Exhibit 10(a)80
SOUTHERN COMPANY PERFORMANCE STOCK PLAN
EFFECTIVE FEBRUARY 17, 1997
SOUTHERN COMPANY PERFORMANCE STOCK PLAN
Purposes
This Southern Company Performance Stock Plan is intended to maximize
the long-term success of Southern Company, ensure a balanced emphasis on both
current and long-term performance, enhance Participants' identification with
shareholders' interests, and facilitate the attraction and retention of key
individuals with outstanding ability.
ARTICLE I
1.1 Definitions. Whenever used in the Plan, the following terms shall
have the meaning set forth below:
(a) "Award" shall mean, individually and collectively, any
Option, Stock Appreciation Right, or Restricted Stock granted under the
Plan.
(b) "Award Document" shall mean the written document
evidencing the grant of an Award and setting forth the terms and
conditions thereof.
(c) "Base Value" shall mean the Fair Market Value of a Stock
Appreciation Right on the date of its grant.
(d) "Board" or "Board of Directors" shall mean the Board of
Directors of the Company.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Committee" shall mean the Compensation Committee of the
Board of Directors of the Company composed solely of not less than
three (3) Nonemployee Directors and, to the extent necessary for any
Award intended to qualify as performance based compensation under
Section 162(m) of the Code to so qualify, each member of the Committee
shall be an Outside Director.
(g) "Common Stock" shall mean the Common Stock of the Company.
(h) "Company" shall mean The Southern Company or any successor
thereto.
(i) "Covered Employee" shall mean a Participant who is as of
the last day of the Company's fiscal year in which the Participant
shall be required to recognize taxable income with respect to an Award,
a "covered employee" within the meaning of Code section 162(m)(3) and
the regulations thereunder.
(j) "Director" shall mean any person who is currently a member
of the Board of Directors of the Company or an Employing Company.
(k) "Disability" shall mean total and permanent disability as
determined by the Social Security Administration.
(l) "Effective Date" shall mean the date the Plan is adopted
by the Board of Directors of the Company, subject to approval by the
shareholders of the Company at a meeting held within twelve (12) months
following the date of adoption by the Board of Directors.
(m) "Employee" shall mean any person who is currently employed
by an Employing Company.
(n) "Employing Company" shall mean any affiliate or subsidiary
(direct or indirect) of the Company, which the Board of Directors may
from time to time determine to bring under the Plan and which may adopt
the Plan, and any successor of any of them.
The Employing Companies as of January 1, 1997 are:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Communications, Inc.
Southern Company Services, Inc.
Southern Energy, Inc.
Southern Nuclear Operating Company
Southern Development and Investment Group, Inc.
(o) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(p) "Fair Market Value" shall mean the average of the high and
low prices at which a share of Common Stock shall have been traded on
the date of grant or the exercise of an Award, or on the next preceding
trading day if such date was not a trading date, as reported on the New
York Stock Exchange-Composite Transactions Listing, or as otherwise
determined by the Committee. In no event shall the Fair Market Value
equal less than the par value of the Common Stock.
(q) "Incentive Stock Option" shall mean a stock option
satisfying the requirements of Section 422 of the Code granted pursuant
to Section 4.1(b) and designated by the Committee as an Incentive Stock
Option.
(r) "Nonemployee Director" shall mean a Director of the
Company who is a "nonemployee director" within the meaning of Rule
16b-3 promulgated under the Exchange Act.
(s) "Nonqualified Stock Option" shall mean an Option, other
than an Incentive Stock Option, granted pursuant to Section 4.1(c).
(t) "Option" shall mean, individually and collectively, an
Incentive Stock Option or a Nonqualified Stock Option to purchase
Common Stock.
(u) "Optionee" shall mean a person to whom an Option has been
granted under the Plan.
(v) "Option Price" shall mean the price per share of Common
Stock set by the grant of an Option, but in no event less than the Fair
Market Value of the Common Stock on the date of grant.
(w) "Outside Director" shall mean a Director of the Company
who is an "outside director" within the meaning of Section 162(m) of
the Code and the regulations promulgated thereunder.
(x) "Participant" shall mean any Director or Employee who
satisfies the criteria set forth in Article III.
(y) "Performance-Based" shall mean compensation which
qualifies as "performance-based" within the meaning of Code section
162(m)(4)(c) and the regulations thereunder.
(z) "Restricted Stock" shall mean an Award granted pursuant to
Section 4.1(e).
(aa) "Retirement" shall mean the termination of service or
employment by a Participant on or after age 65 or as otherwise
determined by the Committee in its sole discretion.
