Exhibit 10(a)6
THE SOUTHERN
COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
Amended and Restated Effective January 1,
2009
THE SOUTHERN
COMPANY
SUPPLEMENTAL EXECUTIVE RETIREMENT
PLAN
ARTICLE I - PURPOSE AND ADOPTION
OF PLAN
1.1
Adoption : The Southern Company Supplemental Executive
Retirement Plan, effective as of January 1, 2009 and hereinafter
set forth (the “Plan”), is a modification and
continuation of The Southern Company Supplemental Executive
Retirement Plan which originally became effective January 1, 1997,
and was last amended and restated effective January 1, 2005. This
amendment and restatement and the January 1, 2005 amendment and
restatement are intended to bring the Plan into compliance with
Code Section 409A. The Plan should be construed to satisfy this
intent. The Plan shall be an unfunded deferred compensation
arrangement as contemplated by the Employee Retirement Income
Security Act, as amended, under which benefits shall be paid solely
from the general assets of the Company. At a time and in a manner
determined by the Administrative Committee, Participants shall make
timely elections to conform to the Plan’s terms effective as
of the January 1, 2005 amendment and restatement. Such elections
are intended to meet the transition requirements of Code Section
409A, including proposed, temporary, or final regulations, or other
guidance issued by the Secretary of Treasury and the Internal
Revenue Service with respect thereto (collectively “409A
Guidance”).
1.2
Purpose : The Plan provides deferred compensation primarily
to a select group of management or highly compensated employees to
supplement such employees’ accrued benefits under The
Southern Company Pension Plan (“Pension Plan”). The
supplement under this Plan is generally intended to make up the
difference, if any, between each such employee’s actual
accrued benefit under the Pension Plan and the benefit he would
have accrued under such plan if certain incentive pay were included
in Earnings when determining Average Monthly Earnings for all
methods of calculating Retirement Income under the Pension
Plan.
ARTICLE II -
DEFINITIONS
2.1 “Actuarial
Basis” shall mean an actuarial adjustment to SERP Benefits
that must be made as required by Code Section 409A when there is a
change made by a Participant to a previously elected or
deemed-elected form of payment paid over a lifetime. Reasonable
actuarial assumptions to make such adjustment shall be established
in writing from time to time by the Administrative
Committee.
2.2 “Administrative
Committee” shall mean the committee referred to in Section
3.1 hereof.
2.3
“Affiliated
Employer” shall mean any corporation which is a member of the
controlled group of corporations of which Southern Company is the
common parent corporation which the Board of Directors may from
time to time determine to bring under the Plan and which shall
adopt the Plan, and any successor of any of them. The Affiliated
Employers are set forth in
Appendix A to the Plan, as amended
from time to time.
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2.4
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“Board of Directors”
shall mean the Board of Directors of the Company.
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2.5 “Change
in Control Benefits Protection Plan” shall mean the Change in
Control Benefits Protection Plan, as approved by the Southern
Board, as it may be amended from time to time in accordance with
the provisions therein.
2.6 “Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
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2.7
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“Company” shall mean
Southern Company Services, Inc.
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2.8 “Designated
Beneficiary” shall have the same meaning and shall be the
same person(s) or entity(ies) designated by the Participant under
The Southern Company Supplemental Benefit Plan with respect to the
Pension Benefit provided thereunder.
2.9 “Discount
Rate” shall mean the thirty (30) year Treasury yield as
published by the Department of Treasury for purposes of compliance
with Code Section 417(e) determined for September of the calendar
year prior to the calendar year in which a Participant Separates
from Service provided that the maximum rate shall not exceed six
percent (6%).
2.10 “Earnings”
shall mean the total accumulated interest on a Participant’s
Single-Sum Amount. Unless otherwise stated, Earnings accrue from
the date as of which a Participant’s first installment is
payable (ignoring for this purpose any Key-Employee Delay) until
all of the Participant’s Single-Sum Amount (and monthly
interest accretion thereon) has been paid. Interest shall compound
monthly based on the rate of interest accretion for each month and
the unpaid portion of a Participant’s Single-Sum Amount
(including any unpaid portion of any prior month’s interest
accretion). The rate of such interest accretion for a month shall
be the monthly equivalent of the per annum prime rate of interest
published in the Wall Street Journal as the base rate on the
corporate loans posted as of the last business day of each month by
at least seventy-five percent (75%) of the United States largest
banks as of the last business day of the month (or such other day
of a month as the Administrative Committee may
determine).
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2.11
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“Effective Date” of this
amendment and restatement shall mean January 1, 2009.
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2.12 “Employee”
shall mean any person who is employed by an Affiliated Employer
excluding any persons represented by a collective bargaining
agent.
2.13 “Expected
Average Lifetime” shall mean the life expectancy of a
Participant in months using the Table of Unisex Mortality Rates
promulgated by the Internal Revenue Service for use to determine
lump-sum payments from qualified pension plans in accordance with
Code Section 417(e) as of the 2007 calendar year.
