Exhibit 10(a)7
THE SOUTHERN COMPANY
SUPPLEMENTAL BENEFIT PLAN
Amended and Restated Effective as of
January 1, 2009
THE SOUTHERN COMPANY
SUPPLEMENTAL BENEFIT PLAN
|
ARTICLE I
|
- PURPOSE AND ADOPTION
OF PLAN
|
1
|
|
|
1.3
|
Schedule of Provisions
for Pre-2005 Non-Pension Benefits
|
2
|
|
|
1.4
|
409A Transition
Elections
|
2
|
|
ARTICLE II
|
- DEFINITIONS
|
2
|
|
|
2.3
|
Administrative
Committee
|
2
|
|
|
2.5
|
Change in Control
Benefits Protection Plan
|
2
|
|
|
2.9
|
Deferred Compensation
Plan
|
3
|
|
|
2.10
|
Designated
Beneficiary
|
3
|
|
|
2.17
|
Expected Average
Lifetime
|
4
|
|
|
2.19
|
Key-Employee Delay
|
4
|
|
|
2.20
|
Modification Delay
|
4
|
|
|
2.21
|
Non-Pension Benefit
|
4
|
|
|
2.25
|
Phantom Common
Stock
|
4
|
|
|
2.31
|
Separation from
Service
|
5
|
|
ARTICLE III
|
- ADMINISTRATION OF
PLAN
|
6
|
|
|
3.3
|
Duties of the
Administrative Committee
|
7
|
|
ARTICLE IV
|
- ELIGIBILITY
|
8
|
|
|
4.1
|
Eligibility
Requirements
|
8
|
|
|
4.2
|
Determination of
Eligibility
|
8
|
|
|
5.2
|
Distribution of Pension
Benefits
|
9
|
|
|
5.3
|
Code Section 409A
Transition Election and
Other Related Rules Applicable to Pension Benefit
|
11
|
|
|
5.4
|
Non-Pension Benefit
|
15
|
|
|
5.5
|
Distribution of
Non-Pension Benefits
|
17
|
|
|
5.6
|
Allocation of Pension
Benefit Liability
|
18
|
|
|
5.7
|
Funding of Benefits
|
18
|
|
|
5.9
|
Recourse Against
Deferred Compensation Trust
|
19
|
|
|
5.10
|
Change in Control
|
19
|
|
ARTICLE VI
|
- MISCELLANEOUS
|
19
|
|
|
6.2
|
Amendment and
Termination
|
19
|
|
|
6.3
|
No Guarantee of
Employment
|
19
|
|
APPENDIX A - EMPLOYING
COMPANIES AS OF JANUARY 1, 2009
|
24
|
|
SCHEDULE OF PROVISIONS
FOR PRE-2005 NON-PENSION BENEFITS
|
25
|
THE SOUTHERN COMPANY
SUPPLEMENTAL BENEFIT PLAN
ARTICLE I - PURPOSE AND ADOPTION OF
PLAN
1.1
Adoption . The Southern Company Supplemental Benefit Plan,
effective as of January 1, 2009 and hereinafter set forth (the
“Plan”), is a modification and continuation of the
Supplemental Benefit Plan for Southern Company Services, Inc. which
originally became effective January 1, 1983, 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.
Effective January 1, 1998, the
following other plans were merged into the Plan:
|
|
•
|
Supplemental Benefit Plan for
Alabama Power Company
|
|
|
•
|
Supplemental Benefit Plan for
Georgia Power Company
|
|
|
•
|
Supplemental Benefit Plan for Gulf
Power Company
|
|
|
•
|
Supplemental Benefit Plan for
Mississippi Power Company
|
|
|
•
|
Supplemental Benefit Plan for
Southern Company Services, Inc. and Southern Electric
International, Inc., as adopted by Southern Communications
Services, Inc.
|
|
|
•
|
Supplemental Benefit Plan for
Southern Company Services, Inc. and Southern Electric
International, Inc., as adopted by Southern Development and
Investment Group, Inc.
|
|
|
•
|
Supplemental Benefit Plan for
Southern Nuclear Operating Company, Inc.
|
Employees participating in the
merged plans and employed by an Employing Company on January 1,
1998 became immediately covered under the Plan; provided, however,
that the terms of the prior plans govern an Employee’s
circumstances with regard to actions taken or occurring before
January 1, 1998.
