Exhibit 10(a)4
FIRST 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 effective as of January 1, 2002 (the "Plan");
WHEREAS, pursuant to Section 13.1 of the Plan, the Company is
authorized to amend the Plan at any time;
WHEREAS, the Company desires to amend the Plan to clarify that
Subsections (a) and (b) of Section 1.10, "Earnings," include certain catch-up
contributions made under The Southern Company Employee Savings Plan;
WHEREAS, the Company further desires to amend the Plan to modify
Section 1.18, "Hour of Service," to address time off under a paid time off
program;
WHEREAS, the Company further desires to amend the Plan to clarify
provisions in Section 5.7.
NOW, THEREFORE, the Company hereby amends the Plan as follows,
effective as set forth in each numbered paragraph:
1.
Effective April 12, 2003, subsections (a) and (b) of Section 1.10,
"Earnings," shall be amended to read as follows:
1.10 (a) "Earnings" with respect to any Employee including any
Employee whose service is terminated by reason of disability (as
defined in Section 4.4) means (1) the highest annual rate of salary or
wages of an Employee of any Affiliated Employer within any Plan Year
before deductions for taxes, Social Security, etc., (2) all amounts
contributed by any Affiliated Employer to The Southern Company Employee
Savings Plan as Elective Employer Contributions, as said term is
described under Section 4.1 of such plan, pursuant to the Employee's
exercise of his deferral option made thereunder in accordance with the
requirements of Section 401(k) of the Code, (3) all amounts contributed
by any Affiliated Employer to The Southern Company Employee Savings
Plan as catch-up contributions pursuant to the Employee's exercise of
his deferral option made thereunder in accordance with the requirements
of Section 414(v) of the Code, and (4) all amounts contributed by any
Affiliated Employer to The Southern Company Flexible Benefits Plan on
behalf of an Employee pursuant to his salary reduction election, and
applied to provide one or more of the optional benefits available under
such plan, but (5) shall exclude all amounts deferred under any
non-qualified deferred compensation plan maintained by any Affiliated
Employer.
(b) Notwithstanding the above, "Earnings" with
respect to any commissioned salesperson means the salary or wages of an
Employee of any Affiliated Employer within any Plan Year, without
including overtime, and before deductions for taxes, Social Security,
etc. but applying those adjustments identified in paragraphs (a)(2),
(3), (4), and (5) above. In addition, "Earnings" for any Employee who
is a regular part-time employee means with regard to paragraph (a)(1)
above the highest annual rate of salary or wages based on a forty (40)
hour work week. "Earnings" shall also include, for appliance
salespersons, certain nonproductive pay earnings types as determined
from time to time by the Board of Directors and set forth on Appendix B
to the Plan, which Appendix may be updated from time to time.
2.
Effective April 12, 2003, Section 1.18, "Hour of Service," shall be
amended to read as follows:
1.18 "Hour of Service" means an Employee shall be credited
with one Hour of Service for each hour for which (a) he is paid, or
entitled to payment, for the performance of duties for an Affiliated
Employer, and such hours shall be credited to the Employee for the
computation period or periods in which the duties are performed; (b) he
is paid, or entitled to payment, by an Affiliated Employer on account
of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation,
holiday, illness, time off under a paid time off program, incapacity
(including disability), layoff, jury duty, military duty, or leave of
absence in which case the Employee shall be credited with Hours of
Service for the computation period or periods in which the period
during which no duties were performed occurs; (c) back pay,
irrespective of mitigation of damages, has been either awarded or
agreed to by an Affiliated Employer, in which case the Employee shall
be credited with Hours of Service for the computation period or periods
to which the award or agreement pertains, rather than the computation
period in which the award, agreement, or payment is made; and (d)
solely for the purpose of calculating Vesting Years of Service, he was
on any form of authorized leave of absence. The same Hours of Service
shall not be credited under clauses (a), (b), (c), and (d).
An Employee who is entitled to be credited with Hours of
Service in accordance with clause (b) or (d) of this Section 1.18 shall
be credited with such number of Hours of Service for the period of time
during which no duties were performed as though he were in the active
employment of an Employing Company during such period of time. However,
an Employee shall not be credited with Hours of Service in accordance
with clause (b) of this Section 1.18 for any unused vacation or unused
time off under a paid time off program for which payment is received at
termination of employment or upon an Employee becoming ineligible to
participate in a paid time off program, or if the payment which is made
to him or to which he is entitled in accordance with clause (b) is made
or due under a plan maintained solely for the purpose of complying with
applicable Worker's Compensation, or unemployment compensation or
disability insurance laws, or if such payment is one which solely
reimburses an Employee for medical or medically related expenses
incurred by the Employee.
Provided there is no duplication of Hours of Service credited
in accordance with the foregoing provisions, if an Employee is on an
approved leave of absence to serve in the Armed Forces of the United
States, he shall be credited with such number of Hours of Service with
respect to all or such portion of the period of his absence to serve in
the Armed Forces of the United States as may be recognized under
Sections 1.38(b), 2.3, and 4.2(a).
The rules set forth in paragraphs (b) and (c) of Department of
Labor Regulations 2530.200b-2 are incorporated in the Plan by this
reference and made a part hereof.
3.
Effective January 1, 2003, Section 5.7(c)(2)(iii) is amended to read as
follows:
(iii) Forms of distribution. Unless the Employee's interest is
distributed in the form of an annuity purchased from an insurance
company or in a single sum on or before the required beginning date, as
of the first distribution calendar year distributions will be made in
accordance with Subsections (c), (d) and (e) of this Section 5.7. If
the Employee's interest is distributed in the form of an annuity
purchased from an insurance company, distributions thereunder will be
made in accordance with the requirements of Section 401(a)(9) of the
Code and the Treasury regulations.
4.
Effective January 1, 2003, Section 5.7(c)(3)(iii) is amended to read as
follows:
(iii) Additional accruals after first distribution calendar
year. Any additional benefits accruing to the Employee in a calendar
year after the first distribution calendar year will be distributed
beginning with the first payment interval ending in the calendar year
immediately following the calendar year in which such amount accrues.
In determining additional benefits, there shall be taken into account
the value of benefit payments previously made. The receipt by an
Employee of any payments or distributions as a result of his attaining
age 70 1/2 prior to his actual retirement or death shall in no way
affect the entitlement of an otherwise eligible Employee to additional
accrued benefits.
5.
Effective January 1, 2003, Section 5.7(c)(5)(iii) is amended to read as
follows:
(iii) Death of surviving spouse. If the Employee's surviving
spouse is the Employee's sole beneficiary, and the surviving spouse
dies before distributions to the surviving spouse begin but after
Employee dies without having commenced payment of Retirement income,
this Section 5.7(c)(5) will apply as if the surviving spouse were the
Employee, except that the time by which distributions must begin will
be determined without regard to Section 5.7(c)(2)(ii)(A).
IN WITNESS WHEREOF, Southern Company Services, Inc., through its duly
authorized officer, has adopted this First Amendment to The Southern Company
Pension Plan this 11th day of July, 2003, to be effective as stated herein.
SOUTHERN COMPANY SERVICES, INC.
By: /s/ Robert A. Bell
Title: Vice President
ATTEST:
By: /s/ Sam H. Dabbs, Jr.
Title: Sam H. Dabbs, Jr.
Assistant Secretary