2.14 “Incentive
Pay” shall mean all awards earned while an Employee under any
annual group incentive plans, as defined in Section 5.1 of the
Pension Plan, provided such incentive award was earned on or after
January 1, 1994. Alternatively, if it produces a greater
benefit to the Participant,
Incentive Pay shall mean all awards paid or that would have been
paid but for an election to defer such incentive award under The
Southern Company Deferred Compensation Plan, under any annual group
incentive plan, as defined in Section 5.1 of the Pension Plan,
provided such incentive award was paid or deferred on or after
January 1, 1995. If a person was formerly represented by a
collective bargaining agent with respect to any corporation which
is a member of the controlled group of corporations of which
Southern Company is the common parent and such person subsequently
becomes an Employee, incentive awards described in the preceding
sentence shall include awards earned on and after January 1, 1994
while represented by such collective bargaining agent.
2.15 “Key
Employee” shall have the meaning ascribed to the term
“specified employee” under Code Section
409A(a)(2)(B)(i) and the regulations promulgated thereunder as it
applies to a Participant. The Administrative Committee shall
establish the time period required to determine key-employee
status.
2.16 “Key-Employee
Delay” shall mean the six (6) month delay in the commencement
of benefits applicable to Key Employees pursuant to the
requirements of Code Section 409A(a)(2)(B)(i) and the regulations
promulgated thereunder.
2.17 “Participant”
shall mean an Employee or former Employee of an Affiliated Employer
who is eligible and participates in the Plan pursuant to Sections
4.1 and 4.2.
2.18 “Pension
Plan” shall mean The Southern Company Pension Plan, as
amended from time to time.
2.19 “Plan”
shall mean The Southern Company Supplemental Executive Retirement
Plan, as amended and restated as of January 1, 2009 and as may be
amended from time to time thereafter.
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2.20
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“Plan Year” shall mean
the calendar year.
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2.21 “Provisional
Payee” shall have the same meaning ascribed to this term in
the Pension Plan.
2.22 “Separation
from Service” shall have the meaning ascribed to this term
under Code Section 409A(a)(2)(A)(i) and the regulations promulgated
thereunder. For this purpose, Separation from Service shall include
a permanent decrease in the level of bona fide services performed
by the Participant after a certain date to a level that is twenty
percent (20%) or less of the average level of bona fide services
performed by the Participant over the immediately preceding
thirty-six (36) month period.
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2.23
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“SERP Benefit” shall
mean the benefit described in Section 5.1.
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2.24 “Single-Sum
Amount” shall mean the discounted value of the SERP Benefit
based on a single life annuity form of benefit payable for an
Expected Average Lifetime calculated using the Discount Rate. This
Single-Sum Amount calculation shall be determined effective as of
the first installment to be made under Section 5.2 (ignoring for
this purposes any
Key-Employee Delay) taking into
account the following: (a) reductions for charges related to any
Qualified Pre-retirement Survivor Annuity form of benefit under the
Pension Plan shall not apply; and (b) the SERP Benefit and Expected
Average Lifetime shall be based on the Participant’s age as
of such first installment date.
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2.25
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“Southern Board” shall
mean the board of directors of Southern Company.
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2.26 “Supplemental
Benefit Plan” shall mean The Southern Company Supplemental
Benefit Plan, as amended from time to time.
2.27 “Supplemental
Pension Benefit” shall mean the “Pension
Benefit”, if any, that is payable to a Participant under the
Supplemental Benefit Plan.
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2.28
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“Trust” shall mean the
Southern Company Deferred Compensation Trust.
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Where the context requires, the
definitions of all terms set forth in the Pension Plan shall apply
with equal force and effect for purposes of interpretation and
administration of the Plan, unless said terms are otherwise
specifically defined in the Plan. The masculine pronoun shall be
construed to include the feminine pronoun and the singular shall
include the plural, where the context so requires.
ARTICLE III - ADMINISTRATION OF
PLAN
3.1
Administrator . Effective May 31, 2007, the general
administration of the Plan shall be placed in the
“Committee” which shall consist of the Benefits
Administration Committee, the members of which shall be appointed
from time to time by the Fiduciary Oversight Committee of the Board
of Directors. The Committee shall govern itself in accordance with
the terms of the Charter for the Benefits Administration Committee
approved by the Fiduciary Oversight Committee of the Board of
Directors.
(a) The
Administrative Committee shall administer the Plan in accordance
with its terms and shall have all powers necessary to carry out the
provisions of the Plan more particularly set forth herein. It shall
have the discretion to interpret the Plan and shall determine all
questions arising in the administration, interpretation, and
application of the Plan. Any such determination by it shall be
conclusive and binding on all persons. The Administrative Committee
shall be the agent for the service of process.
(b) If
a claim for benefits under the Plan is denied, in whole or in part,
the Administrative Committee will provide a written notice of the
denial within a reasonable period of time, but not later than 90
days after the claim is received. If special circumstances require
more time to process the claim, the Administrative Committee will
issue a written explanation of the special circumstances prior to
the end of the 90-day period and a decision will be made as soon as
possible, but not later than 180 days after the claim is
received.
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The written notice of claim denial will
include:
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Specific reasons
why the claim was denied;
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Specific references to applicable provisions of
the Plan document or other relevant records or papers on which the
denial is based, and information about where a Participant or his
or her Designated Beneficiary may see them;
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A description of any additional material or
information needed to process the claim and an explanation of why
such material or information is necessary;
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An explanation of the claims review procedure,
including the time limits applicable to such procedure, as well as
a statement notifying the Participant or his or her Designated
Beneficiary of their right to file suit if the claim for benefits
is denied, in whole or in part, on review.
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Upon request, a Participant or his
or her Designated Beneficiary will be provided without charge,
reasonable access to, and copies of, all non-confidential documents
that are relevant to any denial of benefits. A claimant has 60 days
from the day he or she receives the original denial to request a
review. Such request must be made in writing and sent to the
Administrative Committee. The request should state the reasons why
the claim should be reviewed and may also include evidence or
documentation to support the claimant’s position.
The Administrative Committee will
reconsider the claimant’s claim, taking into account all
evidence, documentation, and other information related to the claim
and submitted on the claimant’s behalf, regardless of whether
such information was submitted or considered in the initial denial
of the claim. The Administrative Committee will make a decision
within 60 days. If special circumstances require more time for this
process, the claimant will receive written explanation of the
special circumstances prior to the end of the initial 60-day period
and a decision will be sent as soon as possible, but not later than
120 days after the Administrative Committee receives the
request.
No legal action to receiver benefits
or enforce or clarify rights under a Plan can be commenced until
the Participant or his or her Designated Beneficiary has first
exhausted the claims and review procedures provided under the
Plan.
(c) The
Administrative Committee may adopt such regulations as it deems
desirable for the conduct of its affairs. It may appoint such
accountants, counsel, actuaries, specialists, and other persons as
it deems necessary or desirable in connection with the
administration of this Plan.
3.3
Duties of the Administrative Committee .
(a) The
Administrative Committee is responsible for the daily
administration of the Plan. It may appoint other persons or
entities to perform any of its fiduciary functions. The
Administrative Committee and any such appointee may employ advisors
and other persons necessary or convenient to help it carry out its
duties, including its fiduciary duties. The Administrative
Committee shall have the right to remove any such appointee from
his position. Any person, group of persons, or entity may serve in
more than one fiduciary capacity.
(b) The
Administrative Committee shall maintain accurate and detailed
records and accounts of Participants and of their rights under the
Plan and of all receipts, disbursements, transfers, and other
transactions concerning the Plan. Such accounts, books, and records
relating thereto shall be open at all reasonable times to
inspection and audit by persons designated by the Administrative
Committee.
(c) The
Administrative Committee shall take all steps necessary to ensure
that the Plan complies with the law at all times. These steps shall
include such items as the preparation and filing of all documents
and forms required by any governmental agency; maintaining of
adequate Participants’ records; recording and transmission of
all notices required to be given to Participants and their
Designated Beneficiaries; the receipt and dissemination, if
required, of all reports and information received from an
Affiliated Employer; securing of such fidelity bonds as may be
required by law; and doing such other acts necessary for the proper
administration of the Plan. The Administrative Committee shall keep
a record of all of its proceedings and acts, and shall keep all
such books of account, records, and other data as may be necessary
for proper administration of the Plan.
3.4
Indemnification . The Affiliated Employers shall indemnify
the Administrative Committee against any and all claims, losses,
damages, expenses, and liability arising from an action or failure
to act, except when the same is finally judicially determined to be
due to gross negligence or willful misconduct. The Affiliated
Employers may purchase at its own expense sufficient liability
insurance for the Administrative Committee to cover any and all
claims, losses, damages, and expenses arising from any action or
failure to act in connection with the execution of the duties as
Administrative Committee. No member of the Administrative Committee
who is also an Employee of an Affiliated Employer shall receive any
compensation from the Plan for his services in administering the
Plan.
ARTICLE IV -
ELIGIBILITY
4.1
Eligibility Requirements . All Employees who are determined
to be eligible to participate in the Plan in accordance with
Section 4.2 shall be eligible to receive benefits under the Plan
provided such Employees are (a) participating in the Plan at
the time they terminate from an Affiliated Employer and are
retirement eligible or (b) die while in active service while
with an Affiliated Employer provided each such Employee’s
spouse is eligible to receive a survivor benefit under Article VII
of the Pension Plan at such eligible Employee’s
death.
4.2
Determination of Eligibility . The Adminis