Exhibit 10(a)1
SOUTHERN COMPANY
DEFERRED COMPENSATION PLAN
Amended and Restated as of January 1, 2004
SOUTHERN COMPANY
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
ARTICLE I Purpose and Adoption of Plan 1
ARTICLE II Definitions 1
ARTICLE III Administration of Plan 6
ARTICLE IV Eligibility 9
ARTICLE V Deferral Election 11
ARTICLE VI Participants' Accounts 13
ARTICLE VII Account Distribution 17
ARTICLE VIII Miscellaneous Provisions 20
SOUTHERN COMPANY
DEFERRED COMPENSATION PLAN
ARTICLE I
Purpose and Adoption of Plan
1.1 Adoption: Southern Company Services, Inc. and the other Employing Companies
established the Deferred Compensation Plan for The Southern Electric System
effective October 1, 1988. The Plan has been amended from time to time including
this amendment and restatement effective January 1, 2004. Except as otherwise
provided herein, the terms of the Plan as in effect prior to the effective date
of this Plan shall continue to be applicable to deferrals made pursuant to the
Plan prior to January 1, 2004.
1.2 Purpose: This Southern Company Deferred Compensation Plan is designed to
permit a select group of management or highly compensated employees to elect to
defer a portion of their regular compensation during each payroll period and to
defer all or a portion of certain short-term and long-term incentive payments
until their death, disability, retirement, or other termination of employment
with an Employing Company. The Plan shall be an unfunded deferred compensation
arrangement whose benefits shall be paid solely from the general assets of the
Employing Companies.
ARTICLE II
Definitions
For purposes of the Plan, the following terms shall have the following
meanings unless a different meaning is plainly required by the context:
2.1 "Account" shall mean the account or accounts established and maintained by
an Employing Company to reflect the interest of a Participant in the Plan
resulting from a Participant's deferral of Compensation and/or Incentive Pay, or
transfer of Transferred Amounts, and adjustments thereto to reflect income,
gains, losses, and other credits or charges. Charges to Participant's Accounts
for distributions shall be posted as of the date the Account is valued for
distribution.
2.2 "Board of Directors" shall mean the Board of Directors of the Company.
2.3 "Change in Control Benefit Plan Determination Policy" shall mean the Change
in Control Benefit Plan Determination Policy, as approved by the Southern Board,
as it may be amended from time to time in accordance with the provisions
therein.
2.4 "Closing Price" shall mean the closing price on any trading day of a share
of the Common Stock and/or Mirant Share based on consolidated trading as defined
by the Consolidated Tape Association and reported as part of the consolidated
trading prices of New York Stock Exchange listed securities.
2.5 "Committee" shall mean the committee referred to in Section 3.1 hereof.
2.6 "Common Stock" shall mean the common stock of Southern.
2.7 "Company" shall mean Southern Company Services, Inc.
2.8 "Compensation" shall mean the rate of an Employee's base wages or salary
paid by any Employing Company to an Employee, including amounts contributed by
an Employing Company to the Employee Savings Plan as Elective Employer
Contributions, as said term is defined in the Employee Savings Plan, pursuant to
the Employee's exercise of his or her deferral option made in accordance with
Section 401(k) of the Internal Revenue Code, amounts contributed by an Employing
Company to the 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 Internal Revenue Code, and amounts
contributed by an Employing Company to The Southern Company Flexible Benefits
Plan on behalf of the Employee pursuant to his or her salary reduction election
under such plan; but disregarding overtime and any reimbursements to an Employee
paid by any Employing Company including, but not limited to, reimbursements for
such items as moving expenses, automobile expenses, tax preparation expenses,
travel and entertainment expenses, and health and life insurance premiums.
2.9 "Deferral Election" shall mean the Participant's election to defer a portion
of his or her Compensation and/or Incentive Pay pursuant to Article V hereof.
2.10 "Distribution Election" shall mean the election under Article VII hereof,
pursuant to which a Participant elects the distribution of the balance of his or
her Account to be made in either a lump-sum or in up to ten (10) annual
installments following the Participant's death, disability, retirement, or other
termination of Employment with an Employing Company.