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 Employing
Companies. 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 is designed to provide certain retirement
and other deferred compensation benefits primarily for a select
group of management or highly compensated employees which are not
otherwise payable or cannot otherwise be provided through
contributions by the Employing Companies (1) under The
Southern Company Pension Plan, The Southern Company Employee
Savings Plan (“ESP”), and The Southern Company Employee
Stock Ownership Plan (until its merger into the Savings Plan
effective December 20, 2006), as a result of the limitations set
forth under Sections 401(a)(4), 401(a)(17), 401(k), 401(m), 402(g),
or 415 of the Internal Revenue Code of 1986, as amended from time
to time.
1.3
Schedule of Provisions for Pre-2005 Non-Pension Benefits .
Attached to this Plan is a Schedule that sets forth the operative
provisions of the Plan applicable to “grandfathered”
Non-Pension Benefits 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 Non-Pension Benefits
shall only be subject to the provisions set forth in the Schedule.
In accordance with the 409A Guidance, these provisions are only
intended to preserve the rights and features of the
“grandfathered” Non-Pension Benefits 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 Administrative Committee, Participants shall make
timely elections to conform to the Plan’s terms effective on
and after January 1, 2005. Such elections are intended to meet the
requirements of the 409A Guidance.
ARTICLE II - DEFINITIONS
2.1 “Account”
shall mean the total amount credited to the account of a
Participant to reflect the interest of a Participant in the Plan
resulting from a Participant’s Non-Pension Benefit calculated
in accordance with Section 5.4.
2.2 “Actuarial
Basis” shall mean an actuarial adjustment to Pension 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.
2.3 “Administrative
Committee” shall mean the committee referred to in Section
3.1 hereof.
2.4 “Board
of Directors” shall mean the Board of Directors of the
Company.
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.
|
|
2.7
|
“Common Stock” shall
mean common stock of Southern Company.
|
|
|
2.8
|
“Company” shall mean
Southern Company Services, Inc.
|
2.9 “Deferred
Compensation Plan” shall mean The Southern Company Deferred
Compensation Plan, as amended from time to time.
2.10 “Designated
Beneficiary” shall mean the person(s) or entity(ies)
identified by the Participant in a manner prescribed by the
Administrative Committee as eligible to receive the Pension
Benefit, the Non-Pension Benefit, or both. In the event no such
designation is made by a Participant either as to the Pension
Benefit, the Non-Pension Benefit, or both, or if such beneficiary
shall not be living or in existence at the time for commencement or
continuance of such payment under the Plan following the
Participant’s death, such payment, solely as to the benefit
for which no beneficiary was designated or living, shall be made to
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 legally
recognized 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 with respect to the amount so paid.
|
2.11 “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%).
2.12 “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).
2.13 “Effective
Date” of this amendment and restatement shall mean January 1,
2009.
2.14 “Employee”
shall mean any person who is currently employed by an Employing
Company.
2.15 “Employing
Company” shall mean the Company and any affiliate or
subsidiary of Southern Company which the Board of Directors may
from time to time determine to bring under the Plan and any
successor to them. The Employing Companies are set forth in
Appendix A to the Plan, as amended from time to time.
2.16 “ESOP”
shall mean The Southern Company Employee Stock Ownership Plan, as
amended from time to time until it merged into the Savings Plan
effective December 20, 2006.
2.17 “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.
2.18 “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.
2.19 “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.
2.20 “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.
|
|
2.21
|
“Non-Pension Benefit”
shall mean the benefit described in Section 5.4.
|
2.22 “Participant”
shall mean an Employee or former Employee of an Employing Company
who is eligible and participates in the Plan pursuant to Sections
4.1 and 4.2.
|
|
2.23
|
“Pension Benefit” shall
mean the benefit described in Section 5.1.
|
2.24 “Pension
Plan” shall mean The Southern Company Pension Plan, as
amended from time to time.
2.25 “Phantom
Common Stock” shall mean the Common Stock in which a
Participant is deemed to invest his Non-Pension Benefit as if such
Common Stock had been purchased upon contribution to the Savings
Plan and/or the ESOP, as the case may be.