(bb) "Separation Date" shall mean, as determined by the
Committee, the date on which a Participant's service or employment with
the Company or Employing Company terminates for reasons other than his
transfer of service or employment to the Company or another Employing
Company. Whether any leave of absence shall constitute termination of
service or employment for the purposes of the Plan shall be determined
in each case by the Committee in its sole discretion.
(cc) "Stock Appreciation Right" or "SAR" shall mean a right to
any appreciation in value of shares of Common Stock granted pursuant to
Section 4.1(d).
1.2 Construction. Where the context requires, 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.
1.3 Term. The Plan shall remain in effect for ten (10) years from the
Effective Date or until terminated by the Board of Directors, whichever occurs
first.
ARTICLE II
2.1 Plan Administration. The Plan shall be administered by the
Committee. The Committee is authorized to establish such rules, to appoint such
agents and to delegate such authority as it deems appropriate for the proper
administration of the Plan, including, but not limited to, the delegation of
authority to such person or persons to exercise the discretion provided in
Section 5.1 hereof to determine whether a Participant may exercise an Award
subsequent to termination of employment, and to make such determinations and to
take such steps in connection with the Plan or the benefits provided hereunder
as it deems necessary or advisable.
2.2 Plan Interpretation. The Committee shall have the exclusive
authority to interpret the Plan. The decision of the Committee with respect to
any question arising as to the grant of an Award to a Participant in the Plan,
the amount, term, form, and time of payment of Awards under the Plan, or any
other matter concerning the Plan shall be final, conclusive, and binding on both
the Company and the Participants.
ARTICLE III
3.1 Eligibility. The Participants in the Plan shall be limited to
Directors and to those Employees, as determined by the Committee, who have a
significant impact on the long-term performance and success of the Company.
Subject to the terms of the Plan, the Committee shall identify individuals
eligible to become Participants in the Plan, select from time to time the
Participants to whom Awards shall be granted and shall determine the number of
Awards to be granted.
ARTICLE IV
4.1 Awards.
(a) General. Beginning February 17, 1997 and thereafter not
more frequently than once each calendar year, the Committee shall
determine the forms and amounts of Awards for Participants, provided
that in no event shall any Award be granted until the shareholders of
the Company have approved the Plan. All Awards shall be subject to the
terms and conditions of the Plan and to such other terms and conditions
consistent with the Plan as the Committee deems appropriate. Awards
under the Plan need not be uniform and Awards under two (2) or more
paragraphs may be combined in one Award Document. Any combination of
Awards may be granted at one time and on more than one occasion to the
same Participant. Such Awards may take the following forms, in the
Committee's sole discretion:
(b) Incentive Stock Options. These shall be stock options
within the meaning of Section 422 of the Code to purchase Common Stock.
In addition to other restrictions contained in the Plan, an Incentive
Stock Option (1) shall not be exercised more than ten (10) years after
the date it is granted, (2) shall not have an Option Price less than
the Fair Market Value of Common Stock on the date the Incentive Stock
Option is granted, (3) shall otherwise comply with Section 422 of the
Code, (4) shall be granted only to Employees and (5) shall be
designated as an "Incentive Stock Option" by the Committee. The
aggregate Fair Market Value of Common Stock determined at the time of
each grant for which any Optionee may vest in Incentive Stock Options
under this Plan for any calendar year shall not exceed $100,000.
(c) Nonqualified Stock Options. These shall be stock options
to purchase Common Stock which are not designated by the Committee as
"Incentive Stock Options." At the time of the grant, the Committee
shall determine the Option exercise period, the Option Price, and such
other conditions or restrictions on the exercise of the Nonqualified
Stock Option as the Committee deems appropriate. In addition to other
restrictions contained in the Plan, a Nonqualified Stock Option (1)
shall not be exercised more than ten (10) years after the date it is
granted, and (2) shall not have an Option Price less than 100% of the
Fair Market Value of Common Stock on the date the Nonqualified Stock
Option is granted.
(d) Stock Appreciation Rights. These shall be rights that on
exercise entitle the holder to receive the excess of (1) the Fair
Market Value of Common Stock on the date of exercise over (2) its Base
Value multiplied by (3) the number of SAR's exercised. Such rights
shall be satisfied in cash, stock, or a combination thereof, as
determined by the Committee. Stock Appreciation rights granted under
the Plan may be granted in the sole discretion of the Committee in
conjunction with an Incentive Stock Option or Nonqualified Stock Option
under the Plan. The Committee may impose such conditions or
restrictions on the exercise of SAR's as it deems appropriate and may
terminate, amend, or suspend such SAR's at any time. SAR's granted
under this Plan shall not be exercised more than ten (10) years after
the date of grant.