2.11 "Effective Date" of this amendment and restatement shall mean January 1,
2004.
2.12 "Employee" shall mean any person who is currently employed by an Employing
Company.
2.13 "Employee Savings Plan" shall mean The Southern Company Employee Savings
Plan, as amended from time to time.
2.14 "Employee Stock Ownership Plan" shall mean The Southern Company Employee
Stock Ownership Plan, as amended from time to time.
2.15 "Employing Company" shall mean the Company, or any affiliate or subsidiary
(direct or indirect) of The Southern Company, which the Board of Directors may
from time to time determine to bring under the Plan and which shall adopt the
Plan, and any successor of any of them. The Employing Companies are set forth in
Appendix A of the Plan, as may be amended from time to time.
2.16 "Enrollment Date" shall mean January 1 of each Plan Year, and such other
dates as may be determined from time to time by the Committee.
2.17 "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
2.18 "Incentive Pay" shall mean such long-term or short-term incentive pay as
the Committee shall permit to be deferred under this Plan for any Plan Year.
2.19 "Investment Election" shall mean the Participant's election to have his or
her deferred Compensation or Incentive Pay invested pursuant to Section 6.3,
Section 6.4, or Section 6.5 hereof.
2.20 "Mirant Plan" shall mean the Mirant Corporation Deferred Compensation Plan
for Directors and Select Employees.
2.21 "Mirant Shares" shall mean the deemed investment in Mirant common stock
described in Section 6.4(d).
2.22 "Mirant Stock Option" shall mean the deemed Mirant common stock investment
option described in Section 6.4(d).
2.23 "Non-adopting Company" shall mean any subsidiary or affiliate of Southern
which is not an Employing Company.
2.24 "Participant" shall mean an Employee or former employee of an Employing
Company who is eligible to and defers Compensation and/or Incentive Pay under
the Plan or who was so eligible and had an unpaid Account balance upon his or
her death, disability, retirement, or other termination of employment with an
Employing Company.
2.25 "Pension Plan" shall mean The Southern Company Pension Plan, as amended
from time to time.
2.26 "Plan" shall mean the Southern Company Deferred Compensation Plan, amended
and restated as of January 1, 2004, as further amended from time to time.
2.27 "Plan Year" shall mean the calendar year.
2.28 "Retirement Income" shall have the same meaning as set forth in the Pension
Plan.
2.29 "Southern" shall mean Southern Company, its successors and assigns.
2.30 "Southern Board" shall mean the board of directors of Southern.
2.31 "Transferred Amount" shall mean an amount equal to the value of a
Participant's accounts under the Mirant Plan which has been transferred to and
credited under the Plan pursuant to Section 6.2 herein in connection with the
Participant's transfer of employment from Mirant Corporation or any of its
subsidiaries to an Employing Company, excluding Mirant Corporation and its
subsidiaries.
2.32 "Trust" shall mean the Southern Company Deferred Compensation Trust.
2.33 "Trustee" shall mean the entity designated as such in the Trust.
2.34 "Valuation Date" shall mean each trading day of the New York Stock
Exchange, or any successor national exchange on which the Common Stock and/or
Mirant Shares are traded and with respect to which a Closing Price may be
determined.
Where the context requires, the definitions of all terms set forth in
the Pension Plan, the Employee Savings Plan, and the Employee Stock Ownership
Plan shall apply with equal force and effect for purposes of interpretation and
administration of the Plan, unless said terms are otherwise specifically defined
in the Plan. Words in the masculine gender shall include the feminine and neuter
genders, words in the singular shall include the plural, and words in the plural
shall include the singular.
