As filed with the Securities and Exchange Commission on January 12, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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 No.)
incorporation or organization)
270 Peachtree Street, N.W. 30303
Atlanta, Georgia (Zip Code)
(Address of principal executive offices)
SOUTHERN ENERGY, INC. BARGAINING UNIT SAVINGS PLAN
(Full title of the plan)
TOMMY CHISHOLM, Secretary
THE SOUTHERN COMPANY
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
(Name and address of agent for service)
(404) 506-0540
(Telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
W. L. WESTBROOK JOHN D. McLANAHAN
Financial Vice President TROUTMAN SANDERS LLP
THE SOUTHERN COMPANY 600 Peachtree Street, N.E.
270 Peachtree Street, N.W. Suite 5200
Atlanta, Georgia 30303 Atlanta, Georgia 30308-2216
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ------------------------ ------------------------ ------------------------ ------------------------
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be Aggregate Price Aggregate Registration
to be Registered Registered (1) Per Unit (2) Offering Price (2) Fee
========================== ======================== ======================== ======================== ========================
<S> <C> <C> <C> <C>
Common Stock, par value 200,000 shares $25-3/8 $5,075,000 $1,498
$5 per share
========================== ======================== ======================== ======================== ========================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Pursuant to Rule 457(h)(1), these figures are based upon the
average of the high and low prices paid for a share of the Company's Common
Stock on January 8, 1998, as reported in the New York Stock Exchange
consolidated reporting system, and are used solely for the purpose of
calculating the registration fee.
<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 Energy, Inc. Bargaining
Unit 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 be a part hereof
from the date of filing of such documents.
(a) The registrant's Annual Report on Form 10-K for the year ended
December 31, 1996.
(b) (1) The registrant's Current Reports on Form 8-K dated
February 12, 1997, June 5, 1997 and July 2, 1997.
(2) The registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997 and September 30,
1997.
(c) The description of the registrant's common stock contained in
Registration No. 333-09077 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 the person 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), judgments,
fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding if
the person acted in good faith and in a manner the person 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 the person's 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
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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 the person 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 the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a
manner the person 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 present or former director or
officer 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, such person shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person 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 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
II-2
<PAGE>
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 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.
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) - Southern Energy, Inc. Bargaining Unit Savings Plan
effective January 1, 1998.
4(d) - Trust Agreement dated as of January 1, 1998 between
Southern Energy, Inc. and Merrill Lynch Trust Company
(Florida).
5(a) - Opinion of Troutman Sanders LLP, counsel to
SOUTHERN.
5(b) - The registrant undertakes that it will submit the
plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and will
make all changes required by the IRS in order to
qualify the plan.
23(a) - The consent of Troutman Sanders LLP is contained in
Exhibit 5(a).
23(b) - Consent of Arthur Andersen LLP.
24 - Powers of Attorney and resolution.
II-3
<PAGE>
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.
(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. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
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 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
II-4
<PAGE>
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-5
<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 12, 1998.
THE SOUTHERN COMPANY
By: A. W. Dahlberg
Chairman of the Board, President and
Chief Executive Officer
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
A. W. Dahlberg Director, Chairman of
the Board, President and
Chief Executive Officer
(Principal Executive Officer)
W. L. Westbrook Financial Vice President,
Chief Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
John C. Adams )
A. D. Correll )
Paul J. DeNicola )
Jack Edwards )
H. Allen Franklin )
Bruce S. Gordon )
L.G. Hardman III ) Directors
Elmer B. Harris )
William A. Parker, Jr. )
William J. Rushton, III)
Gloria M. Shatto )
Gerald J. St. Pe )
Herbert Stockham )
By: /s/Wayne Boston January 12, 1998
Wayne Boston
Attorney-in-Fact
<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 12, 1998.
SOUTHERN ENERGY, INC. BARGAINING UNIT SAVINGS PLAN
By: /s/Vance Booker
Vice President, Administration
Exhibit 4(c)
SOUTHERN ENERGY, INC.
BARGAINING UNIT SAVINGS PLAN
Effective January 1, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE I..................................................................1
ARTICLE II.................................................................2
2.1 Account.....................................................2
2.2 Actual Deferral Percentage..................................2
2.3 Actual Deferral Percentage Test.............................2
2.4 Affiliated Employer.........................................3
2.5 Annual Addition.............................................3
2.6 Average Actual Deferral Percentage..........................3
2.7 Beneficiary.................................................4
2.8 Benefit Plan Administration Committee.......................4
2.9 Board of Directors..........................................4
2.10 Break-in-Service Date.......................................4
2.11 Code........................................................4
2.12 Common Stock................................................5
2.13 Company.....................................................5
2.14 Compensation................................................5
2.15 Defined Benefit Plan Fraction...............................6
2.16 Defined Contribution Plan Fraction..........................6
2.17 Distributee.................................................7
2.18 Direct Rollover.............................................7
2.19 Elective Employer Contribution..............................7
2.20 Eligible Employee...........................................7
2.21 Eligible Participant........................................7
2.22 Eligible Retirement Plan....................................7
2.23 Eligible Rollover Distribution..............................8
2.24 Employee....................................................8
2.25 Employer Matching Contribution..............................8
2.26 Enrollment Date.............................................8
2.27 ERISA.......................................................9
2.28 Excess Deferral Amount......................................9
2.29 Excess Deferral Contributions...............................9
2.30 Highly Compensated Employee.................................9
2.31 Hour of Service.............................................9
2.32 Investment Fund............................................10
2.33 Limitation Year............................................10
2.34 Non-Highly Compensated Employee............................10
2.35 Normal Retirement Date.....................................10
2.36 One-Year Break in Service..................................10
2.37 Participant................................................10
2.38 Plan.......................................................10
2.39 Plan Year..................................................10
2.40 Rollover Contributions.....................................11
2.41 Surviving Spouse...........................................11
2.42 Trust or Trust Fund........................................11
2.43 Trust Agreement............................................11
2.44 Trustee....................................................11
2.45 Valuation Date.............................................11
2.46 Voluntary Participant Contribution.........................11
2.47 Year of Service............................................12
ARTICLE III...............................................................13
3.1 Eligibility Requirements....................................13
3.2 Participation upon Reemployment.............................13
3.3 No Restoration of Previously Distributed Benefits...........14
3.4 Loss of Eligible Employee Status............................14
3.5 Rollovers from Other Plans..................................14
ARTICLE IV................................................................16
4.1 Elective Employer Contributions.............................16
4.2 Maximum Amount of Elective Employer Contributions...........16
4.3 Distribution of Excess Deferral Amounts.....................16
4.4 Additional Rules Regarding Elective Employer
Contributions...........................................18
4.5 Section 401(k) Nondiscrimination Tests......................20
4.6 Voluntary Participant Contributions.........................24
4.7 Manner and Time of Payment of Elective Employer
Contributions and Voluntary Participant
Contributions...........................................24
4.8 Change in Contribution Rate.................................25
4.9 Change in Contribution Amount...............................25
ARTICLE V.................................................................26
5.1 Amount of Employer Matching Contributions...................26
5.2 Investment of Employer Matching Contributions...............26
5.3 Payment of Employer Matching Contributions..................26
5.4 Reversion of Company Contributions..........................26
5.5 Correction of Prior Incorrect Allocations and
Distributions...........................................27
ARTICLE VI................................................................28
6.1 Section 415 Limitations.....................................28
6.2 Correction of Contributions in Excess of Section 415
Limits..................................................29
6.3 Combination of Plans........................................31
ARTICLE VII...............................................................32
7.1 Suspension of Contributions.................................32
ARTICLE VIII..............................................................33
8.1 Investment Funds............................................33
8.2 Investment of Participant Contributions.....................33
8.4 Transfer of Assets between Funds............................33
8.5 Change in Investment Direction..............................34
8.6 Section 404(c) Plan.........................................34
ARTICLE IX................................................................36
9.1 Establishment of Accounts...................................36
9.2 Valuation of Investment Funds...............................36
9.3 Rights in Investment Funds..................................36
ARTICLE X.................................................................38
10.1 Vesting.....................................................38
ARTICLE XI................................................................39
11.2 Notice of Withdrawal........................................41
11.3 Form of Withdrawal..........................................41
11.4 Minimum Withdrawal..........................................41
11.5 Source of Withdrawal........................................41
11.6 Requirement of Hardship.....................................41
11.7 Loans to Participants.......................................45
ARTICLE XII...............................................................48
12.1 Distribution upon Retirement...............................48
12.2 Distribution upon Disability...............................49
12.3 Distribution upon Death....................................49
12.4 Designation of Beneficiary in the Event of Death...........50
12.5 Distribution upon Termination of Employment................51
12.6 Commencement of Benefits...................................52
12.7 Transfer to an Affiliated Employer.........................53
12.8 Distributions to Alternate Payees..........................53
12.9 Requirement for Direct Rollovers...........................54
12.10 Consent and Notice Requirements............................54
12.11 Form of Payment............................................55
12.12 Partial Distribution upon Termination of
Employment..............................................55
ARTICLE XIII..............................................................56
13.1 Membership of Benefit Plan Administration
Committee..................................................56
13.2 Acceptance and Resignation.................................56
13.3 Transaction of Business....................................56
13.4 Responsibilities in General................................56
13.5 Benefit Plan Administration Committee as Named
Fiduciary..................................................57
13.6 Rules for Plan Administration..............................57
13.7 Employment of Agents.......................................57
13.8 Co-Fiduciaries.............................................58
13.9 General Records............................................58
13.10 Liability of the Benefit Plan Administration
Committee..................................................59
13.11 Reimbursement of Expenses and Compensation of
Benefit Plan Administration Committee......................59
13.12 Expenses of Plan and Trust Fund............................60
13.13 Responsibility for Funding Policy..........................60
13.14 Management of Assets.......................................60
13.15 Notice and Claims Procedures...............................60
13.16 Bonding....................................................62
13.17 Multiple Fiduciary Capacities..............................62
13.18 Change in Administrative Procedures........................62
ARTICLE XIV...............................................................63
14.1 Trustee....................................................63
14.2 Purchase of Common Stock...................................63
14.3 Voting of Common Stock.....................................64
14.4 Voting of Other Investment Fund Shares.....................65
14.5 Uninvested Amounts.........................................65
14.6 Independent Accounting.....................................65
ARTICLE XV................................................................66
15.1 Amendment of the Plan......................................66
15.2 Termination of the Plan....................................66
15.3 Merger or Consolidation of the Plan........................67
ARTICLE XVI...............................................................68
16.1 Plan Not an Employment Contract............................68
16.2 No Right of Assignment or Alienation.......................68
16.3 Payment to Minors and Others...............................69
16.4 Source of Benefits.........................................69
16.5 Unclaimed Benefits.........................................70
16.6 Governing Law..............................................70
<PAGE>
SOUTHERN ENERGY, INC.
BARGAINING UNIT SAVINGS PLAN
Effective January 1, 1998
ARTICLE I
PURPOSE
1
The purpose of the Plan is to encourage employee thrift, to create
added employee interest in the affairs of Southern Energy, Inc. ("Company") and
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 the Company. The Company is the plan sponsor of
the Plan. This Plan is intended to be a stock bonus plan, and all contributions
made by the Company to this Plan are expressly conditioned upon the
deductibility of such contributions under Code Section 404. The Plan is
effective as of January 1, 1998. To the extent that different terms and
conditions are necessary to reflect the benefits to be provided to each Eligible
Employee, such terms and conditions shall be set forth in one or more schedules
attached hereto and incorporated into the Plan and shall supersede any
inconsistent provisions otherwise set forth herein. Any such schedule shall
reflect the collective bargaining unit to which it applies, the effective date
and the Plan Section or Sections to which it applies. Any amendment to such
schedule shall be considered an amendment to the Plan and shall be subject to
Section 15.1 hereof.