2.26 “Plan”
shall mean The Southern Company Supplemental Benefit Plan, as
amended and restated as of January 1, 2009 and as may be amended
from time to time thereafter.
|
|
2.27
|
“Plan Year” shall mean
the calendar year.
|
2.28 “Purchase
Price” shall mean for purposes of deemed purchases of Phantom
Common Stock the following: (a) with respect to the Savings
Plan, the purchase price of a share of the Common Stock under the
Savings Plan as of the applicable Valuation Date;
(b) with
respect to any investment of
dividends attributable to Phantom Common Stock in either the
Savings Plan or the ESOP, the dividend reinvestment price of a
share of the Common Stock under the Savings Plan as of the
applicable Valuation Date; and (c) with respect to the ESOP, the
price at which a share of Common Stock is purchased with regard to
a contribution made for each applicable Plan Year.
2.29 “Sales
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.
2.30 “Savings
Plan” shall mean The Southern Company Employee Savings Plan,
as amended from time to time.
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.
2.32 “Single-Sum
Amount” shall mean the discounted value of the Pension
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 Pension Benefit and Expected
Average Lifetime shall be based on the Participant’s age as
of such first installment date.
|
|
2.33
|
“Southern Board” shall
mean the board of directors of Southern Company.
|
|
|
2.34
|
“Southern Company” shall
mean Southern Company, its successors and assigns.
|
2.35 “Total
Disability” shall mean a total disability as determined by
the Social Security Administration and meeting the requirements of
Code Section 409A(a)(2) and the regulations promulgated
thereunder.
|
|
2.36
|
“Trust” shall mean the
Southern Company Deferred Compensation Trust.
|
2.37 “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 Sales Price may be
determined.
Where the context requires, the
definitions of all terms set forth in the Pension Plan, the ESOP,
the Savings Plan, and the Deferred Compensation 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.
The written notice of claim denial
will include:
|
|
•
|
Specific reasons why the claim was
denied;
|
|
|
•
|
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;
|
|
|
•
|
A description of any additional
material or information needed to process the claim and an
explanation of why such material or information is
necessary;
|
|
|
•
|
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.
|
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 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
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 Employing Companies 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 Employing
Companies may purchase at their 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 the Employing Companies 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
eligible to participate in accordance with Section 4.2 and who meet
one or more of the following criteria shall be eligible to receive
benefits under the Plan: (a) whose benefits under the Pension
Plan are limited by the limitations set forth in Code Sections
401(a)(17), 415 or 401(a)(4), (b) whose matching contributions by
their Employing Company to the Savings Plan are limited by the
limitations set forth in Code Sections 401(a)(17), 401(k), 401(m),
402(g), or 415, or (c) whose contributions by their Employing
Company to the ESOP (until its merger into the Savings Plan
effective December 20, 2006) are limited by the limitations set
forth in Code Sections 401(a)(17) or 415.
4.2
Determination of Eligibility . The Administrative Committee
shall determine which Employees are eligible to participate. Upon
becoming a Participant, an Employee shall be deemed to have
assented to the Plan and to any amendments hereafter adopted. The
Administrative Committee shall be authorized to rescind the
eligibility of any Participant if necessary 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 under the Employee Retirement Income Security Act of
1974, as amended. In addition, a Participant shall not be eligible
for a Pension Benefit under the Plan unless such Participant shall
be entitled to a vested benefit under the Pension Plan. If an
Employee who was employed by Mirant Corporation (f/k/a Southern
Energy, Inc.) (“Mirant”) or an affiliate thereof on or
after April 2, 2001 is thereafter employed by an Employing Company,
he shall be treated the same as a new hire and none of his service
with Mirant shall be considered as Accredited Service under Section
5.1.
ARTICLE V - BENEFITS
(a) Each
Participant shall be entitled to a Pension Benefit equal to that
portion of his Retirement Income under the Pension Plan which is
not payable under the Pension Plan as a result of the limitations
imposed by Code Sections 401(a)(17), 415(b) or 401(a)(4). The
Pension Benefit shall be determined when the Participant commences
such Pension Benefit in
accordance with Section 5.2 or 5.3,
as the case may be, taking into account the Retirement Income then
payable under the Pension Plan regardless of whether the
Participant commences his Retirement Income at that time under the
Pension Plan.