ARTICLE III
Administration of Plan
3.1 The general administration of the Plan shall be placed in the Committee. The
Committee shall consist of the Vice President, Human Resources of Southern, the
Vice President, System Compensation and Benefits of Southern Company Services,
Inc., and the Comptroller of Southern. Any member may resign or may be removed
by the Board of Directors and new members may be appointed by the Board of
Directors at such time or times as the Board of Directors in its discretion
shall determine. The Committee shall be chaired by the Vice President, Human
Resources of Southern and may select a Secretary (who may, but need not, be a
member of the Committee) to keep its records or to assist it in the discharge of
its duties. A majority of the members of the Committee shall constitute a quorum
for the transaction of business at any meeting. Any determination or action of
the Committee may be made or taken by a majority of the members present at any
meeting thereof, or without a meeting by resolution or written memorandum
concurred in by a majority of the members.
3.2 No member of the Committee shall receive any compensation from the Plan for
his or her service.
3.3 (a) The Committee shall administer the Plan in accordance with its terms and
shall have all powers necessary to carry out the provisions of the Plan as may
be more particularly set forth herein. The Committee shall interpret the Plan
and shall determine all questions arising in the administration, interpretation,
and application of the Plan. Any such determination by the Committee shall be
conclusive and binding on all persons. The Committee shall be the Plan's agent
for service of process.
(b) If a claim for benefits under the Plan is denied, in whole or in part, the
Committee will provide a written notice of the denial within a reasonable period
of time, but not later than 90 days after the claim is received. If special
circumstances require more time to process the claim, the Committee will issue a
written explanation of the special circumstances prior to the end of the 90 day
period and a decision will be made as soon as possible, but not later than 180
days after the claim is received.
The written notice of claim denial will include:
o Specific reasons why the claim was denied;
o Specific references to applicable provisions of the Plan document or
other relevant records or papers on which the denial is based, and
information about where a Participant or his or her beneficiary may
see them;
o A description of any additional material or information needed to
process the claim, and an explanation of why such material or
information is necessary;
o An explanation of the claims review procedure, including the time
limits applicable to such procedure, as well as a statement notifying
the Participant or his or her beneficiary of their right to file suit
if the claim for benefits is denied, in whole or in part, on review.
Upon request, a Participant or his or her beneficiary will be provided
without charge, reasonable access to, and copies of, all non-confidential
documents that are relevant to any denial of benefits. A claimant has 60 days
from the day he or she receives the original denial to request a review. Such
request must be made in writing and sent to the Committee. The request should
state the reasons why the claim should be reviewed and may also include evidence
or documentation to support the claimant's position.
The Committee will reconsider the claimant's claim, taking into account
all evidence, documentation, and other information related to the claim and
submitted on the claimant's behalf, regardless of whether such information was
submitted or considered in the initial denial of the claim. The Committee will
make a decision within 60 days. If special circumstances require more time for
this process, the claimant will receive written explanation of the special
circumstances prior to the end of the initial 60 day period and a decision will
be sent as soon as possible, but not later than 120 days after the Committee
receives the request.
No legal action to recover benefits or enforce or clarify rights under
a Plan can be commenced until the Participant or his or her beneficiary has
first exhausted the claims and review procedures provided under the Plan.
3.4 The Committee may adopt such regulations as it deems desirable for the
conduct of its affairs and may appoint such accountants, counsel, actuaries,
specialists, and other persons as it deems necessary or desirable in connection
with the administration of this Plan.
3.5 The Committee shall be reimbursed by the Employing Companies for all
reasonable expenses incurred by it in the fulfillment of its duties, including,
but not limited to, fees of accountants, counsel, actuaries, and other
specialists, and other costs of administering the Plan.
3.6 (a) The Committee is responsible for the daily administration of the Plan
and may appoint other persons or entities to perform any of its fiduciary
functions. The Committee and any such appointee may employ advisors and other
persons necessary or convenient to help the Committee carry out its duties,
including its fiduciary duties. The Committee shall review the work and
performance of each such appointee, and shall have the right to remove any such
appointee from his or her position. Any person, group of persons, or entity may
serve in more than one fiduciary capacity.
(b) The Committee shall maintain accurate and detailed records and
accounts of Participants and of their rights under the Plan and of all receipts,
disbursements, transfers, and other transactions concerning the Plan. Such
accounts, books, and records relating thereto shall be open at all reasonable
times to inspection and audit by the Board of Directors and by any persons
designated thereby.