<PAGE>
ARTICLE II
DEFINITIONS
2
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 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 Benefit Plan Administration 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.
2.3 Actual Deferral Percentage Test shall mean the test described in
Section 4.5(a).
2.4 Affiliated Employer shall mean the 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 the 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 the 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 the Company, and (d) any other
entity required to be aggregated with the 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).
2.5 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.
2.6 Average Actual Deferral Percentage shall mean the average
(expressed as a percentage) of the Actual Deferral Percentages of the Eligible
Participants in a group.
2.7 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.
2.8 Benefit Plan Administration Committee shall mean the committee
appointed pursuant to Section 13.1 to serve as plan administrator.
2.9 Board of Directors shall mean the Board of Directors of Southern
Energy, Inc.
2.10 Break-in-Service Date means the earlier of:
(a) the date on which an Employee terminates employment, is
discharged, retires, or dies; or
(b) the last day of an approved leave of absence including any
extension.
In the case of an individual who is absent from work for maternity or
paternity reasons, such individual shall not incur a Break-in-Service Date
earlier than the expiration of the second anniversary of the first date of such
absence; provided, however, that the twelve-consecutive-month period beginning
on the first anniversary of the first date of such absence shall not constitute
a Year of Service. 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.
2.11 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.
2.12 Common Stock shall mean the common stock of The Southern Company.
2.13 Company shall mean Southern Energy, Inc., and its successors.
2.14 Compensation shall mean the base salary or wages of a Participant,
including all amounts contributed by the Company to The Southern Company
Flexible Benefits Plan on behalf of a Participant pursuant to a salary reduction
arrangement under 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 Energy, 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 travel and entertainment
expenses, and imputed income for automobile expenses, tax preparation expenses
and health and life insurance premiums paid by the Company. Notwithstanding the
foregoing, "Compensation" for a group of Eligible Employees may be modified as
provided on the Appendix to this Plan that is applicable to such Eligible
Employees.
The Compensation of each Participant taken into account for purposes of
this Plan shall not exceed $160,000 (as adjusted pursuant to Code Section
401(a)(17)). If a determination period consists of fewer than 12 months, the
annual Compensation limit under Code Section 401(a)(17) shall be multiplied by a
fraction, the numerator of which is the number of months in the determination
period and the denominator of which is 12.
2.15 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.
2.16 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.
2.17 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.
2.18 Direct Rollover shall mean a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
2.19 Elective Employer Contribution shall mean contributions made
pursuant to Section 4.1 during the Plan Year by the Company, at the election of
the Participant, in lieu of cash compensation and shall include contributions
made pursuant to a salary reduction agreement.
2.20 Eligible Employee shall mean an Employee who is employed by the
Company and who is represented by one of the collective bargaining units set
forth on an Appendix to this Plan, as updated from time to time. Notwithstanding
the foregoing, no Employee shall be entitled to participate in this Plan if such
Employee is eligible to participate in a plan of an Affiliated Employer that is
intended to be a cash or deferred arrangement under Code Section 401(k).
2.21 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.
2.22 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 spouse, an Eligible
Retirement Plan is an individual retirement account or individual retirement
annuity.
2.23 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).
2.24 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).
2.25 Employer Matching Contribution shall mean a contribution made by
the Company pursuant to Section 5.1.
2.26 Enrollment Date shall mean the first day of each calendar month.
2.27 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.
2.28 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).
2.29 Excess Deferral Contributions shall mean the amount referred to in
Code Section 401(k)(8)(B) with respect to a Participant.
2.30 Highly Compensated Employee shall mean (in accordance with and
subject to Code Section 414(q) and any regulations, rulings, notices or
procedures thereunder), with respect to any Plan Year (or determination year):
(1) any Employee who was a five percent (5%) or greater owner during the Plan
Year or the immediately preceding Plan Year, or (2) any Employee who earned more
than $80,000 in the preceding Plan Year. The $80,000 amount shall be adjusted
for inflation and for short Plan Years, pursuant to the Code Section 414(q). The
Employer may, at its election, limit Employees earning $80,000 or more to only
those Employees who fall within the "top-paid group," as defined in Code Section
414(q), excluding those employees described in Code Section 414(q)(8) for such
purpose. In determining whether an Employee is a Highly Compensated Employee,
the Employer may make any elections authorized under applicable regulations,
rulings, notices, or revenue procedures.
2.31 Hour of Service shall mean each hour for which an Employee is
paid, or entitled to payment, for the performance of duties for an Affiliated
Employer.
2.32 Investment Fund shall mean any one of the funds described in
Article VIII which constitutes part of the Trust Fund.
2.33 Limitation Year shall mean the Plan Year.
2.34 Non-Highly Compensated Employee shall mean an Employee who is not
a Highly Compensated Employee.
2.35 Normal Retirement Date shall mean the first day of the month
following a Participant's sixty-fifth (65th) birthday.
2.36 One-Year Break in Service shall mean each twelve-consecutive-month
period within the 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.
2.37 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, (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, and (c)
an Eligible Employee who has made a Rollover Contribution to this Plan to the
extent that the provisions of the Plan apply to such Rollover Contributions of
the Eligible Employee.
2.38 Plan shall mean the Southern Energy, Inc. Bargaining Unit Savings
Plan, as described herein or as from time to time amended.
2.39 Plan Year shall mean the twelve-month period commencing January
1st and ending on the last day of December next following.
2.40 Rollover Contributions shall mean that portion of an eligible
rollover distribution that an Eligible Employee elects to contribute to this
Plan in accordance with the requirements of Section 3.5.
2.41 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.
2.42 Trust or Trust Fund shall mean the trust established pursuant to
the Trust Agreement.
2.43 Trust Agreement shall mean the trust agreement between the Company
and the Trustee, as described in Article XIV.
2.44 Trustee shall mean the person or corporation designated as trustee
under the Trust Agreement, including any successor or successors.
2.45 Valuation Date shall mean each business day of the New York Stock
Exchange.
2.46 Voluntary Participant Contribution shall mean a contribution made
pursuant to Section 4.6 during the Plan Year.
2.47 Year of Service shall mean a twelve-month period of employment as
an Employee, including any fractions thereof. Calculation of the twelve-month
periods 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 his Break-in-Service Date shall receive a fractional
Year of Service for the period of such cessation of employment. In addition, an
Eligible Employee's Years of Service shall include service with a prior employer
to the extent provided on the Appendix to the Plan applicable to such Eligible
Employee.
Notwithstanding anything in this Section 2.47 to the contrary, an
Employee shall not receive credit for more than one Year of Service with respect
to any twelve-consecutive-month period.
<PAGE>
ARTICLE III
PARTICIPATION
3
3.1 Eligibility Requirements. Each individual who is an Eligible
Employee on January 1, 1998 shall be eligible to elect to participate in this
Plan as of the Enrollment Date coincident with or immediately following January
1, 1998. Each other Eligible Employee may elect to participate in the Plan as of
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 made in accordance with the procedures
established from time to time by the Benefit Plan Administration Committee.
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 and is reemployed following a One-Year Break in Service,
he shall not receive credit for fractional periods of service completed
prior to the One-Year Break in Service until he has completed a Year of
Service after his return. A reemployed Employee who had not completed
the Year of Service requirement and who is reemployed within 12 months
of his Break-in-Service Date shall receive service credit for the
period in which he performed no services in accordance with Section
2.47.
(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 the Affiliated Employers and who has
received a distribution of the amount credited to his Account pursuant to
Article XII 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.
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 Rollovers from Other Plans. An Eligible Employee who has received a
distribution of his interest in a retirement plan of a former employer under
circumstances meeting the requirements of Section 402(c)(4) of the Code relating
to Eligible Rollover Distributions from qualified retirement plans may elect to
deposit all or any portion (as designated by such Employee) of the amount of
such distribution as a Rollover Contribution to this Plan. A Rollover
Contribution may be made only within 60 days following the date the Employee
receives the distribution from the plan of his former employer (or within such
additional period as may be provided under Section 408 of the Code if the
Eligible Employee shall have made a timely deposit of the distribution in an
individual retirement account) and within 12 months of the date of his
employment or reemployment with the Company. The Benefit Plan Administration
Committee shall establish rules and procedures to implement this Section 3.5,
including without limitation, such procedures as may be appropriate to permit
the Benefit Plan Administration Committee to verify the tax qualified status of
the plan of the former employer and compliance with any applicable provisions of
the Code relating to such contributions. The amount contributed to the Trustee
pursuant to this Section 3.5 shall be placed in the Eligible Employee's Rollover
Contribution subaccount for the benefit of the Eligible Employee pursuant to
Section 9.1. The Employee shall have a fully vested interest in the balance of
his Rollover Contribution subaccount at all times and such subaccount shall
share in the earnings, gains and losses of the Trust Fund as set forth in
Section 9.2 of the Plan. An Employee shall be entitled to a distribution of his
Rollover Contribution subaccount at the same time and in the manner as he is
entitled to his other subaccounts pursuant to the applicable provisions of
Articles XI and XII hereof.
<PAGE>
ARTICLE IV
ELECTIVE EMPLOYER CONTRIBUTIONS AND
VOLUNTARY PARTICIPANT CONTRIBUTIONS
4
4.1 Elective Employer Contributions. An Eligible Employee who meets the
participation requirements of Article III may elect in accordance with the
procedures established by the Benefit Plan Administration Committee to have his
Compensation reduced as provided in the schedule attached hereto for his
collective bargaining unit, such Elective Employer Contribution to be
contributed by the Company 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 the 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, 1999, 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. Any amount forfeited pursuant to this
Subsection (a) shall be applied, subject to Section 6.1, toward funding
the Company contributions for the Plan Year immediately following the
Plan Year to which such forfeited Employer Matching Contributions
relate.
(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 Benefit Plan Administration
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 Benefit Plan Administration Committee of any Excess Deferral
Amounts that arise by taking into account only those deferrals under
this Plan and any other plans of the Company.
(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 Benefit Plan
Administration 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 Benefit Plan Administration 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 Benefit Plan Administration
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 in
effect. The Benefit Plan Administration Committee, in its discretion,
may establish administrative procedures whereby the actual reduction in
Compensation may be made to coincide with each payroll period of the
Company, or at such other times as the Benefit Plan Administration
Committee may determine.
(b) The Benefit Plan Administration Committee may amend or
revoke a Participant's salary reduction agreement with the Company at
any time, if the Benefit Plan Administration Committee 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(c) 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 the 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 the 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 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 of
the prior Plan Year for Eligible Participants who
were Non-Highly Compensated Employees for the prior
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 of
the prior Plan Year for Eligible Participants who
were Non-Highly Compensated Employees for the prior
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 of the prior Plan Year for Eligible
Participants who were Non-Highly Compensated
Employees for the prior Plan Year by more than two
(2) percentage points.
At the election of the Benefit Plan Administration Committee,
the current year Average Actual Deferral Percentage for
current year Nonhighly Compensated Employees may be
substituted for the prior year Average Actual Deferral
Percentage. However, once an election is made to utilize such
current year Average Actual Deferral Percentage in determining
the Actual Deferral Percentage, the Benefit Plan
Administration Committee may not revoke such election without
the approval of the Internal Revenue Service, to the extent
required under Code Section 401(k)(3)(A). Notwithstanding the
foregoing, for the 1998 Plan Year the Average Actual Deferral
Percentage of Non-Highly Compensated Employees shall be deemed
to be three percent (3%) or, if the Benefit Plan
Administration Committee elects in accordance with Code
Section 401(k)(3)(E), the actual Average Actual Deferral
Percentage of Non-Highly Compensated Employees for the 1998
Plan Year.
