Exhibit
10(a)4
SOUTHERN
COMPANY
DEFERRED
COMPENSATION PLAN
Amended and
Restated as of January 1, 2009
SOUTHERN
COMPANY
DEFERRED
COMPENSATION PLAN
TABLE OF
CONTENTS
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ARTICLE I
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Purpose and Adoption of Plan
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1
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ARTICLE III
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Administration of Plan
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7
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ARTICLE IV
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Eligibility
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11
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ARTICLE V
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Deferral Election
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12
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ARTICLE VI
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Participants’ Accounts
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13
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ARTICLE VII
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Account Distribution
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16
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ARTICLE VIII
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Miscellaneous Provisions
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19
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SOUTHERN
COMPANY
DEFERRED COMPENSATION PLAN
ARTICLE
I
Purpose and
Adoption of Plan
1.1
Adoption : Southern Company Services, Inc. and the other
Employing Companies established the Deferred Compensation Plan for
The Southern Electric System effective October 1, 1988. The Plan
has been amended from time to time including the good faith
amendment and restatement effective January 1, 2005 and then again
this amendment and restatement effective January 1, 2009 both of
which were adopted to comply with Code Section 409A, including the
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”). Except
as otherwise provided herein and consistent with Section 1.3, the
terms of the Plan as in effect prior to January 1, 2005 shall
continue to be applicable to deferrals made pursuant to the Plan
prior to such January 1, 2005.
1.2
Purpose : This Southern Company Deferred Compensation Plan
is designed to permit a select group of management or highly
compensated employees (“Top-Hat Employees”) within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”) to elect to defer a
portion of their regular compensation during each payroll period
and to defer all or a portion of certain short-term and long-term
incentive payments until a specified date or until their death,
retirement, or other Separation from Service with an Employing
Company. The Plan is intended to constitute a non-qualified
deferred compensation plan that complies with the provisions of
Code Section 409A and an unfunded deferred compensation arrangement
for Top-Hat Employees governed by ERISA whose benefits shall be
paid solely from the general assets of the Employing
Companies.
1.3
Schedule of Provisions for Pre-2005 Deferrals : The attached
Schedule sets forth the operative provisions of the Plan applicable
to “grandfathered” deferrals of Compensation and
Incentive Pay made by Participants which are treated by the
Employing Companies as not subject to Section 409A of the Code. The
Account balance (plus earnings thereon) of the grandfathered
deferrals shall only be subject to the provisions set forth in the
Schedule. In accordance with transition rules under the 409A
Guidance, these provisions are only intended to preserve the rights
and features of the “grandfathered” deferrals and are,
therefore, not intended to “materially modify” any
aspect of such rights and features. Provisions of the Schedule
should be so construed whenever necessary or appropriate.
Provisions in the Schedule shall only be amended in accordance with
the Schedule’s terms.
1.4
409A Transition Elections : At a time and in a manner
determined by the Committee, Participants shall make timely
elections to conform to the Plan’s terms effective on and
after January 1, 2005. Where a Participant fails to make such
elections required by the Committee, with regard to the form of
distribution ( i.e. , lump sum or installment), the
Committee shall establish a default distribution form based on the
following hierarchy: first, the most current distribution form in
effect applicable to the Account balance governed by the Schedule
of Provisions for Pre-2005 Deferrals; if none, lump sum. Such
elections are intended to meet the transition requirements of
Section 409A of the Code and Internal Revenue Service Notice
2005-1.
ARTICLE
II
Definitions
For purposes of the
Plan, the following terms shall have the following meanings unless
a different meaning is plainly required by the context:
2.1 “Account”
shall mean the account or accounts established and maintained by an
Employing Company to reflect the interest of a Participant in the
Plan resulting from a Participant’s deferral of Compensation
and/or Incentive Pay each Plan Year and adjustments thereto to
reflect income, gains, losses, and other credits or charges.
Charges to a Participant’s Account for distributions shall be
posted as of the date the Account is valued in accordance with
Section 7.1(a).
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2.2
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“Board of
Directors” shall mean the Board of Directors of the
Company.
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2.3 “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.
2.4
“Closing Price” shall mean the closing price on any
trading day of a share of Common Stock based on consolidated
trading as defined by the Consolidated Tape Association and
reported as part of the consolidated trading prices of New York
Stock Exchange listed securities.
2.5 “Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
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2.6
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“Committee” shall
mean the committee referred to in Section 3.1 hereof.