(c) The Committee shall take all steps necessary to ensure that the
Plan complies with the law at all times. These steps shall include such items as
the preparation and filing of all documents and forms required by any
governmental agency; maintaining of adequate Participants' records; recording
and transmission of all notices required to be given to Participants and their
beneficiaries; the receipt and dissemination, if required, of all reports and
information received from an Employing Company; securing of such fidelity bonds
as may be required by law; and doing such other acts necessary for the proper
administration of the Plan. The Committee shall keep a record of all of its
proceedings and acts, and shall keep all such books of account, records, and
other data as may be necessary for proper administration of the Plan. The
Committee shall notify the Employing Companies upon their request of any action
taken by the Committee, and when required, shall notify any other interested
person or persons.
ARTICLE IV
Eligibility
4.1 Any Employee who is determined eligible to participate in accordance with
Section 4.2 of the Plan and whose base compensation and salary grade level
equals or exceeds such minimum threshold as may be established by the Committee
from time to time may elect to participate in the Plan beginning on any
Enrollment Date by electing to have his or her Compensation and/or Incentive Pay
reduced and such amounts contributed to the Plan in accordance with Article V
hereof, and directing the investment of such contributions in accordance with
Article VI hereof. An Employee who is eligible to participate and elects to
defer Compensation and/or Incentive Pay shall be a Participant in the Plan. The
Committee shall be authorized to establish the minimum base compensation and the
salary grade level required for eligibility to participate in the Plan, to be
effective as of the first day of the next succeeding Plan Year. Notwithstanding
the foregoing, any Employee eligible to participate in any similar deferred
compensation plan maintained by an Employing Company or maintained by a
Non-adopting Company shall be ineligible to defer Compensation or Incentive Pay
under this Plan, unless the Committee in its sole discretion shall determine
otherwise.
4.2 The Committee shall determine which Employees are eligible to participate in
the Plan. Additionally, the Committee shall be authorized to modify the minimum
base compensation and the salary grade threshold described in Section 4.1 of the
Plan and to rescind the eligibility of any Participant to continue deferrals if
this is necessary or advisable to ensure that the Plan is maintained primarily
for the purpose of providing deferred compensation to a select group of
management or highly compensated employees, as such terms are defined by the
Employee Retirement Income Security Act of 1974, as amended. A Participant whose
eligibility is rescinded or who loses eligibility for any reason shall not be
eligible to defer Compensation or Incentive Pay until eligibility is restored in
accordance with the guidelines established by the Committee.
4.3 The Committee shall have the authority to permit, if it deems appropriate,
separate Deferral Elections under Article V hereof, Investment Elections under
Article VI hereof, and Distribution Elections under Article VII hereof for
Compensation and/or Incentive Pay, respectively.
4.4 Notwithstanding the foregoing provisions of this Article IV, an Employee who
has Transferred Amounts transferred to and credited under the Plan pursuant to
Section 6.2 herein shall be a Participant in the Plan. However, an Employee who
becomes a Participant under this Section 4.4 who is not determined eligible
under Section 4.2 shall be a non-active Participant and shall be ineligible to
actively defer Compensation and/or Incentive Pay under this Plan unless such
Employee is later determined to be eligible under Section 4.2 or the Committee
in its sole discretion determines otherwise. As of the Effective Date, the Plan
shall not accept new Transferred Amounts.
ARTICLE V
Deferral Election
5.1 A Participant may elect to defer payment of a portion of his or her
Compensation otherwise payable to him by his or her Employing Company during
each payroll period of the next succeeding Plan Year by any whole percentage not
to exceed fifty percent (50%) of his or her Compensation, or such greater or
lesser amount as shall be determined by the Committee from time to time. A
Participant may also elect to defer payment of up to one hundred percent (100%),
by whole percentages, of any Incentive Pay otherwise payable to him or her by
his or her Employing Company. The Company shall have the authority to withhold
any mandatory taxes from Compensation and/or Incentive Pay at any time as
required by law.
