As filed with the Securities and Exchange Commission on January
30, 1995
Registration No. 33-23152
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE SOUTHERN COMPANY
(Exact name of registrant as specified in its charter)
Delaware 58-0690070
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) No.)
64 Perimeter Center East 30346
Atlanta, Georgia (Zip Code)
(Address of principal executive
offices)
THE SOUTHERN COMPANY EMPLOYEE SAVINGS PLAN
(formerly EMPLOYEE SAVINGS PLAN FOR
THE SOUTHERN COMPANY SYSTEM)
(Full title of the plan)
TOMMY CHISHOLM, Secretary
THE SOUTHERN COMPANY
64 Perimeter Center East
Atlanta, Georgia 30346
(Name and address of agent for service)
404-668-3575
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to:<PAGE>
W. L. WESTBROOK JOHN D. McLANAHAN
Financial Vice President TROUTMAN SANDERS
THE SOUTHERN COMPANY 600 Peachtree Street, N.E.
64 Perimeter Center East Suite 5200
Atlanta, Georgia 30346 Atlanta, Georgia 30308-2216
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration
Statement on Form S-8 (Registration No. 33-23152), covering
shares of common stock, par value $5 per share ("Shares"), of The
Southern Company (the "Company") offered pursuant to The Southern
Company Employee Savings Plan (as well as an indeterminate amount
of interests in such plan), is filed in accordance with Rule
416(b) under the Securities Act of 1933, as amended, to reflect
an increase in the number of Shares registered. Pursuant to said
Rule 416(b), the Registration Statement is deemed to cover an
additional 2,823,644 Shares as the result of a two-for-one stock
split effected in the form of a stock distribution by the Company
on February 28, 1994 with respect to Shares held of record at the
close of business on February 7, 1994. This Amendment is filed
prior to the offering of such additional Shares.<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in
this registration statement; and all documents subsequently
filed by The Southern Company ("SOUTHERN" or the
"registrant") or The Southern Company Employee Savings Plan
(the "Plan") pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and
to part thereof from the date of filing of such documents.
(a) (1) The registrant's Annual Report on Form 10-K for the
year ended December 31, 1993.
(2) The Plan's Annual Report on Form 11-K for the year
ended December 31, 1993.
(b) (1) The registrant's Current Reports on Form 8-K dated
January 26, 1994, February 16, 1994 and January 25, 1995.
(2) The registrant's Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1994, June 30, 1994 and
September 30, 1994.
(c) The description of the registrant's common stock
contained in registration no. 33-51433 filed under the
Securities Act of 1933.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of Title 8 of the Delaware Code gives a
corporation power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason
of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee
II-1<PAGE>
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
The same Section also gives a corporation power to indemnify
any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Also, the Section states that, to the extent that a
director, officer, employee or agent of a corporation has
been successful on the merits or otherwise in defense of any
such action, suit or proceeding, or in defense of any claim,
issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
The Bylaws of SOUTHERN provide in substance that no present
or future director or officer of SOUTHERN shall be liable
for any act, omission, step or conduct taken or had in good
faith which is required, authorized or approved by order
issued pursuant to the Public Utility Holding Company Act of
1935, the Federal Power Act, or any state statute regulating
SOUTHERN or its subsidiaries by reason of their being public
utility companies or public utility holding companies, or
any amendment to any thereof. In the event that such
provisions are found by a court not to constitute a valid
defense, each such director and officer shall be reimbursed
II-2<PAGE>
for, or indemnified against, all expenses and liabilities
incurred by him or imposed on him, in connection with, or
arising out of, any such action, suit or proceeding based on
any act, omission, step or conduct taken or had in good
faith as in such Bylaws described.
The Bylaws of SOUTHERN also provide in pertinent part as
follows:
"Each person who is or was a director or officer of the
Corporation and who was or is a party or was or is
threatened to be made a party to any threatened, pending or
completed claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the
fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or
trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall be
indemnified by the Corporation as a matter of right against
any and all expenses (including attorneys' fees) actually
and reasonably incurred by him and against any and all
claims, judgments, fines, penalties, liabilities and amounts
paid in settlement actually incurred by him in defense of
such claim, action, suit or proceeding, including appeals,
to the full extent permitted by applicable law. The
indemnification provided by this Section shall inure to the
benefit of the heirs, executors and administrators of such
person.
Expenses (including attorneys' fees) incurred by a director
or officer of the Corporation with respect to the defense of
any such claim, action, suit or proceeding may be advanced
by the Corporation prior to the final disposition of such
claim, action, suit or proceeding, as authorized by the
Board of Directors in the specific case, upon receipt of an
undertaking by or on behalf of such person to repay such
amount unless it shall ultimately be determined that such
person is entitled to be indemnified by the Corporation
under this Section or otherwise; provided, however, that the
advancement of such expenses shall not be deemed to be
indemnification unless and until it shall ultimately be
determined that such person is entitled to be indemnified by
the Corporation.
The Corporation may purchase and maintain insurance at the
expense of the Corporation on behalf of any person who is or
was a director, officer, employee or agent of the
Corporation, or any person who is or was serving at the
request of the Corporation as a director (or the
equivalent), officer, employee, agent or trustee of another
corporation, partnership, joint venture, trust, employee
II-3<PAGE>
benefit plan or other enterprise, against any liability or
expense (including attorneys' fees) asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have
the power to indemnify him against such liability or expense
under this Section or otherwise.
The foregoing rights shall not be exclusive of any other
rights to which any such director or officer may otherwise
be entitled and shall be available whether or not the
director or officer continues to be a director or officer at
the time of incurring any such expenses and liabilities."
SOUTHERN has an insurance policy covering its liabilities
and expenses which might arise in connection with its lawful
indemnification of its directors and officers for certain of
their liabilities and expenses and also covering its officers and
directors against certain other liabilities and expenses.
Item 7. Exemption from Registration Claimed.
Not applicable.
II-4<PAGE>
Item 8. Exhibits.
Exhibit
Number
4(a) - Composite Certificate of Incorporation of SOUTHERN
reflecting all amendments to date. (Designated in
Registration No. 33-3546 as Exhibit 4(a), in
Certificate of Notification, File No. 70-7341, as
Exhibit A and in Certificate of Notification, File
No. 70-8181, as Exhibit A.)
4(b) - Bylaws of SOUTHERN as amended effective October
21, 1991 and presently in effect. (Designated in
Form U-1, File No. 70-8181, as Exhibit A-2.)
4(c) - Amended and Restated Plan Agreement for The
Southern Company Employee Savings Plan.
4(d) - Trust Agreement between Southern Company Services,
Inc. and Wachovia Bank of Georgia, N.A., as
Trustee under the Plan. (Designated in Form U-1,
File No. 70-8435, as Exhibit B-3.)
5(a) - Opinion of Troutman Sanders (formerly Troutman,
Sanders, Lockerman & Ashmore), counsel to SOUTHERN
(previously filed).
5(b) - Internal Revenue Service determination letter
dated May 29, 1990. (Designated in Form 11-K for
the year ended December 31, 1991, File No. 1-3526,
as Exhibit B.)
23(a)- The consent of Troutman Sanders is contained in
Exhibit 5(a).
23(b)- Consent of Arthur Andersen & Co. (previously
filed).
24 - Powers of Attorney and resolution. (Designated in
Registration No. 33-23153 as Exhibit 24(a).)
Exhibits listed above which have heretofore been filed with
the Securities and Exchange Commission and which were
designated as noted above are hereby incorporated herein by
reference and made a part hereof with the same effect as if
filed herewith.
Item 9. Undertakings.
II-5<PAGE>
(a) Rule 415 offerings. The undersigned registrant hereby
undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration
statement;
Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
information required to be included in a
post-effective amendment by those paragraphs
is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such
securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(b) Filings incorporating subsequent Exchange Act documents
by reference. The undersigned registrant hereby
undertakes that, for purposes of determining any
II-6<PAGE>
liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and each filing of the Plan's annual report
pursuant to Section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(c) Filing of registration statement on Form S-8. Insofar
as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities
(other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection
with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
II-7<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on January 30, 1995.
THE SOUTHERN COMPANY
By: Edward L. Addison
Chairman of the Board
By: /s/Wayne Boston
Wayne Boston
Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE
Edward L. Addison Director and Chairman of the Board
(Principal Executive Officer)
W. L. Westbrook Financial Vice President (Principal
Financial and Accounting Officer)
W.P. Copenhaver )
A.W. Dahlberg )
Paul J. DeNicola )
Jack Edwards )
H. Allen Franklin )
L.G. Hardman III ) Directors
Elmer B. Harris )
Earl D. McLean, Jr. )
William A. Parker, Jr. )
William J. Rushton, III )
Gloria M. Shatto )
Herbert Stockham )
By: /s/Wayne Boston January 30, 1995
Wayne Boston
Attorney-in-Fact
II-8<PAGE>
The Plan. Pursuant to the requirements of the Securities
Act of 1933, the trustees (or other persons who administer the
employee benefit plan) have duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Atlanta, State of
Georgia, on January 30, 1995.
THE SOUTHERN COMPANY EMPLOYEE
SAVINGS PLAN
By: /s/William C. Archer, III
William C. Archer, III
Chairman, The Southern Company
Employee Savings Plan Committee
II-9<PAGE>
Exhibit 4(c)
THE SOUTHERN COMPANY
EMPLOYEE SAVINGS PLAN
As Amended and Restated
Effective January 1, 1989<PAGE>
TABLE OF CONTENTS
ARTICLE I PURPOSE . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . 2
2.1 "Account" . . . . . . . . . . . . . . . . . . . . . 2
2.2 "Actual Contribution Percentage Test" . . . . . . . 2
2.3 "Actual Deferral Percentage" . . . . . . . . . . . 2
2.4 "Actual Deferral Percentage Test" . . . . . . . . . 2
2.5 "Affiliated Employer" . . . . . . . . . . . . . . . 2
2.6 "Aggregate Account" . . . . . . . . . . . . . . . . 3
2.7 "Aggregation Group" . . . . . . . . . . . . . . . 3
(a) "Required Aggregation Group" . . . . . . . . . 3
(b) "Permissive Aggregation Group" . . . . . . . . 4
2.8 "Annual Addition" . . . . . . . . . . . . . . . . . 4
2.9 "Average Actual Deferral Percentage" . . . . . . . 4
2.10 "Average Contribution Percentage" . . . . . . . . . 4
2.11 "Beneficiary" . . . . . . . . . . . . . . . . . . . 4
2.12 "Board of Directors" . . . . . . . . . . . . . . . 4
2.13 "Break-in-Service Date" . . . . . . . . . . . . . 4
2.14 "Code" . . . . . . . . . . . . . . . . . . . . . . 5
2.15 "Committee" . . . . . . . . . . . . . . . . . . . 5
2.16 "Common Stock" . . . . . . . . . . . . . . . . . . 5
2.17 "Company" . . . . . . . . . . . . . . . . . . . . . 5
2.18 "Compensation" . . . . . . . . . . . . . . . . . . 5
2.19 "Contribution Percentage" . . . . . . . . . . . . 6
2.20 "Defined Benefit Plan Fraction" . . . . . . . . . 6
2.21 "Defined Contribution Plan Fraction" . . . . . . . 7
2.22 "Determination Date" . . . . . . . . . . . . . . . 7
2.23 "Determination Year" . . . . . . . . . . . . . . . 7
2.24 "Distributee" . . . . . . . . . . . . . . . . . . 7
2.25 "Direct Rollover" . . . . . . . . . . . . . . . . 7
2.26 "Elective Employer Contribution" . . . . . . . . . 7
2.27 "Eligible Employee" . . . . . . . . . . . . . . . 7
2.28 "Eligible Participant" . . . . . . . . . . . . . . 8
2.29 "Eligible Retirement Plan" . . . . . . . . . . . . 8
2.30 "Eligible Rollover Distribution" . . . . . . . . . 8
2.31 "Employee" . . . . . . . . . . . . . . . . . . . . 8
2.32 "Employer Matching Contribution" . . . . . . . . . 9
2.33 "Employing Company" . . . . . . . . . . . . . . . . 9
2.34 "Enrollment Date" . . . . . . . . . . . . . . . . . 9
2.35 "ERISA" . . . . . . . . . . . . . . . . . . . . . . 9
2.36 "Excess Aggregate Contributions" . . . . . . . . . 9
2.37 "Excess Deferral Amount" . . . . . . . . . . . . . 9
2.38 "Excess Deferral Contributions" . . . . . . . . . . 9
2.39 "Family Member" . . . . . . . . . . . . . . . . . 9
2.40 "Highly Compensated Employee" . . . . . . . . . . . 9
2.41 "Hour of Service" . . . . . . . . . . . . . . . . . 10
2.42 "Investment Fund" . . . . . . . . . . . . . . . . . 11
2.43 "Key Employee" . . . . . . . . . . . . . . . . . . 11
i<PAGE>
2.44 "Limitation Year" . . . . . . . . . . . . . . . . 11
2.45 "Look-Back Year" . . . . . . . . . . . . . . . . . 11
2.46 "Non-Highly Compensated Employee" . . . . . . . . . 12
2.47 "Normal Retirement Date" . . . . . . . . . . . . . 12
2.48 "One-Year Break in Service" . . . . . . . . . . . . 12
2.49 "Participant" . . . . . . . . . . . . . . . . . . . 12
2.50 "Plan" . . . . . . . . . . . . . . . . . . . . . . 13
2.51 "Plan Year" . . . . . . . . . . . . . . . . . . . . 13
2.52 "Present Value of Accrued Retirement Income" . . . 13
2.53 "SEPCO" . . . . . . . . . . . . . . . . . . . . . 13
2.54 "SEPCO Plan" . . . . . . . . . . . . . . . . . . . 13
2.55 "SEPCO Transferred Account" . . . . . . . . . . . 13
2.56 "Super-Top-Heavy Group" . . . . . . . . . . . . . 13
2.57 "Surviving Spouse" . . . . . . . . . . . . . . . . 13
2.58 "Top-Heavy Group" . . . . . . . . . . . . . . . . 13
2.59 "Trust" or "Trust Fund" . . . . . . . . . . . . . . 14
2.60 "Trust Agreement" . . . . . . . . . . . . . . . . . 14
2.61 "Trustee" . . . . . . . . . . . . . . . . . . . . . 14
2.62 "Valuation Date" . . . . . . . . . . . . . . . . . 14
2.63 "Voluntary Participant Contribution" . . . . . . . 14
2.64 "Year of Service" . . . . . . . . . . . . . . . . . 14
ARTICLE III PARTICIPATION . . . . . . . . . . . . . . . . 16
3.1 Eligibility Requirements . . . . . . . . . . . . . 16
3.2 Participation upon Reemployment . . . . . . . . . . 16
3.3 No Restoration of Previously Distributed Benefits . 16
3.4 Loss of Eligible Employee Status . . . . . . . . . 17
3.5 Special Rule for Scott Paper Company Energy
Complex Employees . . . . . . . . . . . . . . . . . 17
ARTICLE IV ELECTIVE EMPLOYER CONTRIBUTIONS AND
VOLUNTARY PARTICIPANT CONTRIBUTIONS . . . . . . . . . . 18
4.1 Elective Employer Contributions . . . . . . . . . . 18
4.2 Maximum Amount of Elective Employer Contributions . 18
4.3 Distribution of Excess Deferral Amounts . . . . . . 18
4.4 Additional Rules Regarding Elective Employer
Contributions . . . . . . . . . . . . . . . . . . . 19
4.5 Section 401(k) Nondiscrimination Tests. . . . . . . 20
4.6 Voluntary Participant Contributions. . . . . . . 25
4.7 Manner and Time of Payment of Elective Employer
Contributions and Voluntary Participant
Contributions . . . . . . . . . . . . . . . . . . . 25
4.8 Change in Contribution Rate . . . . . . . . . . . . 25
4.9 Change in Contribution Amount . . . . . . . . . . . 25
4.10 Rollover Contributions and Direct Transfers from
Other Qualified Retirement Plans . . . . . . . . . 26
ARTICLE V EMPLOYER MATCHING CONTRIBUTIONS . . . . . . . . . . 27
5.1 Amount of Employer Matching Contributions . . . . . 27
ii<PAGE>
5.2 Investment of Employer Matching Contributions . . . 27
5.3 Payment of Employer Matching Contributions . . . . 27
5.4 Limitations on Employer Matching Contributions and
Voluntary Participant Contributions . . . . . . . . 27
5.5 Special Rules for Employer Matching Contributions
and Voluntary Participant Contributions . . . . . . 29
5.6 Distribution of Excess Aggregate Contributions . . 30
5.7 Reversion of Employing Company Contributions . . . 31
5.8 Correction of Prior Incorrect Allocations and
Distributions . . . . . . . . . . . . . . . . . . . 31
ARTICLE VI LIMITATIONS ON CONTRIBUTIONS . . . . . . . . . 33
6.1 Section 415 Limitations . . . . . . . . . . . . . . 33
6.2 Correction of Contributions in Excess of Section
415 Limits . . . . . . . . . . . . . . . . . . . . 34
6.3 Combination of Plans . . . . . . . . . . . . . . . 35
ARTICLE VII SUSPENSION OF CONTRIBUTIONS . . . . . . . . . 36
7.1 Suspension of Contributions . . . . . . . . . . . . 36
7.2 Resumption of Contributions . . . . . . . . . . . . 36
7.3 Concurrent Suspensions . . . . . . . . . . . . . . 36
ARTICLE VIII INVESTMENT OF PARTICIPANTS' CONTRIBUTIONS . . . 37
8.1 Investment Funds . . . . . . . . . . . . . . . . . 37
8.2 Investment of Participant Contributions . . . . . . 38
8.3 Investment of Earnings . . . . . . . . . . . . . . 39
8.4 Transfer of Assets between Funds . . . . . . . . . 39
8.5 Change in Investment Direction . . . . . . . . . . 40
ARTICLE IX MAINTENANCE AND VALUATION OF PARTICIPANTS'
ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . 41
9.1 Establishment of Accounts . . . . . . . . . . . . . 41
9.2 Valuation of Investment Funds Other than Fund C . . 41
9.3 Valuation of Fund C Company Stock Fund . . . . . . 42
9.4 Rights in Investment Funds . . . . . . . . . . . . 42
ARTICLE X VESTING . . . . . . . . . . . . . . . . . . . . . . 43
10.1 Vesting . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE XI WITHDRAWALS AND LOANS PRIOR TO TERMINATION OF
EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . 44
11.1 Withdrawals by Participants . . . . . . . . . . . . 44
11.2 Notice of Withdrawal . . . . . . . . . . . . . . . 45
11.3 Form of Withdrawal . . . . . . . . . . . . . . . . 46
11.4 Minimum Withdrawal . . . . . . . . . . . . . . . . 46
11.5 Source of Withdrawal . . . . . . . . . . . . . . . 46
iii<PAGE>
11.6 Requirement of Hardship . . . . . . . . . . . . . . 46
11.7 Loans to Participants . . . . . . . . . . . . . . 49
ARTICLE XII DISTRIBUTION TO PARTICIPANTS . . . . . . . . . 52
12.1 Distribution upon Retirement . . . . . . . . . . . 52
12.2 Distribution upon Disability . . . . . . . . . . . 53
12.3 Distribution upon Death . . . . . . . . . . . . . 53
12.4 Designation of Beneficiary in the Event of Death . 54
12.5 Distribution upon Termination of Employment . . . 55
12.6 Commencement of Benefits . . . . . . . . . . . . . 55
12.7 Transfer between Employing Companies . . . . . . . 56
12.8 Distributions to Alternate Payees . . . . . . . . 56
12.9 Requirement for Direct Rollovers . . . . . . . . . 57
12.10 Consent and Notice Requirements . . . . . . . . . 57
ARTICLE XIII ADMINISTRATION OF THE PLAN . . . . . . . . . . . 58
13.1 Membership of Committee . . . . . . . . . . . . . 58
13.2 Acceptance and Resignation . . . . . . . . . . . . 58
13.3 Transaction of Business . . . . . . . . . . . . . 58
13.4 Responsibilities in General . . . . . . . . . . . 58
13.5 Committee as Named Fiduciary . . . . . . . . . . . 58
13.6 Rules for Plan Administration . . . . . . . . . . 59
13.7 Employment of Agents . . . . . . . . . . . . . . . 59
13.8 Co-Fiduciaries . . . . . . . . . . . . . . . . . . 59
13.9 General Records . . . . . . . . . . . . . . . . . 59
13.10 Liability of the Committee . . . . . . . . . . . . 60
13.11 Reimbursement of Expenses and Compensation of
Committee . . . . . . . . . . . . . . . . . . . . 60
13.12 Expenses of Plan and Trust Fund . . . . . . . . . 60
13.13 Responsibility for Funding Policy . . . . . . . . 61
13.14 Management of Assets . . . . . . . . . . . . . . . 61
13.15 Notice and Claims Procedures . . . . . . . . . . . 61
13.16 Bonding . . . . . . . . . . . . . . . . . . . . . 61
13.17 Multiple Fiduciary Capacities . . . . . . . . . . 61
ARTICLE XIV TRUSTEE OF THE PLAN . . . . . . . . . . . . . 62
14.1 Trustee . . . . . . . . . . . . . . . . . . . . . 62
14.2 Purchase of Common Stock . . . . . . . . . . . . . 62
14.3 Investment in Fund A Fixed Income Fund . . . . . . 63
14.4 Investment in Fund B Equity Fund . . . . . . . . . 63
14.5 Investment in Fund D Index Fund . . . . . . . . . 63
14.6 Voting of Common Stock . . . . . . . . . . . . . . 63
14.7 Voting of the Fund B Shares . . . . . . . . . . . 63
14.8 Voting of the Fund D Shares . . . . . . . . . . . 63
14.9 Uninvested Amounts . . . . . . . . . . . . . . . . 63
14.10 Independent Accounting . . . . . . . . . . . . . . 64
iv<PAGE>
ARTICLE XV AMENDMENT AND TERMINATION OF THE PLAN . . . . 65
15.1 Amendment of the Plan . . . . . . . . . . . . . . 65
15.2 Termination of the Plan . . . . . . . . . . . . . 65
15.3 Merger or Consolidation of the Plan . . . . . . . 66
ARTICLE XVI TOP-HEAVY REQUIREMENTS . . . . . . . . . . . . 67
16.1 Top-Heavy Plan Requirements . . . . . . . . . . . 67
16.2 Determination of Top-Heavy Status . . . . . . . . 67
16.3 Minimum Allocation for Top-Heavy Plan Years . . . 68
16.4 Adjustments to Maximum Benefit Limits for Top-
Heavy Plans . . . . . . . . . . . . . . . . . . . 69
ARTICLE XVII GENERAL PROVISIONS . . . . . . . . . . . . . . . 70
17.1 Plan Not an Employment Contract . . . . . . . . . 70
17.2 No Right of Assignment or Alienation . . . . . . . 70
17.3 Payment to Minors and Others . . . . . . . . . . . 71
17.4 Source of Benefits . . . . . . . . . . . . . . . . 71
17.5 Unclaimed Benefits . . . . . . . . . . . . . . . . 71
17.6 Governing Law . . . . . . . . . . . . . . . . . . 71
ARTICLE XVIII SPECIAL REQUIREMENTS FOR ACCOUNT BALANCES
ATTRIBUTABLE TO ACCRUED BENEFITS
TRANSFERRED FROM THE SEPCO PLAN . . . . . . . . . . . 72
18.1 SEPCO Transferred Accounts . . . . . . . . . . . . 72
18.2 In-Service Withdrawals from SEPCO Transferred
Accounts . . . . . . . . . . . . . . . . . . . . . 72
18.3 Loans from SEPCO Transferred Accounts . . . . . . 72
18.4 Distribution of SEPCO Transferred Accounts . . . . 73
18.5 Code Section 411(d)(6) Protected Benefits . . . . 75
v<PAGE>
THE SOUTHERN COMPANY
EMPLOYEE SAVINGS PLAN
As Amended and Restated
Effective January 1, 1989
ARTICLE I
PURPOSE
The purpose of the Plan is to encourage employee thrift, to
create added employee interest in the affairs of The Southern
Company, to provide a means for becoming a shareholder in The
Southern Company, to supplement retirement and death benefits,
and to create a competitive compensation program for employees
through the establishment of a formal plan under which
contributions by and on behalf of Participants are supplemented
by contributions of Employing Companies. This Plan is intended
to be a stock bonus plan, and all contributions made by an
Employing Company to this Plan are expressly conditioned upon the
deductibility of such contributions under Code Section 404. The
Plan was originally effective March 1, 1976 and is being amended
and restated effective as of January 1, 1989, in order to comply
with the Internal Revenue Code and incorporate a variety of plan
design and other changes. This amendment and restatement shall
not be applicable to former Participants or Beneficiaries of
former Participants whose employment with an Employing Company
terminated prior to January 1, 1989.<PAGE>
ARTICLE II
DEFINITIONS
All references to articles, sections, subsections, and
paragraphs shall be to articles, sections, subsections, and
paragraphs of this Plan unless another reference is expressly set
forth in this Plan. Any words used in the masculine shall be
read and be construed in the feminine where they would so apply.