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2.7
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“Common
Stock” shall mean the common stock of Southern.
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2.8
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“Company” shall
mean Southern Company Services, Inc.
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2.9 “Compensation”
shall mean the rate of an Employee’s base wages or salary
paid by any Employing Company to an Employee, including amounts
contributed by an Employing Company to the Employee Savings Plan as
Elective Employer Contributions, as said term is defined in the
Employee Savings Plan, pursuant to the Employee’s exercise of
his or her deferral
option made in
accordance with Section 401(k) of the Internal Revenue Code,
amounts contributed by an Employing Company to the Employee Savings
Plan as catch-up contributions pursuant to the Employee’s
exercise of his deferral option made thereunder in accordance with
the requirements of Section 414(v) of the Internal Revenue Code,
and amounts contributed by an Employing Company to The Southern
Company Flexible Benefits Plan on behalf of the Employee pursuant
to his or her salary reduction election under such plan; but
disregarding overtime and any reimbursements to an Employee paid by
any Employing Company including, but not limited to, reimbursements
for such items as moving expenses, automobile expenses, tax
preparation expenses, travel and entertainment expenses, and health
and life insurance premiums.
2.10 “Deferral
Election” shall mean the Participant’s election to
defer a portion of his or her Compensation and/or Incentive Pay
pursuant to Article V hereof.
2.11 “Distribution
Election” shall mean the election under Article VII hereof,
pursuant to which a Participant elects the distribution of his or
her Account.
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2.12
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“Effective
Date” of this amendment and restatement shall mean January 1,
2009.
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2.13 “Employee”
shall mean any person who is currently employed by an Employing
Company.
2.14 “Employee
Savings Plan” shall mean The Southern Company Employee
Savings Plan, as amended from time to time.
2.15 “Employee
Stock Ownership Plan” shall mean The Southern Company
Employee Stock Ownership Plan, as amended from time to time until
merged into the Employee Savings Plan effective December 20,
2006.
2.16 “Employing
Company” shall mean the Company, or any affiliate or
subsidiary (direct or indirect) of The Southern Company, which the
Board of Directors may from time to
time determine to
bring under the Plan and which shall adopt the Plan, and any
successor of any of them. The Employing Companies are set forth in
Appendix A of the Plan, as may be amended from time to
time.
2.17 “Enrollment
Date” shall mean January 1 of each Plan Year, and such other
dates permitted by the terms of the Plan or as may be determined
from time to time by the Committee. No enrollment date shall
violate Code Section 409A.
2.18 “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as
amended.
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2.19
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“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
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2.20 “Incentive
Pay” shall mean such long-term or short-term incentive pay as
the Committee shall permit to be deferred under this Plan for any
Plan Year and in all events includes retention compensation where
the written retention agreement expressly provides that the
retention compensation is to be treated as “incentive
pay” which is deferrable under this Plan.
2.21 “Investment
Election” shall mean the Participant’s election to have
his or her deferred Compensation or Incentive Pay invested pursuant
to Section 6.2 or Section 6.3 hereof.
2.22 “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 Committee shall establish the time
period required to determine key employee status.
2.23 “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.
2.24 “Modification
Delay” shall mean the requirements permitting a change in
time or form of payment as allowed under Code Section 409A(a)(4)(C)
and the regulations promulgated thereunder.
2.25 “Non-adopting
Company” shall mean any subsidiary or affiliate of Southern
which is not an Employing Company.
2.26 “Participant”
shall mean an Employee or former employee of an Employing Company
who is eligible to and defers Compensation and/or Incentive Pay
under the Plan or who was so eligible and had an unpaid Account
balance upon his or her death, retirement, or other Separation from
Service with an Employing Company.
2.27 “Pension
Plan” shall mean The Southern Company Pension Plan, as
amended from time to time.
2.28 “Plan”
shall mean the Southern Company Deferred Compensation Plan, amended
and restated as of January 1, 2009, as further amended from time to
time.
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2.29
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“Plan
Year” shall mean the calendar year.
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2.30 “Retirement
Income” shall have the same meaning as set forth in the
Pension Plan.
2.31 “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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2.32
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“Southern” shall
mean Southern Company, its successors and assigns.
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2.33
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“Southern
Board” shall mean the board of directors of
Southern.
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2.34 “Total
Disability” shall mean a total disability as determined by
the Social Security Administration and meeting the requirements of
Code Section 409A(a)(2).