5.2 The Deferral Election shall be made in a manner prescribed by the Committee
and shall state as follows: (a) That the Participant wishes to make an election
to defer the receipt of a portion of his or her Compensation and/or all or a
portion of his or her Incentive Pay; (b) The whole percentage of his or her
Compensation and/or Incentive Pay which the Participant elects to defer; and (c)
The Distribution Election under Article VII hereof.
5.3 The Deferral Election of a Participant shall be made by the Participant in a
manner prescribed by the Committee and delivered by the date established by the
Committee and shall be effective on the first day of the Plan Year immediately
following the date of the Deferral Election. A Deferral Election with respect to
the deferral of future Compensation and/or Incentive Pay shall be an annual
election for each Plan Year unless otherwise modified or revoked as provided in
Section 5.4. The termination of a Participant's participation in the Plan shall
not affect the Participant's Compensation or Incentive Pay previously deferred
under the Plan, which shall be invested and distributed in accordance with the
Participant's elections and the terms and conditions of the Plan. Such
terminated Participant shall become an inactive Participant with respect to
eligibility to make future deferrals under this Plan.
5.4 Notwithstanding the provisions of Section 5.3 of the Plan, the Committee, in
its sole discretion upon written application by a Participant, may authorize the
suspension of a Participant's Deferral Election in the event of an unforeseen
emergency or hardship of the Participant. A Deferral Election suspension will be
on account of hardship if it is necessary in light of immediate and heavy
financial needs of the Participant which cannot reasonably be met from the
Participant's other financial resources. For this purpose, any amounts held in
the Participant's accounts in the Employee Savings Plan and the Employee Stock
Ownership Plan shall not be deemed to be reasonably available. Any Deferral
Election suspension made as prescribed by the Committee shall become effective
as of the first payroll period beginning thirty (30) days after receipt of the
Participant's suspension application, or as soon as practicable after the
receipt of such application. Such Deferral Election suspension shall be
effective for the remainder of the Plan Year of application.
ARTICLE VI
Participants' Accounts
6.1 Upon the Committee's receipt of a Participant's valid Deferral Election
under Article V hereof, beginning as of the Enrollment Date, the designated
portion of Compensation and/or Incentive Pay shall be credited to the
Participant's Account as of the date of each such deferral in accordance with
the provisions of this Article VI.
6.2 Subject to Section 4.4, Transferred Amounts shall be credited to a
Participant's Account as soon as administratively practicable following the
Participant's transfer of employment. Any Transferred Amounts credited to a
Participant's Account which were invested at the prime interest rate under the
Mirant Plan shall be invested pursuant to Section 6.3 herein. Any Transferred
Amounts credited to a Participant's Account which were invested in Mirant
Corporation phantom stock under the Mirant Plan shall be invested in the Mirant
Stock Option investment pursuant to the terms of Section 6.4(d) herein, and
prior to the opening of the final window period described in Section 6.4(d),
such Transferred Amounts may be transferred out of the Mirant Stock Option
investment during other window periods established by the Committee pursuant to
Section 6.5 herein. Upon a Participant's termination of employment, the
Transferred Amounts and accumulated investment return held in the Participant's
Account shall be distributed to the Participant in accordance with the
Participant's Distribution Election and the provisions of Article VII.
6.3 On the last business day of each month, the Account of each Participant
electing in a manner prescribed by the Committee to invest his or her deferred
Compensation and/or Incentive Pay for a Plan Year in accordance with this
Section 6.3 or transferring a Transferred Amount to this Plan in accordance with
Section 6.2 for investment pursuant to this Section 6.3 shall be credited by the
Employing Company with a deemed amount equal to the monthly equivalent of the
per annum prime rate of interest as published by the Wall Street Journal as the
base rate on corporate loans posted as of the last business day of each month by
at least seventy five (75%) percent of the United States' largest banks,
compounded monthly on any Account balance so invested until such balance is
fully distributed.
