the Company shall have no obligation to
make distributions to the Director under this Section 7.1 in connection with
such Director's termination of membership on the Board.
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 provisions of Section 5.4. 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 Phantom 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 Phantom 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.
7.3 If the Company enters into a written agreement with a parent or
affiliate of the Company under which the parent or affiliate assumes liability
for a Director's benefits accrued under the Plan in connection with, but prior
to, such Director's termination of membership on the Board and the Director
either has been or will be elected to the Board of Directors of such parent or
affiliate of the Company, the value of the Director's benefits which have
accrued under the Plan as of the date the Director terminates from the Board
shall be transferred from the Company to the parent or affiliate of the Company,
and the Company shall have no further obligation to make any distributions to
the Director under Section 7.1 or any other section herein.
SECTION 8
Change in Control and Other Special Provisions
8.1 Notwithstanding any other terms of the Plan to the contrary, following
a Southern Change in Control or a Company Change in Control, the provisions of
this Section 8 shall apply to the payment of benefits under the Plan with
respect to any Director who is a Participant on such date.
8.2 The Deferred Cash Trust and the Deferred Stock Trust (collectively
"Trusts") have been established to hold assets of the Participating Companies
under certain circumstances as a reserve for the discharge of the Company's
obligations under the Plan. In the event of a Preliminary Change in Control of
Southern or the Company, the Company shall be obligated to immediately
contribute such amounts to the Trusts as may be necessary to fully fund all
benefits payable under the Plan in accordance with the procedures set forth in
Section 8.3 hereof. In addition, in order to provide the added protections for
certain individuals in accordance with Paragraph 7(c) of the Trust, the Company
may fund the Trusts prior to a Preliminary Change in Control of Southern or the
Company in accordance with the terms of the Trusts. All assets held in the
Trusts remain subject only to the claims of the Participating Companies' general
creditors whose claims against the Participating Companies are not satisfied
because of the Participating Companies' bankruptcy or insolvency (as those terms
are defined in the Trust). No Participant has any preferred claim on, or
beneficial ownership interest in, any assets of the Trusts before the assets are
paid to the Participant and all rights created under the Trusts, as under the
Plan, are unsecured contractual claims of the Participant against the Company.
8.3 As soon as practicable following either a Preliminary Change in Control
of Southern or of the Company, the Company shall contribute an amount based upon
the funding strategy adopted by the Trust Administrator necessary to fulfill the
Company's obligations pursuant to this Section 8. In the event of a dispute over
such actuary's determination, the Company and any complaining Participant(s)
shall refer such dispute to an independent, third party actuarial consultant,
chosen by the Company and such Participant. If the Company and the Participant
cannot agree on an independent, third party actuarial consultant, the actuarial
consultant shall be chosen by lot from an equal number of actuaries submitted by
the Company and the applicable Trustee. Any such referral shall only occur once
in total and the determination by the third-party actuarial consultant shall be
final and binding upon both parties. The Company shall be responsible for all of
the fees and expenses of the independent actuarial consultant.
8.4 In the event of a Southern Change in Control or a Company Change in
Control, notwithstanding anything to the contrary in the Plan, upon termination
as a Director, that amount in the Deferred Compensation Plan Account(s) of a
Participant who was a Director determined as of such Change in Control shall be
paid out in a lump sum if such Participant makes an election pursuant to
procedures established by the Trust Administrator, in its sole and absolute
discretion. If no such election is made, the Director shall receive payment of
his Accounts solely in accordance with Section 7.
SECTION 9
General Provisions
9.1 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.
9.2 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.
9.3 All commissions, fees, and expenses that may be incurred in operating
the Plan will be paid by the Company.
9.4 The Company will pay its prorated share of all commissions, fees, and
expenses that may be incurred in operating any trust(s) established under the
Plan (including the Deferred Stock Trust and the Deferred Cash Trust).
9.5 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.
9.6 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 10
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 or Southern, 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 11
Amendment, Termination and Effective Date
11.1 Amendment of the Plan
Except for the provisions of Section 8, which may not be amended following
a Southern Change in Control or Company Change in Control, and subject to the
provisions of Section 11.3, the Plan may be wholly or partially amended or
otherwise modified at any time by written action of the Board of Directors.
11.2 Termination of the Plan
Subject to the provisions of Section 11.3 herein, the Plan may be
terminated at any time by written action of the Board of Directors.
11.3 No Impairment of Benefits
Notwithstanding the provisions of Sections 11.1 and 11.2, herein no
amendment to or termination of the Plan shall impair any rights to benefits that
have accrued hereunder.
11.4 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 January 13,
2003 has been executed pursuant to resolutions of the Board of Directors of
Georgia Power Company, this ____ day of _______________, 2003.
GEORGIA POWER COMPANY
By: ________________________________
Attest:
By: ___________________________