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2.35
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Trust” shall
mean the Southern Company Deferred Compensation Trust.
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2.36
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“Trustee” shall
mean the entity designated as such in the Trust.
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2.37 “Unforeseeable
Emergency” shall mean a severe financial hardship meeting the
requirements of Code Section 409A(a)(2)(B)(ii).
2.38 “Valuation
Date” shall mean each trading day of the New York Stock
Exchange, or any successor national exchange on which the Common
Stock is traded and with respect to which a Closing Price may be
determined.
Where the context
requires, the definitions of all terms set forth in the Pension
Plan, the Employee Savings Plan, and the Employee Stock Ownership
Plan shall apply with equal force and effect for purposes of
interpretation and administration of the Plan, unless said terms
are otherwise specifically defined in the Plan. Words in the
masculine gender shall include the feminine and neuter genders,
words in the singular shall include the plural, and words in the
plural shall include the singular.
ARTICLE
III
Administration
of Plan
3.1 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.
3.2 No
member of the Committee shall receive any compensation from the
Plan for his or her service.
3.3 (a) The
Committee shall administer the Plan in accordance with its terms
and shall have all powers necessary to carry out the provisions of
the Plan as may be more particularly set forth herein. The
Committee shall interpret the Plan and shall determine all
questions arising in the administration, interpretation, and
application of the Plan. Any such determination by the Committee
shall be conclusive and binding on all persons. The Committee shall
be the Plan’s agent for service of process.
(b) If
a claim for benefits under the Plan is denied, in whole or in part,
the Committee will provide a written notice of the denial within a
reasonable period of time, but not later than 90 days after the
claim is received. If special circumstances require more time to
process the claim, the Committee will issue a written explanation
of the special circumstances prior to the end of the 90 day period
and a decision will be made as soon as possible, but not later than
180 days after the claim is received.
The written notice
of claim denial will include:
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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 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 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 beneficiary will be provided without
charge, reasonable access to, and copies of, all non-confidential
documents that are relevant to any denial of benefits. A claimant
has 60 days from the day he or she receives the original denial to
request a review. Such request must be made in writing and sent to
the Committee. The request should state the reasons why the claim
should be reviewed and may also include evidence or documentation
to support the claimant’s position.
The Committee will
reconsider the claimant’s claim, taking into account all
evidence, documentation, and other information related to the claim
and submitted on the claimant’s behalf, regardless of whether
such information was submitted or considered in the initial denial
of the claim. The Committee will make a decision within 60 days. If
special circumstances require more time for this process, the
claimant will receive written explanation of the special
circumstances prior to the end of the initial 60 day period and a
decision will be sent as soon as possible, but not later than 120
days after the Committee receives the request.
No legal action to
recover benefits or enforce or clarify rights under a Plan can be
commenced until the Participant or his or her beneficiary has first
exhausted the claims and review procedures provided under the
Plan.
3.4 The
Committee may adopt such regulations as it deems desirable for the
conduct of its affairs and may appoint such accountants, counsel,
actuaries, specialists, and other persons as it deems necessary or
desirable in connection with the administration of this
Plan.
3.5 The
Committee shall be reimbursed by the Employing Companies for all
reasonable expenses incurred by it in the fulfillment of its
duties, including, but not limited to, fees of accountants,
counsel, actuaries, and other specialists, and other costs of
administering the Plan.
3.6 (a) The
Committee is responsible for the daily administration of the Plan
and may appoint other persons or entities to perform any of its
fiduciary functions. The Committee and any such appointee may
employ advisors and other persons necessary or convenient to help
the Committee carry out its duties, including its fiduciary duties.
The Committee shall review the work and performance of each such
appointee, and shall have the right to remove any such appointee
from his or her position. Any person, group of persons, or entity
may serve in more than one fiduciary capacity.
(b) The
Committee shall maintain accurate and detailed records and accounts
of Participants and of their rights under the Plan and of all
receipts, disbursements, transfers, and other transactions
concerning the Plan. Such accounts, books, and records relating
thereto shall be open at all reasonable times to inspection and
audit by the Board of Directors and by any persons designated
thereby.