6.4 The designated portion of the Account of each Participant electing in a
manner prescribed by the Committee to invest his or her deferred Compensation
and/or Incentive Pay for a Plan Year in accordance with this Section 6.4 shall
be credited on the effective date of investment with the deemed number of shares
(including fractional shares) of Common Stock which could have been purchased on
such date with the dollar amount of such deferral, based upon the Common Stock's
Closing Price on the Valuation Date immediately preceding the date of
investment. As of the date on which occurs the payment of dividends on the
Common Stock, if any, there shall be credited with respect to the deemed number
of shares of Common Stock in the Participant's Account on such date such
additional deemed shares (including fractional shares) of Common Stock as
follows:
(a) In the case of cash dividends, such additional deemed shares as could
be purchased at the Closing Price on the Valuation Date immediately preceding
the dividend payment date with the dividends which would have been payable on
the deemed number of shares previously credited to the Participant's Account;
(b) In the case of dividends payable in property other than cash or Common
Stock, such additional deemed shares as could be purchased at the Closing Price
on the Valuation Date immediately preceding the dividend payment date with the
fair market value of the property which would have been payable on the deemed
number of shares previously credited to the Participant's Account; or
(c) In the case of dividends payable in Common Stock, such additional
deemed shares as would have been payable on the deemed number of shares
previously credited to the Participant's Account; or
(d) In the case of a deemed distribution of Mirant Corporation ("Mirant")
common stock as a result of a spin-off of Mirant from the Southern Company or
the transfer of Transferred Amounts which were invested in Mirant phantom stock
under the Mirant Plan pursuant to Section 6.2 herein (collectively, "Mirant
Shares"), the Mirant Shares shall be valued and invested in Mirant Shares in the
same manner as if Mirant Shares were Common Stock under this Section 6.4. This
investment under the Plan shall be the "Mirant Stock Option." As of the date on
which occurs the payment of dividends on Mirant Shares, if any, such dividends
shall also be credited on the Mirant Shares in the same manner as dividends are
credited on Common Stock. The Mirant Shares shall be retained in a Mirant Stock
Option investment for a limited period established by the Committee. The
Participant will be given the opportunity to transfer the Mirant Shares into
another investment option during a specific window period or periods for such
Mirant Shares established by the Committee pursuant to Section 6.5. Once the
period(s) described in the preceding sentence close, the Committee shall
transfer the Mirant Shares into Common Stock at a time and in a manner
designated by the Committee.
6.5 (a) The Investment Election by a Participant with respect to deferrals into
and earnings on his or her Account shall be made in a manner prescribed by the
Committee. Such Investment Elections shall be delivered in accordance with such
instructions and shall be effective on the first day of such succeeding Plan
Year. Such Investment Elections shall be irrevocable for the Plan Year in which
they apply.
(b) The Participant may transfer in accordance with procedures prescribed
by the Committee all or a portion of his Account between investment options
during a window period which may be designated by the Committee. Any such
transfer shall constitute an Investment Election as to the amount transferred
and shall be effective immediately upon transfer. The length and timing of each
window period, the procedures for transfer and the valuation of transferred
Accounts or portions of Accounts shall be determined by the Committee.
6.6 The Committee shall issue a report at least annually to each Participant
holding an Account, setting forth at least the following: (a) with respect to
amounts invested under Section 6.3 hereof, as of the last day of the Plan Year,
the Account Balance, the dollar amount of deferrals, and earnings thereon, and
(b) with respect to amounts invested under Section 6.4 hereof, the Closing Price
of shares of Common Stock and/or Mirant Shares credited to each Participant's
Account as of the Valuation Date on or immediately preceding the last day of the
Plan Year, the total number of deemed shares of Common Stock and/or Mirant
Shares (and fractions thereof), and the total value of the Participant's deemed
investment in Common Stock and/or Mirant Shares as of such Valuation Date.
ARTICLE VII
Account Distribution
7.1 (a) When a Participant retires or terminates his or her employment with an
Employing Company, he or she shall be entitled to receive in cash an amount
equal to the dollar amount of any deferrals, Transferred Amounts, and any
amounts in lieu of interest thereon credited to his or her Account under Section
6.3 hereof, and the dollar value of the product of the Closing Price multiplied
by the number of deemed shares of Common Stock and/or Mirant Shares (and
fractions thereof) credited to his or her Account in accordance Section 6.4
hereof, determined as of the date the Account is valued for distribution. Such
amounts shall be paid in accordance with the Participant's most recent
Distribution Election effective in accordance with Section 7.4. No portion of a
Participant's Account shall be distributed in Common Stock.
