Exhibit 10(a)5
AMENDED AND RESTATED
SUPPLEMENTAL PENSION AGREEMENT
THIS AGREEMENT, made and entered into this _____ day of
_______________, 2003, by and between GEORGIA POWER COMPANY ("GPC"), SOUTHERN
COMPANY ("Southern"), SOUTHERN COMPANY SERVICES, INC. ("SCS") (GPC, Southern and
SCS are each referred to herein individually as "Company" and collectively as
"Companies"), and X.X. XXXXXXX ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxxx'x formal employment by GPC began on July 6, 1982;
however, his valuable services to GPC actually commenced at a considerably
earlier date with his employment on August 6, 1966 as an accountant with Xxxxxx
Xxxxxxxx & Company; and
WHEREAS, the knowledge of the affairs and business of GPC and Southern
acquired by Xxxxxxx while in this capacity as an accountant has proven of great
value to GPC and Southern in the years since his formal employment, and will, in
the opinion of GPC and SCS, continue to do so in the future; and
WHEREAS, GPC and Xxxxxxx entered into an agreement as of July 29, 1994,
for the provision of certain supplemental retirement benefits ("GPC Agreement");
and
WHEREAS, the GPC Agreement was amended and restated as of May 20, 1996
in order to recognize Xxxxxxx'x transfer to Mirant Services LLC (formerly,
Southern Electric International, Inc.) ("Mirant Services") on September 9, 1995
and to provide for Mirant Services' payment of its proportionate share of the
supplemental retirement benefits previously agreed to be paid to Xxxxxxx by GPC
in addition to any supplemental retirement benefits to which Xxxxxxx may be
entitled to receive as an employee of Mirant Services ("Mirant Agreement"); and
WHEREAS, the Mirant Agreement was amended and restated as of September
4, 2001 in order to recognize Xxxxxxx'x transfer to SCS on February 17, 2001 and
Southern's assumption of liability for Mirant Services' proportionate share of
supplemental retirement benefits under the Mirant Agreement as a result of the
spinoff of Mirant Corporation (formerly Southern Energy, Inc.) from Southern on
April 2, 2001 and to provide for the payment by SCS and Southern of their
proportionate shares of the benefits ("SCS Agreement"); and
WHEREAS, Xxxxxxx transferred from SCS back to GPC on June 21, 2003, and
SCS, Southern and GPC desire to amend and restate the SCS Agreement to reflect
such transfer.
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the SCS Agreement is hereby amended and restated as
follows:
1. If Xxxxxxx shall continue to serve GPC faithfully, diligently and competently
to the best of his ability from the date of this Agreement until either:
(a) such date after his service as an employee shall terminate; or
(b) his retirement in accordance with the provisions of The Southern Company
Pension Plan ("Pension Plan"); or
(c) his death while in the service of GPC, if his spouse is entitled to benefits
as a Provisional Payee under the Pension Plan;
then the provisions of Paragraphs 2 and 3 of this Agreement shall be operative.
2. GPC, SCS and Southern shall pay to Xxxxxxx commencing on his
retirement date under the Pension Plan, if he shall retire in accordance with
the provisions of the Pension Plan, and thereafter on the first day of each
succeeding month during the lifetime of Xxxxxxx, an amount per month equal to
the difference between the monthly amount payable to Xxxxxxx under the Pension
Plan as it shall then be in effect at the time any monthly amount shall be
payable in accordance with this Paragraph and the monthly amount which would
have been payable to him under the Pension Plan if Xxxxxxx were given credit for
ten additional years of Accredited Service under the Pension Plan in recognition
of his time spent on utility industry matters at Xxxxxx Xxxxxxxx & Company, less
any deductions hereinafter provided; provided, however, that for the purpose of
computing a monthly amount payable to Xxxxxxx under the Pension Plan no
limitation on benefits imposed by the Internal Revenue Code as it now exists or
is hereafter amended or any other limiting legislation shall be taken into
account. The computations required for the determination of the monthly payments
hereunder and the periods used as periods of Accredited Service shall be
calculated so as to give appropriate effect in each instance to the exclusion of
any portions of such period on account of eligibility, military service, leave
of absence, or otherwise as may be required under the Pension Plan as it shall
be in effect at the time such monthly payment is to be made. Xxxxxxx'x right to
such payments shall not be absolute, and each payment thereof is contingent upon
Xxxxxxx'x having duly performed the services required of him pursuant to
Paragraph 1 hereof as of the applicable payment date.
3. If, in accordance with the terms of the Pension Plan, Xxxxxxx shall
have a Provisional Payee entitled to receive payments thereunder, then the
Provisional Payee shall be entitled to payments under this Agreement which, when
added to payments to her under the Pension Plan, would be appropriate if Xxxxxxx
were given credit for ten additional years of Accredited Service under the
Pension Plan in recognition of his time spent on utility industry matters at
Xxxxxx Xxxxxxxx & Company.