(e) Restricted Stock. Restricted Stock shall be shares of
Common Stock held by the Company for the benefit of a Participant
without payment of consideration, except as otherwise may be determined
by the Committee in its discretion, with restrictions or conditions
upon the Participant's right to retain, transfer or sell such shares.
The following provisions shall be applicable to Restricted Stock
Awards:
(1) Stock Power. Each certificate for Restricted
Stock shall be registered in the name of the Participant and
shall be deposited by him with the Company, together with a
stock power endorsed in blank.
(2) Restriction Period. At the time of making a
Restricted Stock Award, the Committee shall establish the
"Restriction Period" applicable thereto. Such Restriction
Period may be up to ten (10) years as determined by the
Committee. The Committee may provide for the annual lapse of
restrictions with respect to a specified percentage of the
Restricted Stock, provided the Participant satisfies all
eligibility requirements at such time.
(3) Dividends. The Participant shall be entitled to
receive dividends during the Restriction Period and shall have
the right to vote such Common Stock and all other
shareholder's rights except the following:
(i) the Participant shall not be entitled to
delivery of the stock certificate during the
Restriction Period,
(ii) the Company shall retain custody of the
Common Stock during the Restriction Period, and
(iii) a breach of a restriction or a breach
of the terms and conditions established by the
Committee with respect to the Restricted Stock shall
cause a forfeiture of the Restricted Stock.
4.2 Award Document. After the Committee determines the form and amount
of a Participant's Award, it shall cause the Company to prepare an Award
Document to be delivered to the Participant setting forth the form and amount of
the Award and any conditions and restrictions on the Award imposed by the Plan
and the Committee.
4.3 Exercise and Payment. The exercise of an Option shall be made only
by a written notice delivered in person or by mail to the Secretary of the
Company at the Company's principal executive office, specifying the number of
shares of Common Stock to be purchased and accompanied by payment therefore and
otherwise in accordance with the Award Document pursuant to which the Option was
granted. The purchase price for any shares of Common Stock purchased pursuant to
the exercise of an Option shall be paid, as determined by the Committee in its
discretion and set forth in the Award Document at the time of grant, in either
of the following forms (or any combination thereof): (i) cash or (ii) the
transfer of shares of Common Stock with a Fair Market Value equal to the
aggregate exercise price of the Option to the Company upon such terms and
conditions as determined by the Committee. In addition, Options may be exercised
through a registered broker-dealer pursuant to such cashless exercise procedures
(other than the withholding of shares of Common Stock that would otherwise be
acquired upon the exercise of such Option) which are, from time to time, deemed
acceptable by the Committee, and the Committee may authorize that the purchase
price payable upon exercise of an Option may be paid by having shares of Common
Stock withheld that otherwise would be acquired upon such exercise. Any shares
of Common Stock transferred to the Company (or withheld upon exercise) as
payment of the purchase price under an Option shall be valued at their Fair
Market Value on the day preceding the date of exercise of such Option. The
Optionee shall deliver the Award Document evidencing the Option to the Secretary
of the Company who shall endorse thereon a notation of such exercise and return
such Award Document to the Optionee. No fractional shares of Common Stock (or
cash in lieu thereof) shall be issued upon exercise of an Option and the number
of shares of Common Stock that may be purchased upon exercise shall be rounded
to the nearest number of whole shares of Common Stock.
ARTICLE V
5.1 Termination of Service or Employment. A Participant whose service
as a Director or employment terminates for reasons other than Retirement,
Disability, or death shall, in the discretion of the Committee, have no right to
receive any benefit or payment for existing Awards under the Plan. Any
outstanding Award shall terminate on the Participant's Separation Date;
provided, however, that the Committee or its designee, in its or his sole
discretion, may permit the exercise of any outstanding Award after the
Participant's Separation Date, at such time and in such manner as the Committee
or such designee may determine, but in no event in the case of Incentive Stock
Options shall such exercise be beyond the earlier of (a) three (3) months from
the Participant's Separation Date or (b) the expiration date of the Award, to
the extent exercisable on such Participant's Separation Date.
5.2 Death of a Participant. Unless otherwise provided in the Award
Document, in the event of the death of a Participant prior to the exercise of
all Incentive Stock Options, Nonqualified Stock Options, and Stock Appreciation
Rights granted to such Participant, the administrator of the deceased
Participant's estate, the executor under his will, or the person or persons to
whom the Options or SAR's shall have been validly transferred by such executor
or administrator pursuant to the will or laws of intestate succession shall have
the right, within thirty-six (36) months from the date of such Participant's
death, but not beyond the expiration date of the Options or SAR's, to exercise
such Options or SAR's to the extent exercisable on such Participant's Separation
Date.