Words in the singular shall be read and construed in the plural,
and all words in the plural shall be read and construed in the
singular in all cases where they would so apply.
For purposes of this Plan, unless otherwise required by the
context, the following terms shall have the meanings set forth
opposite such terms:
2.1 "Account" shall mean the total amount credited to the
account of a Participant, as described in Section 9.1.
2.2 "Actual Contribution Percentage Test" shall mean the
test described in Section 5.4(a).
2.3 "Actual Deferral Percentage" shall mean the ratio
(expressed as a percentage) of Elective Employer Contributions on
behalf of an Eligible Participant for the Plan Year to the
Eligible Participant's compensation for the Plan Year. For the
purpose of determining an Eligible Participant's Actual Deferral
Percentage for a Plan Year, the Plan Committee may elect to
consider an Eligible Participant's compensation for (a) the
entire Plan Year or (b) that portion of the Plan Year in which
the Eligible Participant was eligible to have Elective Employer
Contributions made on his behalf, provided that such election is
applied uniformly to all Eligible Participants for the Plan Year.
The Actual Deferral Percentage of an Eligible Participant who
does not have Elective Employer Contributions made on his behalf
shall be zero.
2.4 "Actual Deferral Percentage Test" shall mean the test
described in Section 4.5(a).
2.5 "Affiliated Employer" shall mean an Employing Company
and (a) any corporation which is a member of a controlled group
of corporations (as defined in Section 414(b) of the Code) which
includes such Employing Company, (b) any trade or business
(whether or not incorporated) which is under common control (as
defined in Section 414(c) of the Code) with such Employing
Company, (c) any organization (whether or not incorporated) which
is a member of an affiliated service group (as defined in Section
414(m) of the Code) which includes such Employing Company, and
-2-<PAGE>
(d) any other entity required to be aggregated with such
Employing Company pursuant to regulations under Section 414(o) of
the Code. Notwithstanding the foregoing, for purposes of
applying the limitations of Article VI, the term Affiliated
Employer shall be adjusted as required by Code
Section 415(h).
2.6 "Aggregate Account" shall mean with respect to a
Participant as of the Determination Date, the sum of the
following:
(a) the Account balance of such Participant as
of the most recent valuation occurring within a
twelve-month period ending on the Determination Date;
(b) an adjustment for any contributions due as
of the Determination Date;
(c) any Plan distributions, including unrelated
rollovers and plan-to-plan transfers (ones which are
both initiated by the Employee and made from a plan
maintained by one employer to a plan maintained by
another employer), but not related rollovers or plan-
to-plan transfers (ones either not initiated by the
Employee or made to a plan maintained by the same
employer), made within the Plan Year that includes the
Determination Date or within the four preceding Plan
Years, including distributions made prior to January
1, 1984, and distributions made under a terminated
plan which if it had not been terminated would have
been required to be included in an Aggregation Group;
(d) any Employee contributions, whether
voluntary or mandatory;
(e) unrelated rollovers and plan-to-plan
transfers to this Plan accepted prior to January 1,
1984; and
(f) related rollovers and plan-to-plan transfers
to this Plan.
2.7 "Aggregation Group" shall mean either a Required
Aggregation Group or a Permissive Aggregation Group as
hereinafter determined.
(a) Required Aggregation Group: In determining
a Required Aggregation Group hereunder, each plan of
the Affiliated Employers in which a Key Employee is a
participant and each other plan of the Affiliated
Employers which enables any plan in which a Key
-3-<PAGE>
Employee participates to meet requirements of Code
Section 401(a)(4) or 410 will be required to be
aggregated. Such group shall be known as a Required
Aggregation Group.
(b) Permissive Aggregation Group: The
Affiliated Employers may also include any other plan
not required to be included in the Required
Aggregation Group, provided the resulting group, taken
as a whole, would continue to satisfy the provisions
of Code Section 401(a)(4) or 410. Such group shall be
known as a Permissive Aggregation Group.
2.8 "Annual Addition" shall mean the amount allocated to a
Participant's Account and accounts under all defined contribution
plans maintained by the Affiliated Employers during a Limitation
Year that constitutes
(a) Affiliated Employer contributions,
(b) voluntary participant contributions,
(c) forfeitures, if any, allocated to a
Participant's Account or accounts under all defined
contribution plans maintained by the Affiliated
Employers, and
(d) amounts described in Sections 415(l)(1) and
419A(d)(2) of the Code.
2.9 "Average Actual Deferral Percentage" shall mean the
average (expressed as a percentage) of the Actual Deferral
Percentages of the Eligible Participants in a group.
2.10 "Average Contribution Percentage" shall mean the
average (expressed as a percentage) of the Contribution
Percentages of the Eligible Participants in a group.
2.11 "Beneficiary" shall mean any person(s) who, or
estate(s), trust(s), or organization(s) which, in accordance with
the provisions of Section 12.4, become entitled to receive
benefits upon the death of a Participant.
2.12 "Board of Directors" shall mean the Board of Directors
of Southern Company Services, Inc.
2.13 "Break-in-Service Date" means the earlier of:
(a) the date on which an Employee terminates employment,
is discharged, retires, or dies; or
-4-<PAGE>
(b) the last day of an approved leave of absence including
any extension.
2.14 "Code" shall mean the Internal Revenue Code of 1986,
as amended, or any successor statute, and the rulings and
regulations promulgated thereunder. In the event an amendment to
the Code renumbers a section of the Code referred to in this
Plan, any such reference automatically shall become a reference
to such section as renumbered.
2.15 "Committee" shall mean the committee appointed
pursuant to Section 13.1 to serve as plan administrator.
2.16 "Common Stock" shall mean the common stock of The
Southern Company.
2.17 "Company" shall mean Southern Company Services, Inc.,
and its successors.
2.18 "Compensation" shall mean for periods prior to
January 1, 1992, the base salary or wages paid to a Participant,
including all amounts contributed by an Employing Company to the
Southern Electric System Flexible Benefits Plan or The Southern
Company Flexible Benefits Plan on behalf of a Participant
pursuant to a salary reduction arrangement under either such
Plan, but excluding all awards under The Southern Company
Performance Pay Plan, The Southern Company Productivity
Improvement Plan, The Southern Company Executive Productivity
Improvement Plan, and the Incentive Compensation Plan for
Southern Electric International, Inc. includable as gross income,
overtime pay, shift differential, substitution pay, and before
deduction of taxes, social security, etc.
For periods on and after January 1, 1992, "Compensation"
shall mean the base salary or wages paid to a Participant,
including all amounts contributed by an Employing Company to the
Southern Electric System Flexible Benefits Plan or The Southern
Company Flexible Benefits Plan on behalf of a Participant
pursuant to a salary reduction arrangement under either such
Plan, monthly shift and monthly seven-day schedule differentials,
geographic premiums, monthly customer service premiums, and
monthly nuclear plant premiums, and before deduction of taxes,
social security, etc., but excluding all awards under The
Southern Company Performance Pay Plan, The Southern Company
Productivity Improvement Plan, The Southern Company Executive
Productivity Improvement Plan, and the Incentive Compensation
Plan for Southern Electric International, Inc. includable as
gross income, overtime pay, any hourly shift differentials,
substitution pay, such amounts which are reimbursements to a
Participant paid by any Employing Company including, but not
limited to, reimbursement for such items as moving expenses and
-5-<PAGE>
travel and entertainment expenses, and imputed income for
automobile expenses, tax preparation expenses and health and life
insurance premiums paid by the Employing Company.
For Plan Years beginning after December 31, 1988, and prior
to January 1, 1994, the Compensation of each Participant taken
into account for purposes of this Plan shall not exceed $200,000
(as adjusted by the Secretary of the Treasury). For Plan Years
beginning on and after January 1, 1994, the Compensation of each
Participant taken into account for purposes of this Plan shall
not exceed $150,000 (as adjusted pursuant to Code Section
401(a)(17)). In determining the Compensation of a Participant
for purposes of this limitation, the rules of Section 414(q)(6)
of the Code shall apply, except in applying such rules, the term
"family" shall include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained age
19 before the close of the Plan Year. If, as a result of the
application of the rules of Code Section 414(q)(6), the adjusted
dollar limitation is exceeded, then the limitation shall be
prorated among the affected individuals in proportion to each
such individual's Compensation, as determined under this Section
2.18 prior to the application of this limitation.
2.19 "Contribution Percentage" shall mean the ratio
(expressed as a percentage), of the sum of the Voluntary
Participant Contributions and Employer Matching Contributions
under the Plan on behalf of the Eligible Participant for the Plan
Year to the Eligible Participant's compensation for the Plan
Year. For the purpose of determining an Eligible Participant's
Contribution Percentage for a Plan Year, the Committee may elect
to consider an Eligible Participant's compensation for (a) the
entire Plan Year or (b) that portion of the Plan Year in which
the individual is an Eligible Participant, provided that such
election is applied uniformly to all Eligible Participants for
the Plan Year.
2.20 "Defined Benefit Plan Fraction" shall mean the
following fraction:
(numerator) Sum of the projected annual benefits of
the Participant under all Affiliated Employer defined
benefit plans (whether or not terminated) determined
as of the close of the Plan Year.
(denominator) The lesser of (a) the product of 1.25
multiplied by the dollar limitation in effect for the
Plan Year under Code Sections 415(b)(1)(A) or 415(d),
or (b) 1.4 multiplied by 100% of the Participant's
average compensation for his highest three (3)
consecutive Plan Years of participation as adjusted
under Treasury Regulation Section 1.415-5.
-6-<PAGE>
2.21 "Defined Contribution Plan Fraction" shall mean the
following fraction:
(numerator) The sum of all Annual Additions to the
account of the Participant as of the close of the Plan
Year under all defined contribution plans maintained
by the Affiliated Employers for the current and prior
Limitation Years (whether or not terminated),
including this Plan.
(denominator) The sum of the lesser of the following
amounts determined for such Plan Year and for each
prior Plan Year in which the Participant has a Year of
Service: (a) 1.25 multiplied by the dollar limitation
in effect under Code Section 415(c)(1)(A) for the Plan
Year (determined without regard to Code Section
415(c)(6)), or (b) 1.4 multiplied by the amount that
may be taken into account under Code Section
415(c)(1)(B) with respect to a Participant for the
Plan Year.
2.22 "Determination Date" shall mean with respect to a Plan
Year, the last day of the preceding Plan Year.
2.23 "Determination Year" shall mean the Plan Year being
tested.
2.24 "Distributee" shall include an Employee or former
Employee. In addition, the Employee's or former Employee's
Surviving Spouse and the Employee's or former Employee's spouse
or former spouse who is an alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, are Distributees with regard to the interest of the spouse
or former spouse.
2.25 "Direct Rollover" shall mean a payment by the Plan to
the Eligible Retirement Plan specified by the Distributee.
2.26 "Elective Employer Contribution" shall mean
contributions made pursuant to Section 4.1 during the Plan Year
by an Employing Company, at the election of the Participant, in
lieu of cash compensation and shall include contributions made
pursuant to a salary reduction agreement.
2.27 "Eligible Employee" shall mean an Employee who is
employed by an Employing Company and (a) who was eligible to be
included in the Plan on December 31, 1988, (b) who was eligible
to be included in the Plan on January 1, 1991, or (c) who is a
-7-<PAGE>
regular full-time, regular part-time or cooperative education
employee other than:
(1) an Employee who is treated as such solely by reason of
the "leased employee" rules of Code Section 414(n);
(2) any Employee who is represented by a collective
bargaining agent unless the representatives of his
bargaining unit and the Employing Company mutually
agree to participation in the Plan subject to its
terms by members of his bargaining unit; and
(3) an individual who is a cooperative education employee
and who first performs an Hour of Service on or after
January 1, 1995.
Notwithstanding the foregoing, no Employee employed by Electric
City Merchandise Company, Inc. between May 1, 1988 and December
31, 1991 (the date of dissolution of Electric City Merchandise
Company, Inc.) shall be treated as an Eligible Employee during
such period.
2.28 "Eligible Participant" shall mean an Eligible Employee
who is authorized to have Elective Employer Contributions or
Voluntary Participant Contributions allocated to his Account for
the Plan Year.
2.29 "Eligible Retirement Plan" shall mean an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the
Code, an annuity plan described in Section 403(a) of the Code, or
a qualified trust described in Section 401(a) of the Code that
accepts the Distributee's Eligible Rollover Distribution.
However, in the case of an Eligible Rollover Distribution to a
Surviving Spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
2.30 "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the credit
of the Distributee, except that an Eligible Rollover Distribution
does not include: (a) any distribution that is one of a series
of substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of the
Distributee, the joint lives (or joint life expectancies) of the
Distributee and the Distributee's Beneficiary, or for a specified
period of 10 years or more; (b) any distribution to the extent
such distribution is required under Section 401(a)(9) of the
Code; and (c) the portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
-8-<PAGE>
2.31 "Employee" shall mean each individual who is employed
by an Affiliated Employer under common law and each individual
who is required to be treated as an employee pursuant to the
"leased employee" rules of Code Section 414(n) other than a
leased employee described in Code Section 414(n)(5).
2.32 "Employer Matching Contribution" shall mean a
contribution made by an Employing Company pursuant to Section
5.1.
2.33 "Employing Company" shall mean the Company and any
affiliate or subsidiary 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 them.
The Employing Companies are set forth on Appendix A to the Plan
as updated from time to time. No such entity shall be treated as
an Employing Company prior to the date it adopts the Plan.
2.34 "Enrollment Date" shall mean the first day of each
calendar month.
2.35 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute, and
the rulings and regulations promulgated thereunder. In the event
an amendment to ERISA renumbers a section of ERISA referred to in
this Plan, any such reference automatically shall become a
reference to such section as renumbered.
2.36 "Excess Aggregate Contributions" shall mean the amount
referred to in Code Section 401(m)(6)(B) with respect to a
Participant.
2.37 "Excess Deferral Amount" shall mean the amount of
Elective Employer Contributions for a calendar year that exceed
the Code Section 402(g) limits as allocated to this Plan pursuant
to Section 4.3(b).