(b) The transfer by a Participant between subsidiaries or affiliates of
Southern shall not be deemed to be a termination of employment with an Employing
Company for purposes of the Plan.
7.2 In the event that a Participant's most recent Distribution Election
effective in accordance with Section 7.4 is to receive a lump-sum distribution
of his or her Account, the dollar amount determined under Section 7.1 hereof
shall be paid to the Participant not later than sixty (60) days following the
date on which the Participant's termination of employment occurs, or as soon as
reasonably practicable thereafter.
7.3 In the event that a Participant's most recent Distribution Election
effective in accordance with Section 7.4 is to receive the distribution of his
or her Account in annual installments, the first payment shall be made not later
than sixty (60) days following the date on which the Participant's termination
of employment occurs, or as soon as reasonably practicable thereafter, and shall
be in an amount equal to the dollar balance in the Participant's Account
determined under Section 7.1 hereof, divided by the number of annual
installments elected. Subsequent annual installments shall be in an amount equal
to the dollar value of the Participant's Account determined under Section 7.1
hereof divided by the number of the remaining annual payments, and shall be paid
as soon as practicable following each anniversary of the initial payment date
until the balance of the Participant's Account is paid in full.
7.4 The Participants' initial Distribution Elections may not be revoked and
shall govern the distribution of the Participants' Accounts. Notwithstanding the
foregoing, and except as otherwise provided herein, the Committee may, in its
sole discretion, upon application by a Participant, accept an amended
Distribution Election from a Participant provided the election is made not later
than the 366th day prior to a distribution of such Participant's Account in
accordance with the terms of the Plan; provided further, however, that any
Participant who is required to file reports pursuant to Section 16(a) of the
Securities and Exchange Act of 1934, as amended, with respect to equity
securities of Southern shall not be permitted to amend his or her Distribution
Election during any time period for which such Participant is required to file
any such reports with respect to the portion of his or her Account invested in
accordance with the provisions of Section 6.3 of the Plan, unless the Committee
in its sole discretion shall determine otherwise.
7.5 Upon the death of a Participant prior to the complete distribution of his or
her Account, the unpaid Account balance shall be paid in the sole discretion of
the Committee (a) in a lump-sum to the Participant's designated beneficiary
within sixty (60) days following the date on which the Committee is provided
evidence of the Participant's death (or as soon as reasonably practicable
thereafter) or (b) in accordance with the Distribution Election made by such
Participant. In the event a beneficiary designation is not on file or the
designated beneficiary is deceased or cannot be located, payment will be made to
the Participant's estate.
7.6 Beneficiary designations may be changed by the Participants at any time
without the consent of any prior beneficiary.
7.7 Upon the total disability of a Participant, as determined by the Social
Security Administration, prior to the complete distribution of his or her
Account, the unpaid balance of his or her Account shall be paid in the sole
discretion of the Committee (a) in a lump-sum to the Participant or his or her
legal representative within sixty (60) days following the date on which the
Committee receives notification of the determination of disability by the Social
Security Administration (or as soon as reasonable practicable thereafter) or (b)
in accordance with the Participant's Deferral Election.
7.8 Upon application made by a Participant, his or her designated beneficiary,
or an authorized legal representative, the Committee may in its sole discretion
determine to accelerate payments or, in the event of death or total disability
(as determined by Social Security Administration), may extend or otherwise make
payments in a manner different from the manner in which such payment would
otherwise be made under the Participant's Deferral Election in the absence of
such determination.
7.9 In the event a Participant who is employed on or after January 1, 1999 with
an "Employing Company" (as defined in the Change in Control Benefit Plan
Determination Policy) disputes the calculation of his Account or payment of
amounts due under the terms of this Plan, such Participant has recourse against
the Company, the Employing Company by which Participant is employed, if
different, the Plan, and the Trust for the payment of benefits to the extent the
Trust so provides.