5.3 Retirement.
(a) Incentive Stock Options. In the event of the termination
of a Participant's employment as result of his Retirement prior to the
exercise of all Incentive Stock Options granted to the Participant,
such Participant shall have the right, within three (3) months of his
Separation Date, but not beyond the expiration date of such Options, to
exercise such Incentive Stock Options to the extent exercisable on his
Separation Date.
(b) Nonqualified Stock Options and SARs. Unless otherwise
provided in the Award Document, in the event of the termination of a
Participant's employment as a result of his Retirement prior to the
exercise of all Nonqualified Stock Options or Stock Appreciation Rights
granted to the Participant, such Participant shall have the right,
within thirty-six (36) months of his Separation Date, but not beyond
the expiration date of such Nonqualified Stock Options or SAR's, to
exercise such Nonqualified Stock Options or SAR's to the extent
exercisable on his Separation Date.
5.4 Disability.
(a) Incentive Stock Options. In the event of the termination
of a Participant's employment due to Disability prior to the exercise
of all Incentive Stock Options granted to the Participant, such
Participant or his legal representative shall have the right, within
twelve (12) months of his Separation Date, but not beyond the
expiration date of such Incentive Stock Options, to exercise such
Incentive Stock Options to the extent exercisable on his Separation
Date.
(b) Nonqualified Stock Options and SARs. Unless otherwise
provided in the Award Document, in the event of the termination of a
Participant's employment due to Disability prior to the exercise of all
Nonqualified Stock Options and Stock Appreciation Rights granted to the
Participant, such Participant or his legal representative shall have
the right, within thirty-six (36) months of his Separation Date, but
not beyond the expiration date of such Nonqualified Stock Options or
SAR's, to exercise such Nonqualified Stock Options or SAR's to the
extent exercisable on his Separation Date.
ARTICLE VI
6.1 Limitation of Shares of Common Stock Available under the Plan.
(a) Share Limit. The total number of shares of Common Stock
available to be granted by the Committee as Awards to the Participants
under the Plan shall not exceed 40,000,000 shares. Upon a change in
capitalization, the maximum number of shares of Common Stock referred
to in the preceding sentence shall be adjusted in number and kind
pursuant to Section 7.1 hereof.
(b) Share Reduction. The total number of shares available
under Section 6.1(a) shall be reduced from time to time in the manner
specified:
(1) Incentive Stock Options and Nonqualified Stock
Options. The grant of an Incentive Stock Option and
Nonqualified Stock Option shall reduce the available shares by
the number of shares subject to such Option.
(2) Stock Appreciation Rights. The grant of Stock
Appreciation Rights shall reduce the available shares by the
number of SAR's granted; provided, however, if SAR's are
granted in conjunction with an Option and the exercise of such
Option would cancel the SAR's and vice versa, then the grant
of the SAR's will only reduce the amount available by the
excess, if any, of the number of SAR's granted over the number
of shares subject to the related Option.
(3) Restricted Stock. The grant of Restricted Stock
shall reduce the available shares by the number of shares of
Restricted Stock granted.
(c) Share Increase. The total number of shares available under
Section 6.1(a) shall be increased from time to time in the manner
specified:
(1) Incentive Stock Options and Nonqualified Stock
Options. The lapse or cancellation of an Incentive Stock
Option or Nonqualified Stock Option shall increase the
available shares by the number of shares released from such
Option; provided, however, in the event the cancellation of an
Option is due to the exercise of SAR's related to such Option,
the cancellation of such Option shall only increase the amount
available by the excess, if any, of the number of shares
released from such Option over the number of SAR's exercised.
(2) Stock Appreciation Rights. The lapse or
cancellation of Stock Appreciation Rights shall increase the
available shares by the number of SAR's which lapse or are
canceled; provided, however, in the event the cancellation of
such SAR's is due to the exercise of an Option related to such
SAR's, the cancellation of such SAR's shall only increase the
available shares by the excess, if any, of the number of SAR's
canceled over the number of shares delivered on the exercise
of such Option.
(3) Restricted Shares. The reversion of Restricted
Stock to the Company due to the breach or occurrence of a
restriction or failure to satisfy a condition on such shares
shall increase the available shares by the number of shares of
Restricted Stock reverted.
6.2 Maximum Shares to Participant. The maximum number of shares of
Common Stock which may be the subject of Awards to a Participant during any
calendar year during the term of the Plan shall be 1,000,000.