2.38 "Excess Deferral Contributions" shall mean the amount
of Elective Employer Contributions on behalf of a Highly
Compensated Employee in excess of the maximum permitted under
Section 4.5(a) as determined pursuant to Section 4.5(b).
2.39 "Family Member" shall mean the spouse, lineal
ascendants and descendants of an Employee or former Employee, and
the spouses of such lineal ascendants and descendants as
described in Code Section 414(q)(6)(B).
2.40 "Highly Compensated Employee" shall mean any Employee
or former Employee (excluding any Employees who may be excluded
pursuant to Code Section 414(q)(8)) who during the Determination
Year or the Look-Back Year:
-9-<PAGE>
(a) was at any time a five-percent (5%) owner (as
defined in Code Section 416(i)(1)(B)(i));
(b) received compensation (within the meaning of Code
Section 414(q)(7)) from an Affiliated Employer in excess of
$75,000 (or such amount as may be adjusted by the Secretary
of the Treasury);
(c) received compensation (within the meaning of Code
Section 414(q)(7)) from an Affiliated Employer in excess of
$50,000 (or such amount as may be adjusted by the Secretary
of the Treasury) and was in the top-paid group (as defined
in Code Section 414(q)(4)) of Employees for such year; or
(d) was at any time an officer and received
compensation (within the meaning of Code Section 414(q)(7))
greater than fifty percent (50%) of the amount in effect
under Code Section 415(b)(1)(A) for such year.
Notwithstanding the foregoing, the determination of which
Employees are Highly Compensated Employees shall at all times be
subject to the rules of Code Section 414(q); the maximum number
of officers taken into account under (d) above shall not exceed
fifty (50); and Employees who were not described in (b), (c) or
(d) above during the Look-Back Year shall not be considered as
described in such subsections for the Determination Year unless
such Employees are members of the group consisting of the one
hundred (100) Employees paid the greatest compensation (within
the meaning of Code Section 414(q)(7)) for the Determination
Year.
A Highly Compensated Employee shall include any Employee who
separated from service (or was deemed to have separated) prior to
the Plan Year, performs no service for an Affiliated Employer
during the Plan Year, and was a Highly Compensated Employee for
either the separation year or any Determination Year ending on or
after the Employee's fifty-fifth (55th) birthday.
If an Employee is, during a Determination Year or a Look-
Back Year, a Family Member of either (x) a five-percent (5%)
owner who is an Employee or (y) a former Employee or a Highly
Compensated Employee who is one of the top-ten most Highly
Compensated Employees ranked on the basis of compensation paid by
an Affiliated Employer during such year, then the Family Member
and the five-percent (5%) owner or top-ten Highly Compensated
Employee shall be treated as a single employee receiving
compensation and Plan contributions equal to the sum of the
compensation and contributions for such individuals.
2.41 "Hour of Service" shall mean:
-10-<PAGE>
(a) Each hour for which an Employee is paid, or
entitled to payment, for the performance of duties for an
Affiliated Employer. These hours shall be credited to the
Employee for the applicable computation period in which the
duties are performed;
(b) Each hour for which an Employee 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
terminated) due to vacation, holiday, illness, incapacity
(including disability), layoff, jury duty, military duty, or
leaves of absence. An hour for which an Employee is
directly or indirectly paid, or entitled to payment, on
account of a period during which no duties are performed is
not required to be credited to the Employee if such payment
is made or due under a plan maintained solely for the
purpose of complying with applicable workers' compensation,
unemployment compensation, or disability insurance laws.
Hours are not required to be credited for a payment which
solely reimburses an Employee for medical or medically
related expenses incurred by the Employee;
(c) Each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by an
Affiliated Employer. These hours shall be credited to the
Employee 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.
(d) Each hour for which an Employee is not paid,
based upon a forty (40) hour week or pro rata portion
thereof, during which the Employee is absent from work due
to an approved leave of absence, sickness or disability
leave, vacation, holiday, or jury duty.
However, any hours credited under (a) or (b) above shall not
also be credited under (c) or (d) above.
The rules set forth in subsections (b) and (c) of Department
of Labor Regulations 2530.200b-2 are incorporated in the Plan and
by this reference made a part hereof.
2.42 "Investment Fund" shall mean any one of the funds
described in Article VIII which constitutes part of the Trust
Fund.
2.43 "Key Employee" shall mean any Employee or former
Employee (and his Beneficiary) who is a key employee within the
meaning of Code Section 416(i)(1).
-11-<PAGE>
2.44 "Limitation Year" shall mean the Plan Year.
2.45 "Look-Back Year" shall mean the Plan Year preceding
the Determination Year.
2.46 "Non-Highly Compensated Employee" shall mean an
Employee who is neither a Highly Compensated Employee nor the
Family Member of a Highly Compensated Employee.
2.47 "Normal Retirement Date" shall mean the first day of
the month coinciding with or next following a Participant's
sixty-fifth (65th) birthday. On and after January 1, 1995,
Normal Retirement Date shall mean the first day of the month
following a Participant's sixty-fifth (65th) birthday.
2.48 "One-Year Break in Service" shall mean a twelve-
consecutive-month period which would constitute a Year of Service
but for the fact that the Employee has not completed more than
500 Hours of Service during such twelve-consecutive-month period.
Solely for purposes of determining whether a One-Year Break
in Service has occurred, an Employee who is absent from work for
maternity or paternity reasons shall receive credit for the Hours
of Service which would otherwise have been credited to such
Employee but for such absence or, in any case in which such hours
cannot be determined, eight (8) Hours of Service per day of such
absence. In no event shall Hours of Service credited under this
paragraph be in excess of 501 Hours of Service with respect to
any single continuous period during which the Employee performs
no duties. For purposes of this paragraph, an absence from work
for maternity or paternity reasons means an absence (a) by reason
of the pregnancy of the Employee, (b) by reason of a birth of a
child of the Employee, (c) by reason of the placement of a child
with the Employee in connection with the adoption of such child
by such Employee, or (d) for purposes of caring for such child
for a period beginning immediately following such birth or
placement. The Hours of Service shall be credited under this
paragraph in the eligibility period in which the absence begins,
if the Hours of Service credited are necessary to prevent a One-
Year Break in Service in such period, and in all other cases, in
the eligibility period following the period in which the absence
begins.
Notwithstanding the foregoing, a One-Year Break in Service
for periods on and after January 1, 1995, means a twelve-
consecutive-month period commencing with an Employee's Break-in-
Service Date and ending on the date the Employee is again
credited with an Hour of Service.
In the case of an individual who is absent from work for
maternity or paternity reasons on and after January 1, 1995, the
-12-<PAGE>
twelve-consecutive-month period beginning on the first
anniversary of the first date of such absence shall not
constitute a One-Year Break in Service.
2.49 "Participant" shall mean (a) an Eligible Employee who
has elected to participate in the Plan as provided in Article III
and whose participation in the Plan at the time of reference has
not been terminated as provided in the Plan and (b) an Employee
or former Employee who has ceased to be a Participant under (a)
above, but for whom an Account is maintained under the Plan.
2.50 "Plan" shall mean The Southern Company Employee
Savings Plan (known as the Employee Savings Plan for The Southern
Company System prior to January 1, 1991), as described herein or
as from time to time amended.
2.51 "Plan Year" shall mean the twelve-month period
commencing January 1st and ending on the last day of December
next following.
2.52 "Present Value of Accrued Retirement Income" shall
mean an amount determined solely for the purpose of determining
if the Plan, or any other plan included in a Required Aggregation
Group of which the Plan is a part, is top heavy in accordance
with Code Section 416.
2.53 "SEPCO" shall mean Savannah Electric and Power
Company.
2.54 "SEPCO Plan" shall mean the Employee Savings Plan of
Savannah Electric and Power Company as in effect December 31,
1992.
2.55 "SEPCO Transferred Account" shall mean the total
amount credited to the account of a Participant as described in
Section 9.1(b).
2.56 "Super-Top-Heavy Group" shall mean an Aggregation
Group that would be a Top-Heavy Group if 90% were substituted for
60% in Section 2.58.
2.57 "Surviving Spouse" shall mean the person to whom the
Participant is married on the date of his death, if such spouse
is then living, provided that the Participant and such spouse
shall have been married throughout the one (1) year period ending
on the date of the Participant's death.
2.58 "Top-Heavy Group" shall mean an Aggregation Group in
which, as of the Determination Date, the sum of:
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(a) the Present Value of Accrued Retirement Income of
Key Employees under all defined benefit plans included in
that group, and
(b) the Aggregate Accounts of Key Employees under all
defined contribution plans included in the group,
exceeds 60% of a similar sum determined for all employees.
2.59 "Trust" or "Trust Fund" shall mean the trust
established pursuant to the Trust Agreement.
2.60 "Trust Agreement" shall mean the trust agreement
between the Company and the Trustee, as described in Article XIV.
2.61 "Trustee" shall mean the person or corporation
designated as trustee under the Trust Agreement, including any
successor or successors.
2.62 "Valuation Date" shall mean the last business day of
any calendar month.
2.63 "Voluntary Participant Contribution" shall mean a
contribution made pursuant to Section 4.6 during the Plan Year.
2.64 "Year of Service" shall mean a twelve-consecutive-
month period commencing on the date of hire of an Employee and
any twelve-consecutive-month period commencing on an anniversary
date of his date of hire, if he has completed at least 1,000
Hours of Service during each such twelve-consecutive-month
period. An Employee's date of hire shall be the first day for
which he is entitled to be credited with an Hour of Service.
For purposes of determining an Employee's eligibility to
participate, the following years of service shall also be treated
as Years of Service:
(a) In respect of an Employee of an Employing Company
who transfers to an Employing Company from Southern Electric
International, Inc. following its adoption of a plan
containing a cash or deferred arrangement under Section
401(k) of the Code, his credited years of service under such
plan as of his date of transfer.
(b) In respect of an Employee of an Employing Company
who transfers to an Employing Company from SEPCO on or
before December 31, 1992, his credited years of service
under the SEPCO Plan for actual service while employed at
SEPCO as of the date of his transfer.
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For purposes of determining eligibility to participate for
periods on and after January 1, 1995, a Year of Service shall
constitute twelve-month periods of employment as an Employee,
including any fractions thereof. Years of Service shall commence
with the Employee's first day of employment, which is the date on
which an Employee first performs an Hour of Service, and shall
terminate on his Break-in-Service Date. Thereafter, if he has
more than one period of employment as an Employee, his Years of
Service for any subsequent period shall commence with the
Employee's reemployment date, which is the first date following a
Break-in-Service Date on which the Employee performs an Hour of
Service, and shall terminate on his next Break-in-Service Date.
An Employee who has a Break-in-Service Date and resumes
employment with the Affiliated Employers within twelve months of
the date he last performed services for the Affiliated Employers
shall receive a fractional Year of Service for the period of such
cessation of employment.
Notwithstanding anything in this Section 2.64 to the
contrary, an Employee shall not receive credit for more than one
Year of Service with respect to any twelve-consecutive-month
period.
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ARTICLE III
PARTICIPATION
3.1 Eligibility Requirements. An Eligible Employee may
elect to participate in the Plan as of the later of January 1,
1989, or any Enrollment Date after he has completed a Year of
Service. An Eligible Employee shall make an election to
participate by authorizing deductions from or reduction of his
Compensation as contributions to the Plan in accordance with
Article IV, and directing the investment of such contributions in
accordance with Article VIII. Such Compensation deduction and/or
reduction authorization and investment direction shall be on a
form to be provided by the Employing Company for such purpose,
signed by the Eligible Employee, and delivered to his Employing
Company at least thirty (30) days prior to such Enrollment Date
or within such shorter period as may be specified by the
Committee. Notwithstanding the above, an Employee may elect
voluntarily not to participate in the Plan by communicating such
election to his Employing Company prior to his Enrollment Date or
a Plan Year, as appropriate.
3.2 Participation upon Reemployment. If an Employee
terminates his employment with an Affiliated Employer and is
subsequently reemployed as an Eligible Employee, the following
rules shall apply in determining his eligibility to participate:
(a) If the reemployed Eligible Employee had not
completed the Year of Service requirement of Section 3.1
prior to his termination of employment, he shall be treated
as a new Employee.
(b) If the reemployed Eligible Employee fulfilled the
eligibility requirements of Section 3.1 prior to his
termination of employment and is reemployed as an Eligible
Employee, whether before or after he incurs a One-Year Break
in Service, he may elect to become a Participant in the Plan
as of the date of his reemployment.
3.3 No Restoration of Previously Distributed Benefits. A
Participant who has terminated his employment with an Employing
Company and who has received a distribution of the amount
credited to his Account pursuant to Section 12.5 shall not be
entitled to restore the amount of such distribution to his
Account if he is reemployed and again becomes a Participant in
the Plan.
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3.4 Loss of Eligible Employee Status. If a Participant
loses his status as an Eligible Employee, but remains an
Employee, such Participant shall be ineligible to participate and
shall be deemed to have elected to suspend making Voluntary
Participant Contributions or to have Elective Employer
Contributions made on his behalf.
3.5 Special Rule for Scott Paper Company Energy Complex
Employees. An Eligible Employee who was an employee of Scott
Paper Company Energy Complex on December 16, 1994, and who became
an employee of an Employing Company effective December 17, 1994,
shall be credited with a Year of Service as of December 31, 1994,
and may elect to become a Participant as of any Enrollment Date
commencing on or after January 1, 1995.
-17-<PAGE>
ARTICLE IV
ELECTIVE EMPLOYER CONTRIBUTIONS AND
VOLUNTARY PARTICIPANT CONTRIBUTIONS
4.1 Elective Employer Contributions. An Eligible Employee
who meets the participation requirements of Article III may elect
on a form provided by the Employing Company to have his
Compensation reduced by a whole percentage of his Compensation,
which percentage shall not be less than one percent (1%) nor more
than sixteen percent (16%) of his Compensation, such Elective
Employer Contribution to be contributed to his Account under the
Plan.
4.2 Maximum Amount of Elective Employer Contributions.
The maximum amount of Elective Employer Contributions that may be
made on behalf of a Participant during any Plan Year to this Plan
or any other qualified plan maintained by an Employing Company
shall not exceed the dollar limitation set forth in Section
402(g) of the Code in effect at the beginning of such Plan Year.
4.3 Distribution of Excess Deferral Amounts.
(a) In General. Notwithstanding any other provision
of the Plan, Excess Deferral Amounts and income allocable
thereto shall be distributed (and any corresponding Employer
Matching Contributions shall be forfeited) no later than
April 15, 1990, and each April 15 thereafter, to
Participants who allocate (or are deemed to allocate) such
amounts to this Plan pursuant to (b) below for the preceding
calendar year. Excess Deferral Amounts that are distributed
shall not be treated as an Annual Addition.
(b) Assignment. The Participant's allocation of
amounts in excess of the Code Section 402(g) limits to this
Plan shall be in writing; shall be submitted to the
Committee no later than March 1; shall specify the
Participant's Excess Deferral Amount for the preceding
calendar year; and shall be accompanied by the Participant's
written statement that if such amounts are not distributed,
such Excess Deferral Amount, when added to amounts deferred
under other plans or arrangements described in Section
401(k), 408(k), 402(h)(1)(B), 457, 501(c)(18), or 403(b) of
the Code, exceeds the limit imposed on the Participant by
Section 402(g) of the Code for the year in which the
deferral occurred. A Participant is deemed to notify the
Committee of any Excess Deferral Amounts that arise by
taking into account only those deferrals under this Plan and
any other plans of an Employing Company.
-18-<PAGE>
(c) Determination of Income or Loss. The Excess
Deferral Amount distributed to a Participant with respect to
a calendar year shall be adjusted for income or loss through
the last day of the Plan Year or the date of distribution,
as determined by the Committee. The income or loss
allocable to Excess Deferral Amounts is the sum of:
(1) income or loss allocated to the
Participant's Account for the taxable year multiplied
by a fraction, the numerator of which is such
Participant's Excess Deferral Amount for the year and
the denominator is the Participant's Account balance
attributable to Elective Employer Contributions, minus
any income or plus any loss occurring during the Plan
Year; and
(2) if the Committee shall determine in its sole
discretion, ten percent (10%) of the amount determined
under (1) above multiplied by the number of whole
calendar months between the end of the Plan Year and
the date of the distribution, counting the month of
distribution if distribution occurs after the 15th of
the month.
Notwithstanding the above, the Committee may designate any
reasonable method for computing the income or loss allocable to
Excess Deferral Amounts, provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income or loss to Participants' Accounts.
(3) Maximum Distribution Amount. The Excess
Deferral Amount, which would otherwise be distributed
to the Participant, shall, if there is a loss
allocable to such Excess Deferral Amount, in no event
be less than the lesser of the Participant's Account
under the Plan attributable to Elective Employer
Contributions or the Participant's Elective Employer
Contributions for the Plan Year.
4.4 Additional Rules Regarding Elective Employer
Contributions.
Salary reduction agreements shall be governed by the
following:
(a) A salary reduction agreement shall apply to
payroll periods during which an effective salary reduction
agreement is on file with the Employing Company. The
Committee, in its discretion, may establish administrative
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procedures whereby the actual reduction in Compensation may
be made to coincide with each payroll period of the
Employing Company, or at such other times as the Committee
may determine.
(b) The Employing Company may amend or revoke its
salary reduction agreement with any Participant at any time,
if the Employing Company determines that such revocation or
amendment is necessary to ensure that a Participant's
additions for any Plan Year will not exceed the limitations
of Sections 4.2 and 6.1 of the Plan or to ensure that the
Actual Deferral Percentage Test is satisfied.
(c) Except as required under (b) above, and under
Section 4.5(d) below, no amounts attributable to Elective
Employer Contributions may be distributed to a Participant
or his Beneficiary from his Account prior to the earlier of:
(1) the separation from service, death or
disability of the Participant;
(2) the attainment of age 59 1/2 by the
Participant;
(3) the termination of the Plan without
establishment of a successor plan;
(4) a financial hardship of the Participant
pursuant to Section 11.6 of the Plan;
(5) the date of a sale by an Employing Company
to an entity that is not an Affiliated
Employer of substantially all of the assets
(within the meaning of Code Section
409(d)(2)) with respect to a Participant who
continues employment with the corporation
acquiring such assets; or
(6) the date of the sale by an Employing Company
or an Affiliated Employer of its interest in
a subsidiary (within the meaning of Code
Section 409(d)(3)) to an entity which is not
an Affiliated Employer with respect to the
Participant who continues employment with
such subsidiary.
4.5 Section 401(k) Nondiscrimination Tests.
(a) Actual Deferral Percentage Test. The Plan
shall satisfy the nondiscrimination test of Section
401(k)(3) of the Code, under which no Elective
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Employer Contributions shall be made that would cause
the Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees to
exceed (1) or (2) as follows:
(1) The Average Actual Deferral Percentage
for the Eligible Participants who are Highly
Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for
Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year
multiplied by 1.25; or
(2) The Average Actual Deferral Percentage
for Eligible Participants who are Highly
Compensated Employees for the Plan Year shall not
exceed the Average Actual Deferral Percentage for
Eligible Participants who are Non-Highly
Compensated Employees for the Plan Year
multiplied by two (2), provided that the Average
Actual Deferral Percentage for Eligible
Participants who are Highly Compensated Employees
does not exceed the Average Actual Deferral
Percentage for Eligible Participants who are
Non-Highly Compensated Employees by more than two
(2) percentage points.
(b) Amount of Excess Deferral Contributions.
The amount of Excess Deferral Contributions for a
Highly Compensated Employee for a Plan Year is to be
determined by the leveling method described in
Treasury Regulation Section 1.401(k)-l(f)(2), under
which the Actual Deferral Percentage of the Highly
Compensated Employee with the highest Actual Deferral
Percentage shall be reduced to the extent required to:
(1) enable the Plan to satisfy the Actual
Deferral Percentage Test, or
(2) cause such Highly Compensated
Employee's Actual Deferral Percentage to equal
the ratio of the Highly Compensated Employee with
the next highest Actual Deferral Percentage.
This process must be repeated until the Plan satisfies the
Actual Deferral Percentage Test. The amount of Excess Deferral
Contributions for a Highly Compensated Employee is equal to the
total of Elective Employer Contributions and other contributions
taken into account for the Actual Deferral Percentage Test minus
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the amount determined by multiplying the Employee's contribution
percentage, as determined above, by his compensation.
(c) Correction for Family Members. In the case of a
Highly Compensated Employee whose Actual Deferral Percentage
is determined under the family aggregation rules described
in Treasury Regulation Section 1.401(k)-1(g)(1)(ii)(C), the
determination and correction of the amount of Excess
Deferral Contributions is accomplished by reducing the
Actual Deferral Percentage as required under (b) above and
allocating the excess for the family group among the Family
Members in proportion to the Elective Employer Contributions
of each Family Member that is combined to determine the
Actual Deferral Percentage.
(1) If a Highly Compensated Employee is subject
to the family aggregation rules of Code Section
414(q)(6) because that Eligible Participant is either
a five-percent owner or one of the 10 Highly
Compensated Employees receiving the most compensation
from the Affiliated Employers, the combined Actual
Deferral Percentage for the family group (which is
treated as one Highly Compensated Employee) must be
determined by combining the Elective Employer
Contributions, compensation, and amounts treated as
Elective Employer Contributions of the eligible Family
Members.
(2) The Elective Employer Contributions,
compensation, and amounts treated as Elective Employer
Contributions of all Family Members are disregarded
for purposes of determining the Actual Deferral
Percentage for the group of Non-Highly Compensated
Employees.
(3) If an Eligible Employee is required to be
aggregated as a member of more than one family group
in a plan, all Eligible Employees who are members of
those family groups that include that Employee are
aggregated as one family group.
Notwithstanding the foregoing, prior to the adoption of
final Treasury Regulation Section 1.401(k)-1(g)(1)(ii)(C), the
determination and correction of the amount of excess deferral
contributions in the case of a Highly Compensated Employee is
determined under the family aggregation rules described in
Section 1.401(k)-1(g)(8)(iii)(A)(1) of the proposed Treasury
Regulations.
-22-<PAGE>
(d) Correction of Excess Deferral Contributions.
(1) In General. Notwithstanding any other
provisions of this Plan, Excess Deferral Contributions
plus any income and minus any loss allocable thereto
shall be distributed (and any corresponding Employer
Matching Contribution shall be forfeited) to
Participants on whose behalf such Excess Deferral
Contributions were made not later than the last day of
the Plan Year following the close of the Plan Year for
which such contributions were made. If such Excess
Deferral Contributions are not distributed within two
and one-half (2-1/2) months after the last day of the
Plan Year in which such excess amounts arose, a ten
percent (10%) excise tax will be imposed on the
Employing Company maintaining the Plan with respect to
such amounts. Distribution of Excess Deferral
Contributions shall be made to Highly Compensated
Employees on the basis of the respective portions of
the Excess Deferral Contributions attributable to each
of such Employees.
(2) Determination of Income or Loss. Excess
Deferral Contributions shall be adjusted for any
income or loss through the last day of the Plan Year
or the date of distribution, as determined by the
Committee. The income or loss allocable to Excess
Deferral Contributions is the sum of:
(A) income or loss allocated to the
Participant's Account for the taxable year
multiplied by a fraction, the numerator of which
is the Participant's Excess Deferral
Contributions for the year and the denominator is
the Participant's Account balance attributable to
Elective Employer Contributions, minus any income
or plus any loss occurring during the Plan Year;
and
(B) if the Committee shall determine in its
sole discretion, ten percent (10%) of the amount
determined under (A) above multiplied by the
number of whole calendar months between the end
of the Plan Year and the date of the
distribution, counting the month of distribution
if distribution occurs after the 15th of the
month.
Notwithstanding the above, the Committee may designate any
reasonable method for computing the income or loss allocable to
Excess Deferral Contributions, provided that the method does not
-23-<PAGE>
violate Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income or loss to Participants' Accounts.
(3) Maximum Distribution Amount. The Excess
Deferral Contributions which would otherwise be
distributed to the Participant shall be adjusted for
income; shall be reduced, in accordance with
regulations, by the Excess Deferral Amount distributed
to the Participant; and shall, if there is a loss
allocable to the Excess Deferral Contributions, in no
event be less than the lesser of the Participant's
Account under the Plan attributable to Elective
Employer Contributions or the Participant's Elective
Employer Contributions for the Plan Year.
(e) Special Rules.
(1) For purposes of this Section 4.5, the Actual
Deferral Percentage for any Eligible Participant who
is a Highly Compensated Employee for the Plan Year and
who is eligible to have deferral contributions
allocated to his account under two (2) or more plans
or arrangements described in Section 401(k) of the
Code that are maintained by an Affiliated Employer
shall be determined as if all such deferral
contributions were made under a single arrangement. If
a Highly Compensated Employee participates in two (2)
or more cash or deferred arrangements that have
different plan years, all cash or deferred
arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
Notwithstanding the foregoing, certain plans shall be
treated as separate if mandatorily disaggregated under
Code Section 401(k).
(2) In the event that this Plan satisfies the
requirements of Code Section 401(k), 401(a)(4), or
410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of Code Section 401(k), 401(a)(4), or
410(b) only if aggregated with this Plan, then the
actual deferral percentages shall be determined as if
all such plans were a single plan.
(3) For purposes of determining the Actual
Deferral Percentage of an Eligible Participant who is
a five-percent owner or one of the 10 Highly
Compensated Employees receiving the most compensation
from Affiliated Employers, the Elective Employer
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Contributions and compensation of such Participant
shall include the Elective Employer Contributions and
compensation of Family Members, and such Family
Members shall be disregarded in determining the Actual
Deferral Percentage for Eligible Participants who are
Non-Highly Compensated Employees.
(4) The determination and treatment of the
Elective Employer Contributions and Actual Deferral
Percentage of any Eligible Participant shall satisfy
such other requirements as may be prescribed by the
Secretary of the Treasury.
4.6 Voluntary Participant Contributions. An Eligible
Employee who meets the participation requirements of Article III
may elect on a form provided by the Employing Company to
contribute to his Account a Voluntary Participant Contribution
consisting of any whole percentage of his Compensation, which
percentage is not less than one percent (1%) nor more than
sixteen percent (16%) of his Compensation. The maximum Voluntary
Participant Contribution shall be reduced by the percent, if any,
which is contributed as an Elective Employer Contribution on
behalf of such Participant under Section 4.1.
4.7 Manner and Time of Payment of Elective Employer
Contributions and Voluntary Participant Contributions. Monthly
contributions made in accordance with Sections 4.1 and 4.6 will
be rounded to the next higher multiple of one dollar. They will
be made only through payroll deductions and will begin with the
first payroll period (or as soon as practicable thereafter)
commencing after the Enrollment Date on which the Participant
commences participation in the Plan. Contributions shall be
remitted to the Trustee as of the earliest date on which such
contributions can reasonably be segregated from each Employing
Company's general assets, but in any event within ninety (90)
days from the date on which such amounts would otherwise have
been payable to the Participant in cash.
4.8 Change in Contribution Rate. A Participant may
change, effective as of his first payroll period next following
the close of any month, the percentage of his Compensation that
he has authorized as the Elective Employer Contribution to be
made on his behalf or his Voluntary Participant Contribution to
another permissible percentage by giving at least sixty (60)
days' written notice (or such lesser number of days as the
Committee may specify) before the end of any month. Notice of
any such change shall be given on a form to be provided by the
Employing Company for such purposes, signed by the Participant,
and delivered to his Employing Company.
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4.9 Change in Contribution Amount. In the event of a
change in the Compensation of a Participant, the percentage of
the Elective Employer Contribution made on his behalf or his
Voluntary Participant Contribution currently in effect shall be
applied as soon as practicable with respect to such changed
Compensation without action by the Participant.
4.10 Rollover Contributions and Direct Transfers from Other
Qualified Retirement Plans.
(a) Effective December 1, 1991, a Participant shall
be entitled to transfer (or cause to be transferred directly
from the trustee) to the Trust to be held as part of his
Account all or a portion of the fair market value of the
cash or other property a Participant receives in the
distribution of his accrued benefits under the Profit
Sharing Plan for Electric City Merchandise Company, Inc.,
reduced by any voluntary participant contributions under
such plan. Such rollover contribution may only be made
within sixty (60) days following the date the Participant
receives the distribution (or within such additional period
as may be provided under Section 408 of the Code if the
Participant shall have made a timely deposit of the
distribution in an individual retirement account). No such
rollover contribution or trustee to Trustee transfer shall
be made by a Participant (or on his behalf) if not otherwise
permissible under the Code or if such rollover contribution
or transfer would subject this Plan to the requirements of
Section 401(a)(11)(A) of the Code.
Notwithstanding the foregoing, the Trustee is
specifically authorized to accept any rollover accounts
under the terms of the SEPCO Plan as are necessary to
reflect a Participant's interest in the Plan resulting from
the merger of the SEPCO Plan into this Plan effective as of
January 1, 1993. Any such rollover account shall be held as
part of the Participant's Account and shall be subject to
the requirements of Article XVIII.
(b) Any amounts so transferred to the Trust shall be
entitled to share in earnings or losses of the Trust in the
same manner as other Employing Company contributions to the
Trust.
(c) The portion of a Participant's Account
attributable to any rollover contribution or trustee to
Trustee transfer shall be distributed with the balance of
the Participant's Account pursuant to Article XII of the
Plan.
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ARTICLE V
EMPLOYER MATCHING CONTRIBUTIONS
5.1 Amount of Employer Matching Contributions. Subject to
the provisions of Sections 6.1 and 6.2 and solely for the Plan
Years ending December 31, 1989, December 31, 1990, December 31,
1991, December 31, 1992, and December 31, 1993, each Employing
Company shall contribute an Employer Matching Contribution on
behalf of each of the Participants in its employ an amount equal
to seventy-five percent (75%) of (a) the Elective Employer
Contributions made on a Participant's behalf, plus (b) his
Voluntary Participant Contributions, to the extent such
contributions, when combined, do not exceed six percent (6%) of
his Compensation.
Subject to the provisions of Sections 6.1 and 6.2, for each
Plan Year commencing on and after January 1, 1994, the Board of
Directors, in its sole and absolute discretion, shall determine
the amount of Employer Matching Contributions that shall be made
by each Employing Company on behalf of each Participant in its
employ. The amount of Employer Matching Contributions shall be
fixed by resolutions of the Board of Directors and communicated
to each Employing Company prior to the first day of each Plan
Year.
5.2 Investment of Employer Matching Contributions.
Employer Matching Contributions shall be invested entirely in
Fund C Company Stock Fund, as described in Article VIII.
5.3 Payment of Employer Matching Contributions. Except as
provided herein, Employer Matching Contributions shall be
remitted to the Trustee as soon as practicable after the end of
each month. Notwithstanding the foregoing, with respect to the
Plan Year beginning January 1, 1989 and the first three (3)
months of the Plan Year beginning January 1, 1990, that portion
of the Employer Matching Contributions which is attributable to
the increase in Employer Matching Contributions to seventy-five
percent (75%) of Elective Employer Contributions and Voluntary
Participant Contributions shall be remitted to the Trustee not
later than the filing date for the federal income tax return for
The Southern Company for such taxable year, including any
extensions thereof.
5.4 Limitations on Employer Matching Contributions and
Voluntary Participant Contributions.
(a) Actual Contribution Percentage Test. The Plan
shall satisfy the nondiscrimination test of Section 401(m)
of the Code, under which the Average Contribution Percentage
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for Eligible Participants shall not exceed (1) or (2) as
follows:
(1) The Average Contribution Percentage for
Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Plan Year multiplied by 1.25; or
(2) The Average Contribution Percentage for
Eligible Participants who are Highly Compensated
Employees for the Plan Year shall not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Plan Year multiplied by two (2), provided that
the Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees does
not exceed the Average Contribution Percentage for
Eligible Participants who are Non-Highly Compensated
Employees by more than two (2) percentage points.
(b) Multiple Use Limitation. If both the Average
Actual Deferral Percentage and the Average Contribution
Percentage of the Highly Compensated Employees exceed 1.25
of the Average Actual Deferral Percentage and the Average
Contribution Percentage of the Non-Highly Compensated
Employees and if one or more Highly Compensated Employees
makes Elective Employer Contributions and receives Employer
Matching Contributions, and the sum of the Actual Deferral
Percentage and Actual Contribution Percentage of those
Highly Compensated Employees subject to either or both tests
exceed the aggregate limit as defined in Treasury Regulation
Section 1.401(m)-2, then one of the following actions shall
be taken.
(1) The Contribution Percentage and/or Actual
Deferral Percentage of Highly Compensated Employees
may be reduced (beginning with such Highly Compensated
Employee whose Contribution Percentage and/or Actual
Deferral Percentage is the highest) so that the
aggregate limit is not exceeded. The amount by which
each Highly Compensated Employee's Contribution
Percentage and/or Actual Deferral Percentage amount is
reduced shall be treated as an Excess Aggregate
Contribution.
(2) The Employing Companies may make qualified
nonelective contributions in accordance with Treasury
Regulation Sections 1.401(k)-1(b)(5) and (f)(1) and/or
Section 1.401(m)-1(b)(5) and (e)(1).
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For purposes of determining if the aggregate limit has been
exceeded, the Actual Deferral Percentage and the Contribution
Percentage of the Highly Compensated Employees shall be
determined after any corrections required to meet the Actual
Deferral Percentage Test and the Actual Contribution Percentage
Test.
Notwithstanding the foregoing, for Plan Years beginning before
the later of January 1, 1992 or the date that is sixty (60) days
after publication of final regulations with regard to multiple
use, the term "aggregate limit" shall mean the greater of the
aggregate limit as defined in Treasury Regulation Section
1.401(m)-2 or determined in accordance with the Proposed Treasury
Regulations under Code Section 401(m).
5.5 Special Rules for Employer Matching Contributions and
Voluntary Participant Contributions.
(a) The Contribution Percentage for any Eligible
Participant who is a Highly Compensated Employee for the
Plan Year and who is eligible to make voluntary participant
contributions, to receive employer matching contributions,
or to make deferral contributions under two or more plans
described in Section 401(a) of the Code or arrangements
described in Section 401(k) of the Code that are maintained
by an Affiliated Employer shall be determined as if all such
contributions were made under a single plan.
(b) In the event that this Plan satisfies the
requirements of Code Section 401(m), 401(a)(4), or 410(b)
only if aggregated with one or more other plans, or if one
or more other plans satisfy the requirements of Code Section
401(m), 401(a)(4), or 410(b) only if aggregated with this
Plan, then the contribution percentages shall be determined
as if all such plans were a single plan.
(c) For purposes of determining the Contribution
Percentage of an Eligible Participant who is a five-percent
owner or one of the 10 Highly Compensated Employees
receiving the most compensation from the Affiliated
Employers, the Voluntary Participant Contributions, Employer
Matching Contributions, and compensation of such Participant
shall include the Voluntary Participant Contributions,
Employer Matching Contributions, and compensation of Family
Members, and such Family Members shall be disregarded in
determining the Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees.
(d) The determination and treatment of the
Contribution Percentage of any Eligible Participant shall
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satisfy such other requirements as may be prescribed by the
Secretary of the Treasury.
5.6 Distribution of Excess Aggregate Contributions.
(a) In General. Notwithstanding any other provision
of this Plan, Excess Aggregate Contributions, plus any
income and minus any loss allocable thereto, shall be
distributed (or, if forfeitable, forfeited) no later than
the last day of each Plan Year to Participants to whose
Accounts such Excess Aggregate Contributions were allocated
for the preceding Plan Year. Excess Aggregate Contributions
shall be allocated to Participants who are subject to the
Family Member aggregation rules of Section 414(q)(6) of the
Code in the manner prescribed by regulations. If such
Excess Aggregate Contributions are distributed more than
2-1/2 months after the last day of the Plan Year in which
such excess amounts arose, a ten percent (10%) excise tax
will be imposed on the Employing Company maintaining the
Plan with respect to those amounts. Excess Aggregate
Contributions shall be treated as Annual Additions.
(b) Determination of Income or Loss. Excess
Aggregate Contributions shall be adjusted for any income or
loss through the last day of the Plan Year or the date of
distribution, as determined by the Committee. The income or
loss allocable to Excess Aggregate Contributions is the sum
of:
(1) income or loss allocated to the
Participant's Account attributable to Voluntary
Participant Contributions and Employer Matching
Contributions for the Plan Year multiplied by a
fraction, the numerator of which is the Participant's
Excess Aggregate Contributions for the year and the
denominator is the Participant's Account balance
attributable to Voluntary Participant Contributions
and Employer Matching Contributions, minus any income
or plus any loss occurring during the Plan Year; and
(2) if the Committee shall determine in its sole
discretion, ten percent (10%) of the amount determined
under (1) above multiplied by the number of whole
calendar months between the end of the Plan Year and
the date of the distribution, counting the month of
distribution if distribution occurs after the 15th of
the month.
Notwithstanding the above, the Committee may designate any
reasonable method for computing the income or loss allocable to
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Excess Aggregate Contributions, provided that the method does not
violate Section 401(a)(4) of the Code, is used consistently for
all Participants and for all corrective distributions under the
Plan for the Plan Year, and is used by the Plan for allocating
income or loss to Participants' Accounts.
(c) Accounting for Excess Aggregate Contributions.
Excess Aggregate Contributions shall be distributed first
from Voluntary Participant Contributions allocated to the
Participant's Account and any corresponding Employer
Matching Contribution shall also be forfeited and then, if
necessary, distributed from the remaining Employer Matching
Contribution allocated to the Participant's Account.
5.7 Reversion of Employing Company Contributions.
Employing Company contributions computed in accordance with the
provisions of this Plan shall revert to the Employing Company
under the following circumstances:
(a) In the case of an Employing Company contribution
which is made by reason of a mistake of fact, such
contribution upon written direction of the Employing Company
shall be returned to the Employing Company within one year
after the payment of the contribution.
(b) If any Employing Company contribution is
determined to be nondeductible under Section 404 of the
Code, then such Employing Company contribution, to the
extent that it is determined to be nondeductible, upon
written direction of the Employing Company shall be returned
to the Employing Company within one year after the
disallowance of the deduction.
The amount which may be returned to the Employing Company
under this Section 5.7 is the excess of (1) the amount
contributed over (2) the amount that would have been contributed
had there not occurred a mistake of fact or disallowance of the
deduction. Earnings attributable to the excess contribution
shall not be returned to the Employing Company, but losses
attributable thereto shall reduce the amount to be so returned.
If the withdrawal of the amount attributable to the mistaken
contribution would cause the balance of the Account of any
Participant to be reduced to less than the balance which would
have been in the Account had the mistaken amount not been
contributed, then the amount to be returned to the Employing
Company shall be limited so as to avoid such reduction.