(b) Distribution of Excess Deferral Contributions.
(1) In General. The Excess Deferral Contributions for
a Highly Compensated Employee for a Plan Year which are to be
distributed shall be distributed such that the Highly
Compensated Employee with the highest amount of Elective
Employer Contributions for the Plan Year shall be reduced to
the extent required to:
(A) distribute the total amount of Excess
Deferral Contributions, or
(B) cause the amount of such Highly
Compensated Employee's Elective Employer
Contributions to equal the amount of Elective
Employer Contributions of the Highly Compensated
Employee with the next highest amount of Elective
Employer Contributions for the Plan Year.
This process must be repeated until all Excess Deferral
Contributions are distributed.
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 within two and one-half
(2-1/2) months after the last day of the Plan Year in which
such excess amounts arose, and in any event not later than the
last day of the Plan Year following the close of the Plan Year
for which such contributions were made. Distribution of Excess
Deferral Contributions shall be made to Highly Compensated
Employees in accordance with this Section 4.5(b). Any Employer
Matching Contributions forfeited pursuant to this Subsection
(b)(1) shall be applied, subject to Section 6.1, toward
funding Employer contributions (for the Plan Year immediately
following the Plan Year to which such forfeited Employer
Matching Contributions relate) or distributed, as directed by
the Committee, to the extent permitted by applicable law.
(2) Determination of Income or Loss. Excess Deferral
Contributions to be distributed 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 such 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 to be
distributed 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 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.
(c) 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) 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 in accordance with the
procedures established by the Benefit Plan Administration Committee to
contribute to his Account a Voluntary Participant Contribution as provided in
the schedule attached hereto for his collective bargaining unit. 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. 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 the Company's general
assets, but in any event within the time period prescribed by applicable law.
4.8 Change in Contribution Rate. A Participant may change 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 in accordance with the procedures established
by the Benefit Plan Administration Committee. Such election shall be effective
as soon as practicable after it is made.
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.
<PAGE>
ARTICLE V
EMPLOYER MATCHING CONTRIBUTIONS
5.1 Amount of Employer Matching Contributions. Subject to the
provisions of Sections 6.1 and 6.2, the Company shall contribute an Employer
Matching Contribution on behalf of each of the Participants provided as in the
schedule attached hereto for his collective bargaining unit. The Employer
Matching Contribution shall be allocated first to the Elective Employer
Contributions made on a Participant's behalf.
5.2 Investment of Employer Matching Contributions. Employer Matching
Contributions shall be invested entirely in the 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.
5.4 Reversion of Company Contributions. Company contributions computed
in accordance with the provisions of this Plan shall revert to the Company under
the following circumstances:
(a) In the case of a Company contribution which is made by
reason of a mistake of fact, such contribution upon written direction
of the Company shall be returned to the Company within one year after
the payment of the contribution.
(b) If any Company contribution is determined to be
nondeductible under Section 404 of the Code, then such Company
contribution, to the extent that it is determined to be nondeductible,
upon written direction of the Company shall be returned to the Company
within one year after the disallowance of the deduction.
(c) If the Plan receives an adverse determination with
respect to its initial qualification under the Code, the Company
contributions shall be returned to the Company within one year of the
date of such disqualification.
The amount which may be returned to the Company under Sections 5.4(a)
and (b) 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 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 Company shall be limited so as to avoid such reduction.
5.5 Correction of Prior Incorrect Allocations and Distributions.
Notwithstanding any provisions contained herein to the contrary, in the event
that, as of any Valuation Date, adjustments are required in any 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 Company 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 Benefit Plan Administration
Committee to adjust such Participants' Accounts to the value which would have
existed on said Valuation Date had there been no prior incorrect allocation or
discrepancies. The Benefit Plan Administration 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.
<PAGE>
ARTICLE VI
LIMITATIONS ON CONTRIBUTIONS
6
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 (as adjusted pursuant to Code Section
415(d)(1)(C)).
(b) For Limitation Years beginning before January 1, 2000,
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 "compensation" as defined
in Code Section 415(c)(3) and any rulings and regulations thereunder.
(d) For purposes of Section 6.1(b), 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 Fraction for a
Participant may be determined by taking into account the special
transition rule of Code Section 415(e)(6).
(e) For purposes of Section 6.1(b), 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. 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) above
shall be disregarded for purposes of the Actual Deferral 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 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 Company notwithstanding any other provision of this Plan.
6.3 Combination of Plans. Notwithstanding any provisions contained
herein to the contrary and for Limitation Years beginning before January 1,
2000, 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.
<PAGE>
ARTICLE VII
SUSPENSION OF CONTRIBUTIONS
7
7.1 Suspension of Contributions. A Participant may (on a prospective
basis) voluntarily suspend the Elective Employer Contributions made on his
behalf and his Voluntary Participant Contributions in accordance with the
procedures established by the Benefit Plan Administration Committee. Such
suspension shall be effective as soon as practicable after the Participant's
election. Whenever Elective Employer Contributions made on a Participant's
behalf and Voluntary Participant Contributions are suspended, Employer Matching
Contributions shall also be suspended.
7.2 Resumption of Contributions. A Participant may terminate
prospectively any such suspension in accordance with the procedures established
by the Benefit Plan Administration Committee. Such resumption of contributions
shall be effective as soon as practicable after it is made. There shall be no
make up of any contributions by a Participant or by the Company with respect to
a period of suspension.
<PAGE>
ARTICLE VIII
INVESTMENT OF PARTICIPANTS' CONTRIBUTIONS
8
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 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 shall be selected from time to time by the
Benefit Plan Administration Committee and shall include among others the:
"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.
8.2 Investment of Participant Contributions. Each Participant shall
direct, at the time he elects to participate in the Plan and at such other times
as may be directed by the Benefit Plan Administration Committee, that his
Account (other than Employer Matching Contributions) be invested in one or more
of the Investment Funds, provided such investments are made in one percent (1%)
increments.
8.3 Investment of Earnings. Interest, dividends, if any, and other
distributions received by the Trustee with respect to an Investment Fund shall
be invested in such Investment Fund.
8.4 Transfer of Assets between Funds. A Participant may direct in
accordance with the provisions of this Section 8.4 and such procedures
established by the Benefit Plan Administration Committee, that all of his
interest in an Investment Fund or Funds attributable to amounts in his Account
(other than Employer Matching Contributions) or any portion of such amount
(expressed in number of shares, whole dollar amounts, or one percent (1%)
increments) to the credit of his Account be transferred and invested by the
Trustee as of such date in any other Investment Fund as designated by the
Participant. Such direction shall be effective as soon as practicable after it
is made. Notwithstanding the foregoing, any Participant whose employment with
the Affiliated Employers is terminated as a result of his retirement pursuant to
the defined benefit pension plan of an Affiliated Employer may direct in
accordance with the provisions of this Section 8.4 and such procedures
established by the Benefit Plan Administration Committee that all or any portion
of his Account (expressed in number of shares, whole dollar amounts, or
one-percent (1%) increments) attributable to Employer Matching Contributions be
transferred and invested by the Trustee as of such date in any Investment Fund
or Funds designated by the Participant.
8.5 Change in Investment Direction. 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
accordance with the procedures established by the Benefit Plan Administration
Committee and such direction shall be effective as soon as practicable after it
is made.
8.6 Section 404(c) Plan. This Plan is intended to be a plan described
in ERISA Section 404(c) and shall be interpreted in accordance with Department
of Labor Regulations Section 2550.404c-1. The Benefit Plan Administration
Committee shall take such actions as it deems necessary or appropriate in its
discretion to cause the Plan to comply with such requirements, including, but
not limited to, providing Participants with the right to request and receive
written confirmation of their investment instructions. Further, the Benefit Plan
Administration Committee shall take such actions as it deems necessary or
appropriate in its discretion (a) to ensure that confidentiality procedures with
respect to a Participant's ownership of Common Stock and the exercise of
ownership rights with respect to such Common Stock are adequate and utilized,
and (b) to appoint an independent fiduciary to carry out such actions as the
Benefit Plan Administration Committee determines involve the potential for undue
influence on Participants with regard to the direct or indirect exercise of
shareholder rights with respect to Common Stock.
<PAGE>
ARTICLE IX
MAINTENANCE AND VALUATION OF PARTICIPANTS' ACCOUNTS
9
9.1 Establishment of Accounts. 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 any Rollover Contributions
(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.
9.2 Valuation of Investment Funds. A Participant's Account in respect
of his interest in each Investment Fund shall be credited or charged, as the
case may be, as of each Valuation Date with the dividends, income, gains,
appreciation, losses, depreciation, forfeitures, expenses, and other
transactions for the Valuation Date as of 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 Benefit Plan
Administration 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 each Investment Fund. Investments of each Investment Fund shall
be valued at their fair market values as of each Valuation Date as determined by
the Trustee, and such valuation shall conclusively establish such value.
9.3 Rights in Investment Funds. 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 14.3.
<PAGE>
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.
<PAGE>
ARTICLE XI
WITHDRAWALS AND LOANS PRIOR TO TERMINATION OF EMPLOYMENT
11
11.1 Withdrawals by Participants.
(a) Subject to the provisions of this Section 11.1 and
Sections 11.2 through 11.6, a Participant may make withdrawals from his
Account effective as of any Valuation Date in the order of priority
listed below:
(1) All or a portion of the value of his Account
attributable to Rollover Contributions (including any earnings
or appreciation thereon);
(2) All amounts described above, plus all or a
portion of the value of his Account attributable to
Voluntary Participant Contributions, plus a ratable portion
of the earnings and/or appreciation on Voluntary Participant
Contributions;
(3) All amounts described above, plus up to 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;
(4)(A) For Participants who have not attained age
59 1/2 or separated from service with the Affiliated
Employers (within the meaning of Code Section
401(k)(2)(B)(i)(I)) all amounts described above, plus all or
a portion of the value of his Account attributable to
Elective Employer Contributions (not including any earnings
or appreciation thereon); and
(B) For Participants who have attained age 59 1/2
or separated from service with the Affiliated Employers
(within the meaning of Code Section 401(k)(2)(B)(i)(I)), all
amounts described above, plus all or a portion of the value
of his Account attributable to Elective Employer
Contributions and any earnings or appreciation thereon.
<PAGE>
(b) There shall be no limit on the number of withdrawals which may be
made during a Plan Year.
11.2 Notice of Withdrawal. Notice of withdrawal must be given by a
Participant in accordance with the procedures established by the Benefit Plan
Administration Committee, 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. Payment of a
withdrawal shall be made as soon as practicable 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 the Participant shall have the right to
demand that all or a portion of such 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 in accordance with the procedures established
by the Benefit Plan Administration Committee.
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 made in accordance with
the instructions of the Participant 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 soon
as practicable in accordance with the procedures established by the Benefit Plan
Administration Committee.
11.6 Requirement of Hardship.
(a) Except as provided in (e) below, a withdrawal pursuant
to Section 11.1(a)(4)(A), in addition to the other requirements of
Article XI, shall be permitted only if the Benefit Plan Administration
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) 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) Payment of tuition and related educational
fees, and room and board expenses, 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 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) The distribution is not in excess of the amount
of the immediate and heavy financial need of the Participant,
including any amounts necessary to
<PAGE>
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 Participant (if the Participant is
then eligible and elects to resume such contributions) beginning with
the Participant's first payroll period commencing after all suspensions
are ended, and Employer Matching Contributions by the Company also
shall be resumed. There shall be no make up of any contributions by a
Participant or by the Company with respect to a period of suspension.