7.10 The provisions of the Change in Control Benefit Plan Determination Policy
are incorporated herein by reference to determine the occurrence of a change in
control or preliminary change in control of Southern or an Employing Company,
the benefits to be provided hereunder, and the funding of the Trust in the event
of such a change in control. Any modifications to the Change in Control Benefit
Plan Determination Policy are likewise incorporated herein.
ARTICLE VIII
Miscellaneous Provisions
8.1 Neither the Participant, his or her beneficiary, nor his or her legal
representative shall have any rights to commute, sell, assign, transfer, or
otherwise convey the right to receive any payments hereunder, which payments and
the rights thereto are expressly declared to be non-assignable and
nontransferable. Any attempt to assign or transfer the right to payments of this
Plan shall be void and have no effect.
8.2 Except as expressly limited under the terms of the Trust, an Employing
Company maintaining an Account for the benefit of a Participant shall neither
reserve nor specifically set aside funds for the payment of its obligations
under the Plan. In any event, such obligations shall be paid or deemed to be
paid solely from the general assets of the Employing Companies. Participants
shall only have the status of a general, unsecured creditor of the Employing
Company(ies). Notwithstanding that a Participant shall be entitled to receive
the balance of his or her Account under the Plan, the assets from which such
amount may be paid shall at all times be subject to the claims of the creditors
of the Participants' Employing Companies.
8.3 Except for the provisions of Section 7.10 hereof, which may not be amended
following a "Southern Change in Control" or "Subsidiary Change in Control" (as
defined in the Change in Control Benefit Plan Determination Policy), the Plan
may be amended, modified, or terminated by the Board of Directors in its sole
discretion at any time and from time to time; provided, however, that no such
amendment, modification, or termination shall impair any rights to any amounts
which have been earned or deferred under the Plan prior to such amendment,
modification, or termination. Payment in full in cash of the amount credited to
a Participant's Account as of the date of any amendment, modification, or
termination of the Plan shall not be deemed to be an impairment of the
Participant's rights under the Plan. The Plan may also be amended or modified by
the Committee if such amendment or modification does not involve a substantial
increase in cost to any Employing Company.
8.4 It is expressly understood and agreed that the payments made in accordance
with the Plan are in addition to any other benefits or compensation to which a
Participant may be entitled or for which he or she may be eligible, whether
funded or unfunded, by reason of his or her employment with any Employing
Company.
8.5 There shall be deducted from each payment under the Plan the amount of any
tax required by any governmental authority to be withheld and paid over by an
Employing Company to such governmental authority for the account of the person
entitled to such distribution.
8.6 Any Compensation or Incentive Pay deferred by a Participant while employed
by an Employing Company and any Transferred Amounts shall not be considered
"compensation," as the term is defined in the Employee Savings Plan, the
Employee Stock Ownership Plan, or the Pension Plan. Distributions from a
Participant's Account shall not be considered wages, salaries, or compensation
under any other employee benefit plan.
8.7 No provision of this Plan shall be construed to affect in any manner the
existing rights of an Employing Company to suspend, terminate, alter, modify,
whether or not for cause, the employment relationship of the Participant and his
or her Employing Company.
8.8 This Plan, and all rights under it, shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the amended and restated Plan has been executed by
duly authorized officers of Southern Company Services, Inc. pursuant to
resolutions of the Committee, this 1st day of June, 2004.
SOUTHERN COMPANY SERVICES, INC.
By: /s/Ellen N. Lindemann
Its: Senior Vice President, Human Resources
Attest:
By: /s/Sam H. Dabbs, Jr.
Its: Assistant Secretary
APPENDIX A
THE SOUTHERN COMPANY
DEFERRED COMPENSATION PLAN
EMPLOYING COMPANIES AS OF JANUARY 1, 2004
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Communications Services, Inc.
Southern Company Energy Solutions, Inc.
Southern Company Services, Inc.
Southern Nuclear Operating Company, Inc.