(b) For
purposes of this Section 5.1, the Pension Benefit of a Participant
shall be calculated based on the Participant’s Earnings that
are considered under the Pension Plan in calculating his Retirement
Income (assuming, if necessary, that Earnings include any deferrals
by the Participant into the Deferred Compensation Plan), as
modified below, without regard to the limitation of Section
401(a)(17) of the Code. For purposes of determining the
Participant’s Earnings, all incentive pay earned while he is
an Employee under any annual group incentive plans, as defined in
Section 5.1 of the Pension Plan, shall be considered, provided such
incentive award was earned on or after January 1, 1994. However,
incentive pay shall only be included in the Participant’s
Earnings for purposes of calculating the Participant’s
Pension Benefit using the 1.25% formula described in Section 5.1 of
the Pension Plan.
|
|
5.2
|
Distribution of Pension
Benefits .
|
Subject to the transition rules set
forth in Section 5.3, effective for Participants who have not
commenced their Pension Benefit on or before March 1, 2007, the
Pension Benefit, as determined in accordance with Section 5.1,
shall be converted to a Single-Sum Amount and paid in ten (10)
annual installments commencing in all events on or after January 1,
2008. The first installment shall be derived from the Single-Sum
Amount plus Earnings, if any, divided by ten (10). Subsequent
annual installments shall be an amount equal to the
Participant’s unpaid Single-Sum Amount plus Earnings divided
by the number of remaining annual payments.
|
|
(b)
|
Payment of Installments after
Retirement .
|
(1)
Commencement of Installment Payments. With respect to a
Participant who retires under the terms of the Pension Plan, the
first annual installment shall be paid as of the first day of the
second full calendar month following the Participant’s
Separation from Service but not sooner than January 1, 2008.
Notwithstanding the foregoing, if a Participant is a Key-Employee,
such Participant shall be subject to the Key-Employee Delay and the
first installment payment shall be as of the first day of the
seventh full calendar month following the Participant’s
Separation from Service.
(2)
Subsequent Nine Installment Payments. One additional
installment, until ten (10) are paid in total, shall be paid as of
each anniversary of the date the initial payment was made. For a
Participant who is a Key Employee, the anniversary date of the
initial payment will be deemed to be the date the first payment
would have been made had the Key-Employee Delay not applied. The
second through the tenth installments will be paid on the
anniversary of this deemed initial payment date.
|
|
(c)
|
Death of Participant
.
|
(1)
Death After Retirement . If a retirement-eligible
Participant dies after Separation from Service but before receiving
all ten (10) installments, the remaining installment payments shall
be paid to the Designated Beneficiary of the Participant at the
same times and in the same amounts that the Participant would have
received if the Participant had not died. Notwithstanding the
foregoing, if a retired Key Employee dies during the Key-Employee
Delay and before receiving the first installment, then the first
installment shall be paid to the Designated Beneficiary as of the
beginning of the second full calendar month following the death of
the Participant or as soon as practical thereafter.
(2)
Death Before Retirement . If a Participant dies on or after
March 1, 2007, while actively employed and has a vested benefit in
the Pension Plan, one-hundred percent (100%) of the Single-Sum
Amount determined in accordance with Section 5.2(a) above shall be
paid to the Participant’s Provisional Payee, if any, in ten
(10) annual installments commencing in all events on or after
January 1, 2008. Such installments shall be determined and payable
as if the Participant survived to his fiftieth (50 th )
birthday, or actual date of death if later, and Separated from
Service. If such a Provisional Payee dies simultaneously with or
after the Participant but before receipt of all installments, the
remaining payments shall be paid to the Participant’s
Designated Beneficiary.
(d)
FICA Tax Adjustment . A payment in addition to the ten (10)
installments described in Section 5.2(a) shall be made from the
remaining Single-Sum Amount which payment shall be based on the
following adjustments as permitted under Code Section 409A and the
regulations promulgated thereunder: (1) the amount necessary
to pay the tax due under the Federal Insurance Contributions Act
(“FICA”) with respect to the accrued Pension Benefit
determined upon retirement (or such other appropriate
“resolution date” as defined under Treasury Regulation
Section 31.3121(v)(2)); and (2) the amount estimated to pay
the Federal and State income tax withholding liability due on the
amount paid in subsection (1) plus the Federal and State income tax
withholding liability due on the amount paid in this subsection
(2).
|
|
(e)
|
Participants Who Terminate with
Vested Benefits .
|
(1)
General Rule . With respect to a Participant who Separates
from Service on or after March 1, 2007, who is not eligible to
retire under Article III of the Pension Plan, but who is vested in
his Retirement Income under Section 8.1 of the Pension Plan,
notwithstanding anything to the contrary, such Participant shall
receive a Pension Benefit in the form of a single payment made as
of September 1 of the calendar year following the calendar
year