4. The amounts payable to Xxxxxxx and any Provisional Payee pursuant to
Paragraphs 2 and 3 of this Agreement shall be made by GPC, SCS and Southern in
the same proportion as the Accredited Service credited to Xxxxxxx under the
Pension Plan at each Company bears to the total Accredited Service credited to
Xxxxxxx under the Pension Plan at all three Companies as of the date of
Xxxxxxx'x retirement from GPC.
5. Neither the entering into nor the termination of this Agreement for
any cause shall affect Xxxxxxx'x right to such salary, fees or other
compensation for his services as an employee, officer or director of GPC or SCS
as either has agreed or may agree to pay him prior to or subsequent to his
termination of service, nor his right to participate in and receive benefits
under any plan or plans of GPC or SCS now existing, or which may hereafter
exist, providing benefits for their employees.
6. Neither Xxxxxxx nor his Provisional Payee, if any, shall, under any
circumstances, have any option or right to require payments hereunder otherwise
than in accordance with the terms of this Agreement and after the terms and
contingencies herein specified have been met. Except as specifically allowed by
law, neither Xxxxxxx nor any Provisional Payee shall have any power of
anticipation, alienation, mortgage, pledge, encumbrance or assignment of
payments contemplated hereunder, and all rights and benefits of Xxxxxxx and of
any Provisional Payee shall be for his or her sole personal benefit, and no
other person shall acquire any right, title or interest hereunder by reason of
any sale, assignment, mortgage, pledge, encumbrance, transfer, claim or judgment
or bankruptcy proceedings against Xxxxxxx or any Provisional Payee. Any attempt
to do so shall be null and void and of no effect.
7. Nothing contained in this Agreement shall be construed to affect in
any manner the existing rights of GPC or Xxxxxxx to suspend, terminate, alter or
modify, whether or not for cause, the employment relationship contemplated by
Paragraph 1 hereof.
8. The failure of any party to insist in any one or more instances upon
performance of any of the terms or conditions of this Agreement shall not be
construed as a waiver or a relinquishment of any right granted hereunder or of
the future performance of any such term, covenant or condition, but the
obligation of either party with respect thereto shall continue in full force and
effect.
9. GPC, SCS and Southern shall not reserve or otherwise set aside funds
for the payment of its obligations hereunder, which obligations shall be paid
solely from the general assets of GPC, SCS and Southern. Notwithstanding that
Xxxxxxx and any Provisional Payee shall be entitled to receive the entire
amounts stated herein, the assets from which such amounts shall be paid shall at
all times be subject to the claims of the creditors of GPC, SCS and Southern.
10. There shall be deducted from the amount of any payment payable
under this Agreement the amount of any tax required by any governmental
authority to be withheld and paid to such governmental authority for the account
of Xxxxxxx or any Provisional Payee.
11. Xxxxxxx, GPC, SCS and Southern agree that the validity of this
Agreement or any of the provisions hereof shall be determined under and
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according to the laws of the State of Georgia, and that the Agreement and its
provisions shall be interpreted and construed in accordance with the laws of
that State.
12. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and any successor to the business of GPC, SCS and Southern,
but neither this Agreement nor any right hereunder may be assigned by Xxxxxxx or
any Provisional Payee. This Agreement shall not be altered or amended except by
an agreement in writing signed by all parties hereto. In any event, the
Agreement shall, if not sooner terminated, terminate for all purposes upon the
death of Xxxxxxx, or if his Provisional Payee shall survive him and shall be
entitled to receive any payments hereunder, upon the death of the Provisional
Payee, and the satisfaction by GPC, SCS and Southern of their obligations
arising theretofore under the Agreement.
13. This Agreement shall constitute the full and complete agreement
between the parties concerning its subject matter and fully supercedes any and
all other prior agreements or understandings between the parties concerning the
subject matter hereof, including but not limited to the GPC Agreement, the
Mirant Agreement and the SCS Agreement.
IN WITNESS WHEREOF, Georgia Power Company, Southern Company Services,
Inc. and the Southern Company have caused this amended and restated Agreement to
be executed by their duly authorized officers and X.X. Xxxxxxx has executed this
Agreement in quadruplicate on or as of the date and year first above written.
GEORGIA POWER COMPANY
By:
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Its:
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ATTEST:
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Its:
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SOUTHERN COMPANY SERVICES, INC.
By:
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Its:
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ATTEST:
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Its:
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SOUTHERN COMPANY
By:
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Its:
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ATTEST:
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Its:
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XXXXXXX
X. X. Xxxxxxx
Sworn to and subscribed before me
this _____ day of _________, 2003.
Notary Public, State of Georgia
My Commission Expires:
(NOTORIAL SEAL)
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