(e) Notwithstanding (a) above, if a Participant has attained
age 59 1/2 or separated from service with the Affiliated Employers
(within the meaning of Code Section 401(k)(2)(B)(i)(I)), he shall be
permitted to make a withdrawal pursuant to Section 11.1(a)(4)(A), even
if such withdrawal is not on account of hardship.
11.7 Loans to Participants.
(a) The Benefit Plan Administration Committee may, in its
sole discretion, direct the Trustee to make a loan or loans from the
Trust Fund to any Participant (other than a Participant with an
existing Plan loan in arrears) (1) who is an Employee on the active
payroll of the Company, (2) who is receiving long-term disability
payments under a plan maintained by the Company, (3) who is on a leave
of absence authorized by the Company, or (4) who is a party in interest
as defined in Section 3(14) of ERISA. All loan applications shall be
made in accordance with the procedures established by the Benefit Plan
Administration Committee, which shall form a part of this Plan. Such
procedures shall establish the terms and conditions of loans under the
Plan, including the events constituting default, and shall be
consistent with the provisions of this Section 11.7.
(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) 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.
(d) The Benefit Plan Administration Committee shall adopt
and follow uniform and nondiscriminatory procedures 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 the 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 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 Benefit Plan Administration 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 16.2, if a Participant
defaults on a loan under the Plan 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 Benefit Plan
Administration 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
Benefit Plan Administration 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.
<PAGE>
ARTICLE XII
DISTRIBUTION TO PARTICIPANTS
12
12.1 Distribution upon Retirement.
(a) 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 shall be payable to him in the manner
set forth in this Section 12.1 at such time requested by the
Participant pursuant to Section 12.6 and in accordance with the
procedures established by the Benefit Plan Administration Committee.
(1) In a single lump sum distribution; or
(2) In annual installments not to exceed twenty
(20), as selected by the Participant, or the Participant's
life expectancy. 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 Benefit Plan Administration
Committee, in accordance with principles and procedures established by
the Benefit Plan Administration 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 Benefit Plan
Administration 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.
(b) Notwithstanding a Participant's election to defer the
receipt of the benefits under (a) above, the Benefit Plan
Administration Committee shall direct payment in a single lump sum to
such Participant if the balance of his Account does not exceed $5,000
in accordance with the requirements of Code Section 411(a)(11). The
Benefit Plan Administration Committee shall not cash-out any
Participant whose Account balance exceeds $5,000 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,
such disabled Participant shall be entitled to receive the entire value credited
to his Account at such time as requested by the Participant or such legal
representative pursuant to Section 12.6 and in accordance with the procedures
established by the Benefit Plan Administration Committee. Any distribution
pursuant to this Section 12.2 shall be made in a single lump sum as soon as
practicable after the selected Valuation Date.
Notwithstanding the foregoing, the Benefit Plan
Administration Committee shall direct payment in a single lump sum to the
Participant or his legal representative if the balance of such Participant's
Account does not exceed $5,000 in accordance with the requirements of Code
Section 411(a)(11).
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 shall be distributed as soon as
practicable to the Participant's surviving Beneficiary or Beneficiaries in a
single lump sum.
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 Benefit Plan
Administration 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 made
in accordance with the procedures established by the Benefit Plan Administration
Committee.
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 or the procedures of the Benefit Plan
Administration Committee, 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
(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 shall be payable in a single lump sum. Such lump
sum distribution shall be made as soon as practicable after the
Participant's termination of employment, provided that one of the
following conditions is met:
<PAGE>
(1) the Participant's Account Balance does not exceed
$5,000 in accordance with Code Section 411(a)(11), or
(2) in accordance with Section 12.10, the Participant
elects 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 of his entire account balance shall
commence as soon as practicable in a lump sum 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:
(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 later of the following
occurs:
(1) the Participant attains age 70 1/2, or
(2) if the Participant is not a five percent owner as
defined in Code Section 416, the Participant retires.
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.
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 to an Affiliated Employer. A transfer by a Participant
from the Company to any other Affiliated Employer shall not be deemed to be a
termination of employment with the Company.
12.8 Distributions to Alternate Payees. If the Participant's Account
under the Plan shall become subject to any domestic relations order which (a) is
a qualified domestic relations order satisfying the requirements of Section
414(p) of the Code and (b) 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 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 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
shall not commence 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 Articles XII of the Plan.
12.9 Requirement for Direct Rollovers. 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 Benefit Plan Administration 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 the Company and Employee
contributions exceeds $5,000 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 Benefit Plan Administration Committee or its delegate 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 optional 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 Benefit Plan Administration 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
distribution and a particular distribution option,
and
(b) the Participant, after receiving the notice,
affirmatively elects a distribution.
12.11 Form of Payment. All distributions under this Article XII shall
be made in the form of cash, provided that the person entitled to such
distribution may demand that all or a portion of the portion of any distribution
be distributed in the form of Common Stock to the extent of the whole number of
shares in the Participant's Account, with a cash adjustment for any fractional
shares.
12.12 Partial Distribution upon Termination of Employment. If a
Participant's employment with the Affiliated Employers is terminated and such
Participant is deemed not to have separated from service with the Affiliated
Employers within the meaning of Code Section 401(k)(2)(B)(i)(I), such
Participant, in addition to the withdrawal options available under Article XI,
shall be entitled to elect a lump sum distribution of the entire balance to the
credit of his Account less the amount credited to his Elective Employer
Contribution subaccount. The amounts credited to his Elective Employer
Contribution subaccount may be distributed in a lump sum distribution at such
time permitted pursuant to Code Section 401(k)(2)(B)(i) and Section 4.4(c)
hereof. Such lump sum distributions shall otherwise be subject to the provisions
of this Article XII.
<PAGE>
ARTICLE XIII
ADMINISTRATION OF THE PLAN
13
13.1 Membership of Benefit Plan Administration Committee. The Plan
shall be administered by the Benefit Plan Administration Committee, which shall
consist of such individuals as may be appointed from time to time by the Board
of Directors or its delegate.
13.2 Acceptance and Resignation. Any person appointed to be a member of
the Benefit Plan Administration Committee shall signify his acceptance in
writing to the Chairman of the Benefit Plan Administration Committee. Any member
of the Benefit Plan Administration Committee may resign by delivering his
written resignation to the Chairman of the Benefit Plan Administration 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 Benefit
Plan Administration Committee at the time in office shall constitute a quorum
for the transaction of business at any meeting. Any determination or action of
the Benefit Plan Administration 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 Benefit Plan Administration
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 Benefit Plan Administration 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 Benefit Plan Administration 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, the Trustee,
the Participants, and their Beneficiaries. Any discretionary action to be taken
under the Plan by the Benefit Plan Administration 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 Benefit Plan Administration Committee as Named Fiduciary. For the
purpose of compliance with the provisions of ERISA, the Benefit Plan
Administration Committee shall be deemed the administrator of the Plan as the
term "administrator" is defined in ERISA, and the Benefit Plan Administration
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 Benefit Plan
Administration Committee may, in its discretion, allocate its responsibilities
under the Plan among its members and may, in its discretion, designate persons
(in writing or otherwise) other than members of the Benefit Plan Administration
Committee to carry out such responsibilities of the Benefit Plan Administration
Committee under the Plan as it may see fit.
13.6 Rules for Plan Administration. The Benefit Plan Administration
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 or procedures as it shall deem appropriate for the administration of
the Plan.
13.7 Employment of Agents. The Benefit Plan Administration Committee
may employ independent qualified public accountants, as such term is defined in
ERISA, who may be accountants to the 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 Benefit Plan Administration
Committee deems necessary or desirable in connection with the administration of
the Plan. The Benefit Plan Administration Committee and any person to whom it
may delegate (in writing or otherwise) 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 Benefit Plan Administration 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 Benefit Plan Administration 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 respect to the administration of the Plan. The Benefit
Plan Administration 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 communicated to the
Benefit Plan Administration Committee or its delegate or of the Company.
13.10 Liability of the Benefit Plan Administration Committee. In
administering the Plan, except as may be prohibited by ERISA, neither the
Benefit Plan Administration Committee nor any person to whom it may delegate in
writing 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 Benefit Plan Administration 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 Benefit Plan Administration Committee. No member of the Benefit Plan
Administration 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 Benefit Plan Administration Committee.
13.11 Reimbursement of Expenses and Compensation of Benefit Plan
Administration Committee. Members of the Benefit Plan Administration 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
Benefit Plan Administration Committee who is a full-time employee of the Company
shall serve without compensation for his services as such member; each other
member of the Benefit Plan Administration 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. Any expenses directly related to
the investments of the Trust Fund, such as stock transfer taxes, brokerage
commissions, investment management fees 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. The expenses of
establishment and administration of the Plan and the Trust Fund, including all
fees of the Trustee, auditors, and counsel, shall be paid by the Company. 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 Benefit Plan Administration Committee shall determine.
13.13 Responsibility for Funding Policy. The Benefit Plan
Administration Committee 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 Benefit Plan Administration 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 Benefit
Plan Administration Committee 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 Benefit Plan Administration 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
<PAGE>
(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 Benefit Plan Administration 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.
13.18 Change in Administrative Procedures. Notwithstanding any
provision in the Plan to the contrary, the Benefit Plan Administration Committee
shall be authorized to take whatever actions it deems necessary or appropriate
in its discretion to implement administrative procedures, including, but not
limited to, suspending plan participation (to the extent permitted by applicable
law,) and suspending changes in investment directions and fund transfers, even
though otherwise permitted or required under the Plan.
<PAGE>
ARTICLE XIV
TRUSTEE OF THE PLAN
14
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 the Trust 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 Benefit Plan Administration Committee. 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 applicable to
the purchase of Common Stock pending investment of such funds in such Common
Stock.
14.3 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 as of 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. If a Participant does not provide the Trustee or
its designated agent with timely voting instructions for the Trustee, the
Benefit Plan Administration Committee or its delegate may direct the Trustee how
to vote such Participant's shares. If the Benefit Plan Administration Committee
or its delegate does not provide the Trustee or its designated agent with timely
voting instructions, the Trustee, if required to do so by applicable law, may
vote such Participant's shares. The Benefit Plan Administration Committee or its
delegate may direct the Trustee with respect to voting unallocated shares of
Common Stock, if any. If the Benefit Plan Administration Committee or its
delegate does not provide the Trustee or its designated agent with timely voting
instructions, the Trustee, if required to do so by applicable law, may vote such
unallocated shares.
14.4 Voting of Other Investment Fund Shares. The Benefit Plan
Administration Committee or its delegate may direct the Trustee with respect to
voting the shares in any Investment Fund other than the Company Stock Fund. To
the extent an Investment Manager has been designated with respect to an
Investment Fund, such Investment Manager (and not the Benefit Plan
Administration Committee) shall direct the Trustee with respect to voting the
shares in such Investment Fund. If the Investment Manager does not direct the
Trustee with respect to voting such shares, the Benefit Plan Administration
Committee may direct the Trustee with respect to voting such shares. If the
Benefit Plan Administration Committee does not provide the Trustee or its
designated agent with timely voting instructions, the Trustee, if required to do
so by applicable law, may vote such shares.
14.5 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.
14.6 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.