ARTICLE VII
7.1 Adjustment Upon Changes in Capitalization. The total number of
shares of Common Stock available for Awards under the Plan or allocable to any
individual Participant, the number of shares of Common Stock subject to
outstanding Options, the exercise price for such Options, the number of
outstanding SAR's, the Base Value of such SAR's and the Award limit set forth in
subsection 6.2 shall be appropriately adjusted by the Committee in the event of
any increase or decrease in the number of outstanding shares of Common Stock
resulting from any change in the Company's capital structure, including but not
limited to any stock dividend, subdivision or combination of shares, or
reclassification.
7.2 Merger, Consolidation or Tender Offer. In the event of a merger or
consolidation of the Company or a tender offer for shares of Common Stock, the
Committee may make such adjustments with respect to Awards under the Plan and
take such other action as it deems necessary or appropriate to reflect, or in
anticipation of, such merger, consolidation, or tender offer, including without
limitation the substitution of new Awards, the termination or adjustment of
outstanding Awards, the acceleration of Awards, or the removal of limitations or
restrictions on outstanding Awards.
ARTICLE VIII
8.1 Withholding Taxes. The Company or the Employing Company, as the
case may be, of the Participant shall deduct from all payments and distributions
in cash under the Plan any taxes required to be withheld for federal, state, or
local governments. In the event distributions are made in shares of Common
Stock, the Company shall retain the value of sufficient shares to equal the
amount of the tax required to be withheld in respect of such distributions.
8.2 Service or Employment. The establishment of the Plan and Awards
hereunder shall not be construed as conferring on any Participant any right to
continued service or employment, and the service or employment of any
Participant may be terminated without regard to the effect which such action
might have upon him or her as a Participant.
8.3 Non-Alienation of Benefits. Unless otherwise provided in the
Participant's Award Document with respect to Awards other than Incentive Stock
Options, and other than as specifically provided with regard to the death of a
Participant, no benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, excluding the use of Options under this Plan as collateral in exercising
such Options. Any attempt to do so shall be null and void. No such benefits
shall, prior to receipt thereof by the Participant, be in any manner liable for
or subject to the debts, contracts, liabilities, engagement, or torts of the
Participant.
8.4 Non-Alienation of Election or Exercise Rights. Unless otherwise
provided in the Participant's Award Document with respect to Awards other than
Incentive Stock Options, no election as to benefits or exercise of Options,
Stock Appreciation Rights, or other rights may be made during a Participant's
lifetime by anyone other than the Participant.
8.5 Amendment, Modification, and Termination of the Plan. The Board of
Directors, at any time, may terminate and in any respect amend or modify the
Plan; provided, however, that no such action by the Board of Directors, without
approval of the Company's shareholders, may increase the total number of shares
of Common Stock available under the Plan; and further provided that, except as
provided in Section 7.2, no amendment, modification, or termination of the Plan
shall in any manner adversely affect the rights of any Participant under the
Plan without the consent of such Participant.
8.6 Indemnification. Each person who is or shall have been a member of
the Committee or of the Board of Directors shall be indemnified and held
harmless by the Company against and from any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by him in connection with or
resulting from any claim, action, suit, or proceeding to which he may be a party
or in which he may be involved by reason of any action or failure to act under
the Plan and against and from any and all amounts paid by him in satisfaction of
judgment in any such action, suit, or proceeding against him. Such person shall
give the Company an opportunity, at its own expense, to handle and defend the
same before he undertakes to handle and defend it on his own behalf. The
foregoing right of indemnification shall not be exclusive of any other rights of
indemnification to which such persons may be entitled under the Company's
Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.
8.7 Reliance on Reports. Each member of the Committee and each member
of the Board of Directors shall be fully justified in relying or acting in good
faith upon any report made by the independent public accountants of the Company
and any Employing Company and upon any other information furnished in connection
with the Plan by any person or persons other than himself. In no event shall any
person who is or shall have been a member of the Committee or the Board of
Directors be liable for any determination made or other action taken or any
omission to act in reliance upon any such report or information or for any
action taken, including the furnishing of information, or failure to act, if in
good faith.
8.8 Governing Law. To the extent that federal law shall not be held to
have preempted local law, this Plan shall be governed by the laws of the State
of Delaware. If any provision of the Plan shall be held invalid or
unenforceable, the remaining provisions hereof shall continue in full force and
effect.
IN WITNESS WHEREOF, the Company has caused the Southern Company
Performance Stock Plan to be executed by its duly authorized officers pursuant
to resolutions of the Board of Directors as of the 17th day of February 1997, to
be effective February 17, 1997.
THE SOUTHERN COMPANY
By: ___________________________________
A. William Dahlberg
President
Attest:
By: ____________________________
Patricia L. Roberts
Assistant Secretary
[CORPORATE SEAL]