Exhibit 10(b)1
AMENDED AND RESTATED
SUPPLEMENTAL PENSION AGREEMENT
THIS AMENDED AND RESTATED SUPPLEMENTAL PENSION AGREEMENT, made as of
the 12th day of May, 2003, by and between SOUTHERN COMPANY SERVICES, INC.
("SCS"), SOUTHERN NUCLEAR OPERATING COMPANY, INC. ("Nuclear"), ALABAMA POWER
COMPANY ("Alabama") (SCS, Nuclear and Alabama are each referred to herein
individually as "Company" and collectively as "Companies"), and XXXXX X. XXXXXX,
III (the "Employee").
WITNESSETH THAT
WHEREAS, the Employee is currently employed by SCS as a highly
compensated employee and a member of its management;
WHEREAS, the Employee was previously employed by Alabama and, before
such employment with Alabama, by Nuclear;
WHEREAS, pursuant to the Employee's prior employment with Nuclear,
Nuclear and the Employee entered into a Supplemental Pension Agreement dated May
26, 1994 for the provision of certain supplemental retirement benefits ("Nuclear
Agreement"); and
WHEREAS, the Companies and the Employee wish to amend and restate the
Nuclear Agreement in order to recognize the Employee's transfers of employment
from Nuclear to Alabama and from Alabama to SCS and to provide for the payment
by SCS, Alabama and Nuclear of their proportionate shares of the benefits
provided hereunder.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties agree as follows:
1. If the Employee shall continue to serve SCS 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 ("Plan"); or
c. his death while in the service of the Company if his spouse
is entitled to benefits as a Provisional Payee under the Plan; then the
provisions of Paragraphs 2 and 3 hereof shall be operative.
2. The Companies shall pay to the Employee an amount per month equal to
the difference between the monthly amount payable to the Employee under the 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 Plan if the Employee were given credit for ten
additional years of Accredited Service under the Plan, less any deductions
hereinafter provided. The benefit provided in the preceding sentence shall be
paid to the Employee in monthly installments on the first day of each month in
the same manner and commence at the same time as the Employee's election to
receive Retirement Income under the Plan. For the purpose of computing a monthly
amount payable to the Employee under the 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 Plan as it shall be in effect at the time
such monthly payment is to be made.
3. If, in accordance with the terms of the Plan, the Employee 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 Plan, would be appropriate if the Employee
were given credit for ten additional years of Accredited Service under the Plan.
4. SCS, Nuclear and Alabama agree to share the cost of any payments to
the Employee and his Provisional Payee under Paragraphs 2 and 3 of this
Agreement in accordance with the terms of this Paragraph 4. Each Company's share
of any payment to the Employee or his Provisional Payee under Paragraphs 2 and 3
herein shall be calculated by multiplying such payment by a fraction, where the
numerator of such fraction is the base rate of pay received by the Employee from
the respective Company on his date of transfer or termination, as applicable,
multiplied by the Employee's Accredited Service at such Company, and where the
denominator of such fraction is the sum of all numerators calculated for SCS,
Nuclear and Alabama.
5. Neither the entering into nor the termination of this Agreement for
any cause shall affect the Employee's right to such salary, fees or other
compensation for his services as an employee, officer or director of SCS as it
has agreed or may agree to pay him prior to or subsequent to his termination of
service nor the Employee's right to participate in and receive benefits under
any plan or plans of SCS now existing, or which may hereafter exist, providing
benefits for its employees.
6. The Employee shall not, under any circumstances, have any option or
right to require payments hereunder otherwise than in accordance with the terms
hereof and after the terms and contingencies herein specified have been met.
Except as specifically allowed by law, neither the Employee 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 the Employee 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 the
Employee or his Provisional Payee.
7. Nothing contained in this Agreement shall be construed to affect in
any manner the existing rights of SCS or the Employee to suspend, terminate,
alter or modify, whether or not for cause, the employment relationship
contemplated by Paragraph 1 hereof.
8. The failure of either 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. The parties hereto agree that the validity of this Agreement or any
of the provisions hereof shall be determined under and according to the laws of
the State of Alabama, and that the Agreement and its provisions shall be
interpreted and construed in accordance with the laws of that State.
10. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and any successor to the business of SCS, Nuclear or Alabama,
but neither this Agreement nor any right hereunder may be assigned by the
Employee, and in any event, the Agreement shall, if not sooner terminated,
terminate for all purposes upon the death of the Employee or, if his Provisional
Payee shall survive the Employee and shall be entitled to receive any payments
hereunder, upon the death of the Provisional Payee, and the satisfaction by SCS,
Nuclear and Alabama of their obligations arising theretofore under the
Agreement.
IN WITNESS WHEREOF, SCS, Nuclear and Alabama have caused this Amended
and Restated Supplemental Pension Agreement to be executed by their duly
authorized officers and the Employee has executed this Agreement in
quadruplicate on or as of the day and year first above written.
ATTEST: SOUTHERN COMPANY SERVICES, INC.
/s/Xxx X. Xxxxx, Xx. By: /s/G. Xxxxxx Xxxxxxx, Xx.
Its: EVP
ATTEST: ALABAMA POWER COMPANY
/s/Xxxxxxx X. Xxxxx, Xx. By: /s/Xxxxxxx X. Xxxxxxxx, III
Its: EVP
ATTEST: SOUTHERN NUCLEAR OPERATING
COMPANY, INC.
/s/Xxxxxx X. Xxxxxxxx By: /s/X. X. Xxxxxxxx, III
Its: President & CEO
/s/Xxxxx X. Xxxxxxxx /s/Xxxxx X. Xxxxxx, III
Witness EMPLOYEE