<PAGE>
ARTICLE XV
AMENDMENT AND TERMINATION OF THE PLAN
15
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 Benefit Plan Administration Committee (a) if such amendment or
modification does not involve a substantial increase in cost to the 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 Company 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 the Company.
In the event of termination of the Plan or partial termination or upon
complete discontinuance of contributions under the Plan by the Company, the
amount to the credit of the Account of each Participant affected by such
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 Benefit Plan
Administration 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).
<PAGE>
ARTICLE XVI
GENERAL PROVISIONS
16
16.1 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 the Company or to interfere with the right of the
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.
16.2 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 Benefit Plan Administration 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 Benefit Plan Administration 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 Benefit Plan
Administration 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
414(p) of the Code, and (c) distributing benefits which are subject to qualified
domestic relations orders. In addition, a Participant's benefits may be offset
pursuant to a judgment, order, decree issued, or settlement agreement entered
into on or after August 5, 1997, if and to the extent that such offset is
permissible or required under Code Section 401(a)(13).
16.3 Payment to Minors and Others. If the Benefit Plan Administration
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 Benefit Plan Administration 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 the Company, except as
specifically provided herein.
16.4 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 the Company, except as
specifically provided herein.
16.5 Unclaimed Benefits. If the Benefit Plan Administration 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 Benefit Plan
Administration Committee or the Company, then such benefit or distribution will
be disposed of as follows:
(a) If the whereabouts of the Participant is unknown to the
Benefit Plan Administration 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 Benefit Plan Administration
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.
16.6 Governing Law. The provisions of the Plan and the Trust shall be
construed, administered, and enforced in accordance with the laws of the State
of Georgia, except to the extent such laws are preempted by the laws of the
United States.
IN WITNESS WHEREOF, the Company has caused this Southern Energy, Inc.
Savings Plan for Collectively-Bargained Employees effective as of January 1,
1998, to be executed this day of , 1997.
SOUTHERN ENERGY, INC.
By:________________________________
Its:_______________________________
Attest:
By:________________________________
Its:_______________________________
<PAGE>
Schedule A
Steelworkers of America Local #12502
The provisions of this Schedule A shall apply only to Employees
described above and this schedule shall not otherwise modify the provisions of
the Plan.
A.1 Section 2.47 - For all purposes under the Plan, Section 2.47 of the Plan,
which defines Year of Service, shall include for Eligible Employees who are
Employees on January 1, 1998 any Years of Service credited under the
Commonwealth Edison Employee Savings and Investment Plan.
A.2 Section 4.1 - Rate of Elective Employer Contributions:
1% to 16% of Compensation
A.3 Section 4.6 - Rate of Voluntary Participant Contributions:
1% to 16% of Compensation
A.4 Section 5.1 - Rate of Employer Matching Contributions:
75% of the Participant's Elective Employer Contributions and
Voluntary Participant Contributions during each payroll period,
but such Employer Matching Contributions shall not exceed six
percent (6%) of the Participant's Compensation for such payroll
period.
Exhbit 4(d)
TRUST AGREEMENT
between
MERRILL LYNCH TRUST COMPANY (FLORIDA), as the Trustee
and
SOUTHERN ENERGY, INC., as the Employer
Trust Agreement entered into as of January 1, 1998 by and
between the above-named employer (the "Employer") and Merrill Lynch
Trust Company (Florida), a Florida corporation (the "Trustee"), with
respect to a trust ("Trust") forming part of the Southern Energy, Inc.
Bargaining Unit Savings Plan (the "Plan").
The Employer and the Trustee hereby agree as follows:
ARTICLE I
STATUS OF TRUST AND APPOINTMENT
AND ACCEPTANCE OF TRUSTEE
1.01 Status of Trust. The Trust is intended to be a qualified
trust under section 401(a) of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), and exempt from taxation
pursuant to section 501(a) of the Code.
1.02 Appointment of Trustee. The Employer represents that all
necessary action has been taken for the appointment of the Trustee as
trustee of the Trust and that the Trust Agreement constitutes a legal,
valid and binding obligation of the Employer.
1.03 Acceptance of Appointment. The Trustee accepts its
appointment as trustee of the Trust.
1.04 Title of Trust. The Trust shall be known as the Southern
Energy, Inc. Bargaining Unit Savings Plan Trust.
1.05 Effectiveness. This Trust Agreement shall not become
effective until executed and delivered by both the Employer and the
Trustee.
ARTICLE II
ADMINISTRATIVE AND INVESTMENT FIDUCIARIES
2.01 Named Administrative and Investment Fiduciaries. For
purposes of this Trust Agreement, the term "Named Administrative
Fiduciary" refers to the committee or its designee(s) named or provided
for in the Plan as responsible for the administration and operation of
the Plan, and the term "Named Investment Fiduciary" refers to the
committee or its designee(s) provided for in the Plan as responsible
for the investment and management of Plan assets to the extent provided
for in this Trust Agreement. The Named Administrative Fiduciary and the
Named Investment Fiduciary may be the same person. If any such person
is not named or provided for in the Plan, or if so named or provided
for, is not then serving, the Employer shall be the Named
Administrative Fiduciary or the Named Investment Fiduciary or both, as
the case may be.
2.02 Identification of Named Fiduciaries and Designees. The
Named Administrative Fiduciary and the Named Investment Fiduciary under
the Plan shall each be identified to the Trustee in writing by the
Employer, and specimen signatures of each, or of each member thereof,
as appropriate, shall be provided to the Trustee by the Employer. The
Employer shall promptly give written notice to the Trustee of a change
in the identity either of the Named Administrative Fiduciary or the
Named Investment Fiduciary, or any member thereof, as appropriate, and
until such notice is received by the Trustee, the Trustee shall be
fully protected in assuming that the identity of the Named
Administrative Fiduciary or Named Investment Fiduciary, and the members
thereof, as appropriate, is unchanged. Each person authorized in
accordance with the Plan to give a direction to the Trustee on behalf
of the Named Administrative Fiduciary or the Named Investment Fiduciary
shall be identified to the Trustee by written notice from the Employer
or the Named Administrative Fiduciary or the Named Investment
Fiduciary, as the case may be, and such notice shall contain a specimen
of the signature. The Trustee shall be entitled to rely upon each such
written notice as evidence of the identity and authority of the persons
appointed until a written cancellation of the appointment, or the
written appointment of a successor, is received by the Trustee from the
Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary, as the case may be.
ARTICLE III
RECEIPTS AND TRUST FUND
3.01 Receipt by Trustee. The Trustee shall receive in cash or
other assets acceptable to the Trustee all contributions paid or
delivered to it which are allocable under the Plan and to the Trust and
all transfers paid or delivered under the Plan to the Trust from a
predecessor trustee or another trust (including a trust forming part of
another plan qualified under section 401(a) of the Code), provided that
the Trustee shall not be obligated to receive any such contribution or
transfer unless prior thereto or coincident therewith, as the Trustee
may specify, the Trustee has received such reconciliation, allocation,
investment or other information concerning, or such direction,
instruction or representation with respect to, the contribution or
transfer or the source thereof as the Trustee may require. The Trustee
shall have no duty or authority to (a) require any contributions or
transfers to be made under the Plan or to the Trustee, (b) compute any
amount to be contributed or transferred under the Plan to the Trustee,
or (c) determine whether amounts received by the Trustee comply with
the Plan.
3.02 Trust Fund. For purposes of this Trust Agreement, the
"Trust Fund" consists of all money and other property received by the
Trustee pursuant to Section 3.01 hereof, increased by any income or
gains on or increment in such assets and decreased by any investment
loss or expense, benefit or disbursement paid pursuant to this Trust
Agreement. The Trustee shall hold the Trust Fund, without distinction
between principal and income, as a nondiscretionary trustee pursuant to
the terms of this Trust Agreement. Assets of the Trust may, in the
Trustee's discretion, be held in an account maintained with an
affiliate of the Trustee.
3.03 Additional Trust Fund. Notwithstanding any other
provision of this Trust Agreement, to the extent that assets of the
Plan are held in trust by a trustee other than the Trustee (such other
trustee to be referred to as a "Second Trustee"), the Employer shall
have created two trust funds under the Plan. The appointment of a
Second Trustee shall be deemed a representation by the Employer that
the Plan contains all appropriate provisions relating to the Second
Trustee. The Trustee (i) shall discharge its duties and
responsibilities hereunder solely with respect to those assets
delivered into its possession, (ii) shall have no duties,
responsibilities or obligations with respect to assets held in trust by
the Second Trustee unless and until such assets are delivered to the
Trustee and (iii) except as otherwise required under the Employee
Retirement Income Security Act of 1974, as amended from time to time
("ERISA"), shall have no liability or responsibility for the acts or
omissions of the Second Trustee. To the extent that assets of the Plan
are held in trust by multiple trustees other than the Trustee, the
foregoing shall apply to each such other trustee.
ARTICLE IV
PAYMENTS, ADMINISTRATIVE DIRECTIONS
AND EXPENSES
4.01 Payments by Trustee. Payments of money or property from
the Trust Fund shall be made by the Trustee upon direction from the
Named Administrative Fiduciary or its designee. Payments by the Trustee
shall be transmitted to the Named Administrative Fiduciary or its
designee for delivery to the proper payees or to payee addresses
supplied by the Named Administrative Fiduciary or its designee, and the
Trustee's obligation to make such payments shall be satisfied upon such
transmittal. The Trustee shall have no obligation to determine the
identity of persons entitled to payments under the Plan or their
addresses.
4.02 Named Administrative Fiduciary's Directions. Directions
from or on behalf of the Named Administrative Fiduciary or its designee
shall be communicated to the Trustee or the Trustee's designee only in
a manner and in accordance with procedures acceptable to the Trustee.
The Trustee's designee shall not, however, be empowered to implement
any such directions except in accordance with procedures acceptable to
the Trustee. The Trustee shall have no liability for following any such
directions or failing to act in the absence of any such directions. The
Trustee shall have no liability for the acts or omissions of any person
making or failing to make any direction under the Plan or this Trust
Agreement nor any duty or obligation to review any such direction, act
or omission.
4.03 Disputed Payments. If a dispute arises over the propriety
of the Trustee making any payment from the Trust Fund, the Trustee may
withhold the payment until the dispute has been resolved by a court of
competent jurisdiction or settled by the parties to the dispute. The
Trustee may consult legal counsel, which legal counsel is in good
standing in the state in which counsel is admitted to the practice of
law, and shall be fully protected in acting upon the advice of counsel.
4.04 Trustee's Compensation and Expenses. To the extent not
previously paid by the Employer, the Trustee shall withdraw from the
Trust Fund such amounts as are necessary to (a) pay the Trustee
reasonable compensation for its services under this Trust Agreement in
accordance with the Trustee's fee schedule in effect and applicable at
the time such compensation becomes payable, and (b) pay or reimburse
the Trustee for all reasonable expenses incurred by the Trustee in
connection with or relating to the performance of its duties under this
Trust Agreement or its status as Trustee, including reasonable
attorneys' fees.