5.8 Correction of Prior Incorrect Allocations and
Distributions. Notwithstanding any provisions contained herein
to the contrary, effective January 1, 1991, in the event that, as
of any Valuation Date, adjustments are required in any
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Participants' Accounts to correct any incorrect allocation of
contributions or investment earnings or losses, or such other
discrepancies in Account balances that may have occurred
previously, the Employing Companies may make additional
contributions to the Plan to be applied to correct such incorrect
allocations or discrepancies. The additional contributions shall
be allocated by the Committee to increase such Participants'
Accounts to the value which would have existed on said Valuation
Date had there been no prior incorrect allocation or
discrepancies. The Committee shall also be authorized to take
such other actions as it deems necessary to correct prior
incorrect allocations or discrepancies in the Accounts of
Participants under the Plan.
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ARTICLE VI
LIMITATIONS ON CONTRIBUTIONS
6.1 Section 415 Limitations.
(a) Notwithstanding any provision of the Plan to the
contrary, the total Annual Additions allocated to the
Account (and the accounts under all defined contribution
plans maintained by an Affiliated Employer) of any
Participant for any Limitation Year in accordance with Code
Section 415 and the regulations thereunder, which are
incorporated herein by this reference, shall not exceed the
lesser of the following amounts:
(1) twenty-five percent (25%) of the
Participant's compensation in the Limitation Year; or
(2) $30,000 (or, if greater, one-fourth of the
dollar limitation in effect under Section 415(b)(1)(A)
of the Code for the Limitation Year).
(b) If a Participant is also a participant in any
Affiliated Employer's defined benefit plan, then in addition
to the limitations in (a) above, the sum of the Defined
Benefit Plan Fraction and Defined Contribution Plan Fraction
shall not exceed 1.0 for any Limitation Year.
(c) For purposes of this Section 6.1, wherever the
term "compensation" is used, such term shall mean all
amounts paid or made available to an Employee which are
treated as compensation from an Affiliated Employer under
Treasury Regulation Section 1.415-2(d)(2) and which are not
excluded from compensation under Treasury Regulation Section
1.415-2(d)(3).
(d) The Annual Addition for any Plan Year beginning
before January 1, 1987 shall not be recomputed to treat all
Voluntary Participant Contributions as an Annual Addition.
(e) If the Plan satisfied the applicable requirements
of Section 415 of the Code as in effect for all Plan Years
beginning before January 1, 1987, an amount shall be
subtracted from the numerator of the Defined Contribution
Plan Fraction (not exceeding the numerator), as prescribed
by the Secretary of the Treasury, so that the sum of the
Defined Benefit Plan Fraction and the Defined Contribution
Plan Fraction computed under Section 415(e)(1) of the Code
(as revised by this Section 6.1) does not exceed 1.0 for the
Plan Year. In addition, the Defined Contribution Plan
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Fraction for a Participant may be determined by taking into
account the special transition rule of Code Section
415(e)(6).
(f) If the Participant was a participant in one or
more defined benefit plans maintained by the Affiliated
Employers which were in existence on July 1, 1982, the
denominator of the Defined Benefit Plan Fraction shall not
be less than 1.25% of the sum of the annual benefits under
such plans which the Participant had accrued as of the later
of September 30, 1983 or the end of the last Limitation Year
beginning before January 1, 1983. The preceding sentence
applies only if the defined benefit plans individually, and
in the aggregate satisfy the requirements of Code Section
415 as in effect at the end of the 1982 Limitation Year.
6.2 Correction of Contributions in Excess of Section 415
Limits. This Section 6.2 shall be effective for Plan Years
beginning on and after January 1, 1991. If the Annual Additions
for a Participant exceed the limits of Section 6.1 as a result of
the allocation of forfeitures, if any, a reasonable error in
estimating a Participant's annual compensation for purposes of
the Plan, a reasonable error in determining the amount of
elective deferrals (within the meaning of Section 402(g)(3) of
the Code) that may be made with respect to any individual, or
under other limited facts and circumstances that the Commissioner
of the Treasury finds justify the availability of the rules set
forth in this Section 6.2, the excess amounts shall not be deemed
Annual Additions if they are treated in accordance with any one
or more or any combination of the following:
(a) distribute to the Participant that portion, or
all, of his Elective Employer Contributions (as
adjusted for income and loss) as is necessary to
ensure compliance with Section 6.1;
(b) return to the Participant that portion, or all,
of his Voluntary Participant Contributions (as
adjusted for income and loss) as is necessary to
ensure compliance with Section 6.1; and
(c) forfeiture of that portion, or all, of the
Employer Matching Contributions (as adjusted for
income and loss) and any forfeitures of Employer
contributions that were allocated to the
Participant's Account (as adjusted for income and
loss), as is necessary to ensure compliance with
Section 6.1.
Any amounts distributed or returned to the Participant under
(a) or (b) above shall be disregarded for purposes of the Actual
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Deferral Percentage Test and for purposes of the Actual
Contribution Percentage Test.
Any amounts forfeited under this Section 6.2 shall be held
in a suspense account and shall be applied, subject to Section
6.1, toward funding the Employer Matching Contributions for the
next succeeding Plan Year. Such application shall be made prior
to any Employing Company contributions and prior to any Employer
Matching Contributions that would constitute Annual Additions.
No income or investment gains and losses shall be allocated to
the suspense account provided for under this Section 6.2. If any
amount remains in a suspense account provided for under this
Section 6.2 upon termination of this Plan, such amount will
revert to the Employing Companies notwithstanding any other
provision of this Plan.
6.3 Combination of Plans. Notwithstanding any provisions
contained herein to the contrary, in the event that a Participant
participates in a defined contribution plan or defined benefit
plan required to be aggregated with this Plan under Code Section
415(g) and the sum of the Defined Contribution Plan Fraction and
Defined Benefit Plan Fraction with respect to a Participant
exceeds the limitations contained in Section 6.1(b), corrective
adjustments (a) for an Employee shall not be made under this Plan
until made under such other defined benefit plan and (b) for a
former employee shall not be made under this Plan until the
corrective adjustments have been made under such other defined
contribution plan and defined benefit plan. If an Employee
participates in more than one defined contribution plan
maintained by an Affiliated Employer and his Annual Additions
exceed the limitations of Section 6.1(a), corrective adjustments
shall be made first under this Plan and then, to the extent
necessary, under such other defined contribution plan.
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ARTICLE VII
SUSPENSION OF CONTRIBUTIONS
7.1 Suspension of Contributions. A Participant, by
signing a direction on a form to be provided by the Employing
Company for such purpose and delivering such form to his
Employing Company at least thirty (30) days (or such lesser
number of days as the Committee may specify) before the end of
any month, may voluntarily suspend the Elective Employer
Contribution made on his behalf and his Voluntary Participant
Contributions, effective with the next following payroll period
or as soon as practicable thereafter. If a Participant suspends
the Elective Employer Contributions made on his behalf and his
Voluntary Participant Contributions, such suspension shall remain
in effect for at least three (3) months. Whenever Elective
Employer Contributions made on a Participant's behalf and
Voluntary Participant Contributions are suspended, Employer
Matching Contributions shall also be suspended. A Participant
may terminate any such suspension as of the end of the third
(3rd) month that the suspension has been in effect, or as of the
end of any subsequent month, by signing a direction to reenroll
on a form to be provided by the Employing Company for such
purpose and delivering such form to his Employing Company at
least thirty (30) days (or such lesser number of days as the
Committee may specify) before the end of such month.
7.2 Resumption of Contributions. A Participant may elect
to resume Elective Employer Contributions and/or Voluntary
Participant Contributions as of the first payroll period
commencing after expiration of the suspension period required
under Section 7.1 by filing written notice of such election with
his Employing Company at any time prior to the expiration of such
suspension period, and Employer Matching Contributions by his
Employing Company also shall be resumed. There shall be no make
up of any contributions by a Participant or by an Employing
Company with respect to a period of suspension.
7.3 Concurrent Suspensions. If an event causing
suspension occurs during a period when a suspension pursuant to
Section 7.1 or Section 11.6 is already in effect, the periods of
suspension shall run concurrently.
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ARTICLE VIII
INVESTMENT OF PARTICIPANTS' CONTRIBUTIONS
8.1 Investment Funds. Elective Employer Contributions and
Voluntary Participant Contributions which are paid to the Trustee
shall be added to such one or more of the following Investment
Funds constituting part of the Trust Fund and in such proportions
and amounts as may be determined in accordance with this Article
VIII. The Investment Funds are:
(a) "Fund A Fixed Income Fund", which shall be
invested and reinvested in such direct obligations of the
United States Government or agencies thereof, such
obligations guaranteed as to payment of principal and
interest by the United States Government or agencies
thereof, such corporate bonds, debentures, notes,
certificates, or other evidences of indebtedness (including
marketable obligations, as that term is defined in ERISA, of
The Southern Company or any subsidiary or affiliate of The
Southern Company), such deposits in fully insured savings
accounts, such guaranteed interest contracts, and such
investments by the Trustee through the medium of any
commingled trust funds for collective investment in
securities of the types referred to in this subsection (a)
established and maintained by the Trustee for the investment
of funds of trusts of employee benefit plans, which funds
are exempt from tax under Section 501(a) of the Code, by
reason of qualifying under Section 401(a) of the Code, as
the Trustee in its discretion may choose for the Accounts of
Participants selecting this investment medium.
(b) "Fund B Equity Fund", which shall be invested and
reinvested in such common or capital stock, such convertible
bonds, convertible notes, debentures, or preferred stocks as
are convertible into common or capital stocks, such
debentures accompanied by warrants to purchase common or
capital stocks, and such other types of equity investments
as may be purchased by the Trustee through the medium of any
commingled trust funds for collective investment in
securities of the types referred to in this subsection (b)
established and maintained by the Trustee for the investment
of funds of trusts of employee benefit plans, which trusts
are exempt from tax under Section 501(a) of the Code, by
reason of qualifying under Section 401(a) of the Code, and
shall also include temporary investment in short-term
obligations guaranteed by the United States Government, or
commercial paper and, if the Trustee so determines, money
market funds utilized by the Trustee for qualified employee
benefit trusts, pending the selection and purchase of other
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investments of the type described in this subsection (b),
provided, however, that no securities issued by or
convertible into securities of The Southern Company or any
subsidiary or affiliate of The Southern Company shall be
purchased for the Fund B Equity Fund. It is not intended by
this provision, however, to prohibit the transfer by the
Trustee of assets of the Fund B Equity fund to any
commingled trust fund maintained by the Trustee which holds
securities issued by or convertible into securities of The
Southern Company or any subsidiary or affiliate of The
Southern Company.
(c) "Fund C Company Stock Fund", which shall be
invested and reinvested in Common Stock, provided that funds
applicable to the purchase of Common Stock pending
investment of such funds may be temporarily invested in
short-term United States Government obligations, other
obligations guaranteed by the United States Government, or
commercial paper and, if the Trustee so determines, may be
transferred to money market funds utilized by the Trustee
for qualified employee benefit trusts.
(d) "Fund D Index Fund", which shall be invested and
reinvested without substantial deviation in such common
stock as may be selected from time to time to comprise the
Standard and Poor's Composite Index of 500 Stocks, or
through the medium of any commingled trust funds for
collective investment in securities of the types referred to
in this purchase of such common stock pending investment of
such funds may be temporarily invested in short-term United
States Government obligations, other obligations guaranteed
by the United States Government, or commercial paper and, if
the Trustee so determines, may be transferred to money
market funds utilized by the Trustee for qualified employee
benefit trusts.
8.2 Investment of Participant Contributions. Each
Participant shall direct, at the time he elects to participate in
the Plan, that any contributions or allocations to his Account
(other than Employer Matching Contributions) be invested in one
of the following options:
(a) entirely in the Fund A Fixed Income Fund;
(b) entirely in the Fund B Equity Fund;
(c) entirely in the Fund C Company Stock Fund;
(d) entirely in the Fund D Index Fund;
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(e) equally in any two (2) of types (a), (b), (c),
and (d);
(f) equally in any three (3) of types (a), (b), (c),
and (d);
(g) equally in each of (a), (b), (c), and (d).
8.3 Investment of Earnings. Dividends and other
distributions received by the Trustee with respect to Common
Stock shall be invested in Common Stock. Interest and other
distributions received by the Trustee with respect to the Fund A
Fixed Income Fund shall be invested in the Fund A Fixed Income
Fund. Dividends, interest, and other distributions received by
the Trustee with respect to the Fund B Equity Fund shall be
invested in the Fund B Equity Fund. Dividends, interest, and
other distributions received by the Trustee with respect to the
Fund D Index Fund shall be invested in the Fund D Index Fund.
8.4 Transfer of Assets between Funds.
(a) Prior to January 1, 1992. Twice in each Plan
Year prior to January 1, 1992, a Participant may direct, in
accordance with the provisions of this subsection (a), that
all of his interest in an Investment Fund or Funds
attributable to amounts in his Account (other than Employer
Matching Contributions) or 25% or 50% or 75% of such amount
to the credit of his Account as of a specified future
Valuation Date in any type of investment specified in
Section 8.2 be reduced to cash as of such Valuation Date and
such cash be transferred and invested by the Trustee as of
such date in any other type of investment specified in
Section 8.2 which the Participant shall designate. A
transfer direction shall be given in writing at least sixty
(60) days (or such greater or lesser number of days as the
Committee may specify) prior to such Valuation Date and
shall be on a form to be provided by the Employing Company
for such purpose. The form shall be signed by the
Participant and delivered to his Employing Company.
(b) On and After January 1, 1992. On and after
January 1, 1992, a Participant may direct, in accordance
with the provisions of this subsection (b) that all of his
interest in an Investment Fund or Funds attributable to
amounts in his Account (other than Employer Matching
Contributions) or 25% or 50% or 75% of such amount to the
credit of his Account as of a specified future Valuation
Date in any type of investment specified in Section 8.2 be
reduced to cash as of such Valuation Date and such cash be
transferred and invested by the Trustee as of such date in
any other type of investment specified in Section 8.2 which
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the Participant shall designate. A transfer direction shall
be given in writing at least thirty (30) days (or such
greater or lesser number of days as the Committee may
specify) prior to such Valuation Date and shall be on a form
to be provided by the Employing Company for such purpose.
The form shall be signed by the Participant and delivered to
his Employing Company.
8.5 Change in Investment Direction.
(a) Prior to January 1, 1992. Any investment
direction given by a Participant shall continue in effect
until changed by the Participant. A Participant may change
his investment direction as to the future contributions and
allocations to his Account (other than Employer Matching
Contributions) twice in each Plan Year by giving at least
sixty (60) days (or such greater or lesser number of days as
the Committee may specify) prior written notice directing
that such contributions, beginning with his first payroll
period commencing sixty (60) days (or such greater or lesser
number of days as the Committee may specify) after receipt
of such notice by his Employing Company, be invested in one
of the other methods specified in Section 8.2. A new
investment direction shall be on a form to be provided by
the Employing Company for such purpose, signed by the
Participant and delivered to his Employing Company.
(b) On and After January 1, 1992. Any investment
direction given by a Participant shall continue in effect
until changed by the Participant. A Participant may change
his investment direction as to the future contributions and
allocations to his Account (other than Employer Matching
Contributions) in each Plan Year by giving at least thirty
(30) days (or such greater or lesser number of days as the
Committee may specify) prior written notice directing that
such contributions, beginning with his first payroll period
commencing thirty (30) days (or such greater or lesser
number of days as the Committee may specify) after receipt
of such notice by his Employing Company, be invested in one
of the other methods specified in Section 8.2. A new
investment direction shall be on a form to be provided by
the Employing Company for such purpose, signed by the
Participant and delivered to his Employing Company.
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ARTICLE IX
MAINTENANCE AND VALUATION OF PARTICIPANTS' ACCOUNTS
9.1 Establishment of Accounts.
(a) An Account shall be established for each
Participant. In addition, subaccounts shall be established
for each Participant to reflect all Elective Employer
Contributions, Voluntary Participant Contributions, Employer
Matching Contributions and rollover contributions from the
SEPCO Plan (and the earnings and/or losses on each
subaccount). Each Participant will be furnished a statement
of his Account at least annually and upon any distribution.
(b) Effective as of January 1, 1993, the Committee
shall also establish a subaccount known as a Participant's
SEPCO Transferred Account to reflect the Participant's
interest in the Plan resulting from the merger of the SEPCO
Plan into this Plan effective as of January 1, 1993. To the
extent that a Participant's Salary Deferral Account,
Employer Contribution Account, and Rollover Account (as
those terms were defined under the SEPCO Plan), were
transferred to this Plan from the SEPCO Plan, such accounts
shall retain their character as participant deferral,
employer, or rollover contributions, respectively, and the
Committee shall establish and maintain such bookkeeping
accounts as it deems necessary to account for such
contributions, and any subsequent earnings or losses
attributable thereto, under this Plan.
9.2 Valuation of Investment Funds Other than Fund C. A
Participant's Account in respect of his interest in the Fund A
Fixed Income Fund, Fund B Equity Fund, and Fund D Index Fund
shall be expressed in dollars. A Participant's Account as of
each Valuation Date in respect of his interest in the Fund A
Fixed Income Fund, Fund B Equity Fund, and Fund D Index Fund
shall be credited or charged, as the case may be, as soon as
practicable after each Valuation Date with the income, gains,
appreciation, losses, depreciation, forfeitures, expenses, and
other transactions for the month during which such credit or
charge accrued. Such credits or charges to a Participant's
Account shall be made in such proportions and by such method or
formula as shall be deemed by the Committee to be necessary or
appropriate to account for each Participant's proportionate
beneficial interest in the Trust Fund in respect of his interest
in the Fund A Fixed Income Fund, Fund B Equity Fund, and Fund D
Index Fund as of the applicable Valuation Date. Investments of
the Fund A Fixed Income Fund, Fund B Equity Fund, and Fund D
Index Fund shall be valued at their fair market values as of each
-42-<PAGE>
Valuation Date as determined by the Trustee and such valuation
shall conclusively establish such value.
9.3 Valuation of Fund C Company Stock Fund. A
Participant's Account in respect of his interest in the Fund C
Company Stock Fund shall be represented by shares of Common Stock
(and fractions of shares carried to three decimal places). As
soon as practicable after each Valuation Date, each Participant's
Account shall be adjusted as of such Valuation Date to reflect
any increase or any decrease (resulting from withdrawals or
forfeitures charged to the Participant's Account in respect of
the Fund C Company Stock Fund) in the number of shares credited
to his Account for the month during which such increase or
decrease occurred.
9.4 Rights in Investment Funds. Notwithstanding the fact
that a Participant's Account in respect of his interest in the
Fund A Fixed Income Fund, Fund B Equity Fund, and Fund D Index
Fund is expressed in dollars and his interest in the Fund C
Company Stock Fund is expressed in shares of Common Stock, the
terms "amount to the credit of a Participant's Account" or
"amount to the credit of his Account" or "amount credited to his
Account" refer to the aggregate of the dollar amount and the
number of shares of Common Stock, if any, which are credited to
the Participant's Account at any given point in time. Nothing
contained in this Article IX shall be deemed to give any
Participant any interest in any specific property in any
Investment Fund or any interest, other than the right to receive
payments or distributions in accordance with the Plan or the
right to instruct the Trustee how to vote Common Stock as
provided in Section 14.6.
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ARTICLE X
VESTING
10.1 Vesting. The amount to the credit of a Participant's
Account shall at all times be fully vested and nonforfeitable.