(c) The
Committee shall take all steps necessary to ensure that the Plan
complies with the law at all times. These steps shall include such
items as the preparation and filing of all documents and forms
required by any governmental agency; maintaining of adequate
Participants’ records; recording and transmission of all
notices required to be given to
Participants and
their beneficiaries; the receipt and dissemination, if required, of
all reports and information received from an Employing Company;
securing of such fidelity bonds as may be required by law; and
doing such other acts necessary for the proper administration of
the Plan. The Committee shall keep a record of all of its
proceedings and acts, and shall keep all such books of account,
records, and other data as may be necessary for proper
administration of the Plan. The Committee shall notify the
Employing Companies upon their request of any action taken by the
Committee, and when required, shall notify any other interested
person or persons.
ARTICLE
IV
Eligibility
4.1 Any
Employee who is determined eligible to participate in accordance
with Section 4.2 of the Plan and whose base compensation and salary
grade level equals or exceeds such minimum threshold as may be
established by the Committee from time to time may elect to
participate in the Plan beginning on any Enrollment Date by
electing to have his or her Compensation and/or Incentive Pay
reduced and such amounts contributed to the Plan in accordance with
Article V hereof, and directing the investment of such
contributions in accordance with Article VI hereof. An Employee who
is eligible to participate and elects to defer Compensation and/or
Incentive Pay shall be a Participant in the Plan. The Committee
shall be authorized to establish the minimum base compensation and
the salary grade level required for eligibility to participate in
the Plan, to be effective as of the first day of the next
succeeding Plan Year. Notwithstanding the foregoing, any Employee
eligible to participate in any similar group employee deferred
compensation plan maintained by an Employing Company or maintained
by a Non-adopting Company shall be ineligible to defer Compensation
or Incentive Pay under this Plan, unless the Committee in its sole
discretion shall determine otherwise.
4.2 The
Committee shall determine which Employees are eligible to
participate in the Plan. Additionally, the Committee shall be
authorized to modify the minimum base compensation and the salary
grade threshold described in Section 4.1 of the Plan and to rescind
the eligibility of any Participant to continue deferrals if this is
necessary or advisable to ensure that the Plan is maintained
primarily for the purpose of providing deferred compensation to a
select group of management or highly compensated employees, as such
terms are defined by the ERISA. A Participant whose eligibility is
rescinded or who loses eligibility for any reason shall not be
eligible to defer Compensation or Incentive Pay until eligibility
is restored in accordance with the guidelines established by the
Committee.
4.3 The
Committee shall have the authority to permit, if it deems
appropriate, separate Deferral Elections under Article V hereof,
Investment Elections under Article VI hereof, and Distribution
Elections under Article VII hereof for Compensation and/or
Incentive Pay, respectively.
ARTICLE
V
Deferral
Election
5.1 A
Participant may elect to defer payment of a portion of his or her
Compensation otherwise payable to him by his or her Employing
Company during each payroll period of the next succeeding Plan Year
by any whole percentage not to exceed fifty percent (50%) of his or
her Compensation, or such greater or lesser amount as shall be
determined by the Committee from time to time. A Participant may
also elect to defer payment of up to one hundred percent (100%), by
whole percentages, of any Incentive Pay otherwise payable to him or
her by his or her Employing Company.
5.2 The
Deferral Election shall be made in a manner prescribed by the
Committee and shall state as follows:
(a) That
the Participant wishes to make an election to defer the receipt of
a portion of his or her Compensation and/or all or a portion of his
or her Incentive Pay;
(b) The
whole percentage of his or her Compensation and/or Incentive Pay
which the Participant elects to defer; and
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(c)
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The Distribution
Election under Article VII hereof.
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5.3 The
Deferral Election of a Participant shall be made by the Participant
in a manner prescribed by the Committee and delivered by the date
established by the Committee and shall be effective on the first
day of the Plan Year immediately following the date of the Deferral
Election. A Deferral Election with respect to the deferral of
future Compensation and/or Incentive Pay shall be an annual
election for each Plan Year; except that, with respect to certain
Incentive Pay that is retention compensation, the deferral of such
compensation may be set forth in writing in the retention
arrangement at the time such arrangement is established. The
termination of a Participant’s participation in the Plan
shall not affect the Participant’s Compensation or Incentive
Pay previously deferred under the Plan, which shall be invested and
distributed in accordance with the Participant’s elections
and the terms and conditions of the Plan. Such terminated
Participant shall become an inactive Participant with respect to
eligibility to make future deferrals under this Plan.
ARTICLE
VI
Participants’
Accounts
6.1 Upon
the Committee’s receipt of a Participant’s valid
Deferral Election under Article V hereof, beginning as of the
Enrollment Date, the designated portion of Compensation