Until paid by the Employer or charged against and withdrawn
from the Trust Fund, as the case may be, the Trustee's compensation and
expenses shall be a lien upon the Trust Fund. The Trustee is authorized
to charge the Trust Fund for and withdraw from the Trust Fund, without
direction from the Named Administrative Fiduciary or any other person,
the amount of any such fees or expenses which the Employer has not
elected to pay and the amount of any such fees or expenses which the
Employer has so elected to pay but which remain unpaid for a period of
60 days after presentation of a statement for such amount to the
Employer. Trust Fund assets shall be applied to pay such fees and
expenses in the following priority by asset category to the extent
thereof held at the time of withdrawal in the Trust Fund subfund or
account to which the fee or expense is allocated: (i) uninvested cash
balances; (ii) shares of any money market fund or funds held in the
Trust Fund; and (iii) any other Trust Fund assets. The Trustee is
authorized to allocate its fees and expenses among these subfunds or
accounts to which the fees or expenses pertain in such manner as the
Trustee deems appropriate under the circumstances unless prior to such
allocation the Employer or the Named Administrative Fiduciary specifies
the manner in which the allocation is to be made. The Trustee is also
authorized but not required to sell any shares or other assets referred
to above to the extent necessary for the purpose.
By signing this Trust Agreement, the Employer authorizes the
Trustee and/or its affiliates to receive payments from certain mutual
funds (and/or collective trusts) for which no affiliate of the Trustee
acts as investment manager or adviser (or from the principal
distributors and/or advisors of those funds or trusts), in connection
with the performance of reasonable and necessary services (including
recordkeeping, subaccounting, account maintenance, administrative and
other shareholder services). Because different mutual funds (or
collective trusts) may be subject to different fee arrangements, the
Employer should contact the Trustee or its designee to obtain further
details on any specific fee arrangements that may be applicable to
investments under the Plan.
4.05 Taxes. The Trustee is authorized, with or without
direction from the Named Administrative Fiduciary or any other person,
to withdraw from the Trust Fund and pay any federal, state or local
taxes, charges or assessments of any kind levied or assessed against
the Trust or assets thereof. Until paid, such taxes shall be a lien
against the Trust Fund. The Trustee shall give notice to the Named
Administrative Fiduciary of its receipt of a demand for any such taxes,
charges or assessments. The Trustee shall not be personally liable for
any such taxes, charges or assessments.
4.06 Expenses of Administration. Reasonable expenses incurred
by the Employer, the Named Administrative Fiduciary, the Named
Investment Fiduciary, any Investment Manager designated pursuant to
Section 5.02 or any other persons designated to act on behalf of the
Employer, the Named Administrative Fiduciary or the Named Investment
Fiduciary, including reimbursement for expenses incurred in the
performance of their respective duties, shall be the obligation of the
Employer or other person specified in the Plan. Such expenses, however,
may be paid from the Trust Fund upon the written direction to the
Trustee of the Named Administrative Fiduciary.
4.07 Restriction on Alienation. Except as provided in Section
4.08 or under section 401(a)(13) of the Code, the interest of any Plan
participant or beneficiary in the Trust Fund shall not be subject to
the claims of such person's creditors and may not be assigned, sold,
transferred, alienated or encumbered. Any attempt to do so shall be
void; and the Trustee shall disregard any attempt. Trust assets shall
not in any manner be liable for or subject to debts, contracts,
liabilities, engagement or torts of any Plan participant or
beneficiary, and benefits shall not be considered an asset of any such
a person in the event of the person's insolvency or bankruptcy.
4.08 Payment on Court Order. The Trustee is authorized to make
any payments directed by court order in any action in which the Trustee
is a party or pursuant to a "qualified domestic relations order" under
section 414(p) of the Code; provided that the Trustee shall not make
such payment if the Trustee is indemnified and held harmless by the
Employer in a manner satisfactory to the Trustee against all
consequences of such failure to pay. The Trustee is not obligated to
defend actions in which the Trustee is named but shall notify the
Employer or Named Administrative Fiduciary of any such action and may
tender defense of the action to the Employer, the Named Administrative
Fiduciary or the participant or beneficiary whose interest is affected.
The Trustee may in its discretion defend any action in which the
Trustee is named and any expenses, including reasonable attorneys'
fees, incurred by the Trustee in that connection shall be paid or
reimbursed in accordance with Section 4.04 hereof.
ARTICLE V
INVESTMENTS
5.01 Investment Management. The Named Investment Fiduciary
shall manage the investment of the Trust Fund except insofar as (a) a
person (an "Investment Manager") who meets the requirements of section
3(38) of the Employee Retirement Income Security Act of 1974, as
amended from time to time ("ERISA") has authority to manage Trust
assets as referred to in Section 5.02 hereof or (b) the Plan provides
for participant or beneficiary direction of the investment of assets
allocable under the Plan to the accounts of such participants and
beneficiaries and the Trustee notifies the Employer that such
directions will be acceptable. In the latter situation, a list of the
participants and beneficiaries and such information concerning them as
the Trustee may specify shall be provided by the Employer or the Named
Administrative Fiduciary to the Trustee and/or such person(s) as are
necessary for the implementation of the directions in accordance with
the procedure acceptable to the Trustee. Except as required by ERISA,
the Trustee shall invest the Trust Fund as directed by the Named
Investment Fiduciary, an Investment Manager or a Plan participant or
beneficiary, as the case may be, and the Trustee shall have no
discretionary control over, nor any other discretion regarding, the
investment or reinvestment of any asset of the Trust. The Trustee may
limit the categories of assets in which the Trust Fund may be invested.
It is understood that the Trustee may, from time to time, have
on hand funds which are received as contributions or transfers to the
Trust which are awaiting investment or funds from the sale of Trust
assets which are awaiting reinvestment. Absent receipt by the Trustee
of a direction from the proper person for the investment or
reinvestment of such funds or otherwise prior to the application of
funds in implementation of such a direction, the Trustee shall in
accordance with the Trustee's normal procedures in this regard cause
such funds to be invested in shares of the money market fund acceptable
to the Trustee as the Employer or Named Investment Fiduciary may in
writing to the Trustee specify for this purpose from time to time. Any
such fund may be sponsored, managed or distributed by an affiliate of
the Trustee. The Employer or the Named Investment Fiduciary, as the
case may be, hereby acknowledges that prior to any such specification
it has read or will have read the then current prospectus for the
specified fund.
5.02 Investment Managers. If so allowed pursuant to the Plan,
the Employer or the Named Investment Fiduciary may appoint one or more
Investment Managers, who may be an affiliate of the Trustee, to direct
the Trustee in the investment of all or a specified portion of the
assets of the Trust. Any such Investment Manager shall be directed by
the Employer or the Named Investment Fiduciary, as the case may be, to
act in accordance with the procedures referred to in Section 5.04. The
Named Investment Fiduciary shall notify the Trustee in writing before
the effectiveness of the appointment or removal of any Investment
Manager.
If there is more than one Investment Manager whose appointment
is effective under the Plan at any one time, the Trustee shall, upon
written instructions from the Employer or the Named Investment
Fiduciary, establish separate funds for control by each such Investment
Manager. The funds shall consist of those Trust assets designated by
the Employer or the Named Investment Fiduciary.
5.03 Direction of Voting and Other Rights. Unless an
Investment Manager, as described in Section 5.02, has been appointed by
the Employer or by the Named Investment Fiduciary and the voting and
other rights in securities or other assets held in the Trust that have
been designated for control by the Investment Manager have been
specifically delegated to and assumed by the Investment Manager, the
voting and other rights in securities or other assets held in the Trust
shall be exercised by the Trustee as directed by the Named Investment
Fiduciary or other person who at the time has the right as referred to
in Section 5.01 hereof to direct the investment or reinvestment of the
security or other asset involved, provided that notwithstanding any
provision of the Plan to the contrary, (a) except as provided in clause
(b) of this Section, such voting and other rights in any such security
or other asset selected by the Employer or the Named Investment
Fiduciary shall be exercised by the Named Investment Fiduciary and (b)
such voting and other rights in any "employer security" with respect to
the Plan within the meaning of Section 407(d)(1) of ERISA ("Employer
Securities") which is held in an account under the Plan over which a
Plan participant or beneficiary has control as to specific assets to be
held therein or which is held in an account which consists solely or
primarily of Employer Securities shall be exercised by the participants
or beneficiaries having interests in that account. Notwithstanding any
provision hereof or of the Plan to the contrary, (i) in the event a
Plan participant or beneficiary or an Investment Manager with the right
to direct a voting or other decision with respect to any security or
other asset held in the Trust does not communicate any decision on the
matter to the Trustee or the Trustee's designee by the time prescribed
by the Trustee or the Trustee's designee for that purpose or if the
Trustee notifies the Named Investment Fiduciary either that it does not
have precise information as to the securities or other assets involved
allocated on the applicable record date to the accounts of all
participants and beneficiaries or that time constraints make it
unlikely that participant, beneficiary or Investment Manager direction,
as the case may be, can be received on a timely basis, the decision
shall be the responsibility of the Named Investment Fiduciary and shall
be communicated to the Trustee on a timely basis, and (ii) in the event
the Named Investment Fiduciary with any right under the Plan or
hereunder to direct a voting or other decision with respect to any
security or other asset held in the Trust, including any such right
under clause (a) or clause (i) of this Section, does not communicate
any decision on the matter to the Trustee or the Trustee's designee by
the time prescribed by the Trustee for that purpose, the Trustee may
obtain advice from a bank, insurance company, investment adviser or
other investment professional (including any affiliate of the Trustee)
or retain an Investment Manager with full discretion to make the
decision. The Employer will reimburse the Trustee for the reasonable
fees and expenses incurred in obtaining this advice if the voting or
other decision relates to a contested proxy matter, a tender or merger
offer, or other decision which requires substantial analysis to
determine whether the economic consequence of the decision will be
material to the Plan. Except as required by ERISA, the Trustee shall
(a) follow all directions above-referred to in this Section and (b)
shall have no duty to exercise voting or other rights relating to any
such security or other asset.
5.04 Investment Directions. Directions for the investment or
reinvestment of Trust assets or directions of a type referred to in
Section 5.03 from the Employer, the Named Investment Fiduciary, an
Investment Manager or a Plan participant or beneficiary, as the case
may be, shall, in a manner and in accordance with procedures acceptable
to the Trustee, be communicated to and implemented by, as the case may
be, the Trustee, the Trustee's designee or, with the Trustee's consent,
the broker/dealer designated for the purpose by the Employer or the
Named Investment Fiduciary. Communication of any such direction to such
a designee or broker/dealer shall conclusively be deemed an
authorization to the designee or broker/dealer to implement the
direction even though coming from a person other than the Trustee. The
Trustee shall have no liability for its or any other person's following
such directions or failing to act in the absence of any such
directions. The Trustee shall have no liability for the acts or
omissions of any person directing the investment or reinvestment of
Trust Fund assets or making or failing to make any direction referred
to in Section 5.03. Neither shall the Trustee have any duty or
obligation to review any such investment or other direction, act or
omission or, except upon receipt of a proper direction, to invest or
otherwise manage any asset of the Trust which is subject to the control
of any such person or to exercise any voting or other right referred to
in Section 5.03.
5.05 Communication of Proxy and Other Materials. The Employer
or Named Administrative Fiduciary shall establish a procedure
acceptable to the Trustee for the timely dissemination to each person
entitled to direct the Trustee or its designee as to a voting or other
decision called for thereby or referred to therein of all proxy and
other materials bearing on the decision. In the case of Employer
Securities, at such time as proxy or other materials bearing thereon
are disseminated generally to owners of Employer Securities in
accordance with applicable law, the Employer shall cause a copy of such
proxy or other materials to be delivered directly to the Trustee and,
thereafter, shall promptly deliver to the Trustee such number of
additional copies of the proxy or other materials as the Trustee may
request.
5.06 Common and Collective Trust Funds. Any person authorized
to direct the investment of Trust assets may, if the Trustee and the
Named Investment Fiduciary so permit, direct the Trustee to invest such
assets in a common or collective trust maintained by the Trustee or its
affiliate for the investment of assets of qualified trusts under
section 401(a) of the Code, individual retirement accounts under
section 408(a) of the Code and plans of governmental units described in
section 818(a)(6) of the Code. The documents governing any such common
or collective trust fund maintained by the Trustee or its affiliate,
and in which Trust assets have been invested, are hereby incorporated
into this Trust Agreement by reference.
ARTICLE VI
RESPONSIBILITIES AND INDEMNITY
6.01 Relationship of Fiduciaries. Each fiduciary of the Plan
and the Trust shall be solely responsible for its own acts or
omissions. The Trustee shall have no duty to question any other Plan
fiduciary's performance of fiduciary duties allocated to such other
fiduciary pursuant to the Plan. The Trustee shall not be responsible
for the breach of responsibility by any other Plan fiduciary except as
provided for in ERISA.
6.02 Benefit of Participants. Each fiduciary shall, within the
meaning of the Code and ERISA, discharge its duties with respect to the
Trust solely in the interest of participants in the Plan and their
beneficiaries and for the exclusive purpose of providing benefits to
such participants and beneficiaries and defraying reasonable expenses
of administering the Plan.
6.03 Status of Trustee. The Trustee acknowledges its status as
a "fiduciary" of the Plan within the meaning of ERISA.
6.04 Location of Indicia of Ownership. Except as permitted by
ERISA, the Trustee shall not maintain the indicia of ownership of any
assets of the Trust outside the jurisdiction of the district courts of
the United States.
6.05 Trustee's Reliance. The Trustee shall have no duty to
inquire whether directions by the Employer, the Named Administrative
Fiduciary, the Named Investment Fiduciary or any other person conform
to the Plan, and the Trustee shall be fully protected in relying on any
such direction communicated in accordance with procedures acceptable to
the Trustee from any person who the Trustee reasonably believes is a
proper person to give the direction. The Trustee shall have no
liability to any participant, any beneficiary or any other person for
payments made, any failure to make payments, or any discontinuance of
payments, on direction of the Named Administrative Fiduciary, the Named
Investment Fiduciary or any designee of either of them or for any
failure to make payments in the absence of directions from the Named
Administrative Fiduciary or any person responsible for or purporting to
be responsible for directing the investment of Trust assets. The
Trustee shall have no obligation to request proper directions from any
person. The Trustee may request instructions from the Named
Administrative Fiduciary or the Named Investment Fiduciary and shall
have no duty to act or liability for failure to act if such
instructions are not forthcoming. The Trustee shall have no
responsibility to determine whether the Trust Fund is sufficient to
meet the liabilities under the Plan, and shall not be liable for
payments or Plan liabilities in excess of the Trust Fund.
6.06 Indemnification. Except as prohibited by ERISA, the
Employer indemnifies the Trustee against, and shall hold the Trustee
harmless from, any and all loss, claims, liabilities, and expenses,
including reasonable attorneys' fees, imposed upon the Trustee or
incurred by the Trustee as a result of any acts taken, or any failure
to act, in accordance with directions given pursuant to and in
accordance with the terms of the Trust from the Named Administrative
Fiduciary, Named Investment Fiduciary, Investment Manager (other than
an Investment Manager which is an affiliate of the Trustee) or any
other person specified in Article IV or V hereof acting under the
control or acting at the direction of the Named Administrative
Fiduciary, the Named Investment Fiduciary, or an Investment Manager
(other than an Investment Manager which is an affiliate of the
Trustee), or any permitted designee of any such person.
6.07 Protection of Designees. To the extent that any designee
of the Trustee is performing a function of the Trustee under this Trust
Agreement, the designee shall have the benefit of all of the applicable
limitations on the scope of the Trustee's duties and liabilities, all
applicable rights of indemnification granted hereunder to the Trustee
and all other applicable protections of any nature afforded to the
Trustee.
ARTICLE VII
POWERS OF TRUSTEE
7.01 Nondiscretionary Investment Powers. At the direction of
the person authorized to direct such action as referred to in Article V
hereof, but limited to those assets or categories of assets acceptable
to the Trustee as referred to in Section 5.01, the Trustee, or the
Trustee's designee or a broker/dealer as referred to in Section 5.04,
is authorized and empowered:
(a) To invest and reinvest the Trust Fund, together with the
income therefrom, in common stock, preferred stock, convertible
preferred stock, bonds, debentures, convertible debentures and bonds,
mortgages, notes, commercial paper and other evidences of indebtedness
(including those issued by the Trustee), shares of mutual funds (which
funds may be sponsored, managed or offered by an affiliate of the
Trustee), guaranteed investment contracts, bank investment contracts,
other securities, policies of life insurance, annuity contracts,
options, options to buy or sell securities or other assets, and all
other property of any type (personal, real or mixed, and tangible or
intangible);
(b) To deposit or invest all or any part of the assets of the
Trust in savings accounts or certificates of deposit or other deposits
in a bank or savings and loan association or other depository
institution, including the Trustee or any of its affiliates; provided
that, with respect to such deposits with the Trustee or an affiliate,
the deposits bear a reasonable interest rate;
(c) To hold, manage, improve, repair and control all property,
real or personal, forming part of the Trust Fund; to sell, convey,
transfer, exchange, partition, lease for any term, even extending
beyond the duration of this Trust, and otherwise dispose of the same
from time to time;
(d) To have, respecting securities, all the rights, powers and
privileges of an owner, including the power to give proxies, pay
assessments and other sums deemed by the Trustee necessary for the
protection of the Trust Fund; to vote any corporate stock either in
person or by proxy, with or without power of substitution, for any
purpose; to participate in voting trusts, pooling agreements,
foreclosures, reorganizations, consolidations, mergers and
liquidations, and in connection therewith to deposit securities with or
transfer title to any protective or other committee; to exercise or
sell stock subscriptions or conversion rights; and, regardless of any
limitation elsewhere in this instrument relative to investments by the
Trustee, to accept and retain as an investment any securities or other
property received through the exercise of any of the foregoing powers;
(e) Subject to Section 5.01 hereof, to hold in cash such
portion of the Trust Fund which it is directed to so hold pending
investments, or payment of expenses, or the distribution of benefits;
(f) To take such actions as may be necessary or desirable to
protect the Trust from loss due to the default on mortgages held in the
Trust including the appointment of agents or trustees in such other
jurisdictions as may seem desirable, to transfer property to such
agents or trustees, to grant to such agents such powers as are
necessary or desirable to protect the Trust Fund, to direct such agent
or trustee, or to delegate such power to direct, and to remove such
agent or trustee;
(g) To settle, compromise or abandon all claims and demands in
favor of or against the Trust Fund;
(h) To invest in any common or collective trust fund of the
type referred to in Section 5.06 hereof maintained by the Trustee or
its affiliate;
(i) To exercise all of the further rights, powers, options and
privileges granted, provided for, or vested in trustees generally under
the laws of the state in which the Trustee is incorporated as set forth
above, so that the powers conferred upon the Trustee herein shall not
be in limitation of any authority conferred by law, but shall be in
addition thereto;
(j) To borrow money from any source and to execute promissory
notes, mortgages or other obligations and to pledge or mortgage any
trust assets as security, subject to applicable requirements of the
Code and ERISA; and
(k) To maintain accounts at, execute transactions through, and
lend on an adequately secured basis stocks, bonds or other securities
to, any brokerage or other firm, including any firm which is an
affiliate of the Trustee.
7.02 Additional Powers of Trustee. To the extent necessary or
which it deems appropriate to implement its powers under Section 7.01
or otherwise to fulfill any of its duties and responsibilities as
trustee of the Trust Fund, the Trustee shall have the following
additional powers and authority:
(a) to register securities, or any other property, in its name
or in the name of any nominee, including the name of any affiliate or
the nominee name designated by any affiliate, with or without
indication of the capacity in which property shall be held, or to hold
securities in bearer form and to deposit any securities or other
property in a depository or clearing corporation;
(b) to designate and engage the services of, and to delegate
powers and responsibilities to, such agents, representatives, advisers,
counsel and accountants as the Trustee considers necessary or
appropriate, any of whom may be an affiliate of the Trustee or a person
who renders services to such an affiliate, and, as a part of its
expenses under this Trust Agreement, to pay their reasonable expenses
and compensation;
(c) to make, execute and deliver, as Trustee, any and all
deeds, leases, mortgages, conveyances, waivers, releases or other
instruments in writing necessary or appropriate for the accomplishment
of any of the powers listed in this Trust Agreement; and
(d) generally to do all other acts which the Trustee deems
necessary or appropriate for the protection of the Trust Fund.
ARTICLE VIII
RECORDS, ACCOUNTINGS AND VALUATIONS
8.01 Records. The Trustee shall maintain or cause to be
maintained accurate records and accounts of all Trust transactions and
assets. The records and accounts shall be available at reasonable times
during normal business hours for inspection or audit by the Named
Administrative Fiduciary and the Named Investment Fiduciary or any
person designated for the purpose by either of them.
8.02 Accountings. Within 60 days following the close of each
fiscal year of the Plan or the effective date of the removal or
resignation of the Trustee, the Trustee shall file with the Named
Administrative Fiduciary a written accounting setting forth all
transactions since the end of the period covered by the last previous
accounting. The accounting shall include a listing of the assets of the
Trust showing the value of such assets at the close of the period
covered by the accounting. On direction of the Named Administrative
Fiduciary, and if previously agreed to by the Trustee, the Trustee
shall submit to the Named Administrative Fiduciary interim valuations,
reports or other information pertaining to the Trust.
The Named Administrative Fiduciary may approve the accounting
by written approval delivered to the Trustee or by failure to deliver
written objections to the Trustee within 60 days after receipt of the
accounting. Any such approval shall be binding on the Employer, the
Named Administrative Fiduciary, the Named Investment Fiduciary and, to
the extent permitted by ERISA, all other persons.
8.03 Valuation. The assets of the Trust shall be valued as of
each valuation date under the Plan at fair market value as determined
by the Trustee based upon such sources of information as it may deem
reliable, including, but not limited to, stock market quotations,
statistical evaluation services, newspapers of general circulation,
financial publications, advice from investment counselors or brokerage
firms, or any combination of sources. The reasonable costs incurred in
establishing values of the Trust Fund shall be a charge against the
Trust Fund, unless paid by the Employer.
When the Trustee is unable to arrive at a value based upon
information from independent sources, it may rely upon information from
the Employer, Named Administrative Fiduciary, Named Investment
Fiduciary, appraisers, or other sources, and shall not incur any
liability for inaccurate valuation based in good faith upon such
information.
8.04 Loans. In the event that participant loans are available
under the Plan, the Trustee's records shall reflect one aggregate
balance for participant loans under the Plan. Records reflecting the
specific loan balances for each participant and the amortization
schedules for each participant loan shall be maintained as directed by
the Employer or Named Administrative Fiduciary.
ARTICLE IX
RESIGNATION AND REMOVAL OF TRUSTEE
9.01 Resignation. The Trustee may resign at any time upon at
least 60 days' written notice to the Employer.
9.02 Removal. The Employer may remove the Trustee upon at
least 60 days' written notice to the Trustee.
9.03 Appointment of a Successor. Upon resignation or removal
of the Trustee, the Employer shall appoint a successor trustee. Upon
failure of the Employer to appoint, or the failure of the effectiveness
of the appointment by the Employer of, a successor trustee by the
effective date of the resignation or removal, the Trustee may apply to
any court of competent jurisdiction for the appointment of a successor.