-44-<PAGE>
ARTICLE XI
WITHDRAWALS AND LOANS PRIOR TO TERMINATION OF EMPLOYMENT
11.1 Withdrawals by Participants.
(a) On and After August 1, 1994. Subject to the
provisions of this Section 11.1 and Sections 11.2 through
11.6, on and after August 1, 1994, a Participant may make
withdrawals from his Account (other than amounts credited to
his SEPCO Transferred Account) during his employment with
an Affiliated Employer effective as of the end of any
calendar month in the order of priority listed below:
(1) A portion or all of the value of his Account
attributable to Voluntary Participant Contributions
(not including any earnings or appreciation thereon)
made prior to January 1, 1987;
(2) A portion or all of the value of his Account
attributable to Voluntary Participant Contributions,
plus a ratable portion or all of the earnings and/or
appreciation thereon;
(3) The entire value of his Account attributable
to Voluntary Participant Contributions, plus all of
the earnings and appreciation thereon;
(4) A portion or all of fifty percent (50%) of
the value of his Account attributable to Employer
Matching Contributions (including earnings and
appreciation thereon) allocated to his Account;
provided, however, that said Participant shall have
participated in the Plan for not less than sixty (60)
months at the time of the withdrawal;
(5) A portion or all of the value of his Account
attributable to Elective Employer Contributions (not
including any earnings or appreciation thereon for
Plan Years beginning after December 31, 1988); and
(6) For Participants who have attained age 59
1/2, a portion or all of the value of his Account
attributable to any earnings or appreciation on
Elective Employer Contributions.
(b) Prior to August 1, 1994. Subject to the
provisions of this Section 11.1 and Sections 11.2 through
11.6, a Participant may make withdrawals from his Account
(other than amounts credited to his SEPCO Transferred
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Account) during his employment with an Affiliated Employer
effective as of the end of any calendar month in the order
of priority listed below:
(1) A portion or all of the value of his Account
attributable to Voluntary Participant Contributions
(not including any earnings or appreciation thereon)
made prior to January 1, 1987;
(2) A portion or all of the value of his Account
attributable to Voluntary Participant Contributions,
plus a ratable portion or all of the earnings and/or
appreciation thereon;
(3) The entire value of his Account attributable
to Voluntary Participant Contributions, plus all of
the earnings and appreciation thereon, plus a portion
or all of fifty percent (50%) of the value of his
Account attributable to Employer Matching
Contributions (including earnings and appreciation
thereon) allocated to his Account;
(4) A portion or all of the value of his Account
attributable to Elective Employer Contributions (not
including any earnings or appreciation thereon for
Plan Years beginning after December 31, 1988); and
(5) For Participants who have attained age 59
1/2, a portion or all of the value of his Account
attributable to any earnings or appreciation on
Elective Employer Contributions for Plan Years
beginning after December 31, 1988.
(c) There shall be no limit on the number of
withdrawals which may be made during a Plan Year if the
Participant gives proper written notice as required in
Section 11.2.
(d) Withdrawals from a Participant's SEPCO
Transferred Account shall be made in accordance with Article
XVIII.
11.2 Notice of Withdrawal. Notice of withdrawal must be
given by a Participant in writing at least sixty (60) days (or
such lesser number of days as the Committee may specify) prior to
the date of withdrawal, and if such withdrawal would constitute
an eligible rollover distribution (within the meaning of Code
Section 402(c)(4)), the consent and notice requirements of
Section 12.10 must be satisfied. Such notice must be given to
the Participant's Employing Company on a form provided by such
Employing Company for such purpose specifying that, as of the end
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of the month following receipt of the notice by the Participant's
Employing Company, the Participant elects a withdrawal option set
forth in Section 11.1. Payment pursuant to such notice shall be
made as soon as practicable upon receipt by the Employing Company
and in accordance with Section 12.10, if applicable.
11.3 Form of Withdrawal. All distributions under this
Article XI shall be made in the form of cash, provided that with
respect to any distribution which is attributable to Common Stock
the Participant shall have the right to demand that such portion
of the distribution be made in the form of Common Stock to the
extent of the whole number of shares of Common Stock in his
Account. Such demand must be made on the election form described
in Section 11.2.
11.4 Minimum Withdrawal. No distribution under this
Article XI shall be permitted in an amount which has a value of
less than $300, unless the value of the amount available under
the selected option is less than $300, in which case such
available amount will be distributed.
11.5 Source of Withdrawal. Withdrawals shall be deemed to
be made pro rata (based on balances of the Investment Funds at
time of withdrawal) from each of the Investment Funds in which
the amount to be distributed is invested. The value of the
amount to be distributed under any option listed in Section 11.1
shall be determined as of the end of the month designated in the
Participant's notice of withdrawal described in Section 11.2. If
the value of Common Stock is to be distributed in the form of
cash, such value shall be determined on the basis of the closing
price per share of the Common Stock as of the end of the month of
the Participant's notice of withdrawal described in Section 11.2.
11.6 Requirement of Hardship.
(a) Except as provided in (e) below, a withdrawal
pursuant to Section 11.1(a)(5) or 11.1(b)(4), in addition to
the other requirements of Article XI, shall be permitted
only if the Committee determines that the withdrawal is to
be made on account of an immediate and heavy financial need
of the Participant, the amount of the withdrawal does not
exceed such financial need, and the amount of the withdrawal
is not reasonably available from other resources of the
Participant.
(b) For purposes of this Section 11.6, the following
shall be deemed to be immediate and heavy financial needs:
(1) (A) prior to October 1, 1991, medical
expenses described in Section 213(d) of the Code,
including but not limited to, expenses for (i) the
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diagnosis, cure, mitigation, treatment, or prevention
of disease, or for the purpose of affecting any
structure or function of the body; (ii) transportation
primarily for and essential to such expenses referred
to in (i) above; or (iii) insurance (including amounts
paid as premiums under part B of Title XVIII of the
Social Security Act, relating to supplementary medical
insurance for the aged) covering medical expenses
referred to in (i) or (ii) above; provided such
expenses are incurred by the Participant, the
Participant's spouse, or any person whom the
Participant may properly claim as a dependent on his
federal income tax return; and
(B) on and after October 1, 1991, medical
expenses described in Section 213(d) of the Code,
including but not limited to, expenses for (i) the
diagnosis, cure, mitigation, treatment, or prevention
of disease, or for the purpose of affecting any
structure or function of the body; (ii) transportation
primarily for and essential to such expenses referred
to in (i) above; or (iii) insurance (including amounts
paid as premiums under part B of Title XVIII of the
Social Security Act, relating to medical expenses
referred to in (i) or (ii) above, provided such
expenses are incurred by the Participant, the
Participant's spouse or any person whom the
Participant may properly claim as a dependent on his
federal income tax return or are necessary for such
persons to obtain the medical care described above; or
(2) Purchase (excluding mortgage payments) of a
principal residence for the Participant; or
(3) (A) prior to October 1, 1991, payment of
tuition for the next semester or quarter of post-
secondary education for the Participant, the
Participant's spouse or child or children, or any
person the Participant may properly claim as a
dependent on his federal income tax return; and
(B) on and after October 1, 1991, payment of
tuition and related educational fees for the next
twelve (12) months of post-secondary education for the
Participant, the Participant's spouse or child or
children, or any person the Participant may properly
claim as a dependent on his federal income tax return;
or
(4) The need to prevent eviction of the
Participant from his principal residence or
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foreclosure on the mortgage of the Participant's
principal residence; or
(5) Any other need which the Commissioner of the
Internal Revenue Service, through the publication of
revenue rulings, notices, or other documents of
general applicability, deems to be immediate and
heavy.
(c) For purposes of this Section 11.6, a withdrawal
shall be deemed necessary to satisfy an immediate and heavy
financial need if:
(1) (A) prior to October 1, 1991, the
distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant;
and
(B) on and after October 1, 1991, the
distribution is not in excess of the amount of the
immediate and heavy financial need of the Participant,
including any amounts necessary to pay any federal,
state, or local income taxes or penalties reasonably
anticipated to result from the distribution;
(2) The Participant has obtained all
distributions and all nontaxable loans currently
available to him under all plans maintained by an
Affiliated Employer;
(3) The Participant agrees to suspend all
elective employer contributions and voluntary
participant contributions to all plans of an
Affiliated Employer for at least twelve (12) months
after receipt of the distribution under this Section
11.6; and
(4) The Participant agrees not to make elective
contributions to this Plan or any other plan sponsored
by an Affiliated Employer during the Participant's
taxable year immediately following the taxable year of
the hardship distribution in excess of the
Participant's applicable elective deferral limits
under Section 402(g) of the Code for such taxable year
less the amount for the taxable year of the hardship
distribution.
(d) When all suspensions pursuant to this Section
11.6 are ended, Elective Employer Contributions and/or
Voluntary Participant Contributions may be resumed by the
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Participant (if the Participant is then eligible and elects
to resume such contributions by filing written notice of
such election with his Employing Company at any time prior
to the time all suspensions are ended) beginning with the
Participant's first payroll period commencing after all
suspensions are ended, and Employer Matching Contributions
by his Employing Company also shall be resumed. There shall
be no make up of any contributions by a Participant or by an
Employing Company with respect to a period of suspension.
(e) Notwithstanding (a) above, if a Participant has
attained age 59 1/2, he shall be permitted to make a withdrawal
pursuant to Section 11.1(a)(5) or 11.1(b)(4), even if such
withdrawal is not on account of hardship.
11.7 Loans to Participants.
(a) The Committee may, in its sole discretion, direct
the Trustee to make a loan or loans from the Trust Fund to
any Participant (1) who is an Employee on the active payroll
of an Employing Company or is a cooperative education
employee, (2) who is receiving long-term disability payments
under a plan maintained by his Employing Company, (3) who is
on a leave of absence authorized by his Employing Company,
or (4) who is a party in interest as defined in Section
3(14) of ERISA. All loan applications shall be made on a
form provided by the Participant's Employing Company.
(b) The total amount of all loans outstanding to any
one Participant under all qualified plans maintained by an
Affiliated Employer shall not exceed the lesser of (1)
$50,000, reduced by the excess of the highest outstanding
balance of loans from all qualified plans maintained by an
Affiliated Employer during the twelve-month period ending on
the day before a loan is made, over the outstanding balance
of any loans to the Participant from all qualified plans
maintained by an Affiliated Employer on the date the loan is
made, or (2) fifty percent (50%) of such Participant's
Account as of the Valuation Date coinciding with or next
following the date the loan application is made. The
minimum amount of any loan shall not equal less than $1,000.
(c) (1) Prior to May 1, 1992, the Participant
requesting a loan pursuant to this Section 11.7 shall
designate the order of priority of Investment Fund(s) from
which the principal amount of the loan shall be obtained,
provided that a Participant's interest in an Investment
Fund(s) shall not be applied for loan purposes until the
Participant's entire interest in each Investment Fund with a
higher designated priority has been applied to make such
loan. In the event a Participant shall not designate the
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order of priority of the Investment Fund(s) from which the
principal amount of the loan shall be obtained, such
principal amount shall be obtained from the Participant's
interest in the Investment Fund(s) in their proportion to
the Participant's Account balance on the date of the loan;
and
(2) On and after May 1, 1992, the Investment Funds
within each such category of subaccount shall be reduced on
a pro rata basis in order to obtain the principal proceeds
of a loan, and the principal proceeds of a loan made
pursuant to this Section 11.7 shall be obtained from one or
more of the Participant's subaccounts in the following order
of priority:
(A) first, from amounts attributable to a
Participant's Elective Employer Contributions,
including any earnings and appreciation thereon;
(B) second, from amounts attributable to
the Participant's Employer Matching
Contributions, including any earnings and
appreciation thereon;
(C) third, from amounts attributable to the
Participant's Voluntary Participant Contributions
credited after December 31, 1986, including any
earnings and appreciation thereon; and
(D) finally, from amounts attributable to
the Participant's Voluntary Participant
Contributions credited prior to January 1, 1987,
including any earnings and appreciation thereon.
(d) The Committee shall adopt and follow uniform and
nondiscriminatory rules in making loans under this Plan to
make certain that such loans (1) are available to all
Participants on a reasonably equivalent basis, (2) are not
made available to Highly Compensated Employees, officers, or
shareholders in an amount greater than the amount made
available to other Participants, (3) bear a reasonable rate
of interest, and (4) are adequately secured. The repayment
of such loans by any Participant who is an Employee on the
active payroll of an Employing Company shall be made through
payroll deduction. The minimum amount of any loan repayment
shall not equal less than $20.00, and such repayment shall
extend for a period certain of at least twelve (12) months
(unless repaid in full), but not to exceed five (5) years,
expressed in any number of whole months (including the month
the loan is made). The term of any loan may be for a period
certain of more than five (5) years, but not to exceed
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fifteen (15) years, only if the proceeds of such loan are
used to acquire any dwelling used or, within a reasonable
period of time, to be used as the principal residence of the
Participant.
(e) The Committee shall direct the Trustee to obtain
from the Participant such note and adequate security as it
may require. All loans made pursuant to this Section 11.7
shall be secured by the Participant's Account, and no other
types of collateral may be used to secure a loan from the
Plan. Notwithstanding the provisions of Section 17.2, in
the event of failure to repay the principal or interest
according to its terms or if the Participant's employment
terminates prior to full repayment thereof, in addition to
any other remedy provided in the loan instruments or by law,
the Committee may direct the Trustee to charge against that
portion of the Participant's Account which secures the loan
the amount required to fully repay the loan. Under no
circumstances, however, shall any unpaid loan be charged
against a Participant's Account until permitted by
applicable law. This Section authorizes only the making of
bona fide loans and not distributions, and before resort is
made against a Participant's Account for his failure to
repay any loan, such other reasonable efforts to collect the
same shall be made by the Committee as it deems reasonable
and practical under the circumstances.
(f) No distribution shall be made to any Participant
unless and until all unpaid loans to such Participant have
either been paid in full or deducted from the Participant's
Account.
(g) All loans made under this Section 11.7 shall be
considered earmarked investments of the Participant's
Account, and any repayment of principal and interest shall
be reinvested in accordance with the Participant's
investment direction in effect on the date of such repayment
pursuant to Article VIII of the Plan.
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ARTICLE XII
DISTRIBUTION TO PARTICIPANTS
12.1 Distribution upon Retirement.
(a) Subject to the provisions of Article XVIII, if a
Participant's employment with the Affiliated Employers is
terminated as a result of his retirement pursuant to the
defined benefit pension plan of an Affiliated Employer, the
entire balance credited to his Account as of the Valuation
Date coinciding with or next following such retirement shall
be payable to him in the manner set forth in this Section
12.1 at such time requested by the Participant on a form to
be provided by the Employing Company. The distribution
shall commence as soon as practicable after the Valuation
Date selected by the Participant in one of the following
ways:
(1) In a single distribution consisting of cash
in respect of his interest in the Fund A Fixed Income
Fund, Fund B Equity Fund, Fund D Index Fund, and whole
shares of Common Stock in respect of his interest in
the Fund C Company Stock Fund, with a cash adjustment
for any fractional shares; or
(2) In annual installments not to exceed twenty
(20), as selected by the Participant, in the form of
cash, provided that with respect to any distribution
which is attributable to Common Stock, the Participant
shall have the right to demand that such portion of
the distribution be made in the form of Common Stock
to the extent of the whole number of shares of Common
Stock in his Account, with a cash adjustment for any
fractional shares. The amount of cash and/or the
number of shares of Common Stock in each installment
shall be equal to the proportionate value as of each
Valuation Date immediately preceding payment of the
balance then to the credit of the Participant in his
Account determined by dividing the amount credited to
his Account as of such Valuation Date by the number of
payments remaining to be made.
If a Participant who is receiving installment payments
shall establish to the satisfaction of the Committee, in
accordance with principles and procedures established by the
Committee which are applicable to all persons similarly
situated, that a financial emergency exists in his affairs,
such as illness or accident to the Participant or a member
of his immediate family or other similar contingency, the
-53-<PAGE>
Committee may, for the purpose of alleviating such
emergency, accelerate the time of payment of some or all of
the remaining installments. If a Participant dies before
receiving all of the amount to the credit of his Account in
accordance with this paragraph (2), the amount remaining to
the credit of his Account at his death shall be distributed
to his Beneficiary as soon as practicable in accordance with
Section 12.4.
Notwithstanding the foregoing, if a Participant is the
person making the election, he shall not elect installments
extending beyond his life expectancy.
(b) Notwithstanding whether a Participant files a
written claim for benefits or elects to defer the receipt of
the benefits under (a) above, the Committee shall direct
payment in a single lump sum to such Participant if the
balance of his Account does not exceed $3,500 in accordance
with the requirements of Code Section 411(a)(11). The
Committee shall not cash-out any Participant whose Account
balance exceeds $3,500 without the written consent of the
Participant.
12.2 Distribution upon Disability. If a Participant's
employment with the Affiliated Employers is terminated prior to
his Normal Retirement Date by reason of his total and permanent
disability, as determined by the Social Security Administration
and evidenced in a writing provided to the Committee, the entire
value credited to his Account as of the Valuation Date coinciding
with or immediately following the date the Social Security
Administration determines the Participant became totally and
permanently disabled shall be distributed upon the written
request of the Participant or his legal representative to the
Participant or such legal representative. Any distribution
pursuant to this Section 12.2 shall be made in a single lump sum
consisting of cash in respect of his interest in the Fund A Fixed
Income, Fund B Equity Fund, Fund D Index Fund, and whole shares
of Common Stock in respect of his interest in the Fund C Company
Stock Fund, with a cash adjustment for any fractional shares, as
soon as practicable after such Valuation Date.
12.3 Distribution upon Death. If a Participant's
employment with the Affiliated Employers is terminated by reason
of death, the entire balance credited to the Participant's
Account as of the Valuation Date coinciding with or next
following the date of death shall be distributed to the
Participant's surviving Beneficiary or Beneficiaries in a single
lump sum consisting of cash in respect of his interest in the
Fund A Fixed Income, Fund B Equity Fund, and Fund D Index Fund,
and whole shares of Common Stock in respect of his interest in
the Fund C Company Stock Fund, with a cash adjustment for any
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fractional shares, as soon as practicable after such Valuation
Date.
12.4 Designation of Beneficiary in the Event of Death. A
Participant may designate a Beneficiary or Beneficiaries (who may
be designated contingently) to receive all or part of the amount
credited to his Account in case of his death before his receipt
of all of his benefits under the Plan, provided that the
Beneficiary of a married Participant shall be the Participant's
Surviving Spouse, unless such Surviving Spouse shall consent in a
writing witnessed by a notary public, which writing acknowledges
the effect of the Participant's designation of a Beneficiary
other than such Surviving Spouse. However, if such Participant
establishes to the satisfaction of the Committee that such
written consent may not be obtained because the Surviving Spouse
cannot be located or because of such other circumstances as the
Secretary of the Treasury may by regulations prescribe, a
designation by such Participant without the consent of the
Surviving Spouse shall be valid.
Any consent necessary under this Section 12.4 shall be valid
and effective only with respect to the Surviving Spouse who signs
the consent or, in the event of a deemed consent, only with
respect to a designated Surviving Spouse.
A designation of Beneficiary may be revoked by the
Participant without the consent of any Beneficiary (or the
Participant's Surviving Spouse) at any time before the
commencement of the distribution of benefits. A Beneficiary
designation or change or revocation of a Beneficiary designation
shall be on a form to be provided by the Employing Company and
shall be signed by the Participant (with the consent of such
Participant's Surviving Spouse, if necessary) and delivered to
his Employing Company prior to his death.
If no designated Beneficiary shall be living at the death of
the Participant and/or such Participant's Beneficiary designation
is not valid and enforceable under applicable law, such
Participant's Beneficiary of Beneficiaries shall be the person or
persons in the first of the following classes of successive
preference, if then living:
(a) the Participant's spouse on the date of his
death,
(b) the Participant's children, equally,
(c) the Participant's parents, equally,
(d) the Participant's brothers and sisters, equally,
or
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(e) the Participant's executors or administrators.
Payment to such one or more persons shall completely discharge
the Plan and the Trustee with respect to the amount so paid.
12.5 Distribution upon Termination of Employment.
(a) If a Participant's employment with the Affiliated
Employers is terminated for any reason other than in
accordance with Sections 12.1, 12.2, and 12.3, the balance
to the credit of the Participant's Account as of the
Valuation Date coinciding with or next following his
termination of employment shall be distributed in a single
lump sum consisting of cash in respect of his interest in
the Fund A Fixed Income Fund, Fund B Equity Fund, Fund D
Index Fund, and whole shares of Common Stock in respect of
his interest in Fund C Company Stock Fund, with a cash
adjustment for any fractional shares. Such distribution
shall be made within ninety (90) days following the
Participant's termination of employment, or as soon as
practicable thereafter, provided that one of the following
conditions is met:
(1) the Participant's Account Balance does not
exceed $3,500 in accordance with Code Section
411(a)(11), or
(2) in accordance with Section 12.10, the
Participant elects in writing on a form to be provided
by his Employing Company to receive a distribution of
his Account.
(b) A Participant who does not receive a distribution
under Section 12.5(a)(1) may elect to defer the commencement
of the distribution of his Account following the termination
of his employment until a later Valuation Date, provided
that such distribution shall commence not later than the
date required under Section 12.6 of the Plan. Any deferred
distribution shall commence as soon as practicable after the
Valuation Date selected by the Participant.
12.6 Commencement of Benefits.
(a) Notwithstanding any other provision of the Plan,
and except as further provided in Section 12.6(b) below, if
the Participant does not elect to defer commencement of his
benefit payments, the payment of his benefits shall begin at
the Participant's election no later than the sixtieth (60th)
day after the close of the Plan Year in which the latest of
the following events occurs:
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(1) the Participant attains the earlier of age
sixty-five (65) or his Normal Retirement Date,
(2) the Participant's tenth (10th) anniversary
of participation under the Plan, or
(3) the Participant's separation from service
with the Affiliated Employers.
(b) In no event shall the distribution of amounts in
a Participant's Account commence later than the April 1 of
the calendar year following the calendar year in which the
Participant attains age 70 1/2, in accordance with
regulations prescribed by the Secretary of the Treasury.
The foregoing requirements in this Section 12.6(b) shall not
be applied to restrict the implementation of any written
designation given to the Committee by a Participant prior to
January 1, 1984, with regard to the method of distribution
of his Account, if such method was permissible under the
Plan and Code prior to January 1, 1984.
Any distribution made under this Plan shall be made in
accordance with the minimum distribution requirements of Code
Section 401(a)(9), including the incidental death benefits
requirements under Code Section 401(a)(9)(G) and the Treasury
Regulations thereunder.
12.7 Transfer between Employing Companies. A transfer by a
Participant from one Employing Company to another Employing
Company shall not affect his participation in the Plan. A
transfer by a Participant from an Employing Company to an
Affiliated Employer that is not an Employing Company shall not be
deemed to be a termination of employment with an Employing
Company.
12.8 Distributions to Alternate Payees.
(a) If the Participant's Account under the Plan shall
become subject to any domestic relations order which (1) is
a qualified domestic relations order satisfying the
requirements of Section 414(p) of the Code and (2) requires
the immediate distribution in a single lump sum of the
entire portion of the Participant's Account required to be
segregated for the benefit of an alternate payee, then the
entire interest of such alternate payee shall be distributed
in a single lump sum within ninety (90) days following the
Employing Company's notification to the Participant and the
alternate payee that the domestic relations order is
qualified under Section 414(p) of the Code, or as soon as
practicable thereafter. Such distribution to an alternate
payee shall be made even if the Participant has not
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separated from the service of the Affiliated Employers. Any
other distribution pursuant to a qualified domestic
relations order shall not be made earlier than the
Participant's termination of service, or his attainment of
age fifty (50), if earlier, and effective as of January 1,
1995, shall not be made later than the date the
Participant's (or his Beneficiary's) benefit payments
otherwise commence. Such distribution to an alternate payee
shall be made only in a manner permitted under Section 12.5
of the Plan or Article XVIII with respect to his SEPCO
Transferred Account.
12.9 Requirement for Direct Rollovers. This Section
applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a Distributee's election under this Article
XII, a Distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an Eligible
Rollover Distribution paid directly to an Eligible Retirement
Plan specified by the Distributee in a Direct Rollover.
12.10 Consent and Notice Requirements. If the value of the
vested portion of a Participant's Account derived from Employing
Company and Employee contributions exceeds $3,500 determined in
accordance with the requirements of Code Section 411(a)(11), the
Participant must consent to any distribution of such vested
account balance prior to his Normal Retirement Date. The consent
of the Participant shall be obtained in writing within the
ninety-day period ending on the first day of the first period for
which an amount is payable as an annuity or in any other form
under this Plan.
The Committee shall notify the Participant of the right to
defer any distribution until the Participant's Account balance is
no longer immediately distributable. Such notification shall
include a general description of the material features and an
explanation of the relative values of the operational forms of
benefit available under the Plan in a manner that would satisfy
the notice requirements of Section 417(a)(3) of the Code; such
notification shall be provided no less than 30 days and no more
than 90 days prior to the annuity starting date.
Distributions may commence less than 30 days after the
notice required under Section 1.411(a)-11(c) of the Treasury
Regulations is given, provided that:
(a) the Committee informs the Participant that the
Participant has a right to a period of at least
30 days after receiving the notice to consider
the decision of whether or not to elect a
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distribution and a particular distribution
option, and
(b) the Participant, after receiving the notice,
affirmatively elects a distribution.
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ARTICLE XIII
ADMINISTRATION OF THE PLAN
13.1 Membership of Committee. The Plan shall be
administered by the Committee, which shall consist of the
representative of The Southern Company and the representative of
each Employing Company on The Southern Company Human Resources
Committee, except Southern Electric International, Inc. The
Committee shall be chaired by the representative of The Southern
Company 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.
13.2 Acceptance and Resignation. Any person appointed to
be a member of the Committee shall signify his acceptance in
writing to the Chairman of the Committee. Any member of the
Committee may resign by delivering his written resignation to the
Chairman of the Committee and such resignation shall become
effective upon delivery or upon any later date specified therein.
13.3 Transaction of Business. A majority of the members of
the Committee at the time in office 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 a
resolution or written memorandum concurred in by a majority of
the members then in office.
13.4 Responsibilities in General. The Committee shall
administer the Plan and shall have the discretionary authority,
power, and the duty to take all actions and to make all decisions
necessary or proper to carry out the Plan and to control and
manage the operation and administration of the Plan. The
Committee shall have the discretion to interpret the Plan,
including any ambiguities herein, and to determine the
eligibility for benefits under the Plan in its sole discretion.
The determination of the Committee as to any question involving
the general administration and interpretation of the Plan shall
be final, conclusive, and binding on all persons, except as
otherwise provided herein or by law, and may be relied upon by
the Company, all Employing Companies, the Trustee, the
Participants, and their Beneficiaries. Any discretionary action
to be taken under the Plan by the Committee with respect to
Employees and Participants or with respect to benefits shall be
uniform in their nature and applicable to all persons similarly
situated.
13.5 Committee as Named Fiduciary. For the purpose of
compliance with the provisions of ERISA, the Committee shall be
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deemed the administrator of the Plan as the term "administrator"
is defined in ERISA, and the Committee shall be, with respect to
the Plan, a named fiduciary as that term is defined in ERISA.
For the purpose of carrying out its duties, the Committee may, in
its discretion, allocate its responsibilities under the Plan
among its members and may, in its discretion, designate persons
other than members of the Committee to carry out such
responsibilities of the Committee under the Plan as it may see
fit.
13.6 Rules for Plan Administration. The Committee may make
and enforce rules and regulations for the administration of the
Plan consistent with the provisions thereof and may prescribe the
use of such forms as it shall deem appropriate for the
administration of the Plan.
13.7 Employment of Agents. The Committee may employ
independent qualified public accountants, as such term is defined
in ERISA, who may be accountants to The Southern Company and any
Affiliated Employer, legal counsel who may be counsel to The
Southern Company and any Affiliated Employer, other specialists,
and other persons as the Committee deems necessary or desirable
in connection with the administration of the Plan. The Committee
and any person to whom it may delegate any duty or power in
connection with the administration of the Plan, the Company and
the officers and directors thereof shall be entitled to rely
conclusively upon and shall be fully protected in any action
omitted, taken, or suffered by them in good faith in reliance
upon any independent qualified public accountant, counsel, or
other specialist, or other person selected by the Committee, or
in reliance upon any tables, evaluations, certificates, opinions,
or reports which shall be furnished by any of them or by the
Trustee.
13.8 Co-Fiduciaries. It is intended that to the maximum
extent permitted by ERISA, each person who is a fiduciary (as
that term is defined in ERISA) with respect to the Plan shall be
responsible for the proper exercise of his own powers, duties,
responsibilities, and obligations under the Plan and the Trust,
as shall each person designated by any fiduciary to carry out any
fiduciary responsibilities with respect to the Plan or the Trust.
No fiduciary or other person to whom fiduciary responsibilities
are allocated shall be liable for any act or omission of any
other fiduciary or of any other person delegated to carry out any
fiduciary or other responsibility under the Plan or the Trust.
13.9 General Records. The Committee shall maintain or
cause to be maintained an Account (and any separate subaccount)
which accurately reflects the interest of each Participant, as
provided for in Section 9.1, and shall maintain or cause to be
maintained all necessary books of account and records with
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respect to the administration of the Plan. The Committee shall
mail or cause to be mailed to Participants reports to be
furnished to Participants in accordance with the Plan or as may
be required by ERISA. Any notices, reports, or statements to be
given, furnished, made, or delivered to a Participant shall be
deemed duly given, furnished, made, or delivered when addressed
to the Participant and delivered to the Participant in person or
mailed by ordinary mail to his address last appearing on the
books of the Committee or of his Employing Company.
13.10 Liability of the Committee. In administering the
Plan, except as may be prohibited by ERISA, neither the Committee
nor any person to whom it may delegate any duty or power in
connection with administering the Plan shall be liable for any
action or failure to act except for its or his own gross
negligence or willful misconduct; nor for the payment of any
amount under the Plan; nor for any mistake of judgment made by
him or on his behalf as a member of the Committee; nor for any
action, failure to act, or loss unless resulting from his own
gross negligence or willful misconduct; nor for the neglect,
omission, or wrongdoing of any other member of the Committee. No
member of the Committee shall be personally liable under any
contract, agreement, bond, or other instrument made or executed
by him or on his behalf as a member of the Committee.
13.11 Reimbursement of Expenses and Compensation of
Committee. Members of the Committee shall be reimbursed by the
Company for expenses they may individually or collectively incur
in the performance of their duties. Each member of the Committee
who is a full-time employee of the Company or of any Employing
Company shall serve without compensation for his services as such
member; each other member of the Committee shall receive such
compensation, if any, for his services as the Board of Directors
may fix from time to time.
13.12 Expenses of Plan and Trust Fund. The expenses of
establishment and administration of the Plan and the Trust Fund,
including all fees of the Trustee, investment managers, auditors,
and counsel, shall be paid by the Company or the Employing
Companies. Any expenses directly related to the investments of
the Trust Fund, such as stock transfer taxes, brokerage
commissions, or other charges incurred in the acquisition or
disposition of such investments, shall be paid from the Trust
Fund (or from the particular Investment Fund to which such
expenses relate) and shall be deemed to be part of the cost of
such securities or deducted in computing the proceeds therefrom,
as the case may be. Taxes, if any, on any assets held or income
received by the Trustee and transfer taxes on the transfer of
Common Stock from the Trustee to a Participant or his Beneficiary
shall be charged appropriately against the Accounts of
Participants as the Committee shall determine. Any expenses paid
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by the Company pursuant to Section 13.11 and this section shall
be subject to reimbursement by other Employing Companies of their
proportionate shares of such expenses as determined by the
Committee.
13.13 Responsibility for Funding Policy. The Pension Fund
Investment Review Committee of The Southern Company System shall
have responsibility for providing a procedure for establishing
and carrying out a funding policy and method for the Plan
consistent with the objectives of the Plan and the requirements
of Title I of ERISA.
13.14 Management of Assets. The Committee shall not have
responsibility with respect to the control or management of the
assets of the Plan. The Trustee shall have the sole
responsibility for the administration of the assets of the Plan
as provided in the Trust Agreement, except to the extent that an
investment advisor (who qualifies as an Investment Manager as
that term is defined in ERISA) who may be appointed by the Board
of Directors (upon recommendation by the Pension Fund Investment
Review Committee on and after August 5, 1993) shall have
responsibility for the management of the assets of the Plan, or
some part thereof (including the powers to acquire and dispose of
the assets of the Plan, or some part thereof).
13.15 Notice and Claims Procedures. Consistent with the
requirements of ERISA and the regulations thereunder of the
Secretary of Labor from time to time in effect, the Committee
shall:
(a) provide adequate notice in writing to any
Participant or Beneficiary whose claim for benefits under
the Plan has been denied, setting forth specific reasons for
such denial, written in a manner calculated to be understood
by such Participant or Beneficiary, and
(b) afford a reasonable opportunity to any
Participant or Beneficiary whose claim for benefits has been
denied for a full and fair review of the decision denying
the claim.
13.16 Bonding. Unless otherwise determined by the Board of
Directors or required by law, no member of the Committee shall be
required to give any bond or other security in any jurisdiction.
13.17 Multiple Fiduciary Capacities. Any person or group of
persons may serve in more than one fiduciary capacity with
respect to the Plan, and any fiduciary with respect to the Plan
may serve as a fiduciary with respect to the Plan in addition to
being an officer, employee, agent, or other representative of a
party in interest, as that term is defined in ERISA.
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ARTICLE XIV
TRUSTEE OF THE PLAN
14.1 Trustee. The Company has entered into a Trust
Agreement with the Trustee to hold the funds necessary to provide
the benefits set forth in the Plan. If the Board of Directors so
determines, the Company may enter into a Trust Agreement or Trust
Agreements with additional trustees. Any Trust Agreement may be
amended by the Company from time to time in accordance with its
terms. Any Trust Agreement shall provide, among other things,
that all funds received by the Trustee thereunder will be held,
administered, invested, and distributed by the Trustee, and that
no part of the corpus or income of the Trust held by the Trustee
shall be used for or diverted to purposes other than for the
exclusive benefit of Participants or their Beneficiaries, except
as otherwise provided in the Plan. Any Trust Agreement may also
provide that the investment and reinvestment of Fund A Fixed
Income Fund, Fund B Equity Fund, Fund D Index Fund, or any part
thereof may be carried out in accordance with directions given to
the Trustee by any Investment Manager or Investment Managers (as
that term is defined in ERISA) who may be appointed by the Board
of Directors (upon recommendation by the Pension Fund Investment
Review Committee on and after August 5, 1993). The Board of
Directors may remove any Trustee or any successor Trustee, and
any Trustee or any successor Trustee may resign. Upon removal or
resignation of a Trustee, the Board of Directors shall appoint a
successor Trustee.
14.2 Purchase of Common Stock. As soon as practicable
after receipt of funds applicable to the purchase of Common
Stock, the Trustee shall purchase Common Stock or cause Common
Stock to be purchased. Such Common Stock may be purchased on the
open market or by private purchase (including private purchases
directly from The Southern Company); provided that (a) no private
purchase may be made at any price greater than the last sale
price or highest current independent bid price, whichever is
higher, for Common Stock on the New York Stock Exchange, plus an
amount equal to the commission payable in a stock exchange
transaction; (b) if such private purchase shall be a purchase of
Common Stock directly from The Southern Company, no commission
shall be paid with respect thereto; and (c) the Trustee may
purchase Common Stock directly from The Southern Company under
the Dividend Reinvestment and Stock Purchase Plan of The Southern
Company, as from time to time amended, or under any other similar
plan made available to holders of record of shares of Common
Stock which may be in effect from time to time, at the purchase
price provided for in such plan. The Trustee may hold in cash,
and may temporarily invest in short-term United States
obligations, commercial paper, or certificates of deposit, funds
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applicable to the purchase of Common Stock pending investment of
such funds in such Common Stock.
14.3 Investment in Fund A Fixed Income Fund. As soon as
practicable after the receipt of funds applicable to investment
in the Fund A Fixed Income Fund, the Trustee shall invest in such
fund. Purchases may be made on the open market or directly from
the issuer, provided that if the purchase is of a marketable
obligation, as defined in ERISA, the price shall not be less
favorable to the Plan than the price determined under
Section 407(e)(1) of ERISA, and no commission shall be paid in
respect of a purchase made directly from an issuer which is The
Southern Company or a subsidiary or affiliate thereof.
14.4 Investment in Fund B Equity Fund. As soon as
practicable after the receipt of funds applicable to the purchase
of securities for the Fund B Equity Fund, the Investment Manager
or Investment Managers shall purchase such securities, or cause
such securities to be purchased, on the open market or by private
purchase.
14.5 Investment in Fund D Index Fund. As soon as
practicable after the receipt of funds applicable to the purchase
of securities for the Fund D Index Fund, the Investment Manager
or Investment Managers shall purchase such securities, or cause
such securities to be purchased, on the open market or by private
purchase.
14.6 Voting of Common Stock. Before each annual or special
meeting of shareholders of The Southern Company, there shall be
sent to each Participant a copy of the proxy soliciting material
for the meeting, together with a form requesting instructions to
the Trustee on how to vote the Common Stock represented by the
amount credited to such Participant's Account at the end of the
month immediately preceding the record date of the Common Stock.
Upon receipt of such instructions by the Trustee or its
designated agent, the Trustee shall vote such Common Stock as
instructed by the Participant. In the absence of instructions
from a Participant on how to vote the Common Stock represented by
the amount credited to the Participant's Account, the Trustee
will not vote such Common Stock.
14.7 Voting of the Fund B Shares. The Investment Manager
or Investment Managers may vote the shares in the Fund B Equity
Fund in its or their discretion.
14.8 Voting of the Fund D Shares. The Investment Manager
or Investment Managers may vote the shares in the Fund D Index
Fund in its or their discretion.
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14.9 Uninvested Amounts. The Trustee may keep uninvested
an amount of cash sufficient in its opinion to enable it to carry
out the purposes of the Plan.
14.10 Independent Accounting. The Board of Directors shall
select a firm of independent public accountants to examine and
report annually on the financial position and the results of
operation of the Trust forming a part of the Plan.
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ARTICLE XV
AMENDMENT AND TERMINATION OF THE PLAN
15.1 Amendment of the Plan. The Plan may be amended or
modified by the Board of Directors pursuant to its written
resolutions at any time and from time to time; provided, however,
that no such amendment or modification shall make it possible for
any part of the corpus or income of the Trust Fund to be used for
or diverted to purposes other than for the exclusive benefit of
Participants or their Beneficiaries under the Plan, including
such part as is required to pay taxes and administration expenses
of the Plan. The Plan may also be amended or modified by the
Committee (a) if such amendment or modification does not involve
a substantial increase in cost to any Employing Company, or (b)
as may be necessary, proper, or desirable in order to comply with
laws or regulations enacted or promulgated by any federal or
state governmental authority and to maintain the qualification of
the Plan under Sections 401(a) and 501(a) of the Code and the
applicable provisions of ERISA.
No amendment to the Plan shall have the effect of decreasing
a Participant's vested interest in his Account, determined
without regard to such amendment, as of the later of the date
such amendment is adopted or the date it becomes effective. In
addition, if the vesting schedule of the Plan is amended, any
Participant who has completed at least three (3) Years of Service
and whose vested interest is at any time adversely affected by
such amendment may elect to have his vested interest determined
without regard to such amendment during the election period
defined under Section 411(a)(10) of the Code. Finally, no
amendment shall eliminate an optional form of benefit in
violation of Code Section 411(d)(6).
15.2 Termination of the Plan. It is the intention of the
Employing Companies to continue the Plan indefinitely. However,
the Board of Directors pursuant to its written resolutions may at
any time and for any reason suspend or terminate the Plan or
suspend or discontinue the making of contributions of all
Participants and of contributions by all Employing Companies.
Any Employing Company may, by action of its board of directors
and approval of the Board of Directors, suspend or terminate the
making of contributions of Participants in the employ of such
Employing Company and of contributions by such Employing Company.
In the event of termination of the Plan or partial
termination or upon complete discontinuance of contributions
under the Plan by all Employing Companies or by any one Employing
Company, the amount to the credit of the Account of each
Participant whose Employing Company shall be affected by such
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termination or discontinuance shall be determined as of the next
Valuation Date and shall be distributed to him or his Beneficiary
thereafter at such time or times and in such nondiscriminatory
manner as is determined by the Committee in compliance with the
restrictions on distributions set forth in Code Section 401(k).
15.3 Merger or Consolidation of the Plan. The Plan shall
not be merged or consolidated with nor shall any assets or
liabilities thereof be transferred to any other plan unless each
Participant of the Plan would (if the Plan then terminated)
receive a benefit immediately after the merger, consolidation, or
transfer which is equal to or greater than the benefit he would
have been entitled to receive immediately prior to the merger,
consolidation, or transfer (if the Plan had then terminated).
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ARTICLE XVI
TOP-HEAVY REQUIREMENTS
16.1 Top-Heavy Plan Requirements. For any Plan Year the
Plan shall be determined to be a top-heavy plan, the Plan shall
provide the minimum allocation requirement of Section 16.3.
16.2 Determination of Top-Heavy Status.
(a) For any Plan Year commencing after December 31,
1983, the Plan shall be determined to be a top-heavy plan,
if, as of the Determination Date, the sum of the Aggregate
Accounts of Key Employees under this Plan exceeds 60% of the
Aggregate Accounts of all Employees entitled to participate
in this Plan.
(b) For any Plan Year commencing after December 31,
1983, the Plan shall be determined to be a super-top-heavy
plan, if, as of the Determination Date, the sum of the
Aggregate Accounts of Key Employees under this Plan exceeds
90% of the Aggregate Accounts of all Employees entitled to
participate in this Plan.
(c) In the case of a Required Aggregation Group, each
plan in the group will be considered a top-heavy plan if the
Required Aggregation Group is a Top-Heavy Group. No plan in
the Required Aggregation Group will be considered a top-
heavy plan if the Aggregation Group is not a Top-Heavy
Group.
In the case of a Permissive Aggregation Group, only a
plan that is part of the Required Aggregation Group will be
considered a top-heavy plan if the Permissive Aggregation
Group is a Top-Heavy Group. A plan that is not part of the
Required Aggregation Group but that has nonetheless been
aggregated as part of the Permissive Aggregation Group will
not be considered a top-heavy plan even if the Permissive
Aggregation Group is a Top-Heavy Group.
(d) For purposes of this Article XVI, if any Employee
is a non-Key Employee for any Plan Year, but such Employee
was a Key Employee for any prior Plan Year, such Employee's
Present Value of Accrued Retirement Income and/or Aggregate
Account balance shall not be taken into account for purposes
of determining whether this Plan is a top-heavy or super-
top-heavy plan (or whether any Aggregation Group which
includes this Plan is a Top-Heavy Group). In addition, for
Plan Years beginning after December 31, 1984, if an Employee
or former Employee has not performed any services for any
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Employing Company maintaining the Plan at any time during
the five-year period ending on the Determination Date, the
Aggregate Account and/or Present Value of Accrued Retirement
Income shall be excluded in determining whether this Plan is
a top-heavy or super-top-heavy plan.
(e) Only those plans of the Affiliated Employers in
which the Determination Dates fall within the same calendar
year shall be aggregated in order to determine whether such
plans are top-heavy plans.
16.3 Minimum Allocation for Top-Heavy Plan Years.
(a) Notwithstanding anything herein to the contrary,
for any top-heavy Plan Year, the Employing Company
contribution allocated to the Account of each non-Key
Employee shall be an amount not less than the lesser of: (1)
3% of such Participant's compensation for that Plan Year, or
(2) a percentage of that Participant's compensation not to
exceed the percentage at which contributions are made under
the Plan for the Key Employee for whom such percentage is
highest for that Plan Year.
(b) For purposes of the minimum allocation of Section
16.3(a), the percentage allocated to the Account of any Key
Employee shall be equal to the ratio of the Employing
Company contributions allocated on behalf of such Key
Employee divided by the compensation of such Key Employee
for that Plan Year.
(c) For any top-heavy Plan Year, the minimum
allocations of Section 16.3(a) shall be allocated to the
Accounts of all non-Key Employees who are Participants and
who are employed by the Affiliated Employers on the last day
of the Plan Year.
(d) Notwithstanding the foregoing, in any Plan Year
in which a non-Key Employee is a Participant in both this
Plan and a defined benefit plan, and both such plans are
top-heavy plans, the Affiliated Employers shall not be
required to provide a non-Key Employee with both the full
separate minimum defined benefit and the full separate
defined contribution plan allocations. Therefore, if a non-
Key Employee is participating in a defined benefit plan
maintained by the Affiliated Employers and the minimum
benefit under Code Section 416(c)(1) is provided the non-Key
Employee under such defined benefit plan, the minimum
allocation provided for above shall not be applicable, and
no minimum allocation shall be made on behalf of the non-Key
Employee. Alternatively, the Employing Company may satisfy
the minimum allocation requirement of Code Section 416(c)(2)
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for the non-Key Employee by providing any combination of
benefits and/or contributions that satisfy the safe harbor
rules of Treasury Regulation Section 1.416-1(M-12).
16.4 Adjustments to Maximum Benefit Limits for Top-Heavy
Plans.
(a) In the case of an Employee who is a participant
in a defined benefit plan and a defined contribution plan
maintained by the Affiliated Employers, and such plans as a
group are determined to be top heavy for any limitation year
beginning after December 31, 1983, "1.0", shall be
substituted for "1.25" in each place it appears in the
denominators of the Defined Benefit Plan Fraction and
Defined Contribution Plan Fraction, unless the extra minimum
benefit is provided pursuant to Section 16.4(b) below.
Super-top-heavy plans and plans in a Super-Top-Heavy Group
shall be required at all times to substitute "1.0" for
"1.25" in the denominator of each plan fraction.
(b) If a Key Employee is a participant in both a
defined benefit plan and a defined contribution plan that
are both part of a Top-Heavy Group (but neither of such
plans is a super-top-heavy plan), the Defined Benefit Plan
Fraction and the Defined Contribution Plan Fraction shall
remain unchanged, provided the Account of each non-Key
Employee who is a Participant receives an extra allocation
(in addition to the minimum allocation in Section 16.3(a))
equal to not less than 1% of such non-Key Employee's
compensation.
(c) For purposes of this Section 16.4, if the sum of
the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction shall exceed 1.0 in any Plan Year
for any Participant in this Plan, the Affiliated Employers
shall eliminate any amounts in excess of the limits set
forth in Section 6.1(b), pursuant to Section 6.3 of the
Plan.
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ARTICLE XVII
GENERAL PROVISIONS
17.1 Plan Not an Employment Contract. The Plan shall not
be deemed to constitute a contract between an Affiliated Employer
and any Employee, nor shall anything herein contained be deemed
to give any Employee any right to be retained in the employ of an
Employing Company or to interfere with the right of an Employing
Company to discharge any Employee at any time and to treat him
without regard to the effect which such treatment might have upon
him as a Participant.
17.2 No Right of Assignment or Alienation. Except as may
be otherwise permitted or required by law, no right or interest
in the Plan of any Participant or Beneficiary and no distribution
or payment under the Plan to any Participant or Beneficiary shall
be subject in any manner to anticipation, alienation, sale,
transfer (except by death), assignment (either at law or in
equity), pledge, encumbrance, charge, attachment, garnishment,
levy, execution, or other legal or equitable process, whether
voluntary or involuntary, and any attempt to so anticipate,
alienate, sell, transfer, assign, pledge, encumber, charge,
attach, garnish, levy, or execute or enforce any other legal or
equitable process against the same shall be void, nor shall any
such right, interest, distribution, or payment be in any way
liable for or subject to the debts, contracts, liabilities,
engagements, or torts of any person entitled to such right,
interest, distribution, or payment. If any Participant or
Beneficiary is adjudicated bankrupt or purports to anticipate,
alienate, sell, transfer, assign, pledge, encumber, or charge any
such right, interest, distribution, or payment, voluntarily or
involuntarily, or if any action shall be taken which is in
violation of the provisions of the immediately preceding
sentence, the Committee may hold or apply or cause to be held or
applied such right, interest, distribution, or payment or any
part thereof to or for the benefit of such Participant or
Beneficiary in such manner as is in accordance with applicable
law.
Notwithstanding the above, the Committee and the Trustee
shall comply with any domestic relations order (as defined in
Section 414(p)(1)(B) of the Code) which is a qualified domestic
relations order satisfying the requirements of Section 414(p) of
the Code. The Committee shall establish procedures for (a)
notifying Participants and alternate payees who have or may have
an interest in benefits which are the subject of domestic
relations orders, (b) determining whether such domestic relations
orders are qualified domestic relations orders under Section
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414(p) of the Code, and (c) distributing benefits which are
subject to qualified domestic relations orders.
17.3 Payment to Minors and Others. If the Committee
determines that any person entitled to a distribution or payment
from the Trust Fund is an infant or incompetent or is unable to
care for his affairs by reason of physical or mental disability,
it may cause all distributions or payments thereafter becoming
due to such person to be made to any other person for his
benefit, without responsibility to follow the application of
payments so made. Payments made pursuant to this provision shall
completely discharge the Company, the Trustee, and the Committee
with respect to the amounts so paid. No person shall have any
rights under the Plan with respect to the Trust Fund, or against
the Trustee or any Employing Company, except as specifically
provided herein.
17.4 Source of Benefits. The Trust Fund established under
the Plan shall be the sole source of the payments or
distributions to be made in accordance with the Plan. No person
shall have any rights under the Plan with respect to the Trust
Fund, or against the Trustee or any Employing Company, except as
specifically provided herein.
17.5 Unclaimed Benefits. If the Committee is unable,
within five (5) years after any distribution becomes payable to a
Participant or Beneficiary, to make or direct payment to the
person entitled thereto because the identity or whereabouts of
such person cannot be ascertained, notwithstanding the mailing of
due notice to such person at his last known address as indicated
by the records of either the Committee or his Employing Company,
then such benefit or distribution will be disposed of as follows:
(a) If the whereabouts of the Participant is unknown
to the Committee, distribution will be made to the
Participant's Beneficiary or Beneficiaries.
Payment to such one or more persons shall completely
discharge the Company, the Trustee, and the Committee with
respect to the amounts so paid.
(b) If none of the persons described in (a) above,
can be located, then the benefit payable under the Plan
shall be forfeited and shall be applied to reduce future
Employer Matching Contributions. Notwithstanding the
foregoing sentence, such benefit shall be reinstated if a
claim is made by the Participant or Beneficiary for the
forfeited benefit.
17.6 Governing Law. The provisions of the Plan and the
Trust shall be construed, administered, and enforced in
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accordance with the laws of the State of Georgia, except to the
extent such laws are preempted by the laws of the United States.
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ARTICLE XVIII
SPECIAL REQUIREMENTS FOR ACCOUNT BALANCES
ATTRIBUTABLE TO ACCRUED BENEFITS
TRANSFERRED FROM THE SEPCO PLAN
18.1 SEPCO Transferred Accounts. Notwithstanding any other
provisions of this Plan to the contrary, a Participant's SEPCO
Transferred Account shall be subject to the requirements of this
Article XVIII.
18.2 In-Service Withdrawals from SEPCO Transferred
Accounts. Except as provided in this Section 18.2, a Participant
shall be entitled to a distribution of his SEPCO Transferred
Account at the same time he is entitled to a distribution of his
Account under the applicable provisions of Article XII.
(a) Age 59 1/2. A Participant who has attained age 59 1/2
shall have the right to withdraw all or a portion of his
SEPCO Transferred Account in accordance with Section 11.6(e)
provided that he shall have first withdrawn all other
amounts available to him in accordance with the terms and
order of priority set forth in Section 11.1.
(b) Hardship. A Participant who meets the
requirements for hardship set forth in Section 11.6
hereof shall be entitled to withdraw amounts determined
necessary to relieve such hardship from his SEPCO
Transferred Account, provided that he shall have first
withdrawn all other amounts available to him in
accordance with the terms and order of priority set
forth in Section 11.1.
18.3 Loans from SEPCO Transferred Accounts. Subject to the
provisions of Section 11.7, a Participant may request that a loan
be made to him from his SEPCO Transferred Account, provided,
however, that the Participant has first borrowed all other
amounts available to him under the terms of the Plan in the order
of priority set forth in Section 11.7(c).
A Participant must obtain the consent of his or her spouse,
if any, to use any portion of his SEPCO Transferred Account as
security for a loan. Within the ninety-day period ending on the
date on which a loan is made to a Participant who is married, the
Participant shall obtain and deliver to the Committee the written
consent of the Participant's spouse (1) to the loan, and (2) to
the reduction of the Participant's Account if the Participant's
Account is reduced because of nonpayment or other default with
respect to the loan. No further spousal consent shall be
required in the event the Participant's Account is subsequently
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reduced with respect to such loan, even if the Participant is
then married to a different spouse. A new spousal consent shall
be required for any subsequent loan to a Participant, if the
Participant is then married.
18.4 Distribution of SEPCO Transferred Accounts.
Notwithstanding any provisions of this Plan to the contrary, a
Participant with a SEPCO Transferred Account shall be paid the
vested benefits of the SEPCO Transferred Account upon retirement,
death, total and permanent disability, or termination of
employment as provided herein.
(a) All benefits from a Participant's SEPCO
Transferred Account shall be distributed in accordance
with the distribution options available under Article
XII, with applicable spousal consent as provided under
the SEPCO Plan, unless a Participant elects payment of
benefits in the form of a life annuity pursuant to a
written election filed with the Committee prior to
commencement of distribution of benefits. The
provisions of this Section 18.4 shall take precedence
over any conflicting provisions of the Plan and shall
apply to any Participant who has a SEPCO Transferred
Account and who elects to receive payment of his
benefits from his SEPCO Transferred Account in the form
of a life annuity. A married Participant electing to
receive benefits in the form of a life annuity shall
receive the value of his benefit in the form of a
qualified joint and survivor annuity, which shall
provide an annuity for the life of the Participant with
a survivor annuity for the life of the Participant's
spouse which is either 50% or 100%, as elected by the
Participant, of the amount of the annuity which is
payable during the joint lives of the Participant and
the Participant's spouse, and which is the actuarial
equivalent of a single life annuity for the life of the
Participant. An unmarried Participant who elects a
life annuity shall receive the value of his benefits
from his SEPCO Transferred Account in the form of an
annuity for his lifetime.
(b) If the Participant's interest is to be
distributed in other than a single sum, the amount
required to be distributed for each calendar year,
beginning with distributions for the first Distribution
Calendar Year, must at least equal the quotient
obtained by dividing the Participant's Benefit by the
Applicable Life Expectancy.
(c) The minimum distribution required for the
Participant's first Distribution Calendar Year must be
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made on or before the Participant's Required Beginning
Date. The minimum distribution for other calendar
years, including the minimum distribution for the
Distribution Calendar Year in which the Participant's
Required Beginning Date occurs, must be made on or
before December 31 of that Distribution Calendar Year.
(d) If the Participant's benefit is distributed
in the form of an annuity purchased from an insurance
company, distributions thereunder shall be made in
accordance with the requirements of Section 401(a)(9)
of the Code and the proposed regulations thereunder.
(e) Definitions.
(1) "Applicable Life Expectancy" means the life
expectancy calculated using the attained age of the
Participant as of the Participant's birthday in the
applicable calendar year reduced by one for each
calendar year which has elapsed since the date life
expectancy was first calculated. If life expectancy
is being recalculated, the applicable life expectancy
shall be the life expectancy as so recalculated. The
applicable calendar year shall be the first
Distribution Calendar Year, and if life expectancy is
being recalculated such succeeding calendar year.
(2) "Distribution Calendar Year" means a
calendar year for which a minimum distribution is
required. For distributions beginning before the
Participant's death, the first Distribution Calendar
Year is the calendar year immediately preceding the
calendar year which contains the Participant's
Required Beginning Date.
(3) "Participant's Benefit" means the account
balance as of the last valuation date in the calendar
year immediately preceding the Distribution Calendar
Year (valuation calendar year) increased by the amount
of any contributions or forfeitures allocated to the
account balance as of dates in the valuation calendar
year after the valuation date and decreased by
distributions made in the valuation calendar year
after the valuation date. If any portion of the
minimum distribution for the first Distribution
Calendar Year is made in the second Distribution
Calendar Year on or before the Required Beginning
Date, the amount of the minimum distribution made in
the second Distribution Calendar Year shall be treated
as if it had been made in the immediately preceding
Distribution Calendar Year.
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(4) "Required Beginning Date" means April 1st of
the calendar year following the calendar year in which
the Participant attains age 70-1/2, in accordance with
regulations prescribed by the Secretary of the
Treasury.
(f) Notwithstanding anything contained herein to the
contrary, the requirements of this Section shall apply to
any distribution of a Participant's interest and will take
precedence over any inconsistent provisions of this Plan.
All distributions required under this Section shall be
determined and made in accordance with the proposed
regulations under Section 401(a)(9), including the minimum
distribution incidental benefit requirement of Section
1.401(a)(9)-2 of the proposed regulations.
18.5 Code Section 411(d)(6) Protected Benefits.
Notwithstanding any of the foregoing, the provisions of this
Article XVIII to effectuate the merger of the SEPCO Plan into
this Plan shall not decrease a Participant's accrued benefit,
except to the extent permitted under Section 412(c)(8) of the
Code, and shall not reduce or eliminate Code Section 411(d)(6)
protected benefits determined immediately prior to the date of
such merger. The Committee shall disregard any part of this
Article XVIII or the Plan to the extent that application of such
would fail to satisfy this paragraph. If the Committee
disregards any portion of this Article XVIII or the Plan because
it would eliminate a protected benefit, the Committee shall
maintain a schedule of any such impacted early retirement option
or other optional forms of benefit and the Plan shall continue
such for the affected Participants.
IN WITNESS WHEREOF, the Company has caused this amendment
and restatement of The Southern Company Employee Savings Plan
effective as of January 1, 1989, to be executed this 22nd day of
December, 1994.
SOUTHERN COMPANY SERVICES, INC.
By: /s/William C. Archer, III
Its: Vice President
(CORPORATE SEAL)
Attest:
By: /s/Tommy Chisholm
Its: Vice President and Secretary
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APPENDIX A - EMPLOYING COMPANIES
The Employing Companies as of December 1, 1994 are:
Alabama Power Company
Georgia Power Company
Gulf Power Company
Mississippi Power Company
Savannah Electric and Power Company
Southern Company Services, Inc.
Southern Electric International, Inc.
Southern Nuclear Operating Company, Inc.
The Employing Companies shall also include Southern
Communications Services, Inc. effective upon the adoption of the
Plan by the board of directors of Southern Communications
Services, Inc. and shall include Southern Development and
Investment Group, Inc. effective upon the adoption of the Plan by
the board of directors of Southern Development and Investment
Group, Inc.
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