Promptly after receipt by the Trustee of notice of the
effectiveness of the appointment of the successor trustee, the Trustee
shall deliver to the successor trustee such records as may be
reasonably requested to enable the successor trustee to properly
administer the Trust Fund and all property of the Trust after deducting
therefrom such amounts as the Trustee deems necessary to provide for
expenses, taxes, compensation or other amounts due to or by the Trustee
pursuant to Sections 4.04 or 5.03 hereof not paid by the Employer prior
to the delivery.
9.04 Settlement of Account. Upon resignation or removal of the
Trustee, the Trustee shall have the right to a settlement of its
account, which settlement shall be made, at the Trustee's option,
either by an agreement of settlement between the Trustee and the
Employer or by a judicial settlement in an action instituted by the
Trustee. The Employer shall bear the costs of any such judicial
settlement, including reasonable attorneys' fees.
9.05 Expenses and Compensation. The Trustee shall not be
obligated to transfer Trust assets until the Trustee is provided
assurance by the Employer satisfactory to the Trustee that all fees and
expenses reasonably anticipated will be paid.
9.06 Termination of Responsibility and Liability. Upon
settlement of the account and transfer of the Trust Fund to the
successor trustee, all rights and privileges under this Trust Agreement
shall vest in the successor trustee and all responsibility and
liability of the Trustee with respect to the Trust and assets thereof
shall, except as otherwise required by ERISA, terminate subject only to
the requirement that the Trustee execute all necessary documents to
transfer the Trust assets to the successor trustee.
ARTICLE X
AMENDMENT AND TERMINATION
10.01 Amendment. The Employer reserves the right to amend this
Trust Agreement, provided that no amendment of this Trust Agreement or
the Plan shall be effective which would (a) cause any assets of the
Trust Fund to be used for, or diverted to, purposes other than the
exclusive benefit of Plan participants or their beneficiaries other
than an amendment permissible under the Code and ERISA, or (b) affect
the rights, duties, responsibilities, obligations or liabilities of the
Trustee without the Trustee's written consent. The Employer shall amend
this Trust Agreement as requested by the Trustee to reflect changes in
law which counsel for the Trustee advises the Trustee require such
changes. Amendments to the Trust Agreement or a certified copy of the
amendments shall be delivered to the Trustee promptly after adoption,
and if practicable under the circumstances, any proposed amendment
under consideration by the Employer shall be communicated to the
Trustee to permit the Trustee to review and comment thereon in due
course before the Employer acts on the proposed amendment.
10.02 Termination. The Trust may be terminated by the Employer
upon at least 60 days' written notice to the Trustee. Upon such
termination, and subject to Section 11.01 hereof, the Trust Fund shall
be distributed as directed by the Named Administrative Fiduciary.
ARTICLE XI
MISCELLANEOUS
11.01 Exclusive Benefit Rule. Except as provided in Section
11.02, or as otherwise permitted or required by ERISA or the Code, no
asset of the Trust shall be used for, or diverted to, purposes other
than the exclusive benefit of Plan participants or their beneficiaries
or for the reasonable expenses of administering the Plan and Trust
until all liabilities for benefits due Plan participants or their
beneficiaries have been satisfied.
11.02 Refunds to Employer. The Trustee shall, upon the written
direction of the Named Administrative Fiduciary which shall include a
certification that such action is proper under the Plan, ERISA and the
Code specifying any relevant sections thereof, return to the Employer
any amount referred to in section 403(c)(2) of ERISA.
11.03 Authorized Action. Any action to be taken under this
Trust Agreement by an Employer or other person which is: (a) a
corporation shall be taken by the board of directors of the corporation
or any person or persons duly empowered by the board of directors to
take the action involved, (b) a partnership shall be taken by an
authorized general partner of the partnership, and (c) a sole
proprietorship by the sole proprietor.
11.04 Text of Plan. The Employer represents that, prior to the
execution of this Trust Agreement by both parties, it delivered to the
Trustee the text of the Plan as in effect as of the date of this Trust
Agreement. The Employer shall deliver to the Trustee promptly after
adoption thereof a certified copy of any amendment of the Plan.
11.05 Conflict with Plan. The rights, duties,
responsibilities, obligations and liabilities of the Trustee are as set
forth in this Trust Agreement, and no provision of the Plan or any
other document shall be deemed to affect such rights, duties,
responsibilities, obligations and liabilities. If there is a conflict
between provisions of the Plan and this Trust Agreement with respect to
any subject involving the Trustee, including but not limited to the
responsibility, authority or powers of the Trustee, the provisions of
this Trust Agreement shall be controlling.
11.06 Failure to Maintain Qualification. If the Trust fails to
qualify as a qualified trust under section 401(a) of the Code, or loses
its status as such a qualified trust, the Employer shall immediately so
notify the Trustee, and the Trustee shall, without further notice or
direction, remove the Trust assets from any common or collective trust
fund maintained by the Trustee or its affiliate for investments by
qualified trusts.
11.07 Governing Law and Construction. This Trust Agreement and
the Trust shall be construed, administered and governed under ERISA and
other pertinent federal law, and to the extent that federal law is
inapplicable, under the laws of the state in which the Trustee is
incorporated as set forth above. If any provision of this Trust
Agreement is susceptible to more than one interpretation, the
interpretation to be given is that which is consistent with the Trust
being a qualified trust under section 401(a) of the Code. If any
provision of this Trust Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, the remaining provisions
shall continue to be fully effective to the extent possible under the
circumstances.
11.08 Successors and Assigns. This Trust Agreement shall inure
to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
11.09 Gender. As used in this Trust Agreement, the masculine
gender shall include the feminine and the neuter genders and the
singular shall include the plural and the plural the singular, as the
context requires.
11.10 Headings. Headings and subheadings in this Trust
Agreement are for convenience of reference only and are not to be
considered in the construction of the provisions of the Trust
Agreement.
11.11 Counterparts. This Trust Agreement may be executed in
several counterparts, each of which shall be deemed an original, and
these counterparts shall constitute one and the same instrument which
may be sufficiently evidenced by any one counterpart.
IN WITNESS WHEREOF, the Employer and the Trustee have executed
this Trust Agreement each by action of a duly authorized person.
MERRILL LYNCH TRUST SOUTHERN ENERGY, INC.
COMPANY (FLORIDA)
By: ____________________________ By: _____________________________
Name: __________________________ Name: ___________________________
Title: ___________________________ Title: ____________________________
Exhibit 5(a)
Troutman Sanders LLP
600 Peachtree Street
Atlanta, GA 30308
404-885-3000
January 12 1998
The Southern Company
270 Peachtree Street, N.W.
Atlanta, Georgia 30303
Re: The Southern Company
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the above-captioned registration statement proposed to
be filed by The Southern Company ("Southern") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the registration of
additional shares of its common stock, par value $5 per share (the "Stock"), for
issuance pursuant to the Southern Energy, Inc. Bargaining Unit Savings Plan (the
"Plan"). We have also examined certified copies of Southern's Certificate of
Incorporation, as amended, and of its by-laws and are familiar with all
proceedings relating to the issuance and sale of the Stock. We are of the
opinion that:
(a) Southern is a corporation duly organized and existing
under the laws of the State of Delaware, is domesticated under the laws of the
State of Georgia and is qualified to do business as a foreign corporation under
the laws of the State of Alabama.
(b) Upon compliance with the relevant provisions of the
Securities Act of 1933, as amended, and the Public Utility Holding Company Act
of 1935, as amended, and upon compliance with the securities or "Blue Sky" laws
of any jurisdiction applicable thereto, Southern may legally issue and sell the
Stock without obtaining the consent or approval of any other governmental
authority.
(c) When the necessary consents or approvals as referred to in
paragraph (b) hereinabove have been obtained, and when certificates for the
Stock have been executed by Southern, countersigned and registered by the
transfer agent and registrar and delivered in accordance with the Plan, the
Stock will be valid and legally issued, fully paid and non-assessable shares of
Southern, and the holders thereof will be entitled to the rights and privileges
appertaining thereto as set forth in Southern's Certificate of Incorporation, as
amended.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement.
Very truly yours,
/s/Troutman Sanders LLP
TROUTMAN SANDERS LLP
Exhibit 23(b)
Arthur Andersen LLP
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8, related to the Southern
Energy, Inc. Bargaining Unit Savings Plan, of our reports dated February 12,
1997 on the financial statements of The Southern Company and the related
financial statement schedules included in The Southern Company's Form 10-K for
the year ended December 31, 1996 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
/s/Arthur Andersen LLP
Atlanta, Georgia
January 8, 1998
Exhibit 24
December 15, 1997
A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm, and Wayne Boston
Dear Sirs:
The Southern Company proposes to file or join in the filing of
statements under the Securities Act of 1933, as amended, with the Securities and
Exchange Commission with respect to the registration of shares of common stock
of The Southern Company in connection with the Southern Energy, Inc. Bargaining
Unit Savings Plan.
The Southern Company and the undersigned directors and officers of said
Company, individually as a director and/or as an officer of the Company, hereby
make, constitute and appoint each of you our true and lawful Attorney for each
of us and in each of our names, places and steads to sign and cause to be filed
with the Securities and Exchange Commission in connection with the foregoing
registratin statement and any appropriate amendment or amendments thereto and
any necessary exhibits.
Yours very truly,
THE SOUTHERN COMPANY
By_/s/A. W. Dahlberg
A. W. Dahlberg
Chairman, President and
Chief Executive Officer
<PAGE>
- 2 -
/s/John C. Adams /s/William A. Parker, Jr.
John C. Adams William A. Parker, Jr.
/s/A. D. Correll /s/William J. Rushton, III
A. D. Correll William J. Rushton, III
/s/A. W. Dahlberg /s/Gloria M. Shatto
A. W. Dahlberg Gloria M. Shatto
/s/Paul J. DeNicola /s/Gerald J. St. Pe'
Paul J. DeNicola Gerald J. St. Pe'
/s/Jack Edwards /s/Herbert Stockham
Jack Edwards Herbert Stockham
/s/H. Allen Franklin /s/W. L. Westbrook
H. Allen Franklin W. L. Westbrook
/s/Bruce S. Gordon /s/Tommy Chisholm
Bruce S. Gordon Tommy Chisholm
/s/L. G. Hardman III /s/W. Dean Hudson
L. G. Hardman III W. Dean Hudson
/s/Elmer B. Harris
Elmer B. Harris
<PAGE>
- 3 -
Extract from minutes of meeting of the board of directors of The Southern
Company.
- - - - - - - - - - - -
RESOLVED FURTHER: That for the purpose of signing the
registration statement or statements under the Securities Act of 1933,
as amended, to be filed with the Securities and Exchange Commission
with respect to the issuance by this Company of additional shares of
its common stock pursuant to the Plan and of remedying any deficiencies
with respect thereto by appropriate amendment or amendments (including
post-effective amendments), this Company, the members of its board of
directors, and its officers, are authorized to give their several
powers of attorney to A. W. Dahlberg, W. L. Westbrook, Tommy Chisholm,
and Wayne Boston;
- - - - - - - - - - - -
The undersigned officer of The Southern Power Company does hereby
certify that the foregoing is a true and correct copy of a resolution duly and
regularly adopted at a meeting of the Board of Directors of The Southern
Company, duly held on December 15, 1997, at which a quorum was in attendance and
voting throughout, and that said resolution has not since been rescinded but is
still in full force and effect.
Dated January 12, 1998 THE SOUTHERN COMPANY
By /s/Patricia L. Roberts
Patricia L. Roberts
Assistant